U.S. Environmental Protection Agency Office of Groundwater and Drinking Water Reduction of Lead in Drinking Water Act Public Meeting

Transcription

1 U.S. Environmental Protection Agency Office of Groundwater and Drinking Water Reduction of Lead in Drinking Water Act Public Meeting U.S. EPA Headquarters, Washington, DC Meeting Location: EPA Conference Center USEPA, One Potomac Yard (South Building) 2777 S. Crystal Drive, Arlington, VA :00-4:30 p.m. Thursday, August 16 th, Webinar Address, Call-in # and instructions will be provided to those who have preregistered prior to the meeting *Note: Webinar and lines will open at 12:55- All times are Eastern Standard Time Desired Outcomes To provide an overview of the Reduction of Lead in Drinking Water Act. To discuss implications of the Reduction of Lead in Drinking Water Act. To gather input on the Reduction of Lead in Drinking Water Act. 12:45-1:00 Assemble 1:05-1:15 Welcome and Opening Remarks from EPA s Office of Ground Water & Drinking Water (OGWDW) Management 1:15-1:20 Welcome, Introductions, Agenda, Ground Rules, Meeting Objectives Pamela Barr, USEPA Vanessa Speight, Facilitator PRESENTATIONS 1:20-1:40 EPA Perspective Jeff Kempic, USEPA 1:40-2:00 State Perspective Barry O'Brien, Maryland Department of the Environment 2:00-2:30 Discussion 2:30-2:40 Break 2:40-3:00 Manufacturer s Perspective Lead-Free Coalition Paul Singarella, Latham & Watkins LLC; Ernest Elliot, Watts Water Technologies, Inc.; Heath Sharp, Reliance Worldwide Corporation 3:00-3:20 Utility Perspective Stephen Estes-Smargiassi, Massachusetts Water Resources Authority 3:20-3:40 Consumer Group Perspective Lynn Thorp, Clean Water Action 3:40-4:20 Discussion 4:20-4:30 Summary and Wrap-up Eric Burneson, USEPA; Vanessa Speight, Facilitator 4:30 Adjourn

2 Lead-Free Definition Under the Safe Drinking Water Act Jeffrey Kempic Office of Water/USEPA Stakeholder Meeting August 16,

3 Overview: Overview Current Safe Drinking Water Act (SDWA) Section 1417 Requirements Reduction of Lead in Drinking Water Act Amendments Next steps 2

4 Current SDWA Requirements SDWA 1417(a)(1)(A) In general. No person may use any pipe, pipe or plumbing fitting or fixture, any solder, or any flux, after June 19, 1986, in the installation or repair of: (i) any public water system; or (ii) any plumbing in a residential or nonresidential facility providing water for human consumption, that is not lead free (within the meaning of subsection (d) The use prohibition in SDWA also applies to entities other than public water systems (PWS) PWS includes collection, treatment and storage in addition to distribution facilities under SDWA 3

5 Current SDWA Requirements SDWA 1417(a)(3): Effective 2 years after Aug 6, 1996, it shall be unlawful (A) for any person to introduce into commerce any pipe, or any pipe or plumbing fitting or fixture, that is not lead free, except for a pipe that is used in manufacturing or industrial processing; (B) for any person engaged in the business of selling plumbing supplies; except manufacturers, to sell solder or flux that is not lead free; or (C) for any person to introduce into commerce any solder or flux that is not lead free unless the solder or flux bears a prominent label stating that it is illegal to use the solder or flux in the installation or repair of any plumbing providing water for human consumption 4

6 Current SDWA Requirements SDWA 1417(b) State Enforcement (1) Enforcement of Prohibition The requirements of subsection (a)(1) shall be enforced in all States effective 24 months after the enactment of this section. States shall enforce such requirements through State or local plumbing codes, or other such means of enforcement as the State may determine to be appropriate. SDWA 1417(c) Penalities If the Administrator determines that a State is not enforcing the requirements of subsection (a) as required pursuant to subsection (b), the Administrator may withhold up to 5 percent of Federal funds available to that State for State program grants under 1443(a). 5

7 Current SDWA Requirements 1417(d) Definition of lead free For purposes of this section, the term lead free - (1) when used with respect to solders and flux refers to solder and flux containing not more than 0.2 percent lead; (2) when used with respect to pipes and pipe fittings refers to pipe and pipe fittings containing not more than 8.0 percent lead, and (3) when used with respect to plumbing fittings and fixtures, refers to plumbing fittings and fixtures in compliance with standards established in accordance with subsection (e) NOTE: EPA recognized in a August 22, 1997 Federal Register notice that the standard for lead free plumbing fittings and fixtures had been established in Section 9 of NSF/ANSI Standard 61 6

8 Reduction of Lead in Drinking Water Act of 2011 Amends SDWA Section 1417 Prohibition on Use and Introduction into Commerce of Lead Pipes, Solder and Flux Modifies the applicability of the prohibitions by creating exemptions Changes the definition of lead-free by reducing lead content from 8% to a weighted average of not more than 0.25% in the wetted surface material (primarily affects brass/bronze) Eliminated provision that required certain products to comply with voluntary standards for lead leaching Establishes statutory requirement for calculating lead content Effective 36 months from signature January 4,

9 New Lead Free Exemptions Exemptions to the prohibition on use and introduction into commerce provisions in 1417(a)(1) and (3) 1417(a)(4)(A) One exemption is for pipes, pipe fittings, plumbing fittings, or fixtures, including backflow preventers, that are used exclusively for nonpotable services, such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption; 1417(a)(4)(B) Another exemption is for toilets, bidets, urinals, fill valves, flushometer valves, tub fillers, shower valves, service saddles, or water distribution main gate valves that are 2 inches in diameter or larger. Any item covered by either of the two exemptions can have any amount of lead. 8

10 Key Revisions Definition of Lead Free 1417(d) Definition of lead free Revises the lead content requirement from not more than 8% to not more than a weighted average of 0.25% lead when used with respect to the wetted surfaces of pipes, pipe fittings, plumbing fittings, and fixtures [1417(d)(1)(B)] Provides calculation procedure for determining the weighted average lead concentration of a product from the components that make up the product [1417(d)(2)] Eliminates 1417(d)(3) which requires certain products (plumbing fittings and fixtures) to comply with standards for lead leaching (NSF/ANSI Standard 61 Section 9) 9

11 Key Revisions Effective Date Effective Date of January 4, 2014 Amendments become effective at the same for the use prohibition in 1417(a)(1) and the introduction into commerce prohibition in 1417(a)(3) A product introduced into commerce legally on January 3, 2014, can t be used in the installation or repair of a PWS or residential or non-residential facility providing water for human consumption on January 4, 2014 Potential purchasers that could be affected by the lack of a staggered effective date include: plumbers, plumbing product retailers, developers, schools, and water systems Back inventory that does not meet 0.25% lead free calculation cannot be installed after January 3, 2014 unless it is exempt from the prohibitions 10

12 Issue #1: Demonstrating that Products are Lead Free Should manufacturers/importers be required to demonstrate that a product is lead free and if so, how? Potential Approaches to Demonstrate Lead Free Require manufacturers to have products certified by a qualified independent third party EPA assisted in the development of NSF/ANSI Standard 372 which uses the same calculation as required under new SDWA lead free definition Manufacturer certification with publicly available documentation of their calculations/tests 11

13 Issue #2: Scope of the Exemptions 1417(a)(4)(A) Exemption This exemption from the lead free requirements is for products that are used exclusively for non-potable services. To qualify for the exemption, must the product be physically incapable of use in potable services or could it be physically capable of use in potable services, but labeled as illegal for use in potable services? Potential Approaches Allow dual product lines (potable and non-potable products that are interchangeable) if the non-potable version of the product is labeled as not for potable purposes All products that are interchangeable with a potable counterpart must meet the new lead content limit because it is not used exclusively for non-potable services. 12

14 Issue #2a: Identifying Non-Potable Products if Dual Product Lines Allowed If dual product lines are allowed, what kind of label should be used? Potential Labeling Approaches Require labeling of package Similar to SDWA 1417(a)(3)(C) which contains a labeling requirement for lead solders used for non-potable applications. Label must state it is illegal to use the solder for installation or repair of any plumbing providing water for human consumption Require labeling of product Products can get separated from the packaging, so there is the potential for purchasers to be unaware of the use restriction Product labeling would likely require some sort of symbol due to size restrictions Require labeling of package and product 13

15 Issue #3: Identifying Lead Free Products How can consumers know if a product meets the revised lead free definition? Labeling could help distinguish between back inventory that does not meet 0.25% lead content requirement and products that do meet the 0.25% lead content requirement Potential Approaches Require independent third-party certification against NSF/ANSI Standard 372, which includes certifier s mark Require manufacturers to label products that meet 0.25% lead content if not done via third-party certification Do not require labeling of lead content Rely on labeling of non-potable products or prohibit interchangeable non-potable products 14

16 Issue #4: Calculation of Lead Content Under the new law Lead content must be calculated "for each wetted component" and "the lead content of the material used to produce wetted components shall be used to determine compliance with" the 0.25% requirement. What constitutes the lead content of the material used to produce wetted components"? Potential Approaches Lead content at the surface of the product is used Lead content of the alloy used to produce the wetted component is used and not just the lead at the surface layer Acid-washing can remove surface lead, but higher lead layers can be exposed due to erosion/dezincification Coatings may also wear off over time and expose the brass/bronze Approach is consistent with the calculation for California and NSF/ANSI Standard

17 Issue #5: Repairing and Returning Products to Service Section 1417(a)(1)(A) Prohibits the use of items that are not lead free in the installation or repair of any PWS or any plumbing in a residential or nonresidential facility providing water for human consumption Can a product in the system (or the facility) be repaired using lead free component parts and returned to service even if other component parts that were not repaired are not lead free? Potential Approaches Entire unit would need to meet 0.25% lead content Only components being replaced would need to meet the 0.25% lead content Approaches assume that all component parts being sold separately meet the 0.25% lead content 16

18 Next Steps Evaluate information received from the stakeholders Revise 40 CFR section on lead free as part of the Lead and Copper Rule Long- Term Revisions Regulatory revisions are not likely to be promulgated prior to January 2014 effective date What, if any, interim guidance is needed? 17

19 MD/States Comments Barry O Brien, P.E. Maryland Water Supply Program

20 Maryland Department of the Environment MDE - Maryland s Drinking Water Primacy Agency 473 CWS 550 NTNCWS 2404 TNCWS

21 New Federal Lead-Free Definition Passed by Congress Jan 2011 Effective Jan % lead in solder and flux 0.25% wetted surfaces of pipes, fittings and fixtures

22 MD Lead-free Definition Mirrors new federal definition 0.25% lead - wetted perimeter pipes, fittings and fixtures 0.2% solder and flux 2010 St. legislation passed Effective Jan Slightly revised

23 MD Lead Free Requirements Enforced by the Dept of Licensing and Regulation Plumbing Board New definition currently in State Statute Regulations being adopted to revise plumbing code

24 Maryland Experience With New Requirements Need to educate water systems Water systems may not know this is coming. Water systems may have large inventories not meeting new requirements Primacy agency should communicate with agency responsible for enforcement.

25 State Concerns Jurisdictional Issues Many primacy agencies don t have direct control over requirements of new federal lead-free definition Plumbing codes Enforcement Permitting

26 State Concerns cont. What are EPA s expectations regarding enforcement State implementation could be a burden

27 State Concerns cont. Effects on Water Systems Loss of inventory Cost of lead-free complaint plumbing Will new requirements encourage less distribution maintenance?

28 Summary States are concerned about burden of implementing these requirements Dependent on EPA enforcement expectations Water systems face cost increases due to lost inventory and potential increased costs of supplies

29 Discussion Reduction of Lead in Drinking Water Act Public Meeting

30 Implementation of the Reduction of Lead in Drinking Water Act Presented by: Reliance Worldwide Corporation and Watts Water Technologies, Inc. August 16, 2012 Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and an affiliated partnership conducting the practice in Hong Kong and Japan. Latham & Watkins practices in Saudi Arabia in association with the Law Office of Mohammed Al-Sheikh. Copyright 2011 Latham & Watkins. All Rights Reserved.

31 Agenda Who we are The lead content requirements should be introduced in two steps: Step 1: a dual-inventories phase similar to current practice based on the California 0.25% rule, using package labeling to distinguish between the two product lines Step 2: a single-inventories phase supported by product-byproduct specification of what should be lead free regardless of use; labeling and/or product marking unnecessary Mandatory third-party testing and certification should be required Application of the lead content calculation to replacement parts should be addressed 30

32 Who We Are Two companies partnered together to address the lead free law: Reliance Worldwide Corporation Watts Water Technologies, Inc. Together, the companies sell thousands of SKUs in the United States. The companies currently are taking steps to ensure compliance with the lead free law. 31

33 Who We Are Leaders in residential/commercial water products $ Billions in revenue Manufacturing and operations in the U.S. and abroad Leading brands in most markets served Representative products Control valves Softeners Ball valves Gate valves Fittings Backflow preventers Piping Hot water safety valves Pressure reducing valves Temperature actuated mixing valves Thermal expansion relief valves Filtration systems Valve stations Flexible connectors 32

34 A Workable, Effective Single Inventories Program The companies support a single-inventories regime in the long-term, where each product will be available only as lead-free or only as traditional. This would: Be cost-effective; Streamline manufacturing and retail processes; Help to ensure traditional products are used properly; and Facilitate enforcement. The elements of a workable, effective single-inventories regime are: Clear product-by-product classification of what is in the scope of the law and must not exceed 0.25% lead content; The classification applies across the industry, capturing all products that could be used in potable applications; and A reasonable transition period. 33

35 Why Not Dual Inventories for the Long Term? Possible enforcement hurdles: may be relatively harder to enforce Installer could by mistake or with intent use a traditional product in a potable application. May result in unnecessary product expense such as special dyeing, color coding, or other permanent identification requirements A single inventory regime would negate this need. Risks unnecessary complexity and expense in distribution chain: entails dual stocking, inventory and distribution challenges, and the possibility of confusion In contrast, there are efficiencies, from manufacturing to retail, from using one material. 34

36 Scope of the Law Must Be Clear The product-by-product classification must be industrywide. If not, manufacturers may come to different conclusions about which products must be lead-free, resulting in products available on the market in both traditional and lead-free versions. Otherwise, compliant companies that offer lead-free products would be at a competitive disadvantage. Scope could be informed by the industry working with standards bodies. The determination of which products are in scope should be clear cut and apply uniformly. EPA could approve the scope and codify an industry standard through a rulemaking. 35

37 A Transition Period Based on Dual Inventories Is Necessary The industry needs time beyond January 2014 to transition to a single-inventories regime. Additional time is necessary to: Determine which products fall within the scope of the law, and establish the product-by-product classification; Revamp product lines; and Replace stock. Dual inventories provide an effective bridge to a singleinventories regime. 36

38 A Transition Period Is Necessary (cont.) Packaging labeling during the transition period is sufficient to distinguish lead-free and traditional products. Color coding, painting or dyeing the products themselves is prohibitively expensive and too difficult to implement for a transition period. The companies propose use of standardized packaging labels to distinguish lead-free and traditional products. 37

39 A Transition Period Is Necessary (cont.) EPA should confirm that dual inventories are permissible. Dual inventories permissible under federal law since at least 1996, when the lead leaching program which focused on manufacturer intent was promulgated. The leaching standard applies to new plumbing fittings and fixtures that are intended by the manufacturer to dispense water for human ingestion. 42 U.S.C. 300g-6, subd. (e)(1). There is no indication that Congress intended to eliminate dual inventories. The federal law is intended to mirror the California law. 156 Cong. Rec. H8617 (daily ed. Dec. 17, 2010) (statement of Rep. Michael Doyle). The California law allows dual inventories. The Act s exemptions are consistent with dual inventories 38

40 EPA Has the Discretion to Use a Two-Step Approach [T]he agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984). The two-step approach we propose is a prudent policy choice given the industry provides dual inventories to comply with the California lead free law, but ultimately a single-inventories regime is preferable provided it is implemented appropriately. 39

41 Mandatory Third-Party Testing and Certification Mandatory third-party testing and certification would foster compliance with the new lead free standard. This would: Protect the public Provide a level playing field for industry participants committed to compliance Third-party certification is authorized under the existing law, and supported by the legislative history. The companies support random product testing by EPA, to spot check for compliance. Recent California Department of Toxic Substances Control test results show the importance of this check. 40

42 Application of Lead Content Calculation to Replacement Parts EPA should clarify how the lead content calculation applies to replacement parts, which are subparts or components of products. The lead content of the repair or replacement part should be evaluated within the context of the product to be repaired. The lead content calculation should not be interpreted to require manufacturers to create repair or replacement parts that are different from the original part requiring repair or replacement. 41

43 Conclusion To achieve the goals of the Reduction of Lead in Drinking Water Act, assure consumer access to high quality products, and facilitate an effective transition to the new standard, we ask EPA to: 1. Implement a single-inventories regime following a transition period during which time dual inventories are allowed with proper package labeling; 2. Require third-party certification of lead free products; and 3. Clarify how the lead content calculation applies to replacement parts, recognizing that the Safe Drinking Water Act s calculation method distinguishes the entire product from the component[s] that comprise that product. 42

44 Massachusetts Water Resources Authority Stephen Estes-Smargiassi Director of Planning

45 EPA Public Meeting: Potential Regulatory Implications - Reduction of Lead in Drinking Water Act of 2011 August 16, 2012

46 Lead Exposure Potent and accumulative Wide array of health impacts Children especially vulnerable Public health priority

47 Consumer/Public Considerations Unique consumer/public interface Concern, confusion around lead hazards from all sources Definition: Lead-free means free of lead?

48 Principles o Reduce public health risk o Address contamination at the source o Increase consumer awareness and understanding o Minimize consumer confusion o Enable informed consumer choices

49 Pipes and Plumbing: Continuing Progress» 1986 SDWA Amendments» 1996 SDWA Amendments» States: CA, VT, MD» Certification» Trends in manufacturing

50 Reduction of Lead in Drinking Water Act of Exemptions 2. Definitions 3. Calculation 4. Certification

51 Implementation Questions/Concerns EXEMPTIONS What is the significance of the separation of exempted items into two lists? A. pipes, pipe fittings, plumbing fittings, or fixtures. Etc. B. toilets, bidets, urinals, fill valves, etc.

52 Implementation Questions/Concerns EXEMPTIONS (cont d)» How can purchasers/consumers tell the difference between components meeting the new lead-free definition and those which are exempt?» Are there instances where exempt and nonexempt parts are interchangeable or where nonexempt parts come into contact with the potable system and how will those be addressed?

53 Implementation Questions/Concerns DEFINITIONS The new definition reflects experience in state programs. How will state implementation experience impact EPA implementation?

54 Implementation Questions/Concerns CALCULATION What challenges have states using the calculation in the Act faced in implementation?

55 Implementation Questions/Concerns CERTIFICATION Does the Act impact the performance standard required in 1996 amendments? NSF 61 experience Monitoring compliance?

56 TIMING CONSIDERATIONS Effective date for the Act? Plans for Lead and Copper Rule (LCR) revisions? Is inclusion in LCR mandatory? What steps when to maximize risk reduction, consumer clarity and to work with state experience and market trends?

57 IMPLEMENTATION FOCUS Implementation should focus on: Reducing public health risk Removing sources of lead in pipes and fixtures as quickly and to the greatest extent possible Ensuring confidence and clarity in terms of lead content in fixtures, parts, etc. Increasing public awareness and ability to make informed choices

58 Lynn Thorp National Campaigns Coordinator ext. 109

59 Discussion Reduction of Lead in Drinking Water Act Public Meeting

60 Please send written comments to: By August 31, /16/2012 U.S. Environmental Protection Agency 59