Wednesday, November 13, 2013

EPA Finalizes Guidance for Lead Content in Plumbing Parts



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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