On January 4, 2011, President Obama signed the Reduction in Lead in Drinking Water Act (RLDW), an amendment to Section 1417 of the Safe Drinking Water Act (SDWA).  The RLDW took effect 3 years later—January 4, 2014—and contains a redefinition of the term lead-free for the wetted surfaces of pipes, pipe fittings, plumbing fittings, and fixtures that are part of a system that delivers potable water to the public. 

Although the entirety of the amendment is only 400 words, it has broad compliance implications for the manufacturers of plumbing products, product retailers, and plumbers themselves.  The RLDW has also caused confusion among these parties about compliance obligations and exemptions from those obligations. 

Part of the problem is that the EPA has yet to issue regulations or detailed guidance based on the RLDW.  The Agency has indicated that it is currently working the provisions of the RLDW into rulemaking to amend the lead-free section (40 CFR 141.43) of the Lead and Copper Rule–Long-Term Revisions (LCR–LTR).  In the meantime, the Agency has taken some steps to inform obligated parties and other stakeholders about the RLDW.  The most significant action is a 14-page question and answer document (Q&A) the EPA issued in October 2013, which responds to stakeholder questions about the RLDW. 

Like other sections of the SDWA, the RLDW comprises federal requirements that will be enforced mainly by local and regional water authorities under the direction of the states.   Existing SDWA provisions say that the lead-free requirements “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.” 

Clearly, enforcement of the RLDW is a critical issue that the EPA will address in subsequent documents.  However, states are entitled under the SDWA to issue and enforce regulations that are at least as stringent as those of the EPA.  Therefore, some states may choose to exercise their existing authority to enforce the lead-free provisions, or variations of those provisions, on their own and before the EPA publishes RLDW guidance or amendments of the LCR–LTR.  Other states will wait for federal regulations and/or guidance.  The important point here is that it is essential for anyone who is subject to the RLDW to understand the relevant state and local requirements. 

Regardless of state-specific actions, compliance with the RLDW is required now, a reality that the EPA, state agencies, and many industry and trade associations have made clear to the regulated community with increasing urgency over the past 3 years. 

Fire hydrants

The fluid and uncertain state of affairs regarding the RLDW was made apparent by the applicability of the amendments to fire hydrants.  As noted, the law applies to only those components of a certain size that contact water that can be used by the public for drinking.  The RLDW specifically exempts certain components/products that convey “water not anticipated to be used for human consumption.”  Relatively late in the game, the EPA decided that fire hydrants are sometimes used to provide drinking water in emergencies and therefore stated that hydrants are not exempt from compliance.  Under the law, this meant that after January 4, 2014, hydrants that local governments had in their inventory could not be newly installed if they did not meet the new lead-free limit. 

The nonexemption for fire hydrants caused significant concern among municipal governments, who faced the loss of inventories of replacement hydrants.   In addition, in most states, new hydrants would need to be third-party certified.  If a municipality could not have a replacement hydrant certified in time, the municipality might not be able to replace a damaged hydrant after the compliance date. 

Congress stepped in by passing the Community Fire Safety Act of 2013, which exempts fire hydrants from the reduced-lead standards and which President Obama signed into law December 20, 2013.  But other cost and compliance complications nested in the RLDW, particularly those associated with existing inventories, will likely emerge as the public comments on EPA’s upcoming proposed implementing regulations. 

Following are the provisions of the RLDW and EPA’s explanation of several of the key implications as presented in the Q&A.  

The amendments

The RLDW contains the following amendments:

• A lowered maximum lead content of wetted surfaces of plumbing products such as pipes, pipe fittings, plumbing fittings, and fixtures from 8.0 percent to a weighted average of 0.25 percent.
• Elimination of the requirement that lead-free products comply with voluntary standards (this continues to be a requirement in many states).
• Exemptions from the lead-free requirements applicable to the use or introduction into commerce of:
• Pipes, pipe fittings, plumbing fittings, or fixtures, including backflow preventers 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.
• Toilets, bidets, urinals, fill valves, flushometer valves, tub fillers, shower valves, service saddles, or water distribution main gate valves 2 or more inches in diameter.
• A method for the calculation of lead content, specifically:
• For each wetted component, the percentage of lead in the component is multiplied by the ratio of the wetted surface area of that component to the total wetted surface area of the entire product to arrive at the weighted percentage of lead of the component.
• The weighted percentage of lead of each wetted component is added together; the sum of these weighted percentages constitutes the weighted average lead content of the product.  Compliance is based on the lead content of the material used to produce wetted components.
• For lead content of materials provided as a range, the maximum content of the range must be used.
   

Also, before January 4, 2014, the lead-free definition included solders and flux containing no more than 0.2 percent lead.  The RLDW did not change this requirement.  

Compliance specifics

EPA’s Q&A provides the following expansions of the new requirements under SDWA Section 1417:

• Point-of-use and point-of-entry devices such as plumbed-in faucets and water treatment devices are considered a “pipe, fitting, or fixture” and are subject to the lead-free requirement.
• Devices that are not plumbed-in (e.g., coffeemakers or pour-through water filters) are not pipes, fittings, or fixtures and are not subject to the lead-free requirement.  However, such devices integrated into pipes, fittings, or fixtures must meet the requirement.  The EPA encourages manufacturers to avoid the use of lead in all such appliances whether or not they are plumbed-in.
• If the device is not used exclusively for nonpotable services, it is subject to the RLDW.  Hence, washing machines, which are used exclusively for nonpotable services, are exempt.  However, dishwashers and water heaters are not exempt because they are used for potable services.  The EPA interprets potable services to be services or applications that provide water suitable for human ingestion (e.g., drinking, teeth brushing, food preparation, dishwashing, maintaining oral hygiene).
• Pipes, fittings, and fixtures used for temporary repair after January 4, 2014, are subject to the RLDW.
• There is no requirement to label pipes, fittings, or fixtures as either lead-free or not-lead-free.  However, labeling can be a compliance tool.  For example, devices such as bibs used for garden hoses can be a source of potable water.  But if the manufacturer prominently and clearly labels the device as illegal to use for potable services, the EPA would generally consider them exempt from the lead-free requirements.  The Agency recommends that the labeling consist of both a product label and a packaging label because products can get separated from their packaging.
• Products that are 2 inches or more in diameter are not subject to the RLDW’s lead-free requirement.  However, state or local laws may prohibit these products from containing more than a certain percentage of lead. 
• Small businesses such as hardware stores are not exempt from the lead-free requirements.  Any business with an inventory of covered devices that comply only with the pre-RLDW provisions may sell those devices only if they are clearly labeled as illegal to use for potable services.
• Plumbing installed before January 4, 2014, would not need to be replaced under the RLDW as long as it met the lead-free requirements applicable at the time of installation.
• The RLDW eliminated the requirement that pipes, fittings, or fixtures be in compliance with voluntary standards (e.g., Section 9 of NSF/ANSI Standard 61 or NSF/ANSI Standard 372).  However, state or local laws and regulations may still prohibit the use of products that are not in compliance with voluntary standards.  The RLDW does not require third parties to certify a product’s compliance, but, again, this may be required by states.

Repairs and replacements

Many questions have been raised about repairs and replacements.  The following points are relevant.


• A pipe, fitting, or fixture installed in a public water system or a facility providing water for human consumption before January 4, 2014, does not need to meet the new definition of lead free even if repaired after that date.  Since the repaired pipe, fitting, or fixture is not being used in the repair or installation or introduced into commerce, the new requirements are not triggered as a result of the repair.
• After January 4, 2014, replacement pipes, fittings, or fixtures either installed or used in repairs of a public water system or a facility providing water for human consumption, or introduced into commerce must meet the definition of lead free.
• However, where the replacement of pipes, fittings, or fixtures is part of a device (such as a water heater) made up of component parts, and the overall device meets the definition of lead free under the RLDW, the replacement parts need not meet the new definition of lead free.
• Fittings or fixtures that are removed from a water system (e.g., to account for seasonal conditions in public water systems) and that are returned unaltered to their original location would not be required to meet the new definition of lead free.
• The EPA recommends that any replacement parts that are not pipes, fittings, or fixtures that come into contact with potable water should meet the new definition of lead free.

The Q&A covers only selected issues that have been raised by stakeholders.  It is likely that a great many other compliance aspects remain unaddressed.  As noted, this will remain a fluid situation that the EPA will attempt to firm up with implementing regulations.  Regulated parties are strongly advised to check with their local and state drinking water authorities to see how their products and activities are affected by the RLDW’s lead-free requirements.

EPA’s Q&A 

William C. Schillaci
BSchillaci@blr.com