 
                                       

                           American Foundry Society 
Comments on EPA's Draft FAQs on the Requirements of the Reduction of Lead in Drinking Water Act of 2011
                                       
                                 June 21, 2013
                                       
The American Foundry Society (AFS) hereby submits the following comments on the United States Environmental Protection Agency (EPA) draft Frequently Asked Questions (FAQs) on the Reduction of Lead in Drinking Water Act of 2011.  On January 4, 2011 Congress passed the "Reduction of Lead in Drinking Water Act of 2011"  that revised the definition of lead-free products from a lead-content of not more than 8 percent to not more than a weighted average of 0.25 percent lead when used with respect to the wetted surfaces of pipes, pipe fittings, plumbing fittings, and fixtures.  The new definition of lead-free products would prohibit the use of pipes and fixtures used for drinking water that have greater than 0.25 percent lead content after January 4, 2014.  The new requirements pose some significant challenges for metalcasting operations, and additional clarification and guidance on how these requirements will be implemented are needed.  

EPA recently developed a set of draft FAQs that include the Agency's interpretation of the statutory requirements of the new legislation.  EPA has requested comments on the draft FAQs and additional input from stakeholders that are potentially impacted by the new lead standard.  Provided below is a summary of the technical comments and concerns that AFS has regarding the FAQs and EPA's interpretation of the requirements of the new statutory requirements.  Many of these technical issues will also impact other industry sectors beyond metalcasting and have been presented to EPA by the trade groups representing these industries.


      I. INDUSTRY OVERVIEW

AFS is the major trade and technical association for the North American metalcasting industry.  AFS has more than 7,000 members representing over 2,000 metalcasting firms, their suppliers and customers.  The organization exists to provide knowledge and services that strengthen the metalcasting industry for the ultimate benefit of its customers and society.  AFS seeks to advance the sciences related to the manufacture and utilization of metalcasting through research, education and dissemination of technology.  AFS also provides leadership in government relations, marketing, management and human resources for the metalcasting industry.

The practice of melting and casting metal into solid forms has served society's needs for more than 5,000 years.  Metal castings are the foundation for all other manufacturing, and metalcasters have been a vital building block for every nation's economic wealth.  Every sector relies on castings, 90 percent of all manufactured goods and capital equipment incorporate engineered castings into their makeup.  The major industries supplied by metalcasting include agriculture, construction, mining, railroad, automotive, aerospace, communications, health care, defense and national security.

The American metalcasting industry provides employment for over 200,000 men and women directly and supports thousands of other jobs indirectly.  The industry supports a payroll of more than $8 billion and sales of more than $36 billion annually.  Metalcasting plants are found in every state, and the industry is made up of predominately small businesses.  Approximately 80 percent of domestic metalcasters have fewer than 100 employees.

      II. TECHNICAL COMMENTS ON DRAFT FAQS
EXEMPTIONS FROM NEW DEFINITION OF LEAD-FREE

The legislation does provide exemptions from the new definition of lead-free for certain products, including: 

   * "pipes, pipe fittings, plumbing fittings, or fixtures, including backflow preventers, that are used exclusively for non-potable services, such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption" and
   *  "toilets, bidets, urinals, fill valves, flushometer valves, tub fillers, shower valves, service saddles, or water distribution main gate valves that are 2 inches in diameter or larger."

The items specifically included in these two exemptions are not restricted by this legislation on the amount of lead that they may contain.  The scope of these exemptions and how they will be enforced are not, however, entirely clear.  For example, are all component parts of these items exempt from the new lead standard?  

In addition, the draft FAQS appear to provide conflicting information on whether items such as plumbing fixtures that are exempt from the new definition of lead-free must still be in compliance with the voluntary standard Section 9 of NSF/ANSI Standard 61.  EPA states that there is no federal requirement for these items to meet the 8 percent lead standard, but that states regulations may require compliance with these voluntary standards.  Such an interpretation creates a confusing and patchwork system of regulatory compliance with the definition of lead-free nationwide making it difficult for metalcasting operations to comply with a single, well-defined lead standard.

      A. EPA Efforts to Implement New Legislation  -  Comprehensive Guidance Is Needed

Similar legislation is already in place in California, but the implementation of the new requirements in the federal legislation poses some significant challenges for many industry sectors, including metalcasting. Although the legislation does not require EPA to promulgate new regulations to enforce the statutory changes, EPA is charged with the implementation of the new requirements.  EPA has indicated that it plans to issue new regulations to implement the requirements as part of the lead and copper drinking water standard, but that it will not have a final regulation in place before the January 4, 2014 deadline.  In addition EPA expects that the revisions to the lead and copper drinking water standard will be delayed even further due to concerns over the replacement of existing service lines.

The implementation of this new legislation can pose some significant burdens for some segments of the metalcasting industry.  Accordingly, EPA held a public meeting on this topic in August 2012 and has been soliciting input from industry, states, local water utilities, and NGOs to provide clarification on the new requirements such as whether a dual inventory of products would be needed, labeling requirements for "lead-free" products, and what type of interim policy guidance may be needed.  In addition, EPA had announced that it expected to issue a guidance document for implementing the new requirements before the end of 2013, just prior to the promulgation of the new rulemaking.  

While the FAQs represent a good first step in clarifying the requirements of the new legislation, it is not clear whether EPA still intends to issue a guidance document beyond the FAQs.  AFS requests that EPA consider developing a more comprehensive guidance document that focuses on more issues of concern for manufacturers of products subject to the new requirements.  The FAQs include broader information for users and distributers of plumbing products such as plumbers and retail stores, and they provide limited guidance for those most directly impacted by the new requirements, namely manufacturers.  A more comprehensive guidance document is needed for manufacturers of these products who may be required to retool and reinvest in processes to comply with the new requirements, which could take many months and be extremely expensive.

      B. Minimal Benefits and Burdensome Costs

As the EPA moves to implement the new requirements incorporating the Reduction of Lead in Drinking Water Act of 2011, agency officials need to consider the current Safe Drinking Water Act (SDWA) requirements and how they have been successfully implemented and regulated by States, municipalities, and end users without significant governmental oversight.    Reduction of lead in drinking water has already been achieved through the implementation of national standards such as AWWA and ASTM, user specifications as part of contracts and bid documents, demonstrations of compliance, and industry and trade group oversight.  

The new legislation revises the lead content maximum from 8.0 percent to 0.25 percent.  While this is a significant change in the eyes of manufacturers, the same drivers to reduce lead in drinking water in the current SDWA lead level will continue.  It is not clear that the new requirements will reduce lead in drinking water significantly, but they will create unnecessary industry burden and customer confusion from such changes.
 
The new regulatory requirements will increase manufacturing costs and restrict product availability without providing any significant human health benefits beyond those already afforded by the existing lead drinking water standards.  Products constructed of copper alloy lead-free materials (0.25 percent or less lead) already carry a 25 to 45 percent higher price than the equivalent 5 percent lead-bearing product historically used in waterworks brass products (UNS C83600).  The increased expense is attributed to higher raw material costs, new foundry and machining requirements, and higher processing losses due to the nature of the new lead-free alloys.  

States and water utilities have also expressed concerns about the burdens of implementing these requirements, including the loss of existing product inventory, the increased costs associated with using lead-free compliant products, and the likelihood that the changes will discourage water distribution maintenance due to the increased costs of repair and replacement parts.  These factors will continue to negatively impact public and private water sectors, and eventually produce higher water bills for end users.

Promoting public health goals through new regulatory requirements can be sound public policy.  Government officials should, however, strike a balance between the appropriate level of regulation where there is a real benefit, and the compliance costs and regulatory burdens that are imposed on manufacturers associated with the new requirements.  In this case, the current lead drinking water standard is already protective of human health without the need for the additional regulatory requirements imposed by the new legislation.  EPA should, therefore, take steps to minimize the burdens on industry through the implementation of the new requirements.

      C. Lead Content versus Leachate Standard

The legislation sets a new definition of lead-free products based on lead content.  Under federal law this replaces the older definition based on the NSF/ANSI Standard 61 lead leachate for products.  EPA needs to expressly identify the NSF/ANSI Standard 372 as the only appropriate standard in defining lead-free products associated with the drinking water standard.  

The NSF/ANSI Standard 372 is a lead content standard that is currently used in reference to state laws in California, Vermont, Maryland and Louisiana.  The NSF/ANSI Standard 61 is NOT a lead-content standard, is not applicable to the state laws, and EPA should specify that it should not be used to determine the definition of lead-free in the new legislation.  Accordingly, the NSF/ANSI Standard 372 lead-content standard should be used exclusively for implementing the new lead content requirements nationwide.  Otherwise, those attempting to comply with the new requirements will be faced with a confusing and patchwork system of regulatory compliance, rather than a single, well-defined national lead standard.

      D. Independent, Third-Party Certification

In the draft FAQs, EPA stated that manufacturers are not required to obtain a third-party certification or create a system to document compliance with self-certification.  AFS agrees that certification should not be required, because an independent, third-party certification for a large manufacturer can easily exceed six figures as an annual reoccurring cost.  Requiring third-party certification would impose unnecessary compliance costs and regulatory burdens on manufacturers without providing any significant health-based improvements.

As noted above, there has been discussion regarding the use of NSF/ANSI Standard 61 or NSF/ANSI Standard 372 as part of the new SDWA requirements to show compliance with the new legislation.  The NSF/ANSI Standard 372 was developed specifically for the California lead-free drinking water law, and consequently would be appropriate for the new federal lead-content standard of 0.25 percent.  The NSF/ANSI Standard 372 is the only existing standard that directly parallels the new law.  

Conversely, NSF/ANSI Standard 61 contains requirements well beyond what the new legislation mandates, and as such prohibits product certification for some large devices and assemblies constructed in lead-free alloys.  The NSF/ANSI Standard 61 will not serve as a viable national verification vehicle due to the impact on product availability across a large variety of common waterworks and plumbing products, and its continued use is inconsistent with the requirements of the new legislation.

      E. Transition Period Needed for Existing Inventories

While the language of the new legislation indicates that the requirements are effective January 4, 2014, numerous uncertainties, questions, and challenges remain regarding the implementation of those requirements.  Additional time is necessary to determine which products fall within scope of the new requirements, establish product-by-product classifications, redesign and retool production lines, replace existing stock, and allow for new packaging labeling to distinguish between new lead-free and existing products.  EPA should, therefore, provide a transition period up to 36 months to clarify how the new requirements will be implemented and allow the use of existing inventories of products. 

      F. The Issue of Dual Inventories Must Be Addressed	

EPA is considering whether it should use a dual-inventory or single-inventory approach to implementing the new legislation.  A dual-inventory approach would require manufacturers to produce separate products used exclusively for non-potable water service and those used for potable water service.  A single-inventory approach would require all products that could potentially be used for potable water meet the new 0.25 percent lead content standard.

Under a single-inventory approach all products from all manufacturers, even though they are not intended for potable water service or that could be interchanged for potable water service, must be made from lead-free materials because at some point they may be used for potable water service.  This approach is neither practical nor realistic given the scope of product types and manufacturing locations worldwide to be considered as a viable option.  

Many U.S. metalcasters produce products that are sold around the world, and the same product will be made in no-lead brass for usage in the U.S., and in leaded brass for uses outside the U.S.  Legal requirements that mandate only one alloy and not dual inventories will negatively impact U.S. global competitiveness by significantly increasing development costs for separate designs for U.S. companies. 

The same logic is applied to the promotion of unique or non-interchangeable product connections to restrict product use for potable water service only.  This again ignores decades of standardization, manufacturing economies of scale, and worldwide distribution and product equivalency, replacing it with specialty products with higher end user costs and availability issues.  Entire product lines will require redesign with millions of dollars in retooling as well as new standards development on an international scale.  A strict, single-inventory approach would, essentially, negate the exemption for products used for non-potable water service and place the U.S. at a distinct economic disadvantage for the ability to import or export products.  

The California law allows for a dual-inventory approach to provide a transition period for existing inventories to be used and new manufacturing processes to be implemented.  EPA should consider allowing (as opposed to mandating) dual inventories with labeling on product packaging depending on the intended use of the product.  While this interim solution may be a bit more difficult to implement and enforce, it could provided a much needed transition period to minimize the burden on manufacturers and end users of the products.


      G. Exemptions Need Further Clarification

The new legislation provides exemptions from the lead-free requirements for specified categories of products that are used exclusively for non-potable water service or not anticipated to be used for potable water service.  To qualify for the exemption, it is not clear whether the product must be physically incapable for use on potable water service, or could be physically capable of use in potable water service, but simply labeled as illegal for use in potable water service.  It is our understanding that EPA is considering the following potential approaches to this issue:

      1) Allow dual product lines (potable and non-potable products that are interchangeable) and label the non-potable version as not for use with potable water, or
      2) Require all products that are interchangeable with a potable counterpart must meet the new lead-free 0.25 percent content limit because it is not used exclusively for non-potable water service, thereby effectively eliminating the exemption for non-potable uses.

Clarification is needed for the exemption for products used for non-potable water service, particularly because as discussed below EPA states that the SDWA does not require manufacturers to label products.  EPA needs to state in plain language that products with hose threads used for outdoor watering, washing machines valves, etc. either do or do not need to comply with the lead-free requirements.  The exemption should do not rely on vague terms like "not anticipated."

Dual inventory in plumbing distribution is confusing without something for the end user to distinguish compliance or non-compliance.  Products that are commonly installed in both potable and non-potable applications and sold through plumbing distribution may be better served to move toward lead-free material for all applications, but care should be given by providing exclusions for products sold exclusively for non-potable applications and distribution networks.

In addition, ball valves, fittings or valves should NOT be lumped together when requiring product to be lead-free.  These products can be used exclusively for many other markets other than potable water or plumbing distribution.  Gas Distribution would be one example where  products consists of high pressure ball valves, plug valves, fittings and meter settings that may have lead in them.  These products are sold exclusively through gas distribution companies.

      A. Marking and Labeling Requirements

In the draft FAQs, EPA states that the SDWA does not require manufacturers to label their products as lead-free.  EPA does, however, encourage manufacturers to provide consumers with information on the lead content in the products.  

On this point, it is our understanding that EPA is considering the following options for labeling:

      1) labeling of the package  -  "illegal to use this product for potable water service" (similar to what it has done with lead solder);
      2) labeling of the product  -  require labeling of product with a symbol beyond the packaging because the product could be separated from the package; or
      3) labeling of both package and product.

Each of these options present challenges that EPA must consider for the implementation of this requirement.

Producers of lead-free products have already established physical product marking identities to control products internally for both inventory and scrap control and to differentiate them from lead bearing products currently offered for the potable and non-potable water market.  These identities are applied in a variety of forms from automated marking to cast-in-place dependent upon the thousands of different product designs, manufacturing methods, and equipment.  It must remain the manufacturers' option on physical product marking as far as the descriptive term, method of application, and location.  

Most lead-free physical identities currently use the term "NL" or "LF".  The lead-bearing equivalent products approved under the existing drinking water requirements will not exhibit a physical material identification.  After January 4, 2014, those products will only be permitted in non-potable water applications or as exempted by the law.  Unless EPA provides appropriate flexibility implementing the new requirements, only lead-free products bearing the lead-free mark indicating compliance may be permitted in potable water service after January 4, 2014.  Product packaging, labels, or instruction inserts may also carry additional information relative to compliance with the new requirements as recommended by the EPA.

Manufacturers in the metalcasting industry are already providing lead-free compliant products marked with an `NL' or `LF'. This has been standard practice for over ten years.   Our customers have been educated to this methodology and changing it would create confusion in our industry.  It would also be expensive and timely to change these markings on thousands of tools.  Provided below is an example of marking and message that is currently used.


                                     251658240
               A cast "NL" designates this product as no-lead brass.
   

Physical markings on products may be impractical for certain products because of size, process, or design. Some products simply do not have available real estate for a marking.

Color coding on packaging labels is something easily recognizable potentially for either potable or non-potable applications.  Manufacturers can implement color coding on packaging labels relatively inexpensively.   On the other hand, color coding, painting or dyeing products is prohibitively expensive and would be difficult to implement without an appropriate transition period.

Making products with lead in them physically incapable of being installed in a potable water application is not a cost acceptable alternative.  Pipe threads and other types of connections are common in many industries other than water applications such as gas distribution, irrigation, sewer applications, HVAC, etc.  Expecting all of these industries to change their product design is neither reasonable nor feasible and would cost BILLIONS of dollars!

      A. Calculation of Lead Content

Pursuant to the new legislation lead content must be calculated "for each wetted component" and "the lead content of the material used to produce wetted components shall be used to determine compliance with" the 0.25 percent requirement.  These two phrases in the new legislation appear to take two different approaches in calculating lead content.  EPA needs to clarify what language is controlling.  Is it the lead content of the surface of the product that is exposed to the water or the lead content of the alloy used to produce the wetted component (and not just the surface exposed to the water)?

If EPA is concerned about potential increased lead in drinking water the calculation should be limited only to the surface exposed to the water.  This could allow higher lead levels that may be need to provide the essential functional attributes of lead for the product without increasing the potential exposure to lead on the wetted surface of the product.  Regardless, EPA must provide some specific guidance on the calculation of lead content to ensure consistent implementation and enforcement of the new standard.

      B. Repairing or Replacing Products for Potable Water Service

In the course of maintaining water service equipment, it is necessary to repair the equipment that is in operation prior to January 4, 2014 and install replacement parts in that equipment.  Does the entire equipment have to meet the new lead-free standard or would the new standard only apply to the new replacement part that is installed after the January 4, 2014.  Given that the cost of the equipment can be substantial, companies should not have to forego it capital investment in the equipment and abandon it to meet the new lead-free standard.  The new lead-free requirement should only apply to the replacement part that is installed and not the entire equipment.  EPA should also give consideration to situations in which a lead-free replacement part is not available or not compatible with the existing equipment.

      C. Functional Cost-Effective Substitutes for Lead Have Not Been Identified for All Products

One of the biggest concerns about the new, low-lead content requirement is the availability of functional and cost-effective substitutes for lead in products.  The lead in products provides essential functional characteristics such as malleability and machinability.  Before determining how it should implement these new requirements, EPA must consider the available scientific research on the machinability and other functional attributes of products with 0.25 percent lead content.  In addition, EPA should also consider the available scientific research on machinability and other functional attributes of possible lead substitutes such as bismuth alloys.

While significant progress has been made in developing products that can meet the new definition of lead-free, AFS and its members will continue to develop appropriate products to meet the new definition of lead-free. As discussed above, additional time is needed for the metalcasting industry and other industry sectors to transition the new technology to comply fully with the new requirements.

      I. CONCLUSION
            ON BEHALF OF THE AMERICAN FOUNDRY SOCIETY, WE APPRECIATE THE OPPORTUNITY TO SUBMIT THESE COMMENTS ON the draft FAQs and how EPA should implement the new requirements of the Reduction of Lead on Drinking Water Act of 2011.  If you have any questions or would like additional information on these comments, please contact Jeff Hannapel at jhannapel@thepolicygroup.com. 
