SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2060 (Holden) - Drinking water: pipes and fittings: lead content

Bill Summary:

This bill would establish a “lead free” performance standard for end use plumbing fixtures, requires labeling of such products, and set an implementation schedule for compliance with the new standard.

Fiscal Impact:

• DTSC estimates ongoing cost pressure of roughly $800,000 annually (special fund) to perform the additional evaluation and testing required by this bill.
• The SWRCB estimates ongoing cost pressure of $800,000 annually (special fund) to develop and maintain a database of product models that meet the new lead free definition for endpoint devices.
• The Department of Justice estimates ongoing cost pressure of $9,000 annually (special fund) due to increased workload.

Background:

Concern about lead in drinking water has heightened since the Flint, Michigan water crisis, and, in fact, some of the most prevalent sources of lead in drinking water are from pipes, fixtures, and associated hardware from which the lead can leach. According to Lead in Drinking Water and Human Blood Levels in the United States, published by the National Center for Environmental Health in 2012, nearly all lead in users' tap water does not come from the primary water source or from the municipal treatment plant, but is a result of corrosion resulting from materials containing lead coming into contact with water after it leaves the treatment plant. Lead can enter a building's drinking water by leaching from lead service connections, from lead solder used in copper piping, and from brass fixtures.

The amount of lead in tap water can depend on several factors, including the age and material of the pipes, concentration of lead in water delivered by the public utility, and corrosiveness of the water.

Proposed Law:

This bill would:

1. Define “lead free,” for purposes of conveying or dispensing water for human consumption, to mean does not leach more than one microgram of lead (1 μg/L) under certain tests and meeting specified certification when used with respect to certain endpoint plumbing devices.
2. Require manufacturers to inform the State Water Resources Control Board (State Water Board) in writing, of the percentage of their product models covered by AB 2060 that comply with new standard within 30 days of each of the above dates.
3. Require the consumer-facing packaging or labeling of such products be consistent with NSF/ANSI/CAN 61 labeling requirements to indicate compliance.
4. Authorize DTSC, when evaluating an endpoint device's compliance with the "lead free" requirements, to base its evaluation upon documentation provided by an American National Standards Institute (ANSI) accredited third party that has certified that the endpoint device does not leach more than one μg/L, as calculated pursuant to specified standards.

Related Legislation:

AB 2370 (Holden, Chapter 676, Statutes of 2018). Requires the state to test drinking water at all licensed childcare centers and recommended remediation strategies if lead is detected, including faucet replacement.

AB 746 (Gonzalez, Chapter 746, Statutes of 2017). Requires community water systems that serve a schoolsite built before January 1, 2010, to test for lead in the potable faucets of the schoolsite on or before July 1, 2019.

AB 1953 (Chan, Chapter 853, Statutes of 2006). Bans for sale and use any pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption through drinking or cooking that is not "lead free."

Staff Comments:

This SWRCB indicates that their cost estimate is based on a somewhat similar program, the California Residential Water Treatment Device Registration Program, which requires the SWRCB to maintain a list of certified point of use/ point of Entry devices for residential water treatment. That program requires 1 full time position to gather information, maintain and update the database. They note that the database that would be authorized by this bill would involve a much larger number of product manufacturers and product models, and the information gathering would be more complicated than the POU/POE registration program.

-- END --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2019 - 2020 Regular

Bill No: AB 2060

SUBJECT: Drinking water: pipes and fittings: lead content

DIGEST: This bill establishes a “lead free” performance standard for end use plumbing fixtures, requires labeling of such products, and sets an implementation schedule for compliance with the new standard.

ANALYSIS:

Existing law:

1. Prohibits, under the federal Safe Drinking Water Act (SDWA), the use of pipe, any pipe or plumbing fitting or fixture, solder, or flux that is not lead free in any public water system or facility providing drinking water. (Public Law 116–92 §1417)
2. Prohibits the use of any pipe, pipe or plumbing fitting or fixture, solder, or flux that is not "lead free" in the installation or repair of any public water system or any plumbing in a facility providing water for human consumption. (Health & Safety Code (HSC) § 116875(a))
3. Defines "lead free" as not containing more than 0.2 percent lead when used with respect to solder and flux and not more than a weighted average of 0.25 percent lead when used with respect to the wetted surfaces of pipes and pipe fittings, plumbing fittings, and fixtures. (HSC § 116875(e))
4. Requires all pipe, pipe or plumbing fittings or fixtures, solder, or flux to be certified by an independent American National Standards Institute (ANSI) accredited third party, including, but not limited to, NSF International, as being in compliance with this law. (HSC § 116875(g)(1))
5. Requires the certification described above to, at a minimum, include testing of materials in accordance with the protocols used by the Department of Toxic Substances Control (DTSC) in implementing Article 10.1.2 (commencing with Section 25214.4.3) of Chapter 6.5 of Division 20. (HSC § 116875(g)(2)(A).
   

This bill:

1. Commencing January 1, 2024, additionally defines “lead free,” for purposes of conveying or dispensing water for human consumption, to mean does not leach more than one microgram of lead (1 μg/L) under certain tests and meeting specified certification when used with respect to certain endpoint plumbing devices.
   
2. Notwithstanding that commencement date, establishes an implementation schedule by which time manufacturers must make certain percentages of product models available that comply with the new “lead free” standard:
   1. 20% of models by July 1, 2021;
   2. 40% of models by January 1, 2022;
   3. 75% of models by January 1, 2023; and
   4. 100% of models by January 1, 2024
3. Requires manufacturers to inform the State Water Resources Control Board (State Water Board) in writing, of the percentage of their product models covered by AB 2060 that comply with new standard within 30 days of each of the above dates.
   
4. Requires the consumer-facing packaging or labeling of such products be consistent with NSF/ANSI/CAN 61 labeling requirements to indicate compliance.
   
5. Authorizes the DTSC, when evaluating an endpoint device's compliance with the "lead free" requirements, to base its evaluation upon documentation provided by an American National Standards Institute (ANSI) accredited third party that has certified that the endpoint device does not leach more than one μg/L, as calculated pursuant to specified standards.

Background

1. Lead. Lead has been listed under California's Proposition 65 since 1987 as a substance that can cause reproductive damage and birth defects, and has been listed as a chemical known to cause cancer since 1992. Lead exposure and lead poisoning are also associated with cognitive and other health impacts, especially to children, that appear irreversible. There is no level of lead that has been proven safe, either for children or for adults.
2. Lead in water. Concern about lead in drinking water has heightened since the Flint, Michigan water crisis, and, in fact, some of the most prevalent sources of lead in drinking water are from pipes, fixtures, and associated hardware from which the lead can leach. According to Lead in Drinking Water and Human Blood Levels in the United States, published by the National Center for Environmental Health in 2012, nearly all lead in users' tap water does not come from the primary water source or from the municipal treatment plant, but is a result of corrosion resulting from materials containing lead coming into contact with water after it leaves the treatment plant. Lead can enter a building's drinking water by leaching from lead service connections, from lead solder used in copper piping, and from brass fixtures.

The amount of lead in tap water can depend on several factors, including the age and material of the pipes, concentration of lead in water delivered by the public utility, and corrosiveness of the water.

1. Lead in plumbing. Beginning January 1, 2010, California law (AB 1953, Chan, Chapter 853, Statutes of 2006) banned for sale and use any pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption through drinking or cooking that is not "lead free."

That law defines "lead free" as not more than 0.2 percent lead when used with respect to solder and flux, not more than a weighted average of 0.25 percent when used with respect to the wetted surfaces of pipes and pipe fittings, plumbing fittings, and fixtures, and not more than 8 percent when used with respect to pipes and pipe fittings.

This applies to kitchen faucets, bathroom faucets, and any other end-use devices intended to convey or dispense water for human consumption through drinking or cooking. However, service saddles, backflow preventers for non-potable services such as irrigation and industrial uses, and water distribution main gate valves that are two inches in diameter and larger are excluded.

The federal SDWA, which defines "lead free" with the same metrics as California law, prohibits the "use of any pipe, any pipe or plumbing fitting or fixture, any solder, or any flux, after June 1986, in the installation or repair of (i) any public water system; or (ii) any plumbing in a residential or non-residential facility providing water for human consumption, that is not lead free."

1. Standards and Certification. To address contamination in drinking water, the United States Environmental Protection Agency (US EPA) contracted with NSF (an independent, not-for-profit organization that develops consensus national plumbing standards, and provides product inspection, testing, and certification) in 1985 to lead a consortium of public and private partners (PPP) to develop health-based product standards for products that could be used in public drinking water supplies. These standards were developed as American National Standards and subsequent iterations became known as NSF/ANSI 60, followed by NSF/ANSI/CAN 61.

This ANSI standard limits the amount of impurities that individual products can introduce into a home’s water supply for potable water contact, including lead and other metals, volatile organic chemicals, phthalates, and bisphenol A. Products covered by this standard include faucets, pipe, drinking water fountains, water meters, and water storage tanks. That standard also sets a limit of allowable lead leaching in overnight samples from end-use devices over the first three weeks of use. The leaching limit is based on a specific protocol in NSF/ANSI 61. Current law requires such covered products be certified by an independent ANSI accredited third party as being in compliance with the "lead free" standard.

1. New National Consensus Standard. On June 18, 2020, the national consensus standard for plumbing devices, known as NSF/ANSI/CAN 61, was revised to require, by January 1, 2024, that manufacturers of faucets and fountains that dispense drinking water meet limits five times more protective for lead leaching than the current standard (reducing the current limit of 5 μg/L to 1 μg/L). Manufacturers have the option to have their products tested and certified to the revised standard beginning in the fall of this year, after it is published. All states require plumbing devices comply NSF/ANSI/CAN 61.

AB 2060 codifies this new lower lead leaching standard for specified faucets and establishes an earlier implementation schedule (i.e., requiring manufacturers to sell or offer for sale in California a certain percentage of certified models starting in July of 2021 and gradually increasing the percentage until full compliance is reached in 2024). While this earlier start date differs from the 3-year implementation period contemplated in NSF/ANSI/CAN 61, Plumbing Manufacturers International (PMI), the trade association for the industry, indicates that the ramp up approach in AB 2060, while aggressive, is doable. It still provides manufacturers, third party certifiers, distributors, and retailers with enough time to get products certified and in stock in the state prior to a January 1, 2024 deadline.

A 2018 NSF International report, found that 73% of faucets submitted to NSF for certification since 2011 as "lead free” leached one μg/L or less of lead. That has been interpreted as meaning nearly two-thirds of the faucets on the market today would meet the performance standard proposed by this bill. NSF International clarifies that, “While it is true that 73 percent of the faucet models tested by NSF met a Q value of ≤ 1ug, these data do not reflect the number of faucet models that could currently be listed to this new criterion. The 527 data points reported by NSF represent over seven years of test data and likely include the same faucet model tested in different years, faucet models that are no longer in production, and faucet models tested with materials that are no longer used.”

1. Efforts to test lead in drinking water: Given the impacts of lead on children, California has made it a priority in recent years to address lead in drinking water by testing the taps at institutions that cater to children.

In 2017, AB 746 (Gonzalez, Chapter 746, Statutes of 2017) was enacted to require community water systems that serve a schoolsite built before January 1, 2010, to test for lead in the potable faucets of the schoolsite on or before July 1, 2019. Concurrently, the State Water Resources Control Board (State Water Board) required approximately 1,200 community water systems to test the drinking water for lead at any school that requested it.

Furthermore, in 2018, the Legislature enacted AB 2370 (Holden, Chapter 676, Statutes of 2018) to require the state to test drinking water at all licensed childcare centers and recommended remediation strategies if lead is detected, including faucet replacement. Last year, Budget Act of 2019-20 included $5 million to start that testing process ahead of AB 2370 implementation given the fact lead exposure to babies and toddlers is the most critical.

Under the proposed AB 2370 sampling protocols, there is a five parts per billion (ppb) lead action level, and a requirement that all test results – with detections down to 1 ppb – be reported. (Please note that 1 ppb ≠ 1 μg/L. Both are very low thresholds for lead in drinking water, but are not the same measurement.)

1. Results from water testing at schools: There are approximately 9,000 K-12 schools in California serving more than six million school-age children, and more than 600,000 California children are enrolled in 10,500 licensed child care centers.

The AB 746 testing was completed in July 2019, and the data show that approximately 18% of K-12 public school campuses found at least one faucet that dispensed lead containing more than 5 ppb lead or more. (Many schools that tested their drinking water did not test all of the drinking water fountains or faucets of potable water, so there could be a greater percentage of schools with lead contaminated drinking water.) The testing at childcare centers has not yet commenced, but there is concern the results could mirror what we are seeing at schools.

The timing of AB 2060 is relevant; when lead is found in drinking water, faucets tend to carry the majority of the blame for the lead exposure, and are also one of the easiest things to remediate. However, if a sizeable portion of the "lead free" faucets on the market are leaching lead, then any remediation at a school or childcare center to replace a faucet will be for naught.

1. Goals to reduce lead in drinking water: The American Academy of Pediatrics (AAP) recommends that drinking water in public schools should not exceed one μg/L lead. Specifically, the AAP is calling for state and local governments to take steps to ensure that the water lead concentrations at school water fountains do not ever exceed one μg/L.

At an October 2019 public hearing, the State Water Board recommended a goal of reducing lead in childcare centers’ drinking water to no more than 1 ppb. Members of the State Water Board did not vote to approve the health-protective lead goal during the meeting but did instruct its staff to include it in the recommendations and protocols the State Water Board will send to the Department of Social Services (DSS), which oversees licensed childcare centers and will administer the lead testing program pursuant to AB 2370.

The State Water Board reaffirmed that 1 ppb goal in a November 2019 guidance document, Guidance for Sampling Lead in Drinking Water at Licensed Child Day Care Centers. The document stated that reducing lead in drinking water is a critical step to reducing children's overall lead exposure and, although zero lead is the ideal, the State Water Board recommends DSS to adopt a goal of reducing lead in licensed childcare centers drinking water to no more than 1ppb. However, since the guidance document also said that more data was needed to determine if that goal was feasible, the Board recommended DSS adopt an Action Level of 5ppb.

Comments

1. Purpose of Bill. According to the author, "We all expect the water we drink to keep us healthy and not make us sick. California has progressively been working to reduce residents' exposure to lead. Yet lead is still leaching into drinking water through faucets, fixtures, and other end use plumbing devices during the curing process which can last for weeks. We can fix this by requiring all faucets/fixtures and other end-use devices to leach as little lead as possible and third party testing demonstrates that this standard can be met."
   
2. Further Reducing Lead Exposure Makes Sense. AB 2060 would effectively codify and accelerate implementation of a new national performance standard in addition to the existing content standard to require end-use devices to leach less than one μg/L helping the state in meeting its goals to reduce lead in drinking water.

California has progressively worked to reduce residents' lead exposure. It has been a leader on reducing lead from plumbing fixtures. Environmental Defense Fund and Environmental Working Group, cosponsors of AB 2060, state that the bill continues that effort but ensures fixtures that people drink water from leach much lower amounts of lead and enables schools and childcare facilities in particular to replace problem fixtures with ones that deliver safe water.

Related/Prior Legislation

AB 2370 (Holden, Chapter 676, Statutes of 2018). Requires the state to test drinking water at all licensed childcare centers and recommended remediation strategies if lead is detected, including faucet replacement.

AB 746 (Gonzalez, Chapter 746, Statutes of 2017). Requires community water systems that serve a schoolsite built before January 1, 2010, to test for lead in the potable faucets of the schoolsite on or before July 1, 2019.

AB 1953 (Chan, Chapter 853, Statutes of 2006). Bans for sale and use any pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption through drinking or cooking that is not "lead free."

SOURCE:

Environmental Working Group and Environmental Defense Fund

SUPPORT:

Alliance of Nurses for Healthy Environments
Breast Cancer Prevention Partners
California Building Industry Association
California League of Conservation Voters

California Public Interest Research Group
Calpirg

Campaign for Safe Cosmetics
Center for Environmental Health
Clean Water Action
Coalition of California Welfare Rights Organizations
East Bay Municipal Utility District
Environmental Defense Fund
Environmental Working Group
Families Advocating for Chemical and Toxics Safety
Friends Committee on Legislation of California
Gerber Plumbing Fixtures
Kohler Co.
Laufen Cz S.r.o.
Pacific Water Quality Association
Plumbing Manufacturers International

Santa Clara Valley Water District
SmartOakland Healthy Homes
T&s Brass and Bronze Works, INC.
Water Quality Association
Western Center on Law and Poverty

OPPOSITION:

None received

ARGUMENTS IN SUPPORT:

According to PMI, “AB 2060 provides an effective, manufacturer-specific framework and tiered, three-year timeframe to transition rapidly to protect public health by providing licensed child care centers, schools and Californians with plumbing fixture fittings that are compliant with the pending NSF 61 2020, significantly reducing the amount of lead permitted to be released during product testing from faucets and other endpoint devices used to provide water for drinking or cooking.

“The tiered model compliance dates that will begin 6 months after enactment of AB 2060 and will conclude on January 1, 2024 will assure that all endpoint devices subject to the measure that are available for sale will be available and meet the new standard, with numerous choices for consumers. The timetable also provides manufacturers the option and incentive to place products on the market prior to the effective date to gain advantage in a competitive marketplace.

“Importantly, our wholesaler, distributor and retailer partners will have three years, until January 1, 2024, to transition their inventories to these new products.”

-- END --

(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 2060

Author:(Holden)

As Amended Ver:June 4, 2020

Majority vote

SUMMARY:

Requires any pipe, pipe or plumbing fitting or fixture, solder, or flux, with respect to endpoint devices, other than supply stops, flexible plumbing connectors, and miscellaneous components, sold as "lead free" to be not more than one microgram of lead (μg/L), as specified, until NSF International (formerly known as the National Sanitation Foundation) adopts an equal or more stringent standard.

Major Provisions

Requires the Department of Toxic Substances Control (DTSC), when evaluating an endpoint device's compliance with the "lead free" requirements, to solely base its evaluation based upon documentation developed by an American National Standards Institute (ANSI) accredited third party that demonstrates that ANSI-accredited third party has certified that the endpoint device does not leach more than one μg/L, as calculated pursuant to specified standards.

COMMENTS:

Lead: Lead exposure and lead poisoning are associated with cognitive and other health impacts, especially to children, that appear irreversible. There is no level of lead exposure that has been proven safe, either for children or for adults. Some of the most prevalent sources of lead in drinking water are from pipes, fixtures, and associated hardware from which the lead can leach. Under current state law, any pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption through drinking or cooking is banned unless it is "lead free." That law defines "lead free" as not more than 0.2% lead when used with respect to solder and flux, not more than a weighted average of 0.25% when used with respect to the wetted surfaces of pipes and pipe fittings, plumbing fittings, and fixtures, and not more than 8% when used with respect to pipes and pipe fittings (Health & Safety Code (HSC) Section 116875(e)-(f)).

This bill proposes to require endpoint plumbing devices, such as faucets, fixtures, and water fountains, to additionally meet a performance standard in order to comply with the "lead free" designation. This performance standard will prevent the sale in California of endpoint devices that leach more than one μg/L of lead after a three week curing process.

Third party certification: The federal and California "lead free" plumbing requirements have been incorporated into ANSI standard issued by NSF International as NSF/ANSI 61. The ANSI standard limits the amount of impurities that individual products can introduce into a home's water supply for potable water contact, including lead and other metals. The leaching limit is based on a specific protocol in NSF/ANSI 61.

NSF is an independent, not-for-profit organization that develops consensus national standards, and provides product inspection, testing, and certification. It is the entity that currently certifies faucets as meeting state and federal plumbing standards. Current law requires all pipe, pipe or plumbing fittings or fixtures, solder, or flux to be certified by an independent ANSI accredited third party, including, but not limited to, NSF International, as being in compliance with the "lead free" standard (HSC Section 116875(g)(1)).

NSF/ANSI 61 Section 9 certifies lead leaching from endpoint devices (i.e., components within the last 1 L of water) using an evaluation criterion known as the "Q statistic," which must be less than five μg/L for faucets. This statistic is the calculation of the upper 90% confidence interval of the 75th percentile, and is used to translate the component's lead contribution to a 1 L sample. The Q statistic calculation is described in-depth in the NSF/ANSI standard.

Although the ANSI 61 accreditation standard itself prohibits certified faucets from leaching more than five μg/L lead, California law does not express a lead leaching standard. State law only limits the amount of lead that can be in the water-touching metal of faucets and fixtures. As a result, state enforcement actions, such as faucet testing, do not address the lead-leaching rates of faucets sold in California.

"Lead free" does not mean lead free: California's "lead free" plumbing statute reduced the allowable amount of lead in plumbing fixtures, but still allows for lead, which can, and does, leach into the water. Consumers are unaware that lead-free devices leach any lead – and many would be shocked to learn the faucets leach so much lead – especially in the first few weeks of use.

This bill would effectively codify a performance standard in addition to the existing content standard and would require endpoint devices to leach less than one μg/L helping the state meet its goals to reduce lead in drinking water.

According to the Author:

According to the author, "We all expect the water we drink to keep us healthy and not make us sick. California has progressively been working to reduce residents' exposure to lead. Yet lead is still leaching into drinking water through faucets, fixtures, and other endpoint plumbing devices during the curing process which can last for weeks. We can fix this by requiring all faucets/fixtures and other endpoint devices to leach as little lead as possible and third party testing demonstrates that this standard can be met."

Arguments in Support:

Environmental Defense Fund and Environmental Working Group, cosponsors of AB 2060, state that the bill ensures fixtures that people drink water from leach much lower amounts of lead and enables schools and child care facilities in particular to replace problem fixtures with ones that deliver safe water.

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, enactment of this bill would result in unknown cost pressures to DTSC to provide staff and resources to test endpoint plumbing fixtures to determine if they meet the performance standard established by the bill. According to DTSC, the addition of this bill's performance standard requirements and subsequent testing will increase the cost pressure on DTSC's deficient funds.

VOTES:

ASM ENVIRONMENTAL SAFETY AND TOXIC MATERIALS: 9-0-0

YES: Melendez, Arambula, Bauer-Kahan, Cristina Garcia, Holden, Mathis, Muratsuchi, Obernolte, Kalra

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: June 4, 2020

CONSULTANT: Paige Brokaw / E.S. & T.M. / (916) 319-3965 FN: 0002764

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2060

Author:(Holden) – As Introduced Ver:February 4, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill establishes a “lead free” performance standard for end use plumbing fixtures.

Specifically, this bill requires any pipe, pipe or plumbing fitting or fixture, solder, or flux, with respect to end-use devices, sold as "lead free" to be not more than one microgram of lead (μg/L) for test statistic Q or R calculated in accordance with section B.8.9 of NSF International/American National Standards Institute (ANSI) Standard 61 and NSF International/ANSI Standard 61 certified, until NSF International adopts an equal or more stringent standard.

FISCAL EFFECT:

Unknown Department of Toxic Substance Control (DTSC) cost pressures to provide staff and resources to test end use plumbing fixtures to determine if they meet the performance standard established by the bill.

Under current law, based on available staff and resources, DTSC is required to annually select no more than 75 faucets or drinking water plumbing fixtures of fittings for testing and evaluation to determine compliance with state lead standards for drinking water. This is a content standard. This bill adds a performance standard to determine if there is leaching into drinking water, despite the content.

According to DTSC, there have not been sufficient funds to perform this testing consistently, particularly lately due to the structural imbalance in its budget. The addition of this requirements will only increase the cost pressure on DTSC’s deficient funds.

COMMENTS:

1. Purpose. According to the author,

We all expect the water we drink to keep us healthy and not make us sick. California has progressively been working to reduce residents' exposure to lead. Yet lead is still leaching into drinking water through faucets, fixtures, and other end use plumbing devices during the curing process which can last for weeks. We can fix this by requiring all faucets/fixtures and other end-use devices to leach as little lead as possible and third party testing demonstrates that this standard can be met."

1. Background. California's "lead free" plumbing statute reduced the allowable amount of lead in plumbing fixtures, but still allows for lead, which can, and does, leach into the water. Consumers are unaware that lead-free devices leach lead especially in the first few weeks.

On April 25, 2018, NSF International released a report, “Analysis of lead extraction results obtained during Q statistic evaluations on devices submitted as 'lead free'; under NSF/ANSI 61”, which provided data on 692 plumbing products (which included approximately 500 faucets) that had been submitted to NSF for certification since 2011 as "lead free."

For the first test, the Q statistic, there must be 90% confidence. For the retest, The R statistic, there must be 99% confidence. The formula is the same but different values must be inserted.

The R Statistic is the calculation if the faucet fails the Q Statistic and is retested.  According to Section B.8.9 of NSF-61, it is defined as:

In the event of a product failure, there is provision for a single retest. Retest results shall be combined with those from the initial test. The accumulated product dosages shall be used to calculate the retest statistic, R, which determines whether the product line is acceptable. R is an exact 99% upper confidence bound on the 75th percentile product dosage.

The report found that 73% of faucets leach one μg/L or less. That indicates more than a quarter of the faucets on the market that meet California's "lead free" plumbing standard are leaching lead into the drinking water, but it also means nearly two-thirds of the faucets on the market today would meet the performance standard proposed by this bill.

AB 2060 would effectively codify a performance standard in addition to the existing content standard to require end-use devices to leach less than one μg/L helping the state meet its drinking water goals.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: March 10, 2020

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 2060 (

Author:Holden) – As Introduced Ver:February 4, 2020

SUBJECT: Drinking water: pipes and fittings: lead content

SUMMARY: Requires end use plumbing fixtures to meet a performance standard to meet conditions for "lead free." Specifically, this bill:

Requires any pipe, pipe or plumbing fitting or fixture, solder, or flux, with respect to end-use devices, sold as "lead free" to be not more than one microgram of lead (μg/L) for test statistic Q or R calculated in accordance with section B.8.9 of NSF International/American National Standards Institute (ANSI) Standard 61 and NSF International/ANSI Standard 61 certified, until NSF International adopts an equal or more stringent standard.

EXISTING LAW:

1. Prohibits, under the federal Safe Drinking Water Act (SDWA), the use of pipe, any pipe or plumbing fitting or fixture, solder, or flux that is not lead free in any public water system or facility providing drinking water. (Public Law 116–92 §1417)
2. Prohibits the use of any pipe, pipe or plumbing fitting or fixture, solder, or flux that is not "lead free" in the installation or repair of any public water system or any plumbing in a facility providing water for human consumption. (Health & Safety Code (HSC) § 116875(a))
3. Defines "lead free" as not containing more than 0.2 percent lead when used with respect to solder and flux and not more than a weighted average of 0.25 percent lead when used with respect to the wetted surfaces of pipes and pipe fittings, plumbing fittings, and fixtures. (HSC § 116875(e))
4. Requires all pipe, pipe or plumbing fittings or fixtures, solder, or flux to be certified by an independent ANSI accredited third party, including, but not limited to, NSF International, as being in compliance with this law. (HSC § 116875(g)(1))
5. Requires the certification described above to, at a minimum, include testing of materials in accordance with the protocols used by the Department of Toxic Substances Control (DTSC) in implementing Article 10.1.2 (commencing with Section 25214.4.3) of Chapter 6.5 of Division 20. (HSC § 116875(g)(2)(A))

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "We all expect the water we drink to keep us healthy and not make us sick. California has progressively been working to reduce residents' exposure to lead. Yet lead is still leaching into drinking water through faucets, fixtures, and other end use plumbing devices during the curing process which can last for weeks. We can fix this by requiring all faucets/fixtures and other end-use devices to leach as little lead as possible and third party testing demonstrates that this standard can be met."

Lead: Lead has been listed under California's Proposition 65 since 1987 as a substance that can cause reproductive damage and birth defects, and has been listed as a chemical known to cause cancer since 1992. Lead exposure and lead poisoning are also associated with cognitive and other health impacts, especially to children, that appear irreversible. There is no level of lead that has been proven safe, either for children or for adults.

Lead in water: Concern about lead in drinking water has heightened since the Flint, Michigan water crisis, and, in fact, some of the most prevalent sources of lead in drinking water are from pipes, fixtures, and associated hardware from which the lead can leach. According to Lead in Drinking Water and Human Blood Levels in the United States, published by the National Center for Environmental Health in 2012, nearly all lead in users' tap water does not come from the primary water source or from the municipal treatment plant, but is a result of corrosion resulting from materials containing lead coming into contact with water after it leaves the treatment plant. Lead can enter a building's drinking water by leaching from lead service connections, from lead solder used in copper piping, and from brass fixtures.

The amount of lead in tap water can depend on several factors, including the age and material of the pipes, concentration of lead in water delivered by the public utility, and corrosiveness of the water.

Lead in plumbing: Beginning January 1, 2010, California law (AB 1953, Chan, Chapter 853, Statutes of 2006) banned for sale and use any pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption through drinking or cooking that is not "lead free."

That law defines "lead free" as not more than 0.2 percent lead when used with respect to solder and flux, not more than a weighted average of 0.25 percent when used with respect to the wetted surfaces of pipes and pipe fittings, plumbing fittings, and fixtures, and not more than 8 percent when used with respect to pipes and pipe fittings (HSC § 116875(e)-(f)).

This applies to kitchen faucets, bathroom faucets, and any other end-use devices intended to convey or dispense water for human consumption through drinking or cooking. However, service saddles, backflow preventers for non-potable services such as irrigation and industrial uses, and water distribution main gate valves that are two inches in diameter and larger are excluded.

The federal SDWA, which defines "lead free" with the same metrics as California law, prohibits the "use of any pipe, any pipe or plumbing fitting or fixture, any solder, or any flux, after June 1986, in the installation or repair of (i) any public water system; or (ii) any plumbing in a residential or non-residential facility providing water for human consumption, that is not lead free."

AB 2060 proposes to require end-use plumbing devices, such as faucets, fixtures, and water fountains to meet a performance standard to comply as "lead free." This performance standard will prevent the sale in California of end-use devices that leach more than one μg/L of lead after a three week curing process.

Third party certification: The federal and California "lead free" plumbing requirements have been incorporated into the ANSI standard issued by NSF International as NSF/ANSI 61.

NSF is an independent, not-for-profit organization that develops consensus national standards, and provides product inspection, testing, and certification. To address contamination in drinking water, the United States Environmental Protection Agency contracted with NSF in 1985 to lead a consortium of public and private partners (PPP) to develop health-based product standards for products that could be used in public drinking water supplies. These standards were developed as American National Standards using the principles required under the essential requirements of the ANSI.

The efforts of the PPP led to the 1988 release of NSF/ANSI 60 and NSF/ANSI 61 and a related conformity assessment program to certify that products meet the standards' requirements.

NSF is the entity that currently certifies faucets as meeting state and federal plumbing standards. Current law requires all pipe, pipe or plumbing fittings or fixtures, solder, or flux to be certified by an independent ANSI accredited third party, including, but not limited to, NSF International, as being in compliance with the "lead free" standard (HSC § 116875(g)(1)).

This ANSI standard limits the amount of impurities that individual products can introduce into a home’s water supply for potable water contact, including lead and other metals, volatile organic chemicals, phthalates, and bisphenol A. Products covered by this standard include faucets, pipe, drinking water fountains, water meters, and water storage tanks. That standard also sets a limit of five μg/L lead leaching in overnight samples from end-use devices over the first three weeks of use. The leaching limit is based on a specific protocol in NSF/ANSI 61.

NSF/ANSI 61 Section 9 certifies lead leaching from end-use devices (i.e., components within the last 1 L of water) using an evaluation criterion known as the "Q statistic," which must be less than five μg/L for faucets. This statistic is the calculation of the upper 90% confidence interval of the 75th percentile, and is used to translate the component’s lead contribution to a 1 L sample. The Q statistic calculation is described in-depth in the NSF/ANSI standard.

Although the ANSI 61 accreditation standard itself prohibits certified faucets from leaching more than five μg/L lead, California law does not express a lead leaching standard. State law only limits the amount of lead that can be in the water-touching metal of faucets and fixtures. As a result, state enforcement actions, such as faucet testing, do not address the lead-leaching rates of faucets sold in California.

"Lead free" does not mean lead free: California's "lead free" plumbing statute reduced the allowable amount of lead in plumbing fixtures, but still allows for lead, which can, and does, leach into the water.

Consumers are unaware that lead-free devices leach any lead – and many would be shocked to learn the faucets leach so much lead – especially in the first few weeks of use.

On April 25, 2018, NSF International released a report, Analysis of lead extraction results obtained during Q statistic evaluations on devices submitted as 'lead free'; under NSF/ANSI 61, which provided data on 692 plumbing products (which included approximately 500 faucets) that had been submitted to NSF for certification since 2011 as "lead free."

The report found that 73% of faucets leach one μg/L or less. That indicates more than a quarter of the faucets on the market that meet California's "lead free" plumbing standard are leaching lead into the drinking water, but it also means nearly two-thirds of the faucets on the market today would meet the performance standard proposed by this bill.

Unfortunately, there currently is no easy way to identify these "lower lead" models as the manufacturers do not make their Q values public. Additionally, NSF did not test every single individual end-use device; rather, it tested "families" of products with similar or common materials or components that can be covered by the testing, so even NSF cannot provide information on each end-use device's Q value if it is lower than five μg/L.

Efforts to test lead in drinking water: Given the impacts of lead on children, California has made it a priority in recent years to address lead in drinking water by testing the taps at institutions that cater to children.

In 2017, AB 746 (Gonzalez, Chapter 746, Statutes of 2017) was enacted to require community water systems that serve a schoolsite built before January 1, 2010, to test for lead in the potable faucets of the schoolsite on or before July 1, 2019. Concurrently, the State Water Resources Control Board (State Water Board) required approximately 1,200 community water systems to test the drinking water for lead at any school that requested it.

Furthermore, in 2018, the Legislature enacted AB 2370 (Holden, Chapter 676, Statutes of 2018) to require the state to test drinking water at all licensed childcare centers and recommended remediation strategies if lead is detected, including faucet replacement. Last year, Budget Act of 2019-20 included $5 million to start that testing process ahead of AB 2370 implementation given the fact lead exposure to babies and toddlers is the most critical.

Under the proposed AB 2370 sampling protocols, there is a five parts per billion (ppb) lead action level, and a requirement that all test results – with detections down to 1 ppb – be reported. (Please note that 1 ppb ≠ 1 μg/L. Both are very low thresholds for lead in drinking water, but are not the same measurement.)

Results from water testing at schools: There are approximately 9,000 K-12 schools in California serving more than six million school-age children, and more than 600,000 California children are enrolled in 10,500 licensed child care centers.

The AB 746 testing was completed in July 2019, and the data show that approximately 18% of K-12 public school campuses found at least one faucet that dispensed lead containing 5 ppb lead or more. (Many schools that tested their drinking water did not test all of the drinking water fountains or faucets of potable water, so there could be a greater percentage of schools with lead contaminated drinking water.) The testing at childcare centers has not yet commenced, but there is concern the results could mirror what we are seeing at schools.

The timing of AB 2060 is relevant; when lead is found in drinking water, faucets tend to carry the majority of the blame for the lead exposure, and are also one of the easiest things to remediate. However, if a significant portion of the "lead free" faucets on the market are leaching lead, then any remediation at a school or childcare center to replace a faucet will be for naught.

Goals to reduce lead in drinking water: The American Academy of Pediatrics (AAP) recommends that drinking water in public schools should not exceed one μg/L lead. Specifically, the AAP is calling for state and local governments to take steps to ensure that the water lead concentrations at school water fountains do not ever exceed one μg/L.

At an October 2019 public hearing, the State Water Board agreed to adopt a goal of reducing lead in childcare centers’ drinking water to no more than 1 ppb. The State Water Board's decision represents the toughest action in the country to date on this issue.

Members of the State Water Board did not vote to approve the health-protective lead goal during the meeting but did instruct its staff to include it in the recommendations and protocols the State Water Board will send to the Department of Social Services, which oversees licensed childcare centers and will administer the lead testing program pursuant to AB 2370.

The State Water Board reaffirmed that 1 ppb goal in a November 2019 guidance document, Guidance for Sampling Lead in Drinking Water at Licensed Child Day Care Centers. The document stated that reducing lead in drinking water is a critical step to reducing children's overall lead exposure and, although zero lead is the ideal, the State Water Board recommends DSS to adopt a goal of reducing lead in licensed childcare centers drinking water to more than 1ppb.

AB 2060 would effectively codify a performance standard in addition to the existing content standard to would require end-use devices to leach less than one μg/L helping the state meeting those drinking water goals.

California has progressively worked to reduce residents' lead exposure. It has been a leader on reducing lead from plumbing fixtures. Environmental Defense Fund and Environmental Working Group, cosponsors of AB 2060, state that the bill continues that effort but ensures fixtures that people drink water from leach much lower amounts of lead and enables schools and child care facilities in particular to replace problem fixtures with ones that deliver safe water.

Time is of the essence: As mentioned, ensuring end-use devices with a Q 1 statistic are available is time sensitive given the remediation efforts at schools and child care centers, but manufacturers will need time to certify their products as meeting the standard before they can be sold, and NSF will need the time to review, test, and certify each individual product.

Furthermore, the NSF Joint Committee on Drinking Water Additives designed a task group in November 2018 to consider revising the NSF/ANDI 61 to include a new voluntary requirement for lead release in plumbing devices. The group has met and twice voted against lowering the standard from five μg/L to one μg/L, but continues to discuss the merits of the lowered standard, and the introduction of AB 2060 may have ignited renewed interest to move forward with adopting the lower standard. NSF writes that there has been growing consensus to make any new requirement mandatory (like the bill proposes). However, to allow time for manufacturers to comply with a more stringent standard, NSF would provide an effective date of January 1, 2024, for all plumbing fixtures, not just end-use devices, to meet a Q 1 value. If the NSF task group recommends, and then NSF adopts the lower standard, NSF would allow manufacturers to voluntarily certify their products as meeting the one μg/L standard before the 2024 deadline.

Plumbing Manufacturers International (PMI), which represents manufacturers of 90% of the United States’ plumbing products with more than 150 brands, is supportive of the standard being lowered to 1 μg/L lead, but would prefer to the see the implementation timeframe for that codified standard be modeled after the implementation timeframe of the original law to provide sufficient time for manufacturers to design and manufacture compliant products, obtain certification, and provide them to market. AB 1953 was enacted in 2006, but allowed three years for the new "lead free" standard to go into effect on January 1, 2010. Similarly, the timeline NSF is proposing is January 1, 2024, for all fixtures to comply with a 1 μg/L lead standard.

The author may wish to continue working with PMI to establish timelines that work for the impending remediation efforts at schools and child care centers while allowing manufacturers time to comply with the yet to be determined certification protocols for a lower Q value.

Technical amendments: NSF pointed out that the correct vernacular should be "endpoint devices," not "end-use devices." NSF also states that because the NSF/ANSI 61 is continuously updated, the reference in the bill should be "the appropriate section of the NSF/ANSI/61 used to calculate the statistics Q and R." As the author continues to work with NSF and PMI on implementation timing, he may wish to consider these technical amendments and whether they may be appropriate.

REGISTERED SUPPORT / OPPOSITION:

Support

Environmental Working Group (Cosponsor)

Environmental Defense Fund (Cosponsor)

Alliance of Nurses for Healthy Environments
Breast Cancer Prevention Partners
California League of Conservation Voters
California Public Interest Research Group (CALPIRG)
Center for Environmental Health
Clean Water Action
Coalition of California Welfare Rights Organizations
Families Advocating for Chemical and Toxics Safety
Friends Committee on Legislation of California
Smart Oakland
Western Center on Law and Poverty

Opposition

None received.

Analysis Prepared by: Paige Brokaw / E.S. & T.M. /