Two years ago, manufacturers of cross-linked polyethylene pipe thought they had won the battle to sell their product in California.
But they suffered an unexpected setback Nov. 18, when the California Court of Appeals in Los Angeles reversed a 2002 decision by the Los Angeles Superior Court that PEX should not have to undergo environmental review.
The Nov. 18 ruling essentially bars PEX from being adopted into the 2001 California Plumbing Code. But that does not settle the matter, because state agencies are preparing a 2004 edition of the code that still could allow PEX.
The three-judge panel ruled that PEX pipe must be evaluated under the California Environmental Quality Act, supporting the position of many groups, including the California State Pipe Trades Council, Sierra Club and California Professional Firefighters Association. The ruling is the first-ever appellate ruling that applies the CEQA to building materials, officials said.
PEX manufacturers, represented by the Plastic Pipe and Fittings Association, blasted the decision, and called on help from Gov. Arnold Schwarzenegger.
PPFA executive director Dick Church said the decision ``is a victory for no one and a defeat for consumers, homeowners and common sense.''
``Nothing in the unpublished decision by the Appeals Court prohibits the state from including PEX in the updated [California Plumbing Code], and we call on the California code-writing agencies to do the right thing and follow through on the governor's 2003 campaign promise to include PEX in the CPC and give consumers in California the choice they deserve,'' he said in a news release.
Daniel Cardozo, lawyer for the PEX opponents, disagreed, calling the decision ``a tremendous victory for the health and safety of all consumers, homeowners and Californians.''
``There have been [CEQA] studies of plastic pipe for the past 20 years. But these PEX manufacturers sued the state to prevent the state from conducting the same studies. I was confident from the beginning, at least at the court-of-appeal level, that the position of the manufacturers would be rejected,'' he said.
Gov. Schwarzenegger, as part of his 2003 campaign, supported the use of PEX pipe. But the opposition has compared PEX to polybutylene pipe, holding that there's substantial expert evidence that PEX pipe may pose serious environmental and public health hazards.
``We learned from asbestos, lead paint and [chlorinated] PVC pipes that building materials can and do have a huge impact on human health and the environment,'' Tim Frank, senior policy adviser for Sierra Club, said in a Nov. 18 release. ``By agreeing that building materials should be studied before we allow them to be used in people's homes, the Court of Appeals has helped avert future disasters like asbestos insulation and polybutylene pipe.''
Here's a brief history of the situation: In 2002, the Plastic Pipe and Fittings Association, based in Glen Ellyn, Ill., sued the state to gain approval of PEX use under the 2001 California Plumbing Code. The state Building Standards Commission that same year asked for a state review of PEX under the CEQA. In a victory for PEX pipe makers, Los Angeles Superior Court Judge Dzintra Janavs ruled that the CEQA could not be used to exclude PEX and that the state had acted in an ``arbitrary and capricious manner.''
PEX manufacturers and PPFA in past filings have cited ``political pressures brought to bear by the California Pipe Trades Council,'' alleging that plumbers unions influenced then-Gov. Gray Davis' administration to keep PEX out of state building codes. PPFA has the support of the California Association of Local Building Officials and PEX makers also won support from the Coalition for Affordable Housing and Consumers First!
``We obviously are disappointed in the Court of Appeals decision, but understand the importance placed by California on the environmental administrative evaluation processes,'' said John Fraser, president of Vanguard Piping Systems Inc. of McPherson, Kan., in a Nov. 19 release.
``We are confident that the unsubstantiated allegations of the Pipe Trades Council as to the safety of PEX will be found without merit.''
Also, Fraser said, ``We find it interesting that the Pipe Trades Council and its supporters have never felt the environmental process should be applied to the various code proposals which they offer in the model code process, but only to plastic pipe.''
Officials on the other side said that studies have shown PEX pipes leach methyl tertiary-butyl ether (MTBE) and benzene into drinking water; that PEX may prematurely decay and rupture; and that the flammable material may allow fires to spread rapidly through homes with PEX plumbing.
Church said PEX has been used in the United States for more than 30 years and has proved itself safe.
``It is part of the Uniform Plumbing Code and has passed the most stringent tests for safety and durability established by the various national testing laboratories,'' he wrote. ``It's approved for use in all federal buildings and by the building codes of 48 states and Canada. More than 150 cities and counties in California, tired of waiting for state approval, have moved ahead and now allow the use of PEX within their jurisdictions.''