EPA has issued a final guidance document
on the implementation of the changes made by the Reduction of Lead in Drinking Water
Act that takes effect Jan. 4, 2014 – meaning that all
dealers, retailers and installers must not sell non-compliant products after
that date – even if they are part of existing inventory.
The new amendments are modeled after existing California
regulations for lead-free plumbing fittings and fixtures.
Background
Congress passed the Reduction of Lead in Drinking Water
Act in January 2011, amending the allowable lead content
of plumbing products found in the Safe Drinking Water Act (SDWA).
Although EPA has not yet begun a rulemaking to implement the
changes resulting from the passage of the Reduction of Lead in Drinking Water
Act, EPA did publish a draft of its guidance document
soliciting comments in May 2013.
In October, EPA issued a final guidance document, which
includes several implementation guidelines, information on the scope of the act
and an FAQ to assist with compliance.
The act’s amendments cover two primary areas.
First, it lowers the maximum allowable lead content of
plumbing products such as pipes and fixtures from 8.0% to 0.25%.
Second, the act adds exemptions to the lead-free
requirements for any pipe, pipe or plumbing fitting or fixture, solder or
flux.
The exemptions, however, are limited to pipes, pipe
fittings, plumbing fittings or fixtures used exclusively for nonpotable
services or any other services that are not anticipated to be used for human
consumption: One that does not provide water suitable for drinking, teeth
brushing, food preparation, dishwashing or maintaining oral hygiene
The federal legislation mimics existing California regulations
with few exceptions, including one major difference pertaining to the scope of
the lead-free exemption. California regulates plumbing products that are intended to provide water consumption.
The act, on the other hand, includes service products that are anticipated to be used for human
consumption.
This means that even if the water passing through the
plumbing product is not intended for human consumption but can still be used
for that purpose, then it must conform to the new requirements. For
example, EPA has reasoned that fire hydrants are anticipated for use for human
consumption because they “can be, and are, used in emergency situations to
provide drinking water.”
In addition, there may be state and local requirements that
include further limitations.
Effective Date and Compliance Considerations
The statute takes effect Jan. 4, 2014. That means that all covered products sold on or after
Jan. 4 will need to meet the requirements. Because California’s regulations
have been in effect since 2010, it is likely that all the major manufacturers
already meet the California standards. Thus, compliance at a national level
will likely not present a big issue for them.
However, it likely presents an obstacle for smaller
manufacturers or suppliers because the SWDA regulates the products introduced
into commerce, which the act’s amendments do not change. EPA is clear in
its guidance document that unsold inventory that does not meet the new
requirements cannot be sold after January 4, 2014. See EPA Guidance,
Question #14.
EPA has interpreted “introduce into commerce” under SDWA to
not only cover the initial offering of products for sale but also the
distribution from an inventory of products. This means that any pipe, fitting or fixture installed
after Jan. 4 must also meet the new lead-free definition. Therefore, any
products that are not used by or installed by Jan. 4 will no longer be lawful
for sale or use regardless of the manufactured date.
The new requirements, however, do not apply to repairs
(including temporary removal for this purpose) of pipes, fittings or fixtures
installed prior to Jan. 4. On the other hand, if new parts are being used
in the repairs, they will need to meet the new requirements with the exception
of those pipes, fittings or fixtures that are part of a device that meets the
new definition of lead-free.
In addition, EPA’s guidance covers several topics that may
arise for NAHB members, including the timing of installation of certain
building products.
For example, if a builder has installed plumbing products
that meet the lead requirements of SDWA prior to Jan. 4, but is not finished
with the residential construction project, the builder would not need to remove
those covered products installed prior to Jan. 4.
However, for any installation that occurs after the
effective date, the builder would be required to use products that comply with
the lower lead content requirements under the Act’s amendments. See EPA
Guidance, Question #15.
EPA’s Guidance document also provides information on
identifying and purchasing compliant products, and has a publication titled, “How to Identify Lead-Free
Certification Marks for Drinking Water System & Plumbing Materials.”
Finally, before the Jan. 4 effective date, members with questions on the timing
of these requirements or applicability in their own jurisdiction should check
with local building inspectors.
NOTICE: These materials have been prepared by the
National Association of Home Builders for general informational purposes only.
These materials do not, and are not intended to, constitute legal advice. No
attorney-client relationship is intended or established. If you have questions
about any of the information contained in these materials or need further
information, you should consult with your attorney or local building inspector.
Source: NAHB.org
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