PEX Makers Sue California

July 1, 2002
BY ROBERT P. MADER Of CONTRACTORs staff SACRAMENTO, CALIF. Manufacturers of PEX water pipe are suing the California Building Standards Commission and other state agencies responsible for adopting the California Plumbing Code for not allowing PEX in the code. The lawsuit, filed in Los Angeles by the Plastic Pipe & Fittings Association, alleges that the state agencies responsible for adopting the California

BY ROBERT P. MADER Of CONTRACTOR’s staff

SACRAMENTO, CALIF. — Manufacturers of PEX water pipe are suing the California Building Standards Commission and other state agencies responsible for adopting the California Plumbing Code for not allowing PEX in the code.

The lawsuit, filed in Los Angeles by the Plastic Pipe & Fittings Association, alleges that the state agencies responsible for adopting the California Plumbing Code missed the legal deadline for approving an updated code by more than 11/2 years and compounded their error by illegally removing PEX as an approved building material before adopting an updated Plumbing Code on May 2.

“California families continue to be ripped-off for millions of dollars in the name of politics,” said Robert Friedlander, spokesman for PPFA. “It’s not fair to us and it’s not fair to consumers.”

The BSC’s action puts PEX in consumer limbo, according to PPFA. Communities in California that allow the use of PEX may continue to do so, but any expansion would have to be approved by each local building department or city council, a daunting task in a state with nearly 550 separate cities and counties.

“We have 160 approvals throughout the state on the local level, and most of those approvals have held,” said Randy Knapp, plumbing brand manager, Uponor Wirsbo.

The suit seeks to overturn the state’s action on May 2 and recognize the automatic adoption of the Uniform Plumbing Code, effective October 2000. It names the BSC and five state agencies that advise the BSC on code adoption - the Department of Housing and Community Development, the Division of the State Architect, the Office of Statewide Health Planning and Development, the Department of Health Services, and the Department of Food and Agriculture.

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 UPC and make changes needed to adapt them to California. At the end of a year, if the BSC has not acted, then the Uniform Plumbing Code automatically becomes 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, 21/2 years later, and more than 11/2 years after its legal deadline for action.

The lawsuit also alleges that the BSC and the other state agencies violated the civil rights of PEX manufacturers by acting arbitrarily and failing to follow their own policies and procedures.

The BSC, based on a letter from the attorney for the California Pipe Trades Council, said that approval of PEX requires a review under the California Environmental Quality Act.

“The PEX public relations firm, I think, are only people who believe the Uniform Plumbing Code, without any state amendments, is in effect in California,” said Dan Cardozo, attorney for the Pipe Trades Council. “The precise legal argument they’re making has been rejected by the courts and the attorney general more than 20 years ago. They simply misread the statute. The courts and the attorney general said automatic adoption of models codes within one year does not apply to substantive building standards contained in the model codes and only the model codes that are amended by the state agencies are enforceable by the state agencies.”

The PEX manufacturers’ argument is invalid for two reasons, Cardozo said.

“One, the statute doesn’t say what they say it does and, second, the courts said that if the statute would be interpreted as they have suggested, the statute would be unconstitutional because that means private code publishers have established building codes for California without a state agency reviewing it,” Cardozo said.

That’s not what PEX manufacturers are saying, Wirsbo’s Knapp said. PEX makers are claiming the BSC didn’t bother to follow their own procedures.

“The state of California says in their law that the Uniform Plumbing Code is the base document and can make changes based on a process they go through,” Knapp said.

The BSC had 19 months to review PEX, failed to do so and now says it doesn’t have enough time, Knapp said. He asserted that BSC has said a California Environmental Quality Act review applies to projects, not individual products, and that BSC does not have a method to conduct such a review. BSC has appointed a commissioner to develop a method to perform a CEQA review, Knapp said.

Knapp said the California Code is scheduled to be adopted Nov. 1, so he expects action on PPFA’s suit to take place before then.

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