Special to CONTRACTOR
LOS ANGELES — A Los Angeles Superior Court judge has sided with PEX manufacturers in their lawsuit against the state and ordered that the plastic pipe be included in the California Plumbing Code. Superior Court Judge Dzintra Janavs agreed that state agencies had acted in an arbitrary and capricious manner in excluding PEX from the California code.
State agencies, at the prompting of the California Pipe Trades Council, had said that PEX should not be included in the code until an environmental review was conducted. The judge ruled, however, that the California Environmental Quality Act could not be used to exclude PEX, because PEX is a “product” and not a “project” under state law.
A spokesman for the Pipe Trades Council could not be reached at press time.
The lawsuit, filed June 20, 2002, in Los Angeles by Plastic Pipe and Fittings Association, alleged that the state agencies responsible for adopting the California Plumbing Code missed the legal deadline for approving an updated code by more than a year and a half and compounded their error by illegally removing PEX as an approved building material before adopting an updated plumbing code on May 2, 2002 (July 2002, pg. 7).
The suit had targeted the California Building Standards Commission and five other state agencies that advise the BSC on code adoption.
The BSC’s decision to knock PEX out of the plumbing code created speculation, especially in the Sacramento Bee newspaper — and encouraged by PPFA, that California Gov. Gray Davis had been “bought” by campaign contributions from the Pipe Trades Council and United Association locals. Stan Nishimura, executive director of the BSC, denied that politics had played a role in the panel’s decisions, the Sacramento Bee said in its Dec. 21 edition.
By law, the PEX manufacturers asserted, the BSC is mandated to update building codes every three years, based on national model codes prepared by organizations such as the International Association of Plumbing and Mechanical Officials, which publishes the Uniform Plumbing Code. The law gives the BSC one year from the date of its publication by IAPMO to review the Uniform Plumbing Code and make changes needed to adapt them to California. At the end of a year, if the BSC has not acted, then the UPC provisions automatically become law.
The most recent update to the UPC was published in October 1999 and included the unrestricted use of PEX. The BSC adopted an updated California Plumbing Code, eliminating all references to PEX, on May 2, 212 years later, and more than 112 years after their legal deadline for action, the PEX manufacturers and PPFA had charged.
The lawsuit also claimed that the BSC and the other state agencies had violated the civil rights of PEX manufacturers by acting arbitrarily and failing to follow their own policies and procedures.
Plastic Pipe and Fitting Association hailed the decision.
“Today’s ruling is important to consumers and anyone concerned about the effect of politics on the price of housing and the quality of life in California,” said Dick Church, executive director of PPFA. “PPFA and the industry presented a convincing case, and the judge agreed. Consumer choices should never be limited by politics.
“PPFA would like to thank all the people and organizations who have supported our efforts here, especially the members of CALBO — the California Association of Local Building Officials — who have steadfastly supported efforts to keep politics out of public safety and consumer choice, and who have worked to make sure that the best science and the best practices dictated plumbing and building codes in their communities, not the best politics.”
Janavs’ decision underscored PPFA’s position, which maintained that PEX has been used throughout the rest of the United States, Canada and Europe for more than 30 years, Church said. More than 180 local jurisdictions in California already have approved PEX, he added.
Janavs ordered PPFA and the PEX manufacturers to write a proposed judgment by Dec. 31, 2002. Nishimura said the state would not decide whether to appeal the decision until officials review the judgment drafted by PPFA and the PEX makers, the Sacramento Bee reported. The state has until Jan. 13 to file an appeal.