BILL ANALYSIS �
AB 2539
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 2539 (Nielsen) - As Amended: March 29, 2012
SUBJECT : Drinking water: water treatment devices.
SUMMARY : Requires, instead of allows, the Department of Public
Health (DPH) to adopt by reference, the testing procedures and
standards of one or more independent testing organizations for
purposes of certifying water treatment devices. Specifically,
this bill :
1)Requires, instead of allows, DPH to adopt by reference, as
regulations, the testing procedures and standards of one or
more independent testing organizations for certification of
water treatment devices.
2)Requires, instead of allows the regulations specified in 1)
above, to specify any testing organization that is a
certification body accredited by an accreditation body member
of the International Accreditation Forum (IAF).
3)Deletes an existing requirement that regulations may be
adopted by reference only if DPH determines that the
procedures and standards are adequate, as specified.
4)Requires, instead of allows, DPH to accept a water treatment
device certification issued by an agency of another state, a
certification body accredited by an accreditation body member
of the IAF, or by the federal government, if the standards
used to certify the water treatment device meet or exceed
existing minimum standards, as evidenced by a declaration
submitted by the person seeking certification of the water
treatment device.
5)Deletes existing definitions including the following terms:
water treatment device, and contaminants.
EXISTING LAW :
1)Establishes the Division of Drinking Water and Environmental
Management within DPH to promote and maintain a physical,
chemical, and biological environment that contributes
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positively to health, prevents illness, and assures protection
of the public.
2)Requires DPH to adopt regulations setting forth the criteria
and procedures for certification of water treatment devices
that are claimed to affect the health or safety of drinking
water.
3)Requires the regulations specified in 2) above to include
appropriate testing protocols and procedures to determine the
performance of water treatment devices in reducing specific
contaminants from public or private domestic water supplies.
4)States that the regulations specified in 2) above may adopt,
by reference, the testing procedures and standards of one or
more independent testing organizations if DPH determines that
the procedures and standards are adequate to meet specified
requirements.
5)Authorizes the regulations to specify any testing organization
that DPH has designated to conduct the testing of water
treatment devices.
6)Requires the regulations specified in 2) above to include
minimum standards for the following:
a) Performance requirements;
b) Types of tests to be performed;
c) Types of allowable materials;
d) Design and construction;
e) Instruction and information requirements, including
operational, maintenance, replacement, and estimated cost
of these items; and,
f) Any additional requirements as may be necessary.
7)Specifies that DPH or any testing organization designated by
DPH may agree to evaluate test data on a water treatment
device offered by the manufacturer of the water treatment
device, in lieu of its own, if DPH or the testing organization
determines that the testing procedures and standards used to
develop the data are adequate to meet existing requirements.
8)Prohibits the sale or distribution of a water treatment device
that makes product performance claims or product benefit
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claims that the device affects health or the safety of
drinking water, unless certified by DPH or by another entity,
as specified. States that water treatment devices not offered
for sale or distribution based on claims of improvement in the
healthfulness of drinking water need not be certified.
9)Allows DPH to accept a water treatment device certification
issued by an agency of another state, by an independent
testing organization, or by the federal government in lieu of
its own, if it determines that certification program meets
specified requirements.
10)Defines water treatment device as any point of use (POU) or
point of entry (POE) instrument or contrivance sold or offered
for rental or lease for residential use, and designed to be
added to the plumbing system, or used without being connected
to the plumbing of a water supply intended for human
consumption in order to improve the water supply by any means,
including, but not limited to, filtration, distillation,
adsorption, ion exchange, reverse osmosis, or other treatment.
11)Allows DPH to suspend, revoke, or deny a certificate upon its
determination of either of the following:
a) That the water treatment device does not perform in
accordance with the claims made under the standard; or,
b) That the manufacturer, or any employee or agent has
violated existing law or regulation, as specified.
12)States that any person, corporation, firm, partnership, joint
stock company, or any other association or organization that
violates any provision of existing requirements shall be
liable for a civil penalty not to exceed five thousand dollars
($5,000) for each violation. Indicates that where the conduct
constituting a violation is of a continuing nature, each day
of the conduct is a separate and distinct violation. Requires
the civil penalty to be assessed and recovered in a civil
action brought in the name of the people of the State of
California by the Attorney General, or by any district
attorney, county counsel, or city attorney in any court of
competent jurisdiction.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
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COMMENTS :
1)PURPOSE OF THIS BILL . The Water Quality Association and the
Pacific Water Quality Association are the sponsors of this
measure. According to the a
2)uthor and the sponsors, the current requirements for DPH to
certify water treatment devices are unduly holding up the
introduction of helpful products to the market. It is taking
months and even years for the approval of these devices. As a
result, large and small companies are withdrawing sales of
water treatment devices in California.
"The state should require that all water treatment devices be
certified to the rigorous national standards established by
the American National Standards Institute (ANSI) and Standards
Council of Canada. In doing so, lawmakers can be sure they
are protecting consumers with a trustworthy regime of testing
and certification. National standards have been in place for
over 30 years, and some certification bodies have been
conducting product testing and certification for over 50
years. Certification bodies using these standards retain
specialized personnel involved in each product certification
over a period of several months. This thorough certification
process includes detailed formulation reviews of each material
the product is made with as well as testing and evaluation to
verify that the materials will not impart harmful contaminants
into the drinking water. Structural integrity testing
verifies that the product will maintain its integrity when
subjected to normal line pressure. Literature review, annual
on-site inspections, and monitoring are all included in the
process."
3)BACKGROUND .
a) Drinking Water Safety . In 1974 the federal Safe
Drinking Water Act (SDWA) was passed to protect public
health by regulating the nation's public drinking water
supply, which requires the United States Environmental
Protection Agency (EPA) to establish mandatory nationwide
drinking water standards. Two years after the SDWA was
passed, California adopted its own safe drinking water act.
The state's act has two main goals: to continue the
state's drinking water program, and to be the delegated
authority (referred to as the "primacy") by the EPA for
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enforcement of the federal SDWA. As required by SDWA, the
state's drinking water program must set drinking water
standards that are at least as stringent as the EPA's
standards. Each community water system also must monitor
for a specified list of contaminants, and the findings must
be reported to DPH. In 1989 the California Legislature
passed AB 21 (Sher), Chapter 823, Statutes of 1989, which
amended California's safe drinking water act. AB 21
requires the development of a comprehensive safe drinking
water plan, sets forth requirements for adopting primary
drinking water standards, requires large water systems to
identify all reasonable measures to reduce contaminant
levels in their water, and requires operators of public
water systems to notify DPH and the public whenever the
system is not in compliance with drinking water standards.
"Every citizen of California has the right to pure and safe
drinking water," according to California state law. And
how safe is the state's water? The most recent statistics
indicate that in 2007 about 97% of Californians who
received their drinking water from a public water system
received water that met drinking-water quality standards,
compared to the national state average of 92%. However,
given that California's approximately 8,000 public water
systems vary in size, location, and fiscal condition,
ensuring that all Californians receive safe drinking water
is a challenge. Many consumers in California have
purchased water treatment devices to further enhance the
safety of their drinking water.
b) Water Treatment Devices . According to DPH's Internet
Website, there are approximately 300 California-certified
drinking water treatment devices. Carbon filters are the
most common type of device, typically sold in the form of
counter top, faucet-mount or under counter models. Other
types of technologies available include distillation,
reverse-osmosis, ion-exchange, ceramic filter, and
ultraviolet light. When a manufacturer claims that a
drinking water treatment device will reduce toxic chemicals
or makes other health related performance claims, the
device must be certified. DPH certification means that the
device has been tested by an independent, state-approved
laboratory to: i) verify the manufacturer's health-related
performance claims; and, ii) ensure that materials within
the device do not add contaminants to the treated water.
These devices are intended to provide an additional level
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of protection for individuals who need or want drinking
water of a higher quality. Contaminants removed by
certified devices include organic chemicals such as
methyltributylethanol (MTBE), pesticides, herbicides and
solvents; inorganics such as lead, mercury, and
perchlorate; and, waterborne pathogens, such as bacteria,
virus, and protozoan cysts, such as Giardia and
Cryptosporidium.
Generally, to be approved for certification, there is a
nonrefundable fee of $1400, and the application must
include the following: contaminant reduction and extraction
test reports from approved laboratories, the testing must
comply with California-approved protocols; the device or
system label with required information; performance data
sheet; promotional materials must be consistent with
certified claims; and, engineering drawings and parts list
for the system. Certification is valid for one year and is
renewable every five years.
c) Private Certification . DPH is authorized to adopt the
testing procedures and standards of one or more independent
testing organizations if DPH determines that the procedures
and standards are sufficient. Generally, independent
testing organizations must be accredited by ANSI to be
approved. ANSI is a private, not-for-profit organization
that oversees the development of voluntary standards for
various things including products, services, processes, and
systems. It also provides accreditation for product
certification programs and coordinates U.S. standards with
international standards so that American products can be
used worldwide. For purposes of drinking water treatment
units, ANSI Standard 42 covers POU and POE systems designed
to reduce specific aesthetic or non-health related
contaminants, such as chlorine, taste and odor, and
particulates, that may be present in public or private
drinking water. The scope of Standard 42 is to establish
minimum requirements for material safety, structural
integrity, product literature, and aesthetic, non-health
related contaminant reduction performance claims. This
standard applies mostly to carbon filtration. ANSI
Standard 53 addresses POU and POE systems designed to
reduce specific health-related contaminants. The most
common technology addressed by this standard is carbon
filtration. Testing and certification under Standard 53
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occurs if a filter system reduces a significant amount of
specific harmful contaminants from drinking water,
including microbiological, chemical, or particulate in
nature. There are other standards that apply including
those for water softener systems, systems that use
ultraviolet light, reverse osmosis technology, or
distillation systems. DPH's Internet Website states that
there are three recognized independent testing
organizations certified by ANSI for product testing
approved in California: National Sanitation Foundation,
Water Quality Association, and Underwriter Laboratories.
d) DPH Proposed Budget Proposal . On April 5, 2012, DPH
sent a letter to manufacturers and certifying bodies for
residential water treatment devices. In this letter, DPH
states that it is proposing to eliminate the Residential
Water Treatment Device certification program effective with
the passage of the 2012-13 Budget Act . DPH will propose to
would modify existing law to require "approval" rather than
"certification" of water treatment devices offered for sale
in California that make health claims. It states that the
approval must be provided by an independent testing
organization that has been accredited by ANSI or by the
federal government. DPH advised interested parties with
the following:
i) DPH would no longer certify such products, except
for those for which the application for certification is
filed with DPH on or before June 30, 2012;
ii) DPH would process submitted applications by December
31, 2012; and,
iii) All existing certificates issued by DPH would remain
valid for their full five year certification period
(based upon the initial date of issuance).
4)POLICY CONSIDERATIONS .
a) DPH Budget Proposal . Should this bill move forward
given that DPH would propose in a trailer bill language to
eliminate the certification process and instead require
approval of water treatment devices?
b) Mechanism for Enforcement . Since this bill removes
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DPH's authority over certification, this bill puts into
question existing enforcement mechanisms. For example,
under the current certification process, DPH may suspend,
revoke, or deny a certificate if a device does not perform
in accordance with claims made, or if any existing
standards are violated. DPH can also impose monetary
penalties. In 2005, DPH entered into settlement with
EcoQuest for $125,000. According to DPH, EcoQuest offered
for sale and advertised uncertified water treatment systems
in California through local dealers and over the Internet.
DPH also alleged that EcoQuest and several
California-based independent dealers claimed that their
uncertified devices removed lead, arsenic, mercury,
fluoride, nitrates, volatile organic chemicals, MTBE and
microorganisms, such as bacteria, E. coli, Salmonella,
Legionella, and Shigella dysenteriae. Who is the
appropriate entity to take enforcement action against
certified treatment devices? It appears that DPH will
propose that all enforcement would be given to local health
officers.
c) Certification body . This bill specifies that
certification given by an accreditation body member of the
IAF will be sufficient to market these water treatment
devices in California. IAF is a worldwide organization and
according to its website, it has members and signatories
worldwide. Should DPH at least be given the opportunity to
determine the appropriate certifying body, and instead
specify those approved so that California consumers are not
confused with the enormity of these certified bodies and
can be confident with the devices they purchase? It
appears that under DPH's proposal, only certification by
ANSI or the federal government will be accepted.
5)DOUBLE REFERRAL . This bill is double referred. Should it
pass out of this committee, it will be referred to the
Assembly Committee on Environmental Safety and Toxic
Materials.
REGISTERED SUPPORT / OPPOSITION :
Support
Pacific Water Quality Association (cosponsor)
Water Quality Association (cosponsor)
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Opposition
None on file
Analysis Prepared by : Rosielyn Pulmano / HEALTH / (916)
319-2097