Regulation: Pipe Dream
In early July, the city of Los Angeles was about to approve the use of Optiflex, a new kind of plastic pipe, in residential and commercial construction. Made of a heat-resistant version of polyethylene, the plastic used in milk and soda bottles, Optiflex does not corrode or rust. Unlike copper, it is not affected by acidic soils, and it won't rupture if frozen or shaken by a minor earthquake. Timothy Taylor, head of the city's Building and Safety Department, called Kerry Welsh, director of marketing for Optiflex USA, and told him the pipe was likely to pass muster. One month later, Taylor informed Welsh that Optiflex would not be approved.
Between the beginning and the end of July, something happened to change Taylor's mind: On July 21 he received a letter from Adams and Broadwell, a law firm representing the Southern California Pipe Trades Council, District 16, an association of local plumbing and pipe-fitting unions. The staid legal language of the letter said that approval of Optiflex would be a "discretionary" judgment subject to the California Environmental Quality Act (CEQA). Taylor's experience taught him to read between the lines: "'Don't miss anything, or we'll sue your ass.' That's how I interpreted it."
Why is an association of pipe fitters so concerned about the environment? Says Daniel Cardozo, a lawyer at Adams and Broadwell, "Our members are plumbers, and we're concerned about the integrity of the materials and the work that we do." Taylor finds that explanation a little dubious. "I don't know whether this is a real safety issue, or a labor issue," he says. As it happens, Optiflex is easier to install than metal pipe and would cut down on the need for plumbers. The Pipe Trades Council's success at blocking approval of Optiflex illustrates how entrenched interests can use environmental legislation to protect their wallets.
Under CEQA, the state is required to conduct an extensive study of any project that has a "significant effect on the environment." If a locality is approving a project according to a state code, CEQA does not apply. But the state has no regulation for plastic pipes carrying drinking water inside a building. So Taylor's approval may have been a "discretionary" action subject to CEQA, meaning the pipe could not be approved without an environmental impact report. "I think the people at Optiflex are a little naive about CEQA regulations," Taylor says.
Frustrated in L.A., Welsh took his product to the state government in early August. But according to Ed King, chief of housing standards at the California Department of Housing and Community Development, the state right now "does not have the authority" to approve the pipe. California, it turns out, is mired in an environmental impact report on plastic pipe that it began years ago, primarily at the behest of the Pipe Trades Council.
The Health and Safety Code of California requires the state to adopt the Uniform Plumbing Code, a set of standards published triennially by the International Association of Plumbing and Mechanical Officials. In 1982, the UPC allowed expanded use of plastic pipe, which previously had not been approved to carry drinking water within a building. But the Pipe Trades Council, along with some environmental groups, requested that the state examine the environmental effects of the expanded use of plastic pipe before adopting the relevant portion of the 1982 UPC.
Since the study began, the state has limited the use of plastics to those permitted in the 1979 UPC. Under the continual threat of legal action by Adams and Broadwell, the state eventually ran out of money. Now the environmental impact report is stalled, and no one knows when or if it will be finished. But that might just be the point.
"I think that was a tactic," says Travis Pitts, deputy director for the Division of Codes and Standards at the state Department of Housing and Community Development. He notes that plastic pipes have long been used in California to carry drinking water underground and in manufactured housing. "There is no health and safety issue here," he says. "There is no environmental issue here."
In any case, Optiflex appears to be safe. The testing arm of the International Association of Plumbing and Mechanical Officials has declared that cross-linked polyethylene meets the standards for pipes carrying hot and cold drinking water set by the American Society for Testing and Materials. Optiflex has also been approved by Building Officials and Code Administrators International, after whom many Eastern states pattern their codes, and by the Southern Building Code. Under a different brand name, the plastic has been sold throughout the United States for eight years, and 10 states have approved its use for drinking water. It enjoys wide use in central Europe for drinking water, and in Switzerland, where it was introduced in 1984, it commands 60 percent of the market.
Many of the safety concerns that prompted California's environmental review don't even apply to Optiflex. For example, the plastic-pipe study looks at the possibility that glues used to link CPVC and polybutylene pipes might seep into the water they carry. The report also addresses inhalation and absorption of chemicals from those glues by workers. But Optiflex doesn't use glues. It is held together with brass-ring compression fittings, which Welsh describes as a "more sophisticated version of what connects your garden hose to your spigot."
Plumbers don't find much work hooking up garden hoses, however. And therein may lie the source of the Pipe Trades Council's opposition. Regarding the introduction of plastic pipe, Pitts says, "My father was a master plumber, and he said, 'Anybody with a hacksaw and a can of glue can be a plumber if they ever allow this stuff to be used.' Virtually anyone can go down to the hardware store today and buy that material and put in a sprinkler system." Like earlier plastic piping, Optiflex is relatively easy to install, requiring less time and fewer workers than metal pipe.
This would not be the first time CEQA was used to protect union jobs. In 1991 the Santa Clara County Transit District wanted to cut bus service. The Amalgamated Transit Union, Local 256, filed suit under CEQA, claiming that a reduction in bus service would lead more people to drive cars, thereby producing a "significant effect on the environment."
Nor is California the only state where special interests have used environmental legislation to guard their turf. In 1977, when polyethylene was first being used for milk bottles, the Minnesota legislature, under pressure from cardboard interests, banned the material on environmental grounds. A lower court threw out the law, saying the intent was to protect jobs, not the environment. The U.S. Supreme Court reversed the decision, ruling that, as long as the legislature's ostensible goal was "rational," the courts could not deem it phony.
Polyethylene lost then, and it looks like it will lose again. Pitts isn't optimistic about the future of Optiflex. Even if Welsh can get Optiflex included in the next version of the UPC, the state can't allow expanded use of plastic pipes until the 1982 environmental impact report is completed. And the report is only evaluating the two kinds of plastic included in the 1982 UPC—not Optiflex. Cardozo, the union attorney, says the Pipes Trades Council may very well press for a separate environmental impact report on Optiflex. Even if the UPC includes Optiflex, he says, the product must be shown to last as long as iron or copper pipe because failure of a pipe can expose people to sewage, thereby making performance an environmental issue.
This entire process seems a maddening irrelevancy to Welsh. He feels he has done his job. He has a product that is safe, inexpensive, and superior to the materials now being used for water pipes. But as Taylor explained, Welsh is naive if he thinks those credentials are enough to get Optiflex onto the market in California.
Jacob Kramer is REASON's 1993 Burton C. Gray Memorial Intern.