Audit on the New York City Department of Education’s Controls over Testing for Lead in School Water

Executive Summary

The Department of Education (DOE) provides primary and secondary education to over one million students in grades Pre-K through 12 in New York City (City) and employs approximately 79,000 teachers. DOE is required to follow the United States Environmental Protection Agency’s (EPA’s) Safe Drinking Water Act (SDWA), which was passed by Congress in 1974 to ensure the drinking water in schools is safe for drinking.

In September 2016, the Governor of New York State (NYS or the State) signed emergency legislation requiring all school districts in the State to test potable water systems (used for drinking or food preparation) for lead contamination and to take appropriate responsive actions if necessary. To implement this new law, the NYS Department of Health (NYSDOH) issued an emergency regulation, titled Lead Testing in School Drinking Water under the New York Codes, Rules and Regulations (NYCRR) Title 10, Subpart 67-4. This emergency regulation required that all NYS schools receive lead testing by October 31, 2016.^[1] DOE has categorized this testing period as the “primary testing year.” In May 2018, an amendment to the Lead Testing in School Drinking Water regulation was signed that requires all State schools be tested for lead in 2020.    However, DOE obtained permission from NYSDOH to test one-third of the schools each year for Calendar Years 2018, 2019, and 2020. DOE has categorized these three testing periods as “Cohorts.”

In 2016, DOE created the Water Quality and Lead Compliance (Water Quality) unit, operating under DOE’s Division of School Facilities (DSF), to address water quality issues in schools. DOE contracts with two lead testing vendors, Precision Environmental Inc. and ATC Group Services, LLC, known as environmental consultants (ECs), to collect water samples from in scope fixtures in schools.^[2] The ECs share lead testing results with DOE electronically. DOE has a quality control process to verify the accuracy of lab results before they are uploaded into DOE’s Lead in Water database.

If the lab testing indicates that the lead level in drinking water for a fixture has exceeded the NYCRR’s mandated action level of 15 parts per billion (ppb), DOE is required to immediately tag the fixture and remove it from service.^[3] However, classroom and restroom cold water faucets can remain in use provided that the school posts a sign indicating that the fixture is for “hand washing only.”

Audit Findings and Conclusion

The audit found that while DOE’s records reflect that it generally met applicable water testing standards, we identified several notable exceptions that indicate the need for the agency to improve its controls over lead testing of school water and remediation efforts.

Preliminarily, although the audit found that all schools that required testing were ultimately tested, none of them received their primary testing by the October 31, 2016 deadline.

In addition, according to DOE’s Lead in Water database, the test results for the primary testing year and the subsequent Cohorts reflect that

• 84 percent of schools (1,323 out of 1,574) had at least one fixture test with elevated lead levels since 2016, with 10,814 such fixtures identified during the primary testing year.
• In total, in excess of 1 out of every 10 fixtures tested (11 percent) had elevated lead levels at the time they were tested.
• Further, we found that three zip codes in Brooklyn (East New York, Bushwick, and Brownsville) had 95 percent or more of their schools with at least one fixture with an elevated lead level when tested.

Delayed testing placed school students and personnel drinking water from these fixtures at risk for a longer period of time than would have been the case if the testing had been done within the initially mandated time frames.

In addition, the audit found that DOE does not ensure that ECs meet certain timeliness deadlines. In response to the State’s mandate that every school be tested by the end of October 2016, DOE modified and extended the ECs’ contractual target time frames for submitting water test results and performing post-remediation testing to accommodate the increased volume of testing needed. With regard to submitting water test results, however, the time frame adopted by DOE did not reflect the entire process. Specifically, it omitted the period starting with the collection of samples to their submission to the lab, a portion of the process where we observed delays. Furthermore, DOE did not assemble the data necessary to monitor whether the ECs conducted the process in a timely manner. With regard to post-remediation testing, our analysis found that only 65 percent of the fixtures requiring remediation from the 2018 and 2019 Cohorts were tested timely in accordance with DOE’s modified time frame.  The audit also found that DOE has no evidence that it tracked the timeliness of fixture remediation and repair. In fact, we found fixtures pending repairs at Brooklyn schools for over three years, including 27 at one school located in Bushwick and 23 at another located in City Line.

At the same time, we found that: (1) water samples were generally collected in accordance with State guidelines; (2) fixtures were generally tested; and (3) required stagnation periods for testing were generally met. However, even with DOE’s efforts, we found some exceptions. Specifically, we identified:

• 5,188 (2 percent) out of 270,822 water samples (from 583 schools) were not collected on days when schools were in full session as recommended, which could result in higher lead results;
• 325 (<1 percent) out of 152,914 fixtures did not receive all of the required tests (while the number of exceptions are small, each one reflects an increased risk to the health of students and staff in the City’s schools); and
• 15 (1 percent) of the 1,574 schools that were (open as of September 2019) did not meet the required stagnation period when they received their initial water testing.

Finally, we found that data in the Lead in Water database generally reconciled with the information contained in the lab reports, although we identified instances of missing or unsubstantiated information. While we tested to ensure that all fixtures that received tests had a ppb result listed, we did not validate the actual test results.

Audit Recommendations

Based on the audit, we make 19 recommendations, including:

• DOE should ensure timely compliance with State rules and regulations pertaining to lead testing in water.
• DOE should track and monitor testing time frames, to ensure ECs are conducting the tests and submitting the results timely, and incorporate time frames for the entire process into its written internal policies and procedures.
• DOE should track and monitor the timeliness of fixture remediation and repair of out of order fixtures and follow-up with Facilities and the plumbing contractors in instances where remediation or repair is not done timely.
• DOE should follow lead testing guidelines recommended by NYSDOH and test water when school is in full session.
• DOE should ensure that fixtures which were re-tested during the summer months with elevated lead levels are retested.
• DOE should ensure that fixtures without any subsequent tests are retested.
• DOE should ensure that appropriate stagnation periods are met when accommodating schools’ requests for testing on specific dates.

Agency Response

In its response, DOE agreed with 12 recommendations, partially agreed with three (#8, #10, and #12), and disagreed with four recommendations (#3, #4, #14, and #19). DOE also disagreed with the summary of findings in the report and responded, contrary to the audit findings, that the majority of the recommendations are consistent with already existing and longstanding DOE policies. After carefully reviewing DOE’s arguments, we find no basis to alter any of the report’s findings or conclusions.

Endnotes

[1] For grades Pre-K through 5, the deadline for collecting water samples was September 30, 2016, while for grades 6 through 12, the deadline was October 31, 2016.

[2] In scope fixtures are used for drinking or cooking purposes and include water fountain bubblers, bottle filling stations, and food preparation sinks. Out of scope fixtures include eye wash stations, covered slop sinks, faucets in laboratory classrooms, and hot water faucets.

[3] Tagging a fixture is the process of placing an orange “out of service” tag at the fixture’s on and off valve.