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