Ppfa v. California Building Standards Com'n

• Decision Date: 15 December 2004
• Docket Number: No. B166499.,B166499.
• Citation: 124 Cal.App.4th 1390,22 Cal.Rptr.3d 393
• Court: California Court of Appeals Court of Appeals
• Parties: PLASTIC PIPE AND FITTINGS ASSOCIATION, Plaintiff and Respondent, v. CALIFORNIA BUILDING STANDARDS COMMISSION et al., Defendants and Appellants.

22 Cal.Rptr.3d 393

124 Cal.App.4th 1390

PLASTIC PIPE AND FITTINGS ASSOCIATION, Plaintiff and Respondent, v. CALIFORNIA BUILDING STANDARDS COMMISSION et al., Defendants and Appellants.

No. B166499.

Court of Appeal, Second District, Division 3.

December 15, 2004.

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Louis R. Mauro, Senior Assistant Attorney General, Gary Tavetian, Christine Sproul, Ramon M. De La Guardia and Christopher E. Krueger, Deputy Attorneys General, for Defendants and Appellants.

Rockard J. Delgadillo, City Attorney (Los Angeles), Jack Brown, Assistant City Attorney, Dennis J. Herrera, City Attorney (San Francisco) and Kate Herrmann Stacy, Deputy City Attorney, for City of Los Angeles and City and County of San Francisco as Amici Curiae on behalf of Defendants and Appellants.

Adams, Broadwell, Joseph & Cardozo, Daniel L. Cardozo, South San Francisco, Richard T. Drury, San Francisco, and Thomas E. Enslow for Sierra Club, Communities for a Better Environment, Center for Environmental Health, Planning and Conservation League, California Professional Firefighters Association, Consumer Federation of California and California Pipe Trades Council as Amici Curiae on behalf of Defendants and Appellants.

J. Scott Kuhn for Communities for a Better Environment as Amicus Curiae on behalf of Defendants and Appellants.

Brown, Winfield & Canzoneri, Brant H. Dveirin and Jack L. Henningsen, Los Angeles, for Plaintiff and Respondent.

Kronick, Moskovitz, Tiedemann & Girard and Jonathan P. Hobbs, Sacramento, for California Building Officials as Amicus Curiae on behalf of Plaintiff and Respondent.

Hatch & Parent and Lisabeth D. Rothman, Los Angeles, for California Building Industry Association and Building Industry Legal Defense Foundation as Amici Curiae on behalf of Plaintiff and Respondent.

CROSKEY, J.

The California Building Standards Commission (Commission) and five other state agencies appeal a judgment granting a peremptory writ of mandate in favor of Plastic Pipe and Fittings Association (PPFA).¹ The writ of mandate compels the Commission and the Agencies to adopt as part of the California Plumbing Code provisions of the Uniform Plumbing Code allowing the use of cross-linked polyethylene (PEX) pipes, vacate their exceptions to the adoption of those provisions, and vacate the Commission's finding that review is warranted under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) with respect to allowing the use of PEX.

The Commission and the Agencies contend (1) the superior court's conclusion that they acted arbitrarily and without evidentiary support by refusing to adopt the Uniform Plumbing Code provisions allowing the use of PEX was error; (2) the decision not to allow the use of PEX was not procedurally unfair; (3) the Commission's decision to defer approval of PEX pending CEQA review was proper; and (4) the writ of mandate impermissibly directs the Commission and the Agencies to exercise their discretion in a particular manner. We agree with the first three contentions and do not reach the fourth.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Adoption and Approval of Building Standards.

The Commission is a state agency responsible for approving or adopting building standards adopted or proposed by other agencies, as discussed post. Building standards ordinarily are based on model codes with any amendments deemed appropriate. Building standards approved or adopted by the Commission become part of the California Building Standards Code (Code), of which the California Plumbing Code is a part.

The International Association of Plumbing and Mechanical Officials, a private organization, published the 2000 Uniform Plumbing Code, a model code, in October 1999. The model code included provisions allowing the use of PEX pipes and fittings. PEX is a form of plastic.

The Commission and the Agencies initially proposed adopting the model code to apply to buildings regulated by the Agencies, including the provisions allowing the use of PEX.² They each provided an initial statement of reasons for the proposed building standards and a 45-day public comment period commencing in July 2001. During the public comment period, the Commission received a letter from Daniel L. Cardozo on behalf of the California State Pipe Trades Council, a trade group, objecting to allowing the use of PEX. The letter attached a letter from Thomas Reid, an environmental consultant, stating his opinion that the use of PEX pipes potentially could result in contamination of potable water and the environment by chemical leaching of substances from the pipes, and that the pipes potentially could be subject to permeation by substances of low molecular weight contained in soil and groundwater, such as methyl tertiary-butyl ether (MTBE) and pesticides. Reid also stated that the pipes potentially could be subject to mechanical failure, and that the pipes may rupture and create openings in the event of a fire and thereby facilitate the spread of fire. He stated that because PEX is not widely used in the United States information on its properties is not readily available.

Reid stated that normal polyethylene softens at high temperatures, and that the material can gain temperature resistance through the cross-linking of polymer chains with chemical bonds. He stated that cross-linked polyethylene (PEX) typically is manufactured using any of three different methods of chemical bonding, and that the different methods may result in different chemical and mechanical characteristics of the finished material. He also stated that PEX is a member of the polyolefin family of polymers, of which polybutylene (PB) is also a member, that antioxidants must be added to the pipe resin to protect polyolefins from oxidization and ultraviolet light, and that antioxidants in the pipe resin are consumed when the pipe is exposed to oxidizers such as chlorine and oxygen. He stated that PB pipes suffered from premature mechanical failure due to oxidant degradation despite the use of antioxidant additives, and eventually were taken off the market.

Reid stated his opinion that state agencies should not rely on certification by NSF International (NSF), a private organization that develops public health and safety standards for products, in determining whether the potential risks of using PEX are acceptable. He explained that NSF expressly disclaims any responsibility for the decision whether to use a certified product, does not make its test results available for others to review, and limits its testing protocols based on undisclosed assumptions derived from information provided by manufacturers.

The Commission also received a letter from the California Professional Firefighters stating that PEX may present dangers in the event of a fire by creating toxic smoke and accelerating the spread of fire, and urging the Commission to conduct environmental review under CEQA. The Commission and the Agencies also received comments supportive of allowing the use of PEX.

After receiving public comments and conducting a public hearing, the Agencies modified their proposed building standards by excluding the provisions allowing the use of PEX. The Commission and the Agencies provided further public comment periods on the amended proposals.

The Agencies each provided a final statement of reasons for proposed building standards. The final statements of reasons referred to Reid's comments and stated that neither the agencies nor the Commission had sufficient time to evaluate the potential environmental impact and other potential consequences of allowing the use of PEX or sufficient time to determine whether the use of PEX was "compliant with the laws of the State of California." The Agencies each provided an analysis of the nine criteria under Health and Safety Code section 18930, subdivision (a), pertaining to the building standards as a whole. The Commission provided the analyses on behalf of the Department of Health Services and the Department of Food and Agriculture pursuant to Health and Safety Code section 18928, subdivision (c).

The Commission provided a final statement of reasons in April 2002 stating in pertinent part:

"The public interest requires that when considering building products the approving agencies must always balance the potential benefits against the potential risks. When approving a product new to the California Plumbing Code, such as cross-linked polyethylene tubing (PEX), agencies have an obligation to be reasonably assured that the product does not produce an unreasonable risk to health or safety. When balancing these interests, agencies must resolve close questions in favor of protecting the health and welfare of consumers and of workers installing these products....

"At this time, the CBSC [Commission] feels it is obligated to give both the positive and negative comments and evidence equal credibility. It is unable at this time to conclude the negative comments concerning leachable products and permeation are unfounded. The CBSC has limited resources and the need to complete the triennial code adoption cycle has prevented the CBSC from addressing and investigating the issues raised regarding the PEX and the public interest in approving or not approving PEX.

"Although the CBSC has not determined yet whether the claims of Mr. Cardozo are valid, the CBSC will not adopt PEX, at this time, due to insufficient time remaining in its 2001 triennial code adoption cycle to adopt the 2000 UPC and to determine if this change in the model code is compliant with the laws of the State of California. Therefore, the CBSC does not believe the adoption of PEX would [] be in the public interest at this time."

The Commission also provided an analysis of the nine criteria under Health and Safety Code section 18930, subdivision (a), stating, in relevant part, "The public interest requires the...