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Why the 2014 “Lead-Free” Requirements May Cost You

10/30/2013 | Construction Blog

The Reduction of Lead in Drinking Water Act (amending the allowable levels of lead pursuant to the Safe Drinking Water Act) signed into law nearly three years ago and effective January 4, 2014 imposes a “lead-free” mandate across the United States. The Act makes it illegal to sell or install pipes, fittings, valves, and fixtures in applications providing water for human consumption which exceeds the 0.25% weighted average limit for wetted surfaces, as opposed to the 8% weighted average previously permissible. Wetted parts are essentially any product that conveys water anticipated for human consumption including, for example, meters, expansion tanks, backflow preventers, flexible connectors, strainers, and assorted gauges, fittings, and valves.

The Act exempts “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, toilets or any other uses where the water is not anticipated to be used for human consumption.” The Act does not require the replacement of existing installation, although any repair work to systems may require replacement of at least part of an existing installation.

While many support the Act’s reduction in lead materials used in relation to potable water, the Act already has significant implications for manufacturers, retailers, contractors, designers, municipalities and consumers. Primarily, there is a substantial increase in the cost of new lead free materials. Many of the price escalations are between 30% to 40% higher for the alloys currently used. Contractors who have bid on or quoted projects without accounting for the change in material may find themselves dealing with a large price differential; and contractors who have planned for the increase will be passing the increased cost to the consumer.

Additionally, some suppliers are entering 2014 with obsolete inventory. Others are finding it difficult to purchase non-compliant inventory for use before 2014 and to purchase compliant inventory for use after the effective date due to uncertainty based on the slow production and distribution of compliant parts. As manufacturers move away from non-compliant alloys such as brass and bronze and implement composites of polymers and other materials, the reliability of the new products may also be uncertain.

The Act raises numerous questions that remain largely unanswered to date. For example, the Act does not address enforcement or compliance certification, which are to be addressed by EPA issued regulations. Rather, it is likely that the national “lead free” mandate will be enforced by municipalities in connection with health and plumbing codes enforcement. Additionally, many contractors, manufacturers and suppliers are concerned that the Act’s requirements may impose liability upon them for the sale or installation of potentially sub-standard products made of new materials. Liability may also occur in instances where the installation is initially for a non-potable service but is later repurposed for potable service and it is arguable that the repurposed use was “anticipated”. The Act may also affect construction claims as owners may be challenged for awarding contracts quoting the wrong material and project delays resulting in plumbing commencing after January 4, 2013 may increase the damages sought.

This article only scratches the surface of the issues and questions that will come into play when the Act takes effect in a couple of months. Be sure you understand the implications of the Act as it relates to your business so that “Lead-Free” won’t cost you.