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IAPMO
Manufacturers Seek Lead Law Clarity 
 
 

WITH DEADLINE APPROACHING, CONFUSION STILL SURROUNDS COMPLIANCE TO CALIFORNIA’S NEW LOW-LEAD STANDARDS

Section 116875 of the California Health and Safety Code stipulates that effective Jan. 1, 2010, all pipe, fittings and fixtures to be sold within the state must meet a new “Lead-Free” standard.

In September 2006, California became the first state in the nation to pass a “lead free” plumbing law, followed by Vermont in 2008. Several other states are considering similar legislation. Enacted as an amendment to the state’s Health and Safety Code, California’s Assembly Bill 1953 stipulated that as of Jan. 1, 2010, “any pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption” introduced into commerce within California would be limited to a “weighted average lead content of the wetted surface … of not more than 0.25%.”

Additional legislation was passed in 2008, Senate Bills 1334 and 1395, directing the Department of Toxic Substances Control (DTSC) to enforce the law and requiring manufacturers to have their products certified by an independent ANSI-accredited third party.

The new law is now known as Section 116875 of the California Health and Safety Code. Vermont does not require third-party certification, and in an article appearing in the Los Angeles Business Journal, California Metals Coalition Executive Director, James Simonelli, described Section 116875 as “the strictest regulation in the nation with regards to mandating lower lead content levels in plumbing products.” He added that it would “not only affect companies in California that manufacture metal parts such as faucets and pipes, but also anyone who sells these products for use in California.”

Many companies have already started selling products manufactured using a proprietary “lead free” alloy, or more commonly, by licensing an existing alloy such as Eco Brass, which was developed in response to a tightening of the drinking water lead leachate restriction in Japan that took effect in 1993.

But with the clock ticking down to the Jan. 1 deadline, manufacturers are finding considerable uncertainty remains in terms of how Section 116875 will be interpreted and enforced. And they are under a great deal of pressure to get the answers and information they need to get products to market while protecting themselves from exposure to penalties and/or litigation.

The Only Good Coyote is a Dead Coyote
In order to provide those affected with updates and answers to these questions, the California Metals Coalition recently convened the “California’s ‘No Lead’ Law Product Show and Conference” in
Anaheim, Calif.

The conference led off with a panel discussion to provide those attending with a perspective on how and why Section 116875 came into existence. In spite of public perceptions surrounding the law, all of the panelists agreed it had nothing to do with environmental concerns. They also agreed that the only method of interpreting this or other legislations is through the legal system.

In fact, according to Ruben Castellon of Stanzler, Funderburk and Castellon, a law firm that represents manufacturers in product litigation, Section 116875 didn’t address the actual amount of lead in water.
That, he said, was regulated by California Proposition 65, which did, however, set the stage for developments leading to AB 1953’s passage.

Under the “whistle-blower” provisions of Proposition 65, any citizen or group of citizens could sue a manufacturer for selling a product that wasn’t within the specifications requested. So in two major cases, manufacturers were successfully sued for selling products to cities and water districts containing 6 to 8 percent lead when 4 to 6 percent was specified. In the most recent case, which was settled in June 2009, litigation lasted 12 years and “the plaintiff’s objective,” according to Castellon, “was to create a health scare.”

In the aftermath of these Proposition 65 inspired court cases, municipalities and water districts became very concerned that they might become involved in future tort litigation, according to panelist Dr. Larry Russell, an engineer who serves on the Marin Country Water Board. So even though they kept insisting and producing studies that said their water was perfectly safe, these entities started putting pressure on the state to enact lead-free legislation. Russell compared the mindset of water companies at the time to that of western ranchers whose rallying cry was “The only good coyote is a dead coyote” when it came to protecting their livestock. Their thinking was, Russell explained, “If there wasn’t any lead in the pipes, there couldn’t be any lead in the water;” or put simply, “the only good lead is no lead.”

“You can’t make an argument that’s ‘pro-lead,’ ” Russell said, and the idea of passing a “no-lead” requirement had “a bang-up good feeling for legislators.” So even though there were no health issues involved, “we have a lot of money being spent here and for what? For one reason and one reason only and that’s because water companies don’t want to get sued.

“Fortunately, you folks have responded and come up with a plan to address the issues moving forward,” Russell concluded. “But as is always the case, especially in the early institution of a law like this, the devil is in the details. And no one seems to know exactly what the details are.”

The Uncertainty in Certification
According to IAPMO R&T Senior Director Shahin Moinian, “there have been a lot of rumors and innuendo over the past few years about Section 116875. However, the certification process — at least as we understand it — is in the law so that’s how we certify.”

While some of the other panelists representing the nation’s leading third-party certifying organizations insisted there was no protocol present in Section 116875, Moinian maintains that there is one and that it is “very specific.” The information goes into a table,” he says, “you sum it up and it produces a number that’s the weighted average of lead in the components of a product.”

In addition to this, an alternate protocol was developed by NSF International and incorporated as part of NSF/ANSI Standard 61, which regulates the amount of lead in products that come into contact with drinking water. In a press release announcing the development of Annex G, NSF described it as a standard that allowed manufacturers to “demonstrate compliance to lead-free laws in both California and Vermont.”

In response to a question as to whether certifying products to Annex G and not Section 116875 could create problems for manufacturers, Moinian points out “Annex G was developed after the law. I believe to show compliance to Section 116875,” he says, “you have to certify to Section 116875. But we do certify to Annex G and we do it for free because it will give security to people who are confused because of all the interpretations involved.”

Citing a similar situation, Moinian refers to “the Americans with Disabilities Act, which is something to which people can claim compliance and there’s a document called ADA 117.1, which has similar but not identical requirements. Just because you’re certified to one doesn’t mean that you’re certified to the other.

Panelists also referred to Annex G in response to the question of whether products that were coated or acid washed to remove lead could qualify for certification. According to Jeremy Brown, codes and regulatory manager for NSF International, “essentially, a coating doesn’t count because you can’t rely on its longevity. As far as deleading technologies or washes, the actual analysis should be performed on the product prior to the use of those removing technologies. We don’t see there being any liabilities to that because we’re testing to the word of the Annex.” Moinian again, however, recommends caution in reaching this conclusion in view of the fact Section 116875 was silent on the subject.

Hose Bibs In, Bath Tubs Out
Castellon stated that as a statute, Section 116875 is very specific in terms of what’s excluded from its provisions, which consist of “service saddles, backflow preventers for nonpotable services such as irrigation and industrial, and water distribution main gate valves that are two inches in diameter and above.” “Outside of these exceptions,” he said, “the burden of proof is on the manufacturer.”

Ultimately, he concluded, “The legal system has the power to interpret these laws (and) there will be lawsuits.” As for the argument that “human consumption” had to be a product’s primary function, he indicated that “the law doesn’t address what primary is” and in the absence of that, “human consumption is going to be defined very broadly.

“Even if a product has no metal alloys and is covered by Section 116875, it still has to be certified," Moinian added. But “if you go by the letter of the law it says ‘fixtures’ and I have a feeling that while things like hose bibs are obviously excluded, bathtubs and other things people could conceivably drink from are not within the intent of the law. As a general rule, we believe that the scope of ANSI/NSF 61 is a good place to start in terms of what’s covered in Section 116875.”

Regardless, Castellon cautioned that manufacturers needed to ask themselves, “How do I minimize my exposure to lawsuits?” And with no best practices yet on how they could do that, the answer to that question was that in many instances they would need to consult an attorney.

Time is the Bottom Line
Ratcheting up the pressure on manufacturers and distributors eager to get products to market, Castellon’s associate, Bill Funderburk, pointed out that many customers were — and had been for some time — requesting lead-free products; especially municipalities, he said, “which are going to want lead-free now because they’re always looking at long term.”

In a letter to Simonelli, Michael Tharpe, chief inspector of the Los Angeles Plumbing, Mechanical and
Fire Sprinkler Division, wrote that Section 116875 “places the burden on the approved Listing Agencies for verification of compliance with the new law.” The cities of San Diego and Anaheim concurred with this position when Simonelli contacted them.

“These cities,” Simonelli concluded, “are going to be looking at certification, as they don’t want to be responsible for verification. So when you certify and they list it on their Website, or you have a piece of paper that says it’s certified, that is what they’re going to be looking for. And those who deal with municipalities, be they contractors or plumbers — or on the manufacturers’ side — might get that question from their customers.”

In order to satisfy this need for evidence of verification, all of the certifiers present indicated they were listing products as AB 1953 or Section 116875 compliant, although only IAPMO R&T and one or two others were certifying to Section 116875 without also certifying to Annex G. They also all stated they listed AB 1953/Section 116875 compliant products on their public Websites, which were kept current, with UL’s Tom Bowman saying theirs was updated so frequently as to almost qualify as being done in “real time.” Package labeling varied widely from certifier to certifier, with IAPMO R&T showing a great deal of latitude by supplying customers like Lowes and Home Depot with their own custom markings.

As to the amount of time required for certification, Bowman and others agreed that depended on a number of factors. “If the product being tested is a faucet that has absolutely no certification, it will take a great deal of time,” he said. “A fitting made of homogenous material can be done in a matter of weeks. It all depends on the product and the difficulty of obtaining formulation information.”

Most certifiers gave manufacturers the option of testing products themselves at a recognized laboratory to determine content and most accepted Certificates of Analysis and physical property sheets, as well. “It’s primarily calculation at this point,” Moinian stated, “We just verify; you (the manufacturers) do most of the work. That’s what the law says.”

“However, in the case of application costs,” he continued,” I think all of us here are going to be really different. At IAPMO we have a flat fee, actually. You can put a truck load of products in one application and the fee is $1,445.”

Legislators Have the Last Word
Simonelli reminded the audience many questions being asked would not be answered by the Jan. 1, 2010, deadline, to which Castellon added a “transitional period” would be needed, during which legislation or other means would be required for clarification.” Until then, he advised “strict compliance with the law.”

Moving forward, Simonelli asked all of those present to join him and the California Metals Coalition in pressuring legislators for answers. “Politics is a lot like hot dogs,” he stated,” if you like ’em, don’t watch ’em being made. And it’s apparent missteps have been made and gaps exist in the current legislation.”

As developments occur and progress is made — especially as it affects certification issues — IAPMO will be keeping its membership fully informed and up-to-date with future articles in OFFICIAL magazine.

California’s DTSC Weighs In
The California Department of Toxic Substances Control published a Fact Sheet detailing protocols to be used for “Testing and Evaluation of Lead Content in Plumbing Products, Materials and Components” to determine compliance with Section 116875. As anticipated, it specifically excluded coatings from the process, requiring tests to be performed exclusively on product substrates. The Fact Sheet also specified that tests be performed on the bulk material used to manufacture products subjected to any “lead removal technology” prior to that technology being applied.

According to Moinian, the DTSC protocols — while somewhat “loose” in terms of the language used and subject to interpretation in many places — provide an adequate explanation of how product testing should be performed. The only aspect of the law that still requires clarification, he concluded, was “the exact scope of the law as to what specific products are covered.”

Although the DTSC protocols were developed as guidelines to be applied for testing products following the manufacturing process, Moinian indicated that IAPMO would continue recommending to its clients that their products be tested in the same manner at the time of certification.

To see the DTSC Fact Sheet in its entirety, go to www.dtsc.ca.gov/PollutionPrevention/upload/lead-in-plumbing-testingprotocol.pdf. For additional information about Section 116875 and DTSC’s role in enforcing it, visit www.dtsc.ca.gov/PollutionPrevention/LeadInPlumbing.cfm.

SECTION 116875 COMPLIANCE METHODOLOGY
“The weighted average lead content of a pipe and pipe fitting, plumbing fitting, and fixture shall be calculated by using the following formula:

               n
WLC =   Σ (LCc x[WSAc / WSAt])
               c = 1

WLC = weighted average lead content of product
LCc = pecentage lead content of component
WSAc = wetted surface area of component
WSAt = total wetted surface area of all components
n = number of wetted components in product

The percentage of lead content within each component that comes into contact with water shall be multiplied by the percent of the total wetted surface of the entire pipe and pipe fitting, plumbing fitting, or fixture represented in each component containing lead. These percentages shall be added and he sum shall constitute the weighted average lead content of the pipe and pipe fitting, plumbing fitting, or fixture.”