California Court Orders PEX Review

Dec. 1, 2004
BY ROBERT P. MADER of CONTRACTORS staff LOS ANGELES After three years of litigation, the California Court of Appeals here ruled that PEX pipe for domestic water applications must go through an environmental review under the California Environmental Quality Act. The court upheld the 2001 decision of Californias Building Standards Commission to conduct an environmental review before deciding whether

BY ROBERT P. MADER of CONTRACTOR’S staff

LOS ANGELES — After three years of litigation, the California Court of Appeals here ruled that PEX pipe for domestic water applications must go through an environmental review under the California Environmental Quality Act.

The court upheld the 2001 decision of California’s Building Standards Commission to conduct an environmental review before deciding whether to allow the use of PEX. The issue arose because PEX pipe was approved in the Uniform Plumbing Code promulgated by the International Association of Plumbing and Mechanical Officials. The state adopts the UPC with amendments and, because PEX would be a new material in California, the state agencies decided to conduct a review.

PEX manufacturers have maintained that the Building Standards Commission was confused by the assertions of chemist Thomas Reid, who has been linked to the California Pipes Trades Council. The Plastic Pipe & Fittings Association has said that Reid’s claims were speculative, such as that PEX was susceptible to premature mechanical failure because of its chemical structure or that dangerous chemicals might leak from the PEX pipes into the drinking water and soil.

The Building Standards Commission decided that, in light of the conflicting claims, that it did not have enough information about PEX and decided to conduct a CEQA review.

PPFA argued that the state should be required to allow the use of PEX without an environmental review. When the state decided to conduct a CEQA study, the PPFA sued the state in Los Angeles Superior Court (July 2002, pg. 7). The trial court agreed with the manufacturers and ordered the state to allow the use of PEX.

In mid-November, a unanimous panel of three justices of California’s Second District Court of Appeals reversed the trial court’s order on all grounds and directed the trial court to vacate its order. The Court of Appeals said the state agencies are obligated to conduct an environmental review.

“We are extremely disappointed that the appellate court took a letter submitted by Thomas Reid and used it as substantial evidence when it’s just speculation, and there’s no evidence to support the speculation,” said PPFA spokesman Bob Friedlander. “The letter says, ‘this might happen’ or ‘this is possible,’ but the court gave him more credence than he deserves.”

Friedlander said PPFA is reviewing its options, including asking for a rehearing before the Court of Appeals or taking the issue to the California Supreme Court.

The ruling will not affect current sales of PEX pipe in California, said Kevin Eckery, a Sacramento-based public relations consultant to PPFA. Currently 180 municipalities and counties have approved the used of PEX pipe as an alternate material.

Manufacturers prefer that PEX be included in the California building code because then all jurisdictions can use it, Eckery said. In order for PEX to be used as an alternate material, a local government has to take some kind of action, which can then either fall prey to lobbying by opponents of plastic pipe or to city council inertia, he noted.

“The ruling, for all of the rhetoric involved, is narrow and focused,” Eckery said. “What it says is that the state has broad discretion and it did not exceed it, so [the Court of Appeals] told the lower court to send it back to BSC to look at it.”

State agencies, including the California Department of Housing and Community Development, have proposed the approval of PEX in the next edition of the California Building Code and will now have to do a CEQA review first, said Dan Cardozo, an attorney with Adams, Broadwell Joseph & Cardozo in Sacramento. The firm has represented California building trades.

“Public agencies conducting a review usually ask product manufacturers to fund the cost of the review and also to provide information regarding the products,” Cardozo said. “If these manufacturers are not willing to cooperate in the review, they can’t do it. What happens next is in the hands of the manufacturers. If they hadn’t sued and had cooperated with the state, their product probably would be approved by now.”

If an initial study leads to a “negative” declaration that says there are no significant environmental effects from approval or that any effects can be mitigated below the level of significance, that process can take a couple months, Cardozo said. If the state agencies determine that significant effects can’t be mitigated, then they have to conduct an environmental impact report, and a standard EIR takes four to nine months.

“It depends on how complicated the project is,” Cardozo said.

Friedlander said manufacturers will provide all technical information requested but not funding because they did not initiate the review. The review of PEX was the result of the state’s process to amend and adopt the Uniform Plumbing Code, he noted.

Friedlander said that the manufacturers would not pay for a CEQA review because plastic pipe manufacturers learned their lesson in the 1980s when they spent millions of dollars funding CEQA reviews for plastic pipe, he said. The unions continually filed objections and dragged the CEQA process out for years, Friedlander said.

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