EDF Health

Selected tag(s): California

Tightening lead leaching standards for new drinking water fixtures – Opportunity for public comment

Tom Neltner, J.D. is the Chemicals Policy Director

Update: On May 11, 2020, EDF and EWG jointly filed comments to NSF International supporting proposed changes to the NSF/ANSI/CAN 61 Standard.

We have a legacy of lead in our pipes, our paint, and our soil. These are the most significant sources of human lead exposure and, therefore, draw most of the attention and resources because they are costly to fix. It is also important to limit lead from new sources to avoid adding to that environmental burden. For that reason, EDF has sought, as part of our larger efforts, to reduce the amount of lead that leaches from new plumbing devices such as faucets and fountains.

Thanks to the leadership of California Assembly Member Chris Holden, a collaboration with Environmental Working Group, and a productively and collaboratively engaged Plumbing Manufacturers International (PMI), the trade association that represents the manufacturers that provide 90% of the plumbing products sold in the United States, we are seeing real progress from our efforts. We wanted to update you on two parallel, but related, developments:

  • A proposal to revise the current U.S. consensus national standard NSF/ANSI/CAN 61; and
  • California Assembly Bill AB 2060 to revise 116875 of the California Health and Safety Code.

These changes are needed because the current federal limit of 0.25% of lead by weight is insufficient to ensure that lead levels in drinking water are as low as possible, especially during the first few weeks of use before they are conditioned to the water. With these changes, buyers will be able to identify and purchase new devices that should meet the American Academy of Pediatrics recommended action level of one part per billion.

If all goes as anticipated, the more stringent NSF standard will be in place by the end of the year, manufacturers will begin the process of certifying products to the more protective lead limits, and there will be sufficient certified devices on the market in California to meet the anticipated demand from child care centers.

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Which faucets and fixtures have the lowest lead levels? California asks plumbing manufacturers.

Tom Neltner, J.D. is the Chemicals Policy Director and Lindsay McCormick is a Program Manager.

Until California Water Board publishes its lists of fixtures that leach minimal lead, we recommend that schools and child care facilities routinely flush newly installed drinking water fixtures for several weeks and retest before allowing children to consume the water.

In November, the California Water Board took an important step that should benefit anyone seeking to buy a new faucet, drinking water fountain or other fixture – especially schools and child care facilities. The Board sent letters to more than 300 plumbing manufacturers and certifiers asking them to voluntarily provide information on fixtures that leach minimal lead. Specifically, it seeks to identify fixtures that meet lead leaching limits that are five times more protective than the current limits in the NSF/ANSI 61 standard.

The Board plans to make the compiled responses publicly available and encourage the 14,000 licensed child care centers in the state to buy new fixtures from those on the list when water testing indicates the fixture should be replaced. We anticipate that the Board will utilize the list to identify fixtures to purchase through a $5 million grant program the California State General Legislature established when it enacted AB-2370 last year. The funds are designed to help licensed child care facilities meet the state’s new mandated water testing and remediation program.

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California Water Board makes misleading claim that only four water systems have lead lines

Tom Neltner, J.D.Chemicals Policy Director

[Update 12/14/18: The California Water Boards added a webpage providing more background for customers on the inventory requirement, including the clarification that “user service line” does not include the service line on private property. This clarification was also added to the Status Map webpage.]

The California Water Board posted the results of its statewide inventory of lead service lines (LSLs) in community water systems (CWSs) yesterday. They also became the first in the nation to post the results in an interactive online map. We are pleased to see the state take this important step, but are disappointed that the press release it sent out to announce the map’s launch undermines its efforts with misleading and confusing statements.

The central problem is that the press release fails to be clear that the inventory does not cover the portion of the service line between the meter and the home or building.  As a result, a CWS that removed all of the lead pipes between the main under the street and the meter but left them on private property was listed as having no LSLs. A customer would justifiably – but mistakenly – assume that LSLs were not an issue in their community.

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Mandatory lead service line inventories – Illinois and Michigan as strong models

Tom Neltner, J.D.Chemicals Policy Director and Lindsay McCormick, Project Manager

This blog is part of a series focused on how states are handling the essential task of developing inventories of lead service lines (LSLs) and making them public. The first blog identified 14 states that were taking on the issue: four with mandatory programs and ten with voluntary.  In this blog, we explore the four mandatory programs and highlight Illinois and Michigan as strong models for other states to consider.  Updated 11/3/18 to reflect updated estimates from Illinois.

Four states – California, Illinois, Michigan and Ohio – require utilities that operate community water systems (CWSs) to identify and report to the state in some form their number of lead service lines (LSLs). Illinois and Michigan both have strong approaches that could serve as models for other states and EPA to require nationally. California’s approach is seriously flawed because it ignores part of the service lines and can be misleading. Ohio requires utilities to either report they have zero LSLs or provide maps where the LSLs are likely to be found, with no requirement to provide an estimated number. We explore all of these approaches below.

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Historic court decision on lead-based paint in California court of appeals

Tom Neltner, J.D.is Chemicals Policy Director

[Updated 2-15-18: The California Supreme Court denied the industry appeal]

Yesterday, after three years of deliberations, California’s Appellate Court for the Sixth District held that three defendant companies – Sherwin-Williams Company, NL Industries, and ConAgra Grocery Products[1]— created a public nuisance in ten plaintiff jurisdictions in the state by promoting the use of lead-based paint in the interior of residences built before 1951 even though they had actual knowledge of the harm the paint would pose to children. The case now goes back to the trial court to determine the amount that defendants must pay into a fund to remediate pre-1951 homes with lead-based paint in those jurisdictions and to appoint a suitable receiver to manage the fund.

The Court of Appeals’ decision requires remediation of the lead-based paint, but not its complete removal, in the ten California jurisdictions that were plaintiffs in the case. The jurisdictions are: seven counties, Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, and Ventura; two cities, Oakland and San Diego; and the city and county of San Francisco.

The case, which began in 2000, rests on public nuisance law in California. While all states prohibit public nuisances to protect the public from threats to their health and safety, the requirements vary significantly among the states and rely heavily on precedent set in prior state court decisions. In California, a public nuisance action requires proof that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right. The defendants must have actual knowledge of the public health hazard.

In 2010, the California Supreme Court overruled a previous decision by the trial court and provided key interpretations of public nuisance law that shaped yesterday’s court decision. While the paint companies are expected to appeal this decision to the California Supreme Court, the decision is likely to stand because the Appellate Court hewed closely that court’s 2010 decision.

The Appellate Court for the Sixth District was reviewing a 2014 trial court’s decision that the Sherwin-Williams Company, NL Industries, and ConAgra Grocery Products must pay $1.15 billion to remediate homes built before 1978 with lead-based paint in the plaintiff’s jurisdiction. The three judge panel of the Court of Appeals narrowed the scope of the trial court’s decision from homes built before 1978 to those built before 1951. The panel found that there was insufficient evidence that the three companies had promoted lead-based paint for interior residential use after 1950, even though they may have sold the paint after that date.

Similar cases had been brought in other states including Illinois, New Jersey and Rhode Island. In 2008, the Rhode Island Supreme Court overturned a trial court decision finding paint companies liable for the state’s public nuisance law. The California court found its case was different because it involved an extensive assessment of voluminous evidence presented at trial. The other cases were decided on pleading and did not get to the merits of the evidence.

While lead-based paint is not the only source of lead exposure to children, it is the most significant for those children living in homes with lead-based paint, especially when the paint is deteriorated. Thousands of children still live in homes with lead-based paint hazards – with poor and minority children at greatest risk. This court decision is a first step that will hold companies responsible and result in the removal of toxic lead paint in homes across California and may serve as a roadmap for other states.

[1] ConAgra was a defendant because it had owned Fuller Paint Company’s liabilities through a series of mergers.

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California requires replacement of all lead service lines – but vigilance needed on implementation

Tom Neltner, J.D.is Chemicals Policy Director

In 2016, California became the first state in the country to make enforceable commitments to eliminating all lead service lines (LSLs) in the state.  These lead pipes that connect the main under the street to homes are the primary source of lead in drinking water and unpredictably release lead particulate when disturbed.  Under the leadership of Senator Connie Leyva, the state’s Senate voted unanimously, and the Assembly voted 72 to 7 to pass SB1398 to require drinking water utilities to inventory LSLs in use and then provide the State Water Resources Control Board (Water Board) a timeline for replacement of the lines.

Based on a national survey of utilities, the American Water Works Association reported that California has 65,000 LSLs out of 6.1 million nationally.  Large utilities have the most with 46,000 LSLs, medium systems have 4,700 and small systems have 15,000.  However, most utilities do not have an accurate inventory of LSLs, so the true number may be much greater.

California’s SB1398 recognized that an accurate inventory was critical and laid out a thoughtful two-step plan to accomplish the objective of full LSL replacement.  By July 1, 2018, it requires public water systems (PWS) to submit an inventory of known LSLs and a timeline for their replacement.  Two years later, PWSs must submit an updated inventory of LSLs and provide a timeline to replace any service line where it may be made of lead.  The law does not set a deadline for replacement that PWSs must meet.

This two-step approach makes replacing known LSLs the highest priority and, by essentially presuming that a service line is lead unless known otherwise, also creates an incentive for PWSs to develop accurate inventories in the next three years.

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