Minimizing the presence of “toxic” chemicals in products has been cited as one of the potential goals of sustainability, particularly where chemical exposure to the general population may occur. In any case, new environmental requirements raise compliance challenges. Beginning in January 2014, a new standard will govern the amount of lead that may be present in certain plumbing fixtures (i.e., in drinking water pipes, drinking water faucets, pipe fittings, plumbing fittings, and fixtures). This standard provides that a manufacturer or distributor of such products cannot sell such products in the United States if they contain more than 0.25 percent lead in the materials comprising the wetted surface of the product. See The Reduction of Lead in Drinking Water Act of 2011, available at http://www.gpo.gov/fdsys/pkg/PLAW-111publ380/pdf/PLAW-111publ380.pdf.
Unfortunately, determining compliance (particularly in the United States) is not always easy. Those portions of a faucet that do not contact water flowing through a pipe or fixture are not included in the calculation of the lead level, which is determined on a weighted average basis. Also, any portion of the faucet separated from the water by a non-lead containing lining or tube are not included in the calculation. The calculation methodology spelled out in the Act sets forth a component-by-component evaluation of the materials comprising the wetted surfaces of the finished product and the determination of the weighted average lead content of the product would be calculated therefrom. Thus if there is a component containing 1.0 percent lead with a wetted surface area of 5 square inches out of a total wetted surface of 50 square inches in the product, the weighted average lead content for that component would be 0.1 percent, and if the remaining wetted surface components contained 0.1 percent lead, the weighted average lead content for the remaining components would be 0.09 percent and the weighted average lead content of the product would be a compliant 0.19 percent. Thus, the lead concentration of each wetted component must be determined and summed to determine the overall average lead content of the assembled product.
The ease or difficulty in meeting this standard will vary depending upon the product design and composition (and ultimately the Environmental Protection Agency (EPA)’s guidance on how to determine compliance, e.g., the test method for measuring and calculating the lead concentration for each component). Even those companies that have redesigned their products to comply with the California Proposition 65 lead limits – generally thought to be the strictest current requirement – may find that those products do not comply with this new standard, since compliance with Proposition 65 is determined based on the amount of lead that actually leaches into water using the National Sanitation Foundation Standard 61, No. 9 test method, not the weight percent of lead in the metal used in the wetted surface components of the product. While the Act contains a somewhat detailed calculation methodology to be used in determining the lead content, as discussed above, the statutorily mandated methodology is far from totally clear and there thus remains concern about how the EPA might implement the statute (specifically how it will clarify or explain the methodology for calculating the weighted average concentration of lead).
Companies that may be affected (i.e., manufacturers, distributors and retailers of drinking water pipes, water faucets, pipe fittings, plumbing fittings, and fixtures) may want to follow closely the EPA’s implementation guidance or regulations and assess whether their products comply with these new requirements.
William J. Walsh and AnnMarie Sanford
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.