PEX: Coalition of Environmental, Consumer, Public Health and Labor Organizations Have Filed Lawsuit to Overturn the Schwarzenegger Administration’s Approval of PEX Pipe

On January 22, 2009, the California Building Standards Commission (Commission) voted to amend the California Plumbing Code to approve the installation of cross-linked polyethylene (PEX) plastic potable water pipe in homes, schools and health care facilities. The addition of PEX to the California Plumbing Code does not become effective until August 1, 2009. Local governments and building officials are not authorized to approve PEX pursuant to this code amendment prior to that date.

On February 19, 2009, a coalition including: (1) the Consumer Federation of California; (2) Planning and Conservation League; (3) Center for Environmental Health; (4) Sierra Club California; (5) California Professional Firefighters; and (6) the California State Pipe Trades Council jointly filed a lawsuit to overturn the Commission’s approval of PEX on the grounds that it was based upon a legally inadequate environmental impact report (EIR).

We oppose the approval of PEX because we believe that the PEX EIR and the approved PEX regulations fail to address serious health, safety and durability concerns related to PEX drinking water pipe. PEX failures, permeation and leaching all pose potential health risks and economic risks to residents, homeowners and installers. We believe that these impacts should be fully evaluated and mitigated before PEX is approved in the California Plumbing Code.

Potential Environmental, Health and Economic Risks Posed by PEX

Contamination of drinking water

The PEX EIR found that methyl tertiary-butyl ether (MTBE) and tert-Butyl alcohol can leach from PEX in amounts that exceed taste, odor and health guidelines set by the State of California for drinking water. The PEX EIR found that PEX pipes can initially leach as much as 290 ppb of MTBE. The California Department of Public Health and the California Office of Health Hazard Assessment have established a drinking water taste and odor standard of 5 ppb for MTBE and a drinking water public health goal and maximum contaminant level of 13 ppb.
The PEX EIR also found that PEX can leach ethyl tertiary butyl ether (ETBE), a chemical in the same family as MTBE, in amounts exceeding 100 ppb. An expert toxicologist report commissioned as part of the PEX EIR found that the leaching of ETBE from PEX pipe could contribute to taste and odor impacts, and could potentially lead to adverse health effects.
The PEX EIR found that PEX pipe is susceptible to permeation by outside contaminants such as pesticides, oil, gasoline, benzene and termiticides.
Numerous studies and articles submitted to the State of California comparing potable water pipe materials, including variants of PEX, polybutylene, polypropylene, CPVC, copper and steel, have found that PEX displayed the strongest biofilm formation and the strongest initial promotion of the growth of Legionella bacteria.

Failure of PEX Pipe and PEX Fittings

Failures of PEX and PEX fittings have resulted in consumer lawsuits in Washington, Nevada, Minnesota, Colorado and numerous other areas across the United States.
California’s January 2009 approval of PEX relies upon the less-protective PEX chlorine resistance standard ASTM F2023, instead of the much superior NSF P171 standard. ASTM F2023 only assures an adjusted lifetime of 25 years, while the NSF P171 standard assures a 40 year adjusted lifetime. At least one reputable PEX manufacturer (Lubrizol Advanced Materials, Inc.) has questioned the adequacy of this standard since it only results in “an expected service life of 25 years, five years less than the traditional home loan.” According to Lubrizol Advanced Materials, Inc., polybutylene pipe passed ASTM F2023 and still failed miserably in U.S. water conditions. Click here to read one PEX manufacturer’s concerns over industry standards.
California’s January 2009 approval of PEX fails to provide any mitigation to address the known risk of PEX pipe failure due to exposure to sunlight. Even short term exposure to sunlight can dramatically reduce the resistance of PEX to chlorine and result in premature rupture of the pipe. Studies show just a one-week exposure to sunlight may reduce the chlorine resistance lifetime of some PEX pipes by half; with a two week exposure completely depleting PEX of any chlorine resistance. The lack of an enforceable standard to address sunlight exposure creates a liability risk to contractors and installers because there is almost no way to tell why PEX pipe has prematurely failed or to determine how long PEX pipe has been exposed to sunlight.

Lack of Recyclability

Because it is a thermoset plastic, PEX cannot be melted down and reused. A 2005 report by the San Francisco Department of the Environment found that PEX was the only type of plastic piping that no plastic recycler would accept. Copper pipe generally contains around 70% recycled material and has almost a 100% recycling rate.

Toxic Smoke

PEX produces toxic smoke when burned in building fires.

Industry Resistance to Disclosure and Mitigation of Potential Health and Environmental Safety Risks

PEX manufacturers have continued the long pattern of industry resistance to public disclosure and review of plastic plumbing products under the California Environmental Quality Act (CEQA).

In 2002, the Plastic Pipe and Fittings Association (PPFA) filed an unsuccessful lawsuit arguing that review of PEX pipe under CEQA was unlawful. The Court of Appeal denied the PPFA claim and held that substantial evidence of potential drinking water contamination through chemical leaching and permeation, as well as evidence of mechanical performance problems and failures, required that PEX pipe undergo CEQA review prior to state approval. (Plastic Pipe and Fittings Association v. California Building Standards Commission (2004) 124 Cal.App.4th 1390.)

The California Building Industry Association, which had supported PPFA’s lawsuit as amicus curiae, then sought to have the California Supreme Court de-publish the California Court of Appeals decision that ruled that PEX should be environmentally tested. The Supreme Court denied the request, allowing the case to be cited as legal precedent for requiring pre-approval CEQA review of potentially hazardous building materials.

At the same time, the Schwarzenegger administration appointed the vice-president of the California Building Industry Association as director of the California Department of Housing and Community Development (HCD). Under her direction, HCD attempted to approve PEX through the issuance of a 2006 Negative Declaration that mysteriously claimed that there was no evidence of health, safety and performance issues. In face of the submission of substantial evidence of potential impacts from the use of PEX, the 2006 Negative Declaration was quickly withdrawn and the California Building Standards Commission began work on an environmental impact report (EIR) to study the risks of PEX.

Commission Reverses Key Finding that Chemical Leaching from PEX May Pose a Significant Risk

In May 2008, the Building Standards Commission released a Draft Environmental Impact Report (Draft EIR) on the potential risks of PEX pipe. The May 2008 Draft EIR corroborated many of the concerns that we have long raised regarding this product. The Draft EIR proposed a number of important measures to attempt to mitigate these hazards, including a requirement that PEX meet California Safe Drinking Water Act standards for public health, taste and odor.

Unfortunately, a few months later, after receiving protests from the PEX manufacturers and meeting with industry lobbyists, the Commission issued a Revised Draft EIR that reversed the findings of the original Draft EIR. The Revised Draft EIR concluded instead that reliance on private industry standards for leaching is sufficient to protect public health and safety even though these industry standards do not meet California drinking water standards.

This reversal was highly controversial. The Commission debated a motion to require PEX to meet minimum California Safe Drinking Water Act standards as recommended in the original Draft EIR. However, that motion was narrowly defeated on a 4 to 6 vote.

In addition to water contamination impacts, the PEX EIR has been challenged for: (1) failing to evaluate reports of widespread failures of PEX and PEX fittings that have resulted in class action lawsuits in Washington, Nevada, Minnesota, Colorado and numerous other areas across the United States; (2) failing to evaluate evidence that industry chlorine resistance standards may be inadequate; (3) failing to evaluate and mitigate the known risk of PEX pipe failure after exposure to sunlight; and (4) failing to evaluate adequately the cumulative impact of replacing a nearly 100% recycled pipe material (copper) with PEX, which is not recycled in any meaningful amount.

Limited PEX Restrictions Imposed by California Represent Partial Victory for Proponents of Safe Building Materials

The Commission’s approval of PEX does represent a partial victory for the proponents of safe building materials. In adding PEX to the California Plumbing Code, the Commission, over the objections of the plastic industry, imposed certain restrictions and mitigation measures intended to address the susceptibility of PEX to permeation by outside contaminants and to address the potential for PEX to fail in recirculating, chlorinated hot water systems.