- Rulemaking Activity
Chapter 246-366 WAC is the Board's environmental health and safety rule for primary and secondary schools. After much testimony from teachers and parents of students, the Board initiated a rule revision in October 2004.
The Board adopted the updated rules on August 12, 2009. On December 22, 2009, it filed a Rule-Making Order, WSR 10-01-174, setting an effective date for the new rules of July 1, 2010. However, implementation of the new rules was restricted by a proviso in the biennial operating budget bill passed during the 2009 legislative session. The Legislature has retained the proviso in the state operating budget ever since and has not acted to fund the rules. Therefore, the Board voted:
- March 10, 2010 to delay the effective date of the rules to July 1, 2011
- April 13, 2011 to delay the effective date to July 1, 2013
- March 13, 2013 to delay the effective date to July 1, 2015.
- March 11, 2015 to delay the effective date to July 1, 2017
- June 14, 2017 to delay the effective date to August 1, 2019
- June 12, 2019 to delay the effective date to August 1, 2021
- June 9, 2021 to delay the effective date to August 1, 2022
On 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. The committee determined that for the purposes of the review: (1) the rules appear to be within the intent of the Legislature as expressed by the statute they implement; (2) the rules appear to have been adopted in accordance with all applicable provisions of law; and (3) the Board does not appear to be using a policy or interpretive statement in place of a rule. At its June 11, 2015 meeting, JARRC approved this report, describing its findings and creating a list of multiple options for addressing implementation of the rules, without endorsing a specific option.
Existing chapter 246-366 WAC will remain in place until superseded by new provisions of chapter 246-366A WAC.
The most recent order setting an August 1, 2022 effective date could be amended by the Board again in the future depending on legislative action funding implementation of the school rules.
- CR-103 filed December 22, 2009 as WSR 10-01-174
- CR-103 filed May 21, 2010 as WSR 10-12-018
- CR-103 filed May 3, 2011 as WSR 11-10-080
- CR-103 filed April 11, 2013 as WSR 13-09-040
- CR-103 filed April 15, 2015 as WSR 15-09-070
- CR-103 filed June 28, 2017 as WSR 17-14-055
- CR-103 filed July 2, 2019 as WSR 19-14-107
- CR-103 filed July 1, 2021 as WSR 21-14-056
Statutory Authority: RCW 43.20.050
State Board of Health Contact: Kaitlyn Donahoe, 360-584-6737
Department of Health Contact: Nancy Bernard, 360-236-3072
For media or general inquiries about this rule, please contact Kelie Kahler, Board communication manager, 360-236-4102
June 9, 2021 State Board of Health Public Meeting
- Rule History
WAC 246-366 PRIMARY AND SECONDARY SCHOOLS (currently in effect)
WAC 246-366A ENVIRONMENTAL HEALTH AND SAFETY STANDARDS FOR PRIMARY AND SECONDARY SCHOOLS (adopted but not in effect)
Statutory Authority: RCW 43.20.050(2)(d) mandates the Washington State Board of Health 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 Washington State Board of Health has had some form of school environmental health and safety rules since 1960. Chapter 246-366 WAC Primary and Secondary Schools has been in effect since 1971, the last update to this rule was in 1991. Chapter 246-366 WAC will be superseded by chapter 246-366A Environmental Health and Safety Standards for Primary and Secondary Schools, if the Legislature lifts the suspension of the implementation that has been in each Operating budget since the 2009-11 biennium. 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. Section 222, chapter 564, Laws of 2009.
Rule Revision History
The Board initiated rulemaking in response to significant public testimony it received from concerned parents, students and teachers regarding toxic mold, drinking water and indoor air quality. On October 1, 2004, the board filed a CR-101 Statement of Inquiry, as WSR 04-20-050. The Board requested that the Department of Health 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 a proposal that was released in 2006, and a second proposal released in 2007. The Department and Board received significant public comment on the drafts and possible costs. The Board convened a second stakeholder group to standardize cost and other assumptions about the proposed rule revisions.
On July 23, 2008, the Board filed its first CR-102 notice of proposed rulemaking as WSR 08-15-174, with an intended date of adoption of September 10, 2008. The Board held two public hearings on the proposed rule. The first was held on August 27, 2008 in Spokane; the second on September 10, 2008 in Olympia. During the public hearings, the board heard from over thirty individuals.
The Department of Health 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.
On October 8 2008, the Board considered adopting the proposed rule, but decided to defer its decision for adoption until after legislative session to see if the Legislature might fund the rules. In October 2008, the Board sent a letter to a number of legislative committees explaining the reasons for updating rules, its plan to adopt the rule after the 2009 legislative session, and providing the background and policy implications of the rules.
On January 30, 2009, the Board filed a continuance for the proposed rule as WSR 09-04-049. The continuance identified a new date of intended adoption of March 11, 2009. The Board did not adopt the rule 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 described above.
On July 1, 2009, the Board filed a supplemental CR102, 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.
On Aug. 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.
On 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 the rules 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, and June 12, 2019. The current tentative effective date of the new rules is August 1, 2021. The existing rules, chapter 246-366 WAC will remain in place until superseded by new provisions of chapter 246-366A WAC.
On 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: (1) the rules appear to be within the intent of the Legislature as expressed by the statute they implement; (2) the rules appear to have been adopted in accordance with all applicable provisions of law; and (3) the Board does not appear to be using a policy or interpretive statement in place of a rule. At its June 11, 2015 meeting, 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.
On May 2, 2016, Governor Jay Inslee issued Directive 16-06 “Assisting community and agency responses to lead in water systems“, in response to detections of lead in drinking water systems. The directive requires the Board, Department of Health and Office of Financial Management to review the Chapter 246-366A WAC, and prepare a decision package to implement the school rule, with an emphasis, if necessary, on implementation of the portion of rules related to lead exposure. DOH must submit a report with potential budget and policy recommendations regarding this work and other efforts outlined within the Directive by October 2016.
In June, 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:
- Water fixture testing for fixtures used for drinking water or cooking in public and private schools,
- Water fixture remediation, including fixture replacement, and
- Local health jurisdictions to conduct regular school inspections under the current rule, Chapter 246-366 WAC.
In the 2017-19 state operating budget (SSB 5883), the Legislature directed $1.5 million in each fiscal year to the Department of Health for:
(1) screening, case management, and an electronic data reporting system to identify children at 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 Department must 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 is working with OSPI and educational service districts to determine how best to prioritize schools for the drinking water lead testing.
In keeping with previous biennial budgets, ESSB 5092 of the 2021 legislative session again included the proviso prohibiting implementation of chapter 246-366A. On June 9, 2021, the Board acted to extend the effective date of the new rules to August 1, 2022 and filed the revised CR-103 on July 1, 2021 as WSR 21-14-056.
- Materials and Resources
From the Board
- Speaker Frank Chopp, March 26, 2009
- Senate Early Learning and K-12 Committee and House Appropriations Subcommittee on Education, October 17, 2008
- Senate Early Learning and K-12 Education Committee, March 24, 2008
- House Capital Budget Committee, February 18, 2008
- Representative Shay Schual-Berke, February 12, 2008
To the Board
- Senators Rodney Tom, Rosemary McAuliff, and Fred Jarrett; Representatives Kelli Linville and Mark Erics, May 27, 2009
- Senator Ken Jacobsen, October 9, 2008
- Senator Eric Oeming, October 7, 2008
- Senator Craig Pridemore, September 24, 2008
- Senator Karen Keiser, September 11, 2008
- Representative Christine Rolfes,
- September 2, 2008
- Senators Rosemary McAuliffe, Rodney Tom, Dale Brandland, and Curtis King, July 28, 2008
- Representatives Kathy Haigh, Pat Sullivan, Skip Priest, Glenn Anderson, Ross Hunter, and Fred Jarrett, July 14, 2008