HOUSE AMENDED
PRIOR PRINTER'S NOS. 290, 727 PRINTER'S NO. 1328
No. 283 Session of 1989
INTRODUCED BY MUSTO, MELLOW, STAPLETON, REIBMAN, WILLIAMS,
SHUMAKER, JONES, LYNCH, SALVATORE, FISHER AND STOUT,
JANUARY 24, 1989
AS REPORTED FROM COMMITTEE ON CONSERVATION, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 21, 1989
AN ACT
1 Banning the sale and use of certain leaded materials in plumbing
2 systems; requiring water suppliers to provide public
3 notification relating to lead contamination in drinking water
4 and imposing powers and duties on the Department of
5 Environmental Resources in relation thereto; and providing
6 penalties.
7 TABLE OF CONTENTS
8 Section 1. Short title.
9 Section 2. Declaration of purpose.
10 Section 3. Definitions.
11 Section 4. Prohibition of sale of plumbing materials that are
12 not lead free.
13 Section 5. Prohibition of use of plumbing materials that are
14 not lead free.
15 Section 6. Application of act.
16 Section 7. Powers and duties of Environmental Quality Board.
17 Section 8. Powers and duties of department.
18 Section 9. Public notification.
1 Section 10. Certification to public water system of lead-free
2 plumbing materials.
3 Section 11. Inspections and searches.
4 Section 12. Public nuisances.
5 Section 13. Penalties and remedies.
6 Section 14. Local plumbing codes.
7 Section 15. Safe Drinking Water Account.
8 Section 16. Construction.
9 Section 17. Severability.
10 Section 18. Effective date.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Short title.
14 This act shall be known and may be cited as the Plumbing
15 System Lead Ban and Notification Act.
16 Section 2. Declaration of purpose.
17 The purposes of this act are to:
18 (1) Protect public health and safety by prohibiting the
19 sale of certain leaded materials commonly used in plumbing
20 systems and prohibiting their use in plumbing system
21 construction, modification and repair.
22 (2) Provide for public notice of the potential for lead
23 contamination of drinking water consumed by users of public
24 water systems.
25 Section 3. Definitions.
26 The following words and phrases when used in this act shall
27 have the meanings given to them in this section unless the
28 context clearly indicates otherwise:
29 "Community water system." A community water system as
30 defined in the Safe Drinking Water Act.
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1 "Department." The Department of Environmental Resources of
2 the Commonwealth.
3 "Environmental Hearing Board." The board established
4 pursuant to section 1921-A of the act of April 9, 1929 (P.L.177,
5 No.175), known as The Administrative Code of 1929, for the
6 purposes set forth in that section.
7 "Environmental Quality Board." The board established
8 pursuant to section 1920-A of the act of April 9, 1929 (P.L.177,
9 No.175), known as The Administrative Code of 1929, for the
10 purposes set forth in that section.
11 "Lead free." When used with respect to solders and flux,
12 refers to solders and flux containing not more than 0.2% lead
13 and, when used with respect to pipes and pipe fittings, refers
14 to pipes and pipe fittings containing not more than 8% lead.
15 "Local agency." A governmental unit other than a unit of the
16 Commonwealth or the Federal Government. The term includes, but
17 is not limited to, a county, city, borough, town, township or
18 municipal authority.
19 "Nontransient noncommunity water system." A nontransient
20 noncommunity water system as defined in regulations promulgated
21 by the Environmental Protection Agency at 40 CFR § 141.2.
22 "Person." Any individual, partnership, association, company,
23 corporation, municipality, municipal authority or political
24 subdivision, or any agency of the Federal or State government.
25 The term includes the officers, employees and agents of any
26 partnership, association, company, corporation, municipality,
27 municipal authority or political subdivision, or of any agency
28 of the Federal or State government.
29 "Plumbing system." All piping, fixtures and appurtenances
30 used to transport water to, within and from a building,
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1 including all residential and nonresidential facilities and
2 source, transmission, treatment and distribution facilities of
3 public water systems.
4 "Public water system." A public water system as defined in
5 the Safe Drinking Water Act.
6 "Safe Drinking Water Act." The act of May 1, 1984 (P.L.206,
7 No.43), known as the Pennsylvania Safe Drinking Water Act.
8 "State agency." Any Commonwealth department, board,
9 commission or agency other than the Department of Environmental
10 Resources.
11 "Water supplier." Any person who owns or operates a public
12 water system.
13 Section 4. Prohibition of sale of plumbing materials that are
14 not lead free.
15 No person shall sell, exchange or offer for sale within this
16 Commonwealth any pipe, pipe fitting, solder or flux commonly
17 used in plumbing systems that is not lead free. Solders that are
18 not lead free and that are commonly used in plumbing systems
19 include, but are not limited to, solid core or acid core
20 solders, such as 50-50 tin-lead solder and 85-15 tin-lead
21 solder.
22 Section 5. Prohibition of use of plumbing materials that are
23 not lead free.
24 No person shall use or authorize another to use any pipe,
25 pipe fitting, solder or flux that is not lead free in the
26 construction, modification or repair of any plumbing system.
27 This section shall not apply to plumbing systems in existence on
28 the effective date of this act but shall apply to modifications
29 and repairs of such systems after the effective date of this
30 act.
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1 Section 6. Application of act.
2 This act shall not apply to the following:
3 (1) Bulk lead, as normally used for the repair of cast
4 iron pipe joints.
5 (2) Bar solder, as normally used in the construction and
6 repair of sheet metal duct work.
7 (3) All solders not used in the plumbing industry which
8 have automotive, electronic, industrial or other applications
9 and which have specifications distinct from solders commonly
10 used in plumbing systems.
11 Section 7. Powers and duties of Environmental Quality Board.
12 The Environmental Quality Board shall have the power and its
13 duty shall be to adopt such rules and regulations of the
14 department as it deems necessary for the implementation of this
15 act.
16 Section 8. Powers and duties of department.
17 The department shall have the power and its duty shall be to:
18 (1) Administer and enforce this act and any rules and
19 regulations adopted hereunder.
20 (2) Issue such orders and initiate such proceedings as
21 may be necessary for the enforcement of this act and any
22 rules and regulations adopted pursuant to this act. Those
23 actions shall include, but are not limited to, the initiation
24 of criminal prosecutions, including the issuance of summary
25 citations by agents of the department.
26 (3) Enter into agreements, at its discretion, with any
27 State agency or local agency for the purpose of delegating
28 any of its authority under this act. Any State agency or
29 local agency acting pursuant to a delegation agreement shall
30 have the same powers and duties otherwise vested in the
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1 department to implement this act, to the extent delegated by
2 the agreement.
3 Section 9. Public notification.
4 (a) General rule.--The water supplier of each community
5 water system and each nontransient noncommunity water system
6 shall issue notice to persons served by the system who may be
7 affected by lead contamination of their drinking water in
8 conformance with this act and regulations adopted hereunder,
9 except as provided in subsection (b).
10 (b) Lead-free systems.--Notice under subsection (a) is not
11 required if the water supplier demonstrates to the department
12 that the public water system, including the residential and
13 nonresidential facilities connected to the system, is lead free.
14 (c) Compliance.--A water supplier who issues public
15 notification in compliance with the public notice requirements
16 established by the Environmental Protection Agency under 40 CFR
17 § 141.34 shall be deemed to be in compliance with this section
18 and need not provide additional notification under subsection
19 (a) before June 19, 1991, should such additional notification be
20 required by the department.
21 (d) Content of notice.--The content of the notice required
22 by this section shall include, but not be limited to, the
23 following:
24 (1) The potential sources of lead in the drinking water.
25 (2) Potential adverse health effects.
26 (3) Reasonably available methods of mitigating known or
27 potential lead content in drinking water.
28 (4) Any steps the public water system is taking to
29 mitigate lead content in drinking water.
30 (5) The necessity for seeking alternative water
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1 supplies, if any.
2 (e) Rules and regulations.--The Environmental Quality Board
3 may adopt regulations establishing public notification
4 requirements under this section, including, but not limited to,
5 specific applicability criteria and frequency, manner and
6 content of notice.
7 (f) Departmental requirements as to notice.--The department
8 may require standardized notices under this section and may
9 require that notices under this section contain specific health
10 effects information.
11 (g) Notice by department.--In the event that a water
12 supplier fails to give notice to the public as required by this
13 section, the department, in its discretion, may perform this
14 notification on behalf of the water supplier and may assess
15 costs of notification on the responsible water supplier.
16 (h) Notice to be provided.--The water supplier shall provide
17 notice under this section despite the absence of a violation of
18 any drinking water standard as defined and established in the
19 Safe Drinking Water Act and its accompanying regulations in 25
20 Pa. Code Ch. 109 (relating to safe drinking water).
21 Section 10. Certification to public water system of lead-free
22 plumbing materials.
23 (a) When required.--A water supplier shall require, as a
24 condition of allowing a connection to the supplier's system,
25 that the person requesting or applying for the connection
26 certify that the materials used in the construction of the
27 plumbing system to be connected are lead free.
28 (b) Refusal of connection.--A water supplier shall refuse
29 connection to any person who is in violation of section 5 or who
30 fails to provide the certification required under this section.
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1 (C) EXEMPTION FROM CERTIFICATION.--A PERSON REQUESTING OR <--
2 APPLYING FOR THE CONNECTION SHALL BE EXEMPTED FROM THE
3 REQUIREMENTS OF SUBSECTION (A) IF THE MUNICIPALITY WITHIN WHICH
4 THE CONNECTION IS TO BE MADE HAS ADOPTED THE BUILDING OFFICIALS
5 AND CODE ADMINISTRATORS (BOCA) NATIONAL PLUMBING CODE OF 1987,
6 OR ANOTHER PLUMBING OR BUILDING CODE WHICH SETS FORTH LEAD-FREE
7 REQUIREMENTS WHICH ARE CONSISTENT WITH THE PROVISIONS OF THIS
8 ACT. THE WATER SUPPLIER SHALL DETERMINE WHICH MUNICIPALITIES
9 WITHIN ITS SERVICE AREAS HAVE ADOPTED ORDINANCES WHICH SET FORTH
10 LEAD-FREE REQUIREMENTS CONSISTENT WITH THE PROVISIONS OF THIS
11 ACT. FOR MUNICIPALITIES WHICH HAVE NOT ADOPTED SUCH ORDINANCE,
12 THE WATER SUPPLIERS SHALL REQUIRE CERTIFICATION IN ACCORDANCE
13 WITH THE PROVISIONS OF THIS SECTION. FOR MUNICIPALITIES WHICH
14 HAVE ADOPTED SUCH ORDINANCE, NO CERTIFICATION SHALL BE REQUIRED.
15 Section 11. Inspections and searches.
16 (a) Authority of department.--The department is authorized
17 to make inspections and conduct tests or samplings, including
18 the sampling of plumbing products and materials and the
19 examination and copying of books, papers, records and data
20 pertinent to any matter under investigation in order to
21 determine compliance with this act. For these purposes, the duly
22 authorized agents and employees of the department are authorized
23 at all reasonable times to enter and examine any property,
24 facility, operation or activity.
25 (b) Access.--The owner, operator or other person in charge
26 of the property, facility, operation or activity under
27 subsection (a), upon presentation of proper identification and
28 purpose for inspection by the agents or employees of the
29 department, shall give these agents and employees free and
30 unrestricted entry and access. Upon refusal to grant entry or
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1 access, the agent or employee may apply for a search warrant
2 authorizing entry and inspection to any Commonwealth official
3 authorized to issue a search warrant. The warrant shall be
4 issued upon a showing of probable cause. It shall be sufficient
5 probable cause to issue a search warrant authorizing the entry
6 and inspection if there is probable cause to believe that the
7 object of the investigation is subject to regulation under this
8 act and that access, examination or inspection is necessary to
9 enforce the provisions of this act.
10 (c) Time of inspection.--Public water systems and places
11 where plumbing supplies are sold are subject to inspection by
12 the department and its employees and agents once per year for
13 purposes of ascertaining compliance with this act. Residential
14 or nonresidential facilities subject to the requirements of this
15 act are subject to inspection by the department and its
16 employees and agents once during the construction, modification
17 or repair of such facilities.
18 (d) Additional inspections, etc.--The department and its
19 employees and agents may conduct additional inspections,
20 including:
21 (1) follow-up inspections;
22 (2) inspections to observe any practice or condition
23 related to public health or safety; and
24 (3) inspections to determine compliance with this act,
25 the other statutes administered by the department, the
26 department's regulations or any requirement of an order
27 issued by the department.
28 (e) Threats to health, safety, etc.--The department and its
29 employees and agents may also conduct inspections whenever any
30 person presents information to the department giving the
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1 department reason to believe that a condition exists which may
2 pose a threat to public health, safety or welfare or to the
3 environment, or that there exists a violation of this act, of
4 regulations adopted under this act, of orders issued pursuant to
5 this act, or of any other statute or regulation administered by
6 the department.
7 (f) Construction of section.--Nothing in this section shall
8 be construed or understood to place any duty or obligation upon
9 the department to conduct a minimum number of inspections per
10 year, or to conduct a minimum number of inspections during a
11 certain period, or to inspect for particular reasons.
12 Section 12. Public nuisances.
13 Any violation of any provision of this act, any rule or
14 regulation of the department or any order of the department
15 shall constitute a public nuisance. Any person who commits such
16 a violation shall be liable for the costs of the abatement of
17 the public nuisance caused by the violation. The Environmental
18 Hearing Board and any court of competent jurisdiction are hereby
19 given jurisdiction over actions to recover the costs of such
20 abatement. Any activity or condition which is declared by this
21 act to be a nuisance or which is otherwise in violation of this
22 act shall be abatable in the manner provided by law or equity
23 for the abatement of public nuisances.
24 Section 13. Penalties and remedies.
25 (a) Duty to comply with orders of department.--It shall be
26 the duty of any person to proceed diligently to comply with any
27 order issued by the department under this act. If such person
28 fails to proceed diligently or fails to comply with the order
29 within such time, if any, as may be specified, the person shall
30 be guilty of contempt and shall be punished by the court in an
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1 appropriate manner; and for this purpose, application may be
2 made by the department to the Commonwealth Court, which court is
3 hereby granted jurisdiction.
4 (b) Equitable relief.--The department may proceed in equity
5 in the Commonwealth Court or in a court of common pleas having
6 jurisdiction to restrain or prevent violations of this act or to
7 compel compliance with this act or any rule, regulation or order
8 issued pursuant to this act.
9 (c) Summary offense.--A person who violates any provision of
10 this act, any rule or regulation of the department or any order
11 of the department, or who resists or interferes with an officer,
12 agent or employee of the department in the performance of his
13 duties, commits a summary offense and shall, upon conviction in
14 the county in which the offense was committed, be sentenced to
15 pay a fine of not less than $100 nor more than $1,000, and
16 costs, for each separate offense, or, in default of payment
17 thereof, shall be sentenced to imprisonment for a period of not
18 more than 30 days.
19 (d) Misdemeanor of the third degree.--Any person who
20 willfully or negligently violates any provision of this act, any
21 rule or regulation of the department or any order of the
22 department commits a misdemeanor of the third degree and shall,
23 upon conviction, be sentenced to pay a fine of not less than
24 $1,250 nor more than $12,500 for each separate offense or to
25 imprisonment for not more than one year, or both.
26 (e) Misdemeanor of the second degree.--Any person who, after
27 a conviction of a misdemeanor for any violation within two years
28 as provided in subsection (d), willfully or negligently violates
29 any provision of this act, any rule or regulation of the
30 department or any order of the department commits a misdemeanor
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1 of the second degree and shall, upon conviction, be sentenced to
2 pay a fine of not less than $1,250 nor more than $25,000 for
3 each offense or to imprisonment for not more than two tears, or
4 both.
5 (f) Civil penalties.--In addition to proceeding under any
6 other remedy available at law or in equity for a violation of
7 any provision of this act, any rule or regulation of the
8 department or any order of the department, the department may
9 assess a civil penalty upon a person for such violation. Such a
10 penalty may be assessed whether or not the violation was willful
11 or negligent. When the department assesses a civil penalty, it
12 shall inform the person of the amount of the penalty. The person
13 charged with the penalty shall then have 30 days to pay the
14 penalty in full, or, if the person wishes to contest either the
15 amount of the penalty or the fact of the violation, the person
16 shall within the 30-day period file an appeal of the action with
17 the Environmental Hearing Board. Failure to appeal within 30
18 days shall result in a waiver of all legal rights to contest the
19 violation or the amount of the penalty. The maximum civil
20 penalty which may be assessed pursuant to this section is $1,000
21 per day for each violation. Each violation for each separate day
22 and each violation of any provision of this act, any rule or
23 regulation under this act or any order of the department shall
24 constitute a separate and distinct offense under this section.
25 (g) Civil action to compel compliance.--Any person having an
26 interest which is or may be adversely affected may commence a
27 civil action on his own behalf to compel compliance with this
28 act or any rule, regulation or order issued pursuant to this act
29 against any person alleged to be in violation of any provision
30 of this act or any rule, regulation or order issued pursuant to
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1 this act. Any other provision of law to the contrary
2 notwithstanding, the courts of common pleas shall have
3 jurisdiction of such actions, and venue in such actions shall be
4 as set forth in the Rules of Civil Procedure concerning actions
5 in assumpsit.
6 (h) Additional remedies.--The penalties and remedies
7 prescribed by this act shall be deemed concurrent, and the
8 existence or exercise of any remedy shall not prevent the
9 department from exercising any other remedy hereunder, at law or
10 in equity.
11 (i) Violation defined.--For purposes of determining what
12 constitutes a violation under sections 4 and 5, a violation is
13 defined as follows:
14 (1) Under section 4, a violation means each separate
15 transaction.
16 (2) Under section 5, a violation means:
17 (i) use of materials that are not lead free in the
18 plumbing system of each service connection to a public
19 water system; or
20 (ii) use of materials that are not lead free in each
21 private individual water system.
22 (j) Separate offenses.--Violations on separate days shall
23 constitute separate offenses for purposes of this act.
24 Section 14. Local plumbing codes.
25 This act and the regulations adopted hereunder shall
26 supersede plumbing codes of local agencies to the extent that
27 those codes are less stringent than or otherwise inconsistent
28 with this act and the regulations adopted hereunder.
29 Section 15. Safe Drinking Water Account.
30 All fines and penalties collected under the penalty
19890S0283B1328 - 13 -
1 provisions of this act shall be paid into the Safe Drinking
2 Water Account, as established by section 14 of the Safe Drinking
3 Water Act. Such funds are hereby appropriated to and shall be
4 administered by the department for such purposes as are
5 authorized in this act and in the Safe Drinking Water Act.
6 Section 16. Construction.
7 The terms and provisions of this act are to be liberally
8 construed, so as to fully protect the public health, welfare and
9 safety and to achieve and effectuate the goals and purposes
10 hereof.
11 Section 17. Severability.
12 The provisions of this act are severable. If any provision of
13 this act or its application to any person or circumstance is
14 held invalid, the invalidity shall not affect other provisions
15 or applications of this act which can be given effect without
16 the invalid provision or application.
17 Section 18. Effective date.
18 This act shall take effect as follows:
19 (1) Sections 1, 2, 3, 7 and 8 of this act shall take
20 effect immediately.
21 (2) The remainder of this act shall take effect in 18
22 months.
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