3-0210-15113-1

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENTS OF ADMINISTRATION AND HEALTH

In the Matter of the Proposed Amendments to Permanent Rules Relating to Plumbing Code, Minnesota Rules, Chapter 4715.

REPORT OF THE CHIEF ADMINISTRATIVE LAW JUDGE

The above-entitled matter came on for review by the Chief Administrative Law Judge pursuant to the provisions of Minn. Stat. § 14.15, subds. 3 and 4.   Based upon a review of the record in this proceeding, the Chief Administrative Law Judge hereby approves the Report of the Administrative Law Judge in all respects.

In order to correct the defect enumerated by the Administrative Law Judge, the agency shall either take the action recommended by the Administrative Law Judge or reconvene the rule hearing if appropriate.  If the agency chooses to reconvene the rule hearing, it shall do so as if it is initiating a new rule hearing, complying with all substantive and procedural requirements imposed on the agency by law or rule. 

If the agency chooses to take the action recommended by the Administrative Law Judge, it shall submit to the Chief Administrative Law Judge a copy of the rules as initially published in the State Register, a copy of the rules as proposed for final adoption in the form required by the State Register for final publication, and a copy of the agency’s Order Adopting Rules.  The Chief Administrative Law Judge will then make a determination as to whether the defect has been corrected and whether the modifications in the rules are substantially different.

Should the agency make changes in the rules other than those recommended by the Administrative Law Judge, it shall also submit the complete record to the Chief Administrative Law Judge for a review on the issue of substantial difference.

 

Dated this

5th

day of

February

2003.

 

                                                                             

KENNETH A. NICKOLAI

Chief Administrative Law Judge

 

 

MEMORANDUM

 

            This report approves the finding of the Administrative Law Judge regarding the defect noted in Finding 36.  But that issue is not the central issue in this proceeding.  The central issue is whether or not the rules should allow the use of Air Admittance Valves (AAVs).  On that issue, the Administrative Law Judge ruled that she could not require the agency to allow AAVs.

 

            The Administrative Law Judge’s ruling concerning AAVs was based upon Minn. Rule part 1400.2070, subpart 1, which provides, in pertinent part, as follows:

 

                        If an agency is amending existing rules, the agency need not demonstrate the need for and reasonableness of the existing rules not affected by the proposed amendment.

 

AAVs are not allowed under the existing plumbing code, and the department did not propose to allow them in the amended code, either as an approved or alternate material or method.  In addition, the existing code, at part 4715.0200 (I), contains a provision which, as a practical matter, precludes the use of AAVs as alternative methods of venting.  That provision is not proposed for amendment in this proceeding.

 

           The Administrative Law Judge correctly applied Minn. Rule part 1400.2070, subpart 1, to the situation of AAVs.  That rule effectively limits the scope of what is “fair game” for public comment and ALJ action to the items which the department is proposing to amend or add.  As a leading treatise on the subject has stated:

 

            A question sometimes arises in rulemaking proceedings about what burden the agency must bear in regard to need and reasonableness when it amends existing rules.  Amendments of rules are specifically included within the statutory definition of a rule.  Therefore, amendments must be shown to be needed and reasonable by an affirmative presentation of facts.  However, pursuant to an OAH rule, the agency is not required to demonstrate the reasonableness of existing rules’ subsections that are not affected by the proposed amendments, even though the existing rules may be in close proximity to the amendments.[1]

 

           The Minnesota Administrative Procedure Act (APA) gives agencies the power to decide what they will propose for inclusion in their rules, and what they will not propose.  An agency can decide to exclude a proposal, and the APA severely limits any interference with that decision.  Of course, aggrieved persons can always ask the legislature to include a provision directly in a statute, or to otherwise require the agency to include something in rules.  But absent legislative intervention, an agency cannot be required to adopt a rule it does not want.  Therefore, proponents of AAVs must either continue to try to convince the agency to accept them, or else try to convince the legislature to require them.

                                                                        K.N.