WAC 246-366 PRIMARY AND SECONDARY SCHOOLS (currently in effect)
WAC 246-366A ENVIRONMENTAL HEALTH AND SAFETY STANDARDS FOR PRIMARY AND SECONDARY SCHOOLS (Repealed June 2025. Repeal effective September 2025.)
Statutory Authority
RCW 43.20.050(2)(d) requires the Washington State Board of Health (Board) to adopt rules controlling public health related to environmental conditions including but not limited to heating, lighting, ventilation, sanitary facilities, and cleanliness in public facilities including but not limited to food service establishments, schools, recreational facilities, and transient accommodations.
The Board has had some form of a school environmental health and safety rule since 1960. Chapter 246-366 WAC: Primary and Secondary Schools has been in effect since 1971 and was last updated in 1991.
Chapter 246-366 WAC would have been replaced by Chapter 246-366A WAC in 2010; however, the Legislature suspended the rule’s implementation through a budget proviso that has been in the state’s operating budget since then. In June 2025, the Board repealed chapter 246-366A WAC because it had never been implemented and the Board approved technical advisory committee (TAC) recommendations for a new draft school rule, chapter 246-370 WAC. (Read the Board of Health Legislative Report.)
The proviso reads:
The department of health and state board of health shall not implement any new or amended rules pertaining to primary and secondary school facilities until the rules and final cost estimate have been presented to the legislature, and the legislature has formally funded implementation of the rules through the omnibus appropriations act or by statute.
Rule Revision History
The Board initiated rulemaking to update the school environmental health rules in response to significant public testimony it received from concerned parents, students, and teachers regarding toxic mold, drinking water, and indoor air quality.
October 1, 2004: The Board filed a CR-101 Preproposal Statement of Inquiry (WSR 04-20-050) to significantly revise the school rules to protect children’s health. The Board requested that the Department of Health (Department) convene a School Rule Development Committee consisting of representatives from public health, school agencies and organizations parent-teacher associations, parents, and school staff. This committee’s recommendations informed two proposals. The first proposal was released in 2006, and the second proposal was released in 2007. The Department and Board received significant public comments on the drafts and possible costs to implement new rules. The Board then convened a second stakeholder group to standardize costs and other assumptions about the proposed rule revisions.
July 23, 2008: The Board filed its first CR-102: Notice of Proposed Rulemaking (WSR 08-15-174) to create chapter 246-366A WAC with an intended adoption on September 10, 2008. The Board held two public hearings on the proposed rule. The first convened on August 27, 2008, in Spokane; the second on September 10, 2008, in Olympia. During the public hearings, the Board heard from over thirty members of the public.
The Department completed a Small Business Economic Impact statement as required under the Regulatory Fairness Act (chapter 19.85 RCW). The analysis was necessary because the rules affect privately owned schools, which for the purpose of the analysis are considered small businesses. The Department also completed a cost-benefit analysis as required under RCW 34.05.328.
October 8, 2008: The Board considered adopting the proposed rule but decided to defer its decision until after legislative session to see whether the Legislature would fund the rules. In October 2008, the Board sent a letter to a number of legislative committees explaining the reasons for updating the rule, outlining its plan to adopt the rule after the 2009 legislative session, and providing background and policy implications.
January 30, 2009: The Board filed a continuance for the proposed rule (WSR 09-04-049). The continuance identified a new date of intended adoption of March 11, 2009. The Board did not adopt chapter 246-366A on this date. Instead, it convened a workgroup in February to improve technical clarity of the proposed rule. During the 2009 legislative session, the legislature enacted the budget proviso preventing the implementation of new rules pertaining to schools without funding from the legislature.
July 1, 2009: The Board filed a supplemental CR-102, as WSR 09-14-136 and scheduled another public hearing for August 12, 2009. The supplemental CR-102 acknowledged that implementation of any rules would be restricted by section 222, chapter 564, Laws of 2009.
August 12, 2009: The Board adopted updated rules, in a new chapter 246-366A WAC, and filed a rule order (CR-103) as WSR 10-01-174, on December 22, 2009, providing an effective date of July 1, 2010, for the new rules.
March 10, 2010: As the regular legislative session was concluding and no funding was expected to allow implementation of the new rules, the Board voted to delay the effective date of chapter 246-366A WAC one year. Staff filed an updated CR-103 to establish the effective date for the new rules as July 1, 2011. Because of the continued legislative restrictions on rule implementation, the Board voted to file revised CR-103 orders of adoption on April 13, 2011, March 13, 2013, March 11, 2015, June 14, 2017, June 12, 2019, June 9, 2021, June 8, 2022, June 14, 2023, and June 12, 2024. Chapter 246-366A WAC never went into effect and was never implemented.
May 13, 2015: The Joint Administrative Rules Review Committee (JARRC) met to discuss and review the Board’s School Environmental Health and Safety Rule Chapter 246-366A WAC. JARRC determined that for the purposes of the review:
- the rules appear to be within the intent of the Legislature as expressed by the statute they implement;
- the rules appear to have been adopted in accordance with all applicable provisions of law; and
- the Board does not appear to be using a policy or interpretive statement in place of a rule.
June 11, 2015: JARRC approved a report describing its findings and creating a list of multiple options for addressing rules without endorsing a specific option. The options ranged from creating model rules, to authorizing implementation of the rules, to taking no action.
May 2, 2016: Governor Jay Inslee issued Directive 16-06, “Assisting community and agency responses to lead in water systems” in address the detection of lead in drinking water systems. The directive requires the Board, Department, and Office of Financial Management to review Chapter 246-366A WAC and prepare a decision package to implement the rule, with an emphasis, if necessary, on implementation of the portions related to lead exposure. Directive 16-06 also required the Department to submit a report with potential budget and policy recommendations regarding this work and other efforts outlined by October 2016.
June 2016: Board and Department staff convened a workgroup consisting of representatives from state agencies, school organizations, and local health jurisdictions. The workgroup reviewed the suspended rule, identifying the sections that pertain to lead, opportunities for clarifying the rule, and areas that needed update. The workgroup recommended that the Governor and Legislature request funding for:
- testing water fixtures used for drinking water or cooking in public and private schools,
- water fixture remediation, including fixture replacement, and
- regular inspections by local health jurisdictions of schools under the current rule, chapter 246-366 WAC.
The workgroup also recommended that the Department and Office of Superintendent of Public Instruction (OSPI) work together to update the School Environmental Health and Safety Guide.
In the 2017-19 state operating budget (SSB 5883), the Legislature directed $1.5 million in each fiscal year to the Department for:
(1) screening, case management, and an electronic data reporting system to identify children with the highest risk of elevated blood lead levels and to prioritize children in areas of highest risk; and
(2) lead testing of drinking water and fixtures in public schools, prioritizing schools where testing has not occurred or has not occurred in the past three years.
For the drinking water lead testing, the Board required the Department to develop guidance addressing high test results, fixture replacement, and other mitigation actions consistent with U.S. Environmental Protection Agency’s 3Ts for Reducing Lead in Drinking Water in Schools. Among other initial implementation steps, the Department worked with OSPI and educational service districts to determine how best to prioritize schools to test their drinking water for lead.
In keeping with previous biennial budgets, ESSB 5187 of the 2024 legislative session again included the proviso prohibiting implementation of chapter 246-366A. However, during the 2024 legislative session, the Legislature included in the 2024 supplemental operating budget a proviso (Section 222, subsection 159, document page 491) that directed the Board to review and develop a new rule to set minimum health and safety standards for K-12 schools. The proviso also required the Board to complete a fiscal analysis of any proposed rules, work with the Department to complete an environmental justice assessment, and submit a final report to the Governor and Legislature by June 30, 2025.
June 12, 2024: The Board extended the effective date of chapter 246-366A rule to September 1, 2025, and filed the revised CR-103 on June 28, 2024, as WSR 24-14-089.
August 2024: The Board convened a multi-disciplinary TAC consisting of various school associations, school districts, OSPI, parent-teacher organizations, teachers unions, students, and private schools to review chapter 246-366 WAC and chapter 246-366A WAC and propose new minimum health and safety standards for K-12 schools. The TAC continued to meet through May 2025.
April 9, 2024: TAC members joined the Board’s regularly scheduled meeting to present their recommendations. The Board accepted the TAC’s recommendations and directed Board staff to take steps to repeal Chapter 246-366A WAC.
June 4, 2025: The Board held a public hearing on the repeal chapter 246-366A and approved it with an effective date of September 1, 2025.
June 30, 2025: The Board submitted the Legislative Report including a fiscal analysis and the new proposed draft rule to the legislature and the Office of the Governor.
