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 ADMINISTRATIVE LAW JUDGE

         

A hearing concerning the above rules was conducted by Administrative Law Judge Kathleen D. Sheehy beginning at 9:30 a.m. on December 6, 2002, at the Building Codes and Standards Division Offices, 408 Metro Square Building, 121 E. 7^th Place, St. Paul, Minnesota.  The hearing continued until all interested persons, groups and associations had an opportunity to be heard concerning the proposed rules.

The hearings and this report are part of a rulemaking process that must occur under the Minnesota Administrative Procedure Act[1] before an agency can adopt rules.  The legislature has designed this process to ensure that state agencies have met all the requirements that Minnesota law specifies for adopting rules.  Those requirements include assurances that the proposed rules are necessary and reasonable, that they are within the agency’s statutory authority, and that any modifications of the rules made after their initial publication does not result in rules that are substantially different from those originally proposed. 

The rulemaking process also includes a hearing, when a sufficient number of persons request a hearing.  The hearing is intended to allow the agency and the Administrative Law Judge reviewing the proposed rules to hear public comment regarding the impact of the proposed rules and what changes might be appropriate.  The Administrative Law Judge is employed by the Office of Administrative Hearings, an agency independent of the Departments of Administration and Health (“Department” or “agency”).

Randy Ellingboe, Supervisor, Engineering/Plumbing Unit, and Colleen Erickson, Engineering Specialist Senior, Engineering Program, of the Environmental Health Services Section of the Environmental Health Division of the Minnesota Department of Health, 121 East Seventh Place, Saint Paul, MN  55101, presented the Department’s position and answered questions at the hearing.  Approximately 20 persons attended the hearings and 17 signed the hearing register.  Nine people spoke at the hearing.

Several public comments were submitted before the hearing.  After the hearing ended, the Administrative Law Judge kept the record open for the maximum twenty calendar days until December 26, 2002, to allow interested persons and the Department of Health an opportunity to submit written comments.  During this initial comment period the Administrative Law Judge received written comments from the Department and nineteen public comments.  Following the initial comment period, the Administrative Procedure Act requires that the hearing record remain open for another five business days to allow interested parties and the agency to respond to any written comments.  The Department did respond as well as two other individuals and groups.  The hearing record closed for all purposes on January 3, 2003.

SUMMARY OF CONCLUSIONS

1.     The Department has failed to establish the reasonableness of the rule concerning standards for plumbing materials, 4715.0420, in that the rule gives undue discretion to the agency to determine what is an acceptable independent testing laboratory.

2.     The rules have otherwise been shown to be needed and reasonable.

Based upon all the testimony, exhibits and written comments, the Administrative Law Judge makes the following:

          FINDINGS OF FACT

Procedural Requirements

1.                 On July 10, 2000, the Department published a Request for Comments on Planned Amendments to Rules Governing the Minnesota State Building Code in the State Register.  The request indicated that the Department intended to make any necessary amendments to provide updated information to the Minnesota Plumbing Code.  The Request for Comments was published at 25 State Register 62.[2]

2.                 By a letter dated October 3, 2002,[3] the Department petitioned the Chief Administrative Law Judge to omit the text of the proposed rules from publication in the State Register pursuant to Minn. Stat. § 14.14, subd. 1a(b).[4]  The Department estimated that the cost of publication of its entire package of building code rules (seven in all, of which the Plumbing Code was one) would be approximately $12,000.

3.                 By a letter dated October 8, 2002, the Department requested that the Office of Administrative Hearings schedule a rule hearing and assign an Administrative Law Judge.  The Department also filed a proposed Dual Notice of Intent to Adopt Rules Without a Public Hearing, a copy of the proposed rules and a draft of the Statement of Need and Reasonableness (SONAR).[5]  The Department asked for prior approval of its additional notice plan.

4.                 In a letter dated October 8, 2002, the Administrative Law Judge approved the Dual Notice. 

5.                 In a letter dated October 9, 2002, the Chief Administrative Law Judge approved the agency’s petition to omit the text of proposed rules from publication in the State Register.[6]

6.                 In a letter dated October 15, 2002, the Administrative Law Judge approved the additional notice plan.

7.                 On October 17, 2002, the Department mailed the Dual Notice to all persons and associations who had registered their names with the agency for the purpose of receiving such notice and to all persons identified in the additional notice plan.[7]

8.                 On October 18, 2002, the Department mailed the Dual Notice and the Statement of Need and Reasonableness to the legislators specified in Minn. Stat. § 14.116.[8]

9.                 On October 18, 2002, the Department mailed a copy of the Statement of Need and Reasonableness to the Legislative Reference Library.[9]

10.             On October 21, 2002, the Dual Notice, signed by Patricia A. Blomgren, Division Director, Environmental Health Division, Minnesota Department of Health and Kath Ouska, Assistant Commissioner, Department of Administration, was published at 27 State Register 582-583.[10]

11.             On the day of the hearing the following documents were placed in the record:

A.             The Request for Comments published in the State Register.

B.             A Request for Comments published in the State Register.[11]

C.             The proposed rule, including Revisor’s approval.

D.             The Statement of Need and Reasonableness.

E.             A copy of the certificate and transmittal letter showing that the agency sent a copy of the SONAR to the Legislative Reference Library.

F.             The Dual Notice as mailed and published in the State Register.

G.            Certificate of Mailing the Dual Notice and the Certificate of Accuracy of Mailing List.

H.             Certificate of Mailing to Additional Notice recipients.

I.               Written comments on the proposed rule received by the Department during the comment period.

J.              Department’s petition for omission of the rule language from publication in the State Register and Chief Administrative Law Judge’s approval of petition.

K.             Certificate of Mailing Notice to Legislators.

L.              Notice of Hearing and mailing list.

Nature and History of the Proposed Rules

10.             These proposed rule amendments are to the Minnesota Plumbing Code.  The Minnesota Plumbing Code sets forth the principles of proper plumbing methods, specifies acceptable materials, and outlines the installation methods that will ensure sanitary conditions.  The Code requires the submission of plans for plumbing installation in public places and the inspection of plumbing work by Department staff.  The Minnesota Plumbing Code provides for the examination and licensing of plumbers and provides for administration of these rules by certain local units of government.  The proposed amendments relate to the following topics:  approval of new materials and methods; updates of reference testing standards; correction and clarification of existing language; adoption of safer, more convenient plumbing system test methods; amendment of cross-references for the plumbing code and other construction codes as necessary; update of installation requirements; and updates for consistency with national plumbing codes.[12]

11.             The Minnesota Plumbing Code Advisory Council (Advisory Council) was established in 1997 to study and make recommendations regarding new products, materials and methods of plumbing.[13]  The following plumbing industry organizations have representatives on the Advisory Council:  the International Association of Plumbing and Mechanical Officials (IAPMO), the Minnesota Association of Plumbing, Heating and Cooling Contractors (PHCC), the Association of Builders and Contractors (ABC), the Minnesota State Pipe Trades, the Minnesota Mechanical Contractors Association (MMCA), the American Society of Plumbing Engineers (ASPE), and the Minnesota Department of Health.[14]  The Advisory Council considered all of the proposed changes to the rules.

Statutory Authority

12.             The Departments cite to several statutes for their authority to adopt these amendments to the Minnesota Plumbing Code.[15]  The statutory sections cited provide authority for the Commissioner of Health to set plumbing standards,[16] and for the Commissioner of Administration to adopt a State Building Code.[17]  The policy and purpose of the State Building Code is as follows:

The State Building Code governs the construction, reconstruction, alteration, and repair of buildings and other structures to which the code is applicable.  The commissioner shall administer and amend a state code of building construction which will provide basic and uniform performance standards, establish reasonable safeguards for health, safety, welfare, comfort, and security of the residents of this state and provide for the use of modern methods, devices, materials, and techniques which will in part tend to lower construction costs.  The construction of buildings should be permitted at the least possible cost consistent with recognized standards of health and safety.[18] 

The code of standards adopted as the State Building Code “must be based on the application of scientific principles, approved tests, and professional judgment.  To the extent possible, the code must be adopted in terms of desired results instead of the means of achieving those results, avoiding wherever possible the incorporation of specifications of particular methods or materials.  To that end the code must encourage the use of new methods and new materials.”[19]

The Departments have established their general statutory authority to adopt rules in this area.

 Statement of Reasonableness Concerning the Rules as a Whole

13.             The Department states that the proposed amendments to the Minnesota Plumbing Code have been reviewed and recommended by the Advisory Council.  “When evaluating proposed new system components and methods, the Advisory Council considered compliance with existing industry or consensus standards, approvals given by other jurisdictions, and listing by standard-setting and product certification organizations such as NSF International, the Canadian Standards Association, and the International Association of Plumbing and Mechanical officials.  Acceptance of new materials and methods is based on maintaining the potability of drinking water and public health protection in general.”[20]  The Department states that the Advisory Council reached consensus on all items.[21]

Regulatory Analysis

14.           The Administrative Procedure Act requires an agency adopting rules to consider six factors in its Statement of Need and Reasonableness.  The first factor requires:

(1)      A description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule.

The Department identifies those affected by the rules as municipal plumbing inspectors, design engineers, plumbing contractors/installers, plumbing equipment suppliers, and building owners.  Those who will bear the costs of the rule include  building owners and managers, plumbing installers, and material suppliers. 

The Department identifies those benefiting from the rules as:  municipal plumbing inspectors; plumbing contractors/installers; suppliers of new materials allowed by the amendments; building owners and designers of new and remodeled buildings.  In addition, the Department states that all members of the general public who use plumbing systems will benefit from the new code provisions because they provide for increased public safety or maintain current safety standards while allowing less expensive or more readily available materials to be used. 

(2)      The probable costs of the Agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues.

          The Department does not anticipate any additional costs to any state agency or to local jurisdictions in the implementation and enforcement of these rules.  There will be no effect on state revenues.

(3)      The determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule.

         The Department identifies the main purpose of the existing rules as “to provide for public health and safety by ensuring that the approved materials and installation methods are adequate to prevent contamination of potable water supplies and other health hazards. . . . Given this focus, health is a first priority and cost or intrusiveness are secondary considerations when amending the Minnesota Plumbing Code.”[22]

         On page six of the SONAR the Department cites several proposed rule revisions that allow for less costly and less intrusive methods than the current rule.

(4)      A description of any alternative methods for achieving the purpose of the proposed rules that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rules.

Part of the impetus for this rulemaking was a request by the Construction Codes Advisory Council to consider adoption of the International Plumbing Code.  The Department formed a workgroup to compare the Minnesota Plumbing Code with the International Plumbing Code (IPC), the plumbing section of the International Residential Code, and the Uniform Plumbing Code (UPC).  The working group involved in this process was not able to reach consensus on the relative merits of retaining the current code or adopting the IPC or UPC.[23]  The Commissioner of Health elected to retain the Minnesota Plumbing Code because it is familiar to the plumbing industry and other users of the code in Minnesota, because it is readily available online to plumbers in other states, and because it has a “demonstrated track record in protecting the health and safety of our citizens.”[24]  The Commissioner found that the Minnesota Plumbing Code was “flexible enough to incorporate advances in plumbing technology and other changes that may affect the industry” without resorting to extensive and contentious rulemaking activities that would be necessary to adapt the international codes for use in Minnesota.[25]

The Advisory Council also considered and rejected suggestions for code changes from persons involved in the plumbing industry.  The bulk of this report addresses code revisions that were proposed by other groups but were not recommended by the Advisory Council.  The most contentious of these issues is a request by a manufacturer of air admittance valves[26] (AAVs) and by a member of the Plumbing Advisory Council[27] that AAVs be approved as a venting method.[28] 

(5)      The probable costs of complying with the proposed rules.

The Department states that some of the proposed changes could result in minimal additional costs for building owners or plumbing installers, while other proposed changes would save money by allowing the use of materials that are less expensive or more readily available, or by reducing installation and testing time.  As a result, the overall effect of the proposed changes is likely to result in little change in the cost of complying with the rules.

(6)      An assessment of any differences between the proposed rules and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.

          There are no specific federal regulations governing the subject matter of the proposed amendments.

          The Department has satisfied the requirements of Minn. Stat. § 14.131, which requires it to ascertain the above information to the extent the agency can do so through reasonable effort.

Performance Based Rules

15.           The Administrative Procedure Act[29] also requires an agency to describe how it has considered and implemented the legislative policy supporting performance based regulatory systems.  A performance based rule is one that emphasizes superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.[30]  The authorizing statute for the State Building Code also requires that “the code must be adopted in terms of desired results instead of the means of achieving those results, avoiding whenever possible the incorporation of specifications of particular methods or materials.” 

16.           The Department states that the “Minnesota Plumbing Code establishes minimum regulations for plumbing systems using both prescriptive and performance-related provisions.  It is founded on broad-based principles that allow the use of new materials and new plumbing designs as long as they are shown to be equivalent to the existing standards in protecting public health.  In cases where specific materials or methods are clearly superior, the Minnesota Plumbing Code prescribes their use in the interest of protecting the public.”[31]

Additional Notice

17.           In addition to the mailed and published notices required by statute, the Division published the proposed rules, Statement of Need and Reasonableness (“SONAR”), and Notice of Intent to Adopt on its website.  It also mailed a Notice of Intent to Adopt to all municipal code officials responsible for administration of the State Building Code, as well as officials from other cities, towns and counties who need to be aware of the rules as they apply to public buildings within their jurisdiction.  The Division mailed also to members of the Construction Code Advisory Council and the Metropolitan Council.

18.           Members of the Plumbing Code Advisory Council provided technical input to assist Department staff in the decision-making process.  All of the proposed substantive amendments were reviewed and recommended by the Advisory Council.[32]

Rulemaking Legal Standards

19.           Under Minn. Stat. § 14.14, subd. 2, and Minn. Rule 1400.2100, a determination must be made in a rulemaking proceeding as to whether the agency has established the need for and reasonableness of the proposed rule by an affirmative presentation of facts.  In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[33]  The Department prepared a Statement of Need and Reasonableness in support of the proposed rules.  At the hearing, the Department primarily relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed amendments.  The SONAR was supplemented by comments made by Department representatives at the public hearing and in written post-hearing submissions.

20.           The question of whether a rule has been shown to be reasonable focuses on whether it has been shown to have a rational basis, or whether it is arbitrary, based upon the rulemaking record.  Minnesota case law has equated an unreasonable rule with an arbitrary rule.[34]  Arbitrary or unreasonable agency action is action without consideration and in disregard of the facts and circumstances of the case.[35]  A rule is generally found to be reasonable if it is rationally related to the end sought to be achieved by the governing statute.[36] 

21.           The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[37]  An agency is entitled to make choices between possible approaches as long as the choice made is rational.  Generally, it is not the proper role of the Administrative Law Judge to determine which policy alternative presents the “best” approach since this would invade the policy-making discretion of the agency.  The question is rather whether the choice made by the agency is one that a rational person could have made.[38]

22.           In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedure was complied with, whether the rule grants undue discretion, whether the Board has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[39]  In this matter, the Department has proposed changes to the rule after publication of notice in the State Register.  Because of this circumstance, the Administrative Law Judge must determine if the new language is substantially different from that which was originally proposed.[40]

23.           The standards to determine if new language is substantially different are found in Minn. Stat. § 14.05, subd. 2.  The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced … in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the … notice of hearing and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.” 

24.           In determining whether modifications make the rules substantially different, the Administrative Law Judge is to consider whether “persons who will be affected by the rule should have understood that the rulemaking proceeding … could affect their interests,” whether “the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the … notice of hearing,” and whether “the effects of the rule differ from the effects of the proposed rule contained in the … notice of hearing.”[41] 

25.           Any substantive language change suggested by the Department that differs from the rule as published in the State Register has been assessed to determine whether the language is substantially different.  Because some of the changes are not controversial, not all of the altered language has been discussed.  Any change not discussed is found to be not substantially different from the rule as published in the State Register.  Substantive and controversial changes are discussed in the following discussion of the proposed rules.

Analysis of the Proposed Rules

General

26.           This report addresses the portions of the proposed rules that received significant comment or otherwise need to be examined.  In addition, the report examines portions of the existing rules that the Department declined to revise in this rulemaking process.  When proposed rules are adequately supported by the SONAR or the Department’s oral or written comments, a detailed discussion of the proposed rules is unnecessary.  The agency has demonstrated the need for and reasonableness of all rule provisions not specifically discussed in this report by an affirmative presentation of facts.  All provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.

27.           This report will address first the code revisions proposed by the Minnesota Chapter of the American Society of Plumbing Engineers (MN-ASPE) and other groups, followed by discussion of issues concerning AAVs.  ASPE is an international volunteer organization of professionals skilled in the design, specification, inspection, and manufacture of plumbing systems.  The organization is dedicated to the advancement of the science of plumbing engineering and the health, welfare, and safety of the public through research and education.  The local committee that proposed revisions to the Minnesota Plumbing Code is composed of engineers, designers, and manufacturers’ representatives.[42]

Code Revisions Proposed by MN-ASPE and Others

4715.0100 – Definitions

        28.     MN-ASPE proposed an amendment to the definitions section to define clear water waste as “cooling water and condensate drainage from refrigeration and air conditioning equipment.”  This definition is similar to that in the Uniform Plumbing Code; MN-ASPE believes the amendment is necessary so that there is express authority in the rule to permit drainage of clear water waste into storm sewers.

        29.     The Department contends that the current rules defining storm sewers[43] and sewage[44] “normally” permit cooling water and condensate drainage to be discharged into roof drains that then drain into storm sewers.  It prefers not to define clear water waste because it believes the proposed definition may unduly limit what is considered clear water waste, maintaining that (unspecified) equipment other than refrigeration and air conditioning equipment may produce “nonpolluted” water that may properly drain into a storm sewer.  It also contends that the current rules allow the Department to prohibit drainage that would result in pollution, such as caustic solutions used to clean rooftop cooling units. 

        30.     The current rules already prohibit discharging polluted water into storm sewers, and the proposed amendment would not change the definition of sewage; nor would a definition of clear water waste that is specific to refrigeration and air conditioning equipment have any effect on the determination whether drainage from other types of equipment is polluted or not.  MN-ASPE contends that the proposed definition would do nothing except standardize what the Department acknowledges is the “normal” procedure of permitting the discharge of cooling water and condensate drainage into store sewers and remove an administrative authority’s[45] ability to determine on a case-by-case basis whether clear water waste may be discharged into roof drains.

31.     This issue does not really involve the Department’s decision to choose between competing public health or safety considerations, but a choice to delegate more discretion to administrative authorities as opposed to standardizing the process through the adoption of specific rules.  Although it may be a better policy to have a uniform rule, the Department’s choice to prefer a discretionary approach as opposed to a standardized treatment of these wastes is not irrational.  The Department has established that the existing rule is reasonable and need not be amended.

4715.0420 – Standards for Plumbing Materials

32.   Subpart 1 of this rule provides that a material shall be considered approved if it meets one or more of the standards specified in subpart 3; materials not listed in subpart 3 are to be used only if permitted as an alternate material under 4715.0330 or as permitted elsewhere in the code.  Subpart 3 (VI) of this rule sets out the testing standards that different types of plastic pipe and fittings must meet.  In the section concerning water distribution, the  Department proposed adding a reference to cross-linked polyethylene (PEX) tubing systems as follows:

WATER DISTRIBUTION – Polybutylene (PB) systems (PB tubing together with recommended fittings) and, chlorinated polyvinyl chloride (CPVC) pipe together with fittings, and cross-linked polyethylene (PEX) tubing systems together with approved fittings must be tested by the manufacturer at 150 psi and 210 degrees Fahrenheit for a period of not less than 48 hours by an independent testing laboratory acceptable to the administrative authority. 

        33.     PEX pipe and fittings have been approved for use on a case-by-case basis in the past.  In connection with this rulemaking, manufacturers proposed amending the code to permit the use of these systems to eliminate the need for case-by-case approval.  The Plumbing Advisory Council (PAC) recommended this revision to the rule.

        34.     One commenter[46] pointed out that the national standard (ASTM F877) developed to test this material requires a test for 30 days as opposed to 48 hours.  The standard addresses pipe sizes and lengths, conditioning of test specimens, assembly configurations, test fluids, test temperature, and measurement device requirements.  In addition, the commenter objected to the phrase “must be tested by the manufacturer . . . by an independent testing laboratory acceptable to the administrative authority” as being unclear as to whether the manufacturer or the independent laboratory does the testing, and as being vague as to how the administrative authority determines an independent laboratory is acceptable.   CPI also pointed out that manufacturers rely on ANSI-accredited third-party certification agencies to test their products to appropriate standards.   Third-party certifiers also conduct audits of manufacturing plants to ensure that plants maintain quality records, that testing is being performed on a regular basis, and that controls for material handling and verification are being utilized.  CPI recommends that the Department delete the reference to PEX piping in this rule and rely instead on the ASTM F877 standard and an ANSI-accredited third-party certifier.

        35.     In response to these comments, the Department proposes revising the proposed rule as follows:

WATER DISTRIBUTION – Polybutylene (PB) systems (PB tubing together with recommended fittings), chlorinated polyvinyl chloride (CPVC) pipe together with fittings must be tested by the manufacturer at 150 psi and 210 degrees Fahrenheit for a period of not less than 48 hours by an independent testing laboratory acceptable to the administrative authority.  Cross-linked polyethylene (PEX) tubing systems together with approved fittings must be tested at 150 psi and 210 degrees Fahrenheit for a period of not less than 30 days by an independent testing laboratory acceptable to the administrative authority.[47]

        36.     The Department did not respond to the comments addressed to the meaning of the phrase “independent testing laboratory acceptable to the administrative authority.”[48]  The rule as proposed by the Department is unclear insofar as it fails to define “independent testing laboratory.” The Administrative Law Judge recommends that the Department examine this issue again and attempt to clarify the meaning of this phrase.  More importantly, however, the proposed rule provides no standard by which an administrative authority is to determine that a testing laboratory is acceptable.  Because the proposed rule grants undue discretion to the administrative authority, the rule contains a defect that the agency must address before the rule can be adopted.  To correct the defect, the Department could require a “qualified independent testing laboratory” to conduct the test.

        37.     As proposed in the section that follows the “Water Distribution” section above, the Department refers to ASTM standards for PEX pipe, tubing, and fittings[49] as follows:  “F 876-99a,”  “F 877-99a,”  “F 1807-99,” and “F 1960-99.”  CPI pointed out that the “99” references are to 1999 revision levels for the standards given, whereas standards for all other materials and products in this section reference only the standard number and make no reference to the revision level.  Because standards are continuously updated and changed to improve the standard and the products they encompass, and because manufacturers have third-party testing performed to the latest version of the standard, as opposed to whatever revision level may be referred to in a code, CPI suggested deleting the revision levels to ensure that products are always tested to the latest requirements.  CPI proposes that the text for the standards should read “F 876,” “F 877,” “F 1807,” and “F 1960,” respectively.

        38.     The Department has agreed that the changes recommended by CPI are appropriate, and it has revised the proposed rule to delete references to the revision year for sections 6M, 6N, and 6O.  The Department has demonstrated the need for and reasonableness of this proposed rule, and the language of the rule is not substantially different that initially proposed.[50]

4715.0520 – Water Distribution Pipe.

        39.     This rule specifies the materials that may be used for water distribution pipe.  The Department’s proposed revision adds an item L for PEX pipe that reads as follows:

 

Cross-linked polyethylene (PEX) tubing 6M with approved fittings 6N or 6O.  The water distribution system shall be installed by a factory-trained installer and shall be in accordance with the manufacturer’s installation instructions.  Tubing must be marked with the ASTM designation of the fitting system(s), which have been approved for use with the PEX tubing, by the tubing manufacturer.

        40.     CPI objected to the references to “approved fittings” and “approved for use” by the manufacturer.  CPI contends that the ASTM standards referenced above (F 876, F 877, F 1807, and F 1960) provide for comprehensive testing of PEX pipe and fittings and that the issuance of a mark on the product by a certification agency along with the certification listing provides the assurance that the product meets the requirements of the standards and complies with the quality assurance procedures necessary to manufacture the product.  CPI contends that administrative authorities use the certification listings and compliance marks to ensure compliance with the code, and that fittings are not “approved” for use with pipe but are rather “certified” by the third-party certifier.  CPI proposed alternate wording to clarify the rule.

        41.     The Department has agreed to all of the revisions proposed by CPI, and the revised rule reads as follows:

L.  Cross-linked polyethylene (PEX) tubing 6M with fittings 6N or 6O shall be certified by an independent third-party certifier.  The water distribution system shall be installed by a factory-trained installer in accordance with the manufacturer’s installation instructions.  Tubing and fittings must be marked with the appropriate ASTM designations by the manufacturer.[51]

        42.     The Department has established that the proposed rule is needed and reasonable, and the revised language is not substantially different from the rule as initially proposed.

4715.0820 – Soldered or Brazed Joints

        43.     Copper piping is the modern standard for internal plumbing.  Copper pipes and fittings can be joined either by soldering or brazing.  Both processes may involve the use of flux, a soft corrosive paste that helps improve the bond between the two pieces of copper by removing oxides from, and preventing further oxidation of, the fused metal.  If flux remains in the plumbing after soldering or brazing is complete, it can lead to corrosion in the fitting and premature leaks in the plumbing system.

        44.     The Department proposed a revision to this rule which requires that joints to be soldered must be properly fluxed with noncorrosive paste-type flux “complying with ASTM Standard B813-00.” 

        45.     MN-ASPE proposed revisions requiring that paste “or liquid” type flux be required to meet ASTM Standard B813-00.  It also proposed that brazing filler metal and brazing flux be required to meet ANSI/AWS 5.8 and ANSI/AWS 5.31, Type FB3-A or FB3-C, respectively. 

        46.     The Department accepted the proposed revision for solder flux but declined to accept the proposal concerning brazing materials because it did not have time to analyze whether the recommended brazing materials have support among industry representatives.  MN-ASPE accepted this amendment and encouraged the Department to continue its review of brazing flux materials.  The Department has established that the rule as modified is needed and reasonable, and the language is not substantially different from the rule as originally proposed.

4715.1120 – Oil and Flammable Liquids Separator

        47.     These devices are used to separate oils and flammable liquids from water and other liquid wastes.  They are often installed in buildings with drains where there is a potential for oil or flammable waste to be discharged into the sewer system (such as automobile repair facilities), and they are generally installed below a poured concrete floor, making them difficult to service and replace.  The Department proposed minor revisions to the existing rule, to which no person objected.  The Department has established that those revisions are both needed and reasonable.   

        48.     The rule currently allows the use of separators that are constructed of monolithic poured reinforced concrete, iron, or steel.  MN-ASPE proposed an additional amendment that would permit the use of chemically resistant fiberglass material that meets a variety of ASTM standards.[52]   According to MN-ASPE, fiberglass is noncorrosive, whereas both iron and steel are subject to corrosion, and concrete is subject to cracking and deterioration.  There is a 35-year history of using fiberglass underground tanks and pipes for storing petroleum products, and it is accepted practice to use fiberglass in underground applications that are subject to corrosion.  MN-ASPE maintains that fiberglass materials that meet the standards stated in its proposed rule are superior to iron, steel, or concrete, and that many of these fiberglass products have a design life in excess of 50 years and come with a 30-year warranty against corrosion, leaks, and structural failures. 

        49.     The Department declined to accept MN-ASPE’s proposal to allow fiberglass tanks on the basis that it had not had sufficient time to research whether the proposed standards were recognized industry-wide, it was certain about installation standards, and it was uncertain about testing requirements.[53]

        50.     MN-ASPE contends that these reasons are inadequate or irrational.  The organization proposed this change more than one year ago.  In addition, its proposal provides materials standards that do not exist for concrete, iron, or steel tanks that are permitted, and the rule does not specify testing requirements for these products either.

        51.     The Department’s objections reflect the concern that plumbers are not familiar with these products and the standards for installation or inspection.  The Administrative Law Judge has no authority, however, to require the Department to adopt a better rule, even though the authorizing statute charges the Department with encouraging the use of new methods and new materials based on application of scientific principles, approved tests, and professional judgment.[54]  The Department’s choice to reject the use of fiberglass tanks is not unreasonable or irrational in the sense that the Department has acted in disregard of the facts and circumstances in the record.  The Department has established that the existing rule is reasonable.

4715.1220 – Installation of Fixtures

        52.     The Department proposed a minor revision to this rule concerning the spacing of water closets used primarily by children 12 and younger.  No person objected to the language of this revision.

        53.     MN-ASPE proposed deleting all references to fixture installation from the plumbing code and simply cross-referencing to the appropriate sections of the Minnesota Building Code.  MN-ASPE has not identified any actual conflict between the codes or cited to any sections that would likely confuse the public about which code requirements would apply.  The Department has declined to make the changes recommended, preferring to keep these references in the plumbing code.

        54.     The Department has established that the rule as proposed is needed and reasonable.

4715.1380 – Anti-scald Devices

        55.     Subpart 5 of the current rule requires all showers to be equipped with anti-scald type control valves to prevent accidents caused by sudden water temperature fluctuations.  The current rule requires thermostatic or pressure-balancing valves in accordance with ANSI/ASSE standard 1016-90.

        56.     MN-ASPE proposed amending the rule to refer to the current ANSI/ASSE standard, which is 1996 ANSI/ASSE Standard 1016.  The Department agrees with this proposal and has recommended adoption of this revision.  The proposed revision is necessary and reasonable, and the language is not substantially different from that originally proposed.

4715.2300 – Table of Fixtures Unit Values for Plumbing Fixtures and 4715.2310 – Selecting Size of Drainage Piping

        57.     Minn. R. 4715.2300 is the table of fixture unit values, and 4715.2310 is the rule concerning selecting size of drainage piping.  The Department proposed no revisions to .2300, and it proposed a minor change to .2310 to which no person objected.  MN-ASPE proposed changes to these rules to lower the drainage fixture unit (DFU) values for urinals and water closets, which would allow for a reduction in the diameter of drainage piping and a consequent reduction in cost to the consumer.  

        58.     The DFU value for a particular fixture depends on its volume rate of drainage discharge, and on the time duration of a single drainage operation.  The sizing of drainage piping is based on the number of DFUs assigned to the various fixtures.  Since both major model codes (the IPC and the UPC) acknowledge the 1992 federal law mandating reduced flow water closets and urinals, MN-ASPE proposes alternate DFUs derived from the UPC that are applicable to low volume fixtures to bring the Minnesota plumbing code in line with other nationally approved codes.

59.   The Department declined to adopt these proposed revisions, maintaining that the UPC has different sizing requirements for residential and public facilities, while the Minnesota Code does not make that distinction for DFUs.  The Department maintains it would need more time and background material from the UPC to determine whether its DFU calculations would translate to the Minnesota Plumbing Code.  It also maintains that the higher velocity of low-volume fixtures “may” load the drainage system more quickly and forcefully and that use of smaller drain pipes “may” impede air flow through the system.

60.   The Department has known for more than one year that MN-ASPE was seeking this revision, but states that it needs more time to study the UPC’s sizing requirements.  There does not appear to be any technical evidence in the record to support the rationale that low-volume fixtures “may” load the drainage system more quickly or that use of smaller pipes “may” impede air flow through the system.   The Department is entitled, however, to choose among policy alternatives.  There is no legal basis for requiring the Department to select a better rule when the Department has elected to keep the existing rule.  Generally, an agency is not required to support a rule that is not proposed for amendment.

61.   The Department has established that the 4715.2300 as it exists and 4715.2310 as proposed are needed and reasonable.

4715.2440 – Construction of Sump Pumps

        62.     The Department proposed a minor revision to subpart 7 of the rule concerning sump pumps, to which no person objected.  The current rule permits sump pumps and receiving tanks to be made of poured concrete, metal, or other approved materials.  MN-ASPE requested revisions to subpart 1 that would include fiberglass reinforced polyester and polyethylene as code-approved materials for sumps and receiving tanks.  MN-ASPE maintains that these changes are necessary to ensure uniformity of application.  At present, sump pumps made of these materials are allowed as an alternate material or method under 4715.0330 if they are approved by the administrative authority.  A person wishing to install a sump or receiving tank constructed of these materials must provide documentation to the administrative authority “as may be required” to determine whether such fixture or material is of such design, quality, or both as to appear to be suitable, safe, and sanitary for the use intended.

        63.     The Department declined to adopt the revision that would make sump pumps and tanks made with these materials approved under the code.  The Department  maintains that the proposed rule language is not clear with regard to the meaning of “commercial grade” polyester and that it lacks specificity as to testing method and criteria for previous service.

        64.     As MN-ASPE points out, these criticisms require more of the proposed amendment than the Department requires of its current rule, which does not specify standards for materials or specific testing methods for concrete or metal, sump pumps and tanks.

        65.     These products are used extensively.[55]  It is not clear why the Department prefers to allow them on a case-by-case basis as an alternate material instead of applying a uniform rule that would eliminate both the burden of seeking local approval and the risk of an arbitrary disapproval by a local authority.  There is no legal authority, however, for requiring the Department to adopt a better rule.

        66.     The Department has established that the rule as proposed is needed and reasonable.

4715.2820 – Method of Testing, Subparts 1 and 2

        67.     MN-ASPE proposed changing the method of testing plumbing waste and venting systems made of thermoplastic materials from an air test to a hydrostatic test, because manufacturers of thermoplastic materials do not recommend air testing due to the risk of rupture and fragmentation under positive air pressure.  The Department agreed in part with these recommendations, proposing a revision to subpart 2 that would read as follows:

Subp. 2  Rough Plumbing.  The piping of plumbing drainage and venting systems shall be air tested or hydrostatically tested if thermoplastic material is used, upon completion of the rough piping.  The method of testing shall be specified by the designer and shall either be an air test or hydrostatic test as described in this subpart, or an alternative test as approved by the administrative authority.  The air test shall be made by attaching the air compressor or testing apparatus to any suitable opening and closing all other inlets and outlets to the system by means of proper testing plugs.  Plaster of paris shall not be used in roof terminals.  Air shall be forced into the system until there is uniform pressure of five pounds per square inch on the portion of the system being tested.  The pressure shall remain constant for 15 minutes without the addition of air.  The hydrostatic test, for thermoplastic piping materials, shall be conducted by tightly closing all openings in the entire system to be tested except the highest opening.  The system shall be filled with water to the point of overflow.  If the system is tested in sections, each opening shall be tightly plugged except the highest opening of the section under test.  Each section shall be filled with water, but a section shall not be tested with less than 10 foot head of water.  In testing successive sections, at least the upper 10 feet of the next preceding section shall be tested, so that no joint or pipe in the building, except the uppermost 10 feet of the system, is subjected to a test of less than 10 foot head of water.  The water shall be kept in the system of in the portion under test for at least 15 minutes before inspection begins.  The system shall be tight at all points.

68.   MN-ASPE agrees with these revisions to the rule.  The Department has established that the above language is needed and reasonable, and is not substantially different than the language of the rule as originally proposed.

4715.2820 – Method of Testing, Subpart 3.

69.   MN-ASPE proposes an amendment to add to subpart 3 the requirement that thermoplastic drainage piping below grade be tested along the entire buried length using a mandrel, electronic deflectometer, calibrated television, or video camera to detect piping material deflection exceeding five percent.

70.   Many comments were received from plumbing inspectors throughout Minnesota objecting to this proposed change on the basis that it is expensive and unnecessary.  The Department declined to adopt the proposed revision, based on lack of inspection resources, expense, and lack of reported problems suggesting that improper burial of thermoplastic pipe has led to pipe failure.  The Department maintains that plumbing designers can specify testing by specific methods, but sees no reason to require it in every case.  MN-ASPE accepts this response.  The Department has established that the existing rule is reasonable.

 

 

 

4715.2710, subparts 4 and 5 – Size of Building Storm Drains and Leaders and 4715.2780, subparts 1, 2, and 3 – Control Flow Storm Water Drainage for Dead Level Roofs

71.     The Department proposed no changes to the current rules concerning roof drain sizing criteria.  In 1969, the Minnesota Plumbing Code allowed designers to adjust sizing charts based on local rainfall rates.  In 1996, the Advisory Council recommended elimination of this wording, and the resulting code change in 1998 removed the language allowing adjustment for local rainfall rates.

72.     MN-ASPE proposed changes that would allow an alternative approach when designing a roof drainage system using rainfall rates as established by Manning’s formula or as provided by the National Oceanic and Atmospheric Administration Technical Memorandum NWS HYDRO-35 or other approved data on rainfall, rather than using the current sizing charts based on a statewide rainfall rate of four inches per hour.  These revisions are consistent with methods allowed in the UPC and the IPC.  The increased flexibility in sizing roof drains using these methods will frequently, according to MNASPE, lead to a reduction in cost compared to that produced by using the four-inch per hour method. 

73.   The Department declined to adopt these revisions on the basis that introducing additional variables for various types of drainage pipe leads to varying interpretations, inconsistencies, and difficulties for inexperienced designers, inspectors in the field, and plan reviewers.  “Confusion in applying these rules could lead to a system that compromises public safety by failing to adequately drain storm water in a high rainfall event.”  The Department does not believe the “small” potential cost savings are worth the additional plan review, inspection time, and potential for installation of inadequate drainage systems.

74.   The rule language proposed by MN-ASPE requires the designer to list rainfall rate, area drained, and gallons per minute on the plans, whereas no such data are currently required (meaning inspectors must measure the area before determining if drains are correctly sized).  MN-ASPE also believes that plumbing inspectors should be able to perform these calculations based on the information provided by the engineer (and is unhappy with the Department’s suggestion that a plumbing engineer might have difficulty performing a simple calculation of liquid flow in a pipe).  

75.   The rule’s requirement that these calculations be based on a statewide average of four inches per hour is somewhat arbitrary in the sense that it is a simple response to a problem that could be addressed in a more sophisticated manner.  The Department has chosen the simple response for ease of administration.  This choice does not make the rule arbitrary in the sense that it is completely without basis.  The Department has chosen between acceptable alternatives, and there is no legal basis for requiring more.

 

4715.2760 – Overflow Drains

76.     The Department has proposed amending subpart 2 of the rule concerning overflow drains on roofs and decks to refer to chapter 1305, the Minnesota Building Code.  MN-ASPE originally proposed a reference to the International Building Code, but now agrees that the Department’s cross reference to the Minnesota Building Code is appropriate.  The Department has established that the rule as proposed is needed and reasonable.

Air Admittance Valves

77.     Although the Department declined to make any revisions to the rules to address air admittance valves (AAVs), the proponents of those devices have sought to require revisions in this proceeding.  AAVs are devices installed on a plumbing drainage system that are designed to open when a plumbing fixture is discharging to allow air to circulate within the system.  Further, it is designed to close by gravity when there is no flow in the system to prevent the escape of sewer gas into the building.  Its ultimate function is to maintain plumbing fixture trap seals[56] and to replace multiple open pipe vents.  Any meaningful discussion of whether AAVs should be approved devices in Minnesota requires some background discussion of basic plumbing principles. [57]

78.     Venting is the replacement of a volume of water with air in a sanitary drainage system.  The movement of air is essential to prevent pressures, negative or positive, from building in the system.  Negative pressures can cause the siphonage of traps in the system; positive pressures can prevent the proper drainage flow from fixtures and may eventually cause blowout of fixture traps.

79.     As a fixture discharges, the movement of air prevents the negative pressure of the fixture discharge from self-siphoning the trap.  Without water in the trap, sewer gases are allowed to enter the building.  When there is no flow in the sanitary drainage system, the principle of gravity circulation of air is in effect to keep the entire sanitary drainage system free of foul odors. 

80.     Most plumbing codes require that soil and waste stacks be extended full size through the roof.  The pipe section from the topmost drainage connection on the stack through the roof to the atmosphere is called the vent extension.  The vent extension allows the passage of air into and out of the vent system, which provides a means for the gravity circulation of air throughout the system.  Although the purpose of vent piping is to protect the water seal of traps, the primary function of the vent stack is to prevent the development of excessive pressures in the lower regions of the drainage stack by relieving the air as rapidly as it is carried down the stack by the flow of water from fixture discharges in the drainage stack.

78.           When drainage stacks are provided with an adequate supply of air at the terminal and an adequate vent stack is provided to relieve excess pressures at the base of the drainage stack, the only additional vent protection required is to prevent trap water-seal loss due to self-siphonage when the fixture discharges, and to relieve excessive pneumatic effects in the branch drain lines when other fixtures discharge into the branch line.

79.           Some codes require that all fixture traps be individually vented, but the current Minnesota Plumbing Code allows alternative methods such as wet venting (4715.2550), stack venting (4715.2560), circuit and loop venting (4715.2600), and combination waste and vent system (4715.2650).  Another alternative to venting all fixtures to the outdoors is the AAV. 

80.           AAVs can serve as a vent terminal for an individual vent, wet vent, or branch vent for fixtures located on the same floor, but cannot be used as relief vents.  They can also be used as the vent terminal for a vent stack or waste stack vent.  They must be installed in accessible locations that permit the free movement of air into the valve—under a sink or lavatory, in attic spaces, in a plumbing case, or a false ceiling, in a wall, or in a recess box.  These installations eliminate extensive piping to the exterior for the individual, common, wet, loop, circuit, island and stack vents, resulting in materials and installation savings. 

81.           AAVs have been sold in Europe since 1972.  The European Committee for Standardization has developed performance requirements for AAVs that are applicable to the 18 countries that participated in developing the standards.  Approximately 2.5 million AAVs were installed in Europe between 1972 and 1999. 

82.           The American Society of Sanitary Engineering for Plumbing and Sanitary Research (ASSE) developed ASSE Standard 1051 (fixtures and branches) for AAVs in 1990.  In 1992, this standard was accredited by the American National Standards Institute (ANSI).  ASSE Standard 1050 (stack devices) was issued in 1991.  Under the IPC, AAVs are required to comply with NSF 14, which has also been accredited by ANSI.  Standard 1050 and 1051 were revised in 1996 and 2002.  The IPC permits the use of AAVs tested to these standards, as does the SBCCI Standard Plumbing Code and the Building Officials and Code Administrators International, Inc. (BOCA) National Plumbing Code.  The UPC and the National Standard Plumbing Code (NSPC) permit AAVs as an alternate material.  According to MN-ASPE, AAVs are listed by NSF, IAPMO, ITS, NES and ASSE and are recommended for use as an alternative to open pipe venting by professional plumbing engineers, national plumbing associations and societies and by professional plumbing contractors.  Approximately 10 million AAVs have been installed in the United States over the past 14 years.

83.           The current and proposed Minnesota Plumbing Codes do not allow the use of AAVs, either as an approved or alternate material or method.

4715.0200 – Basic Plumbing Principles

84.           The current Minnesota Plumbing Code includes twenty three principles entitled “Basic Plumbing Principles.”[58]  The ninth principle (item I), as currently written, states as follows:  “I.  Each vent terminal shall extend to the outer air and be so installed as to minimize the possibilities of clogging and the return of foul air into the building.”

85.           This principle, because it requires venting of each terminal to the air outside the building, precludes the use of air admittance valves as alternative methods of venting the plumbing system.

86.           Studor, a manufacturer of AAVs, proposes that this section be amended to provide the following exception under item I:

Exception:  Individual branch and circuit vents shall be permitted to terminate to an air admittance valve in accordance with Section 4715.2670.

87.           MN-ASPE proposes that this section be amended to provide a different exception under item I:

Exception:  Air Admittance Valve (AAV) may be utilized in lieu of vent terminal to outer air where allowed by chapter 4715.

88.           In its SONAR, the Department states that it did not propose inclusion of the AAV as an alternative method of venting “because the documentation submitted in support of its use was not based on approved test methods for the device.  The device had been tested under a draft testing standard.”[59] 

89.           During the hearing, members of the Advisory Council raised an objection concerning whether the ASSE standards required AAVs to seal under static conditions.   Mr. Thomas LeClair, Chair of the Plumbing Advisory Council, testified that “Mr. Beuschel [President, Studor, Inc.] came in front of our Advisory Council on May 22, 2001, and, in the minutes, the Advisory Council had some concerns.  The concerns were expressed regarding the ability of the AAV or the air admittance valve to seal properly under static conditions, and we also – it was suggested to Mr. Beuschel that he acquire independent third party testing and documentation to address Council’s concerns on air admittance valve integrity under static conditions.”[60]

90.           Studor has also provided documentation that its AAVs have been tested under static conditions.[61]  The test reports from SGS U.S. Testing Company Inc. conclude that the Studor “Maxi Vent” and “Mini Vent” air admittance valves “meet the requirements of with [sic] April 2001 ASSE 1050 Draft, Section 3.2, ‘Air Tightness Test.’”  Studor’s rebuttal comments and attachments establish that Studor sent copies of the test results for the AAV static pressure tests to a Department Plumbing Program Supervisor on November 27, 2001 in response to the concerns raised at the Advisory Council’s November 20, 2001 meeting.  

91.           The Department’s initial reason for refusing to permit these devices was that the ASSE standards were draft standards.  These standards have been in existence since 1990 and 1992, and the Department relies on ASSE and ANSI standards for approval of many materials without requiring manufacturers to seek approval every time a standard is revised.  Furthermore, the Department has provided no evidence that the ASSE standards fail to adequately test under static conditions, [62] although it does maintain that Studor has failed to provide test results under the final 2002 standard.[63]  Whether or not the Studor valves have been tested under a draft standard or a permanent standard is not material to the issue whether the standard itself is adequate.[64]

92.           In its post-hearing comments, the Department has relied on other rationales to support its rejection of rule provisions that would permit AAVs.[65]  The Department states that “the release of sewer gas is the main danger related to AAV failure.”[66]  The Department indicates that it has concerns about AAVs failing and allowing the release of sewer gas into the building because the “various testing and listing standards do not assure us that AAVs are as safe as traditional venting systems.”[67]  The Minnesota Plumbing Code currently approves of plumbing products that are listed and tested by the same classification agencies that have listed and tested AAVs.  The Department has provided no information to indicate that AAVs are more likely to allow the release of sewer gas than traditional methods of protecting the trap seal, and there is no evidence in the record that AAVs are unsafe.

93.           The Department raises concerns that despite the testing standards, AAVs may fail in the field because the seal may be fouled with flies, dust or detergent suds.  The Department provides evidence that after AAVs were approved as an alternate material or method in Wisconsin, one Studor AAV failed at installation due to the presence of drain flies.[68]  The Department does not provide any evidence concerning failure of AAVs due to dust or detergent suds.

94.           Studor AAVs were approved in Wisconsin on January 1, 2001 and since then, 66,000 Studor AAVs have been installed in that state.  The track record of AAVs, as indicated in Appendix C of the Department’s submission, is that all but a few AAVs (including those made by other manufacturers) have passed the state’s tests at installation. In addition, AAVs have been used in the United States for 14 years.  As of 1999, more than 4 million AAVs had been installed in the United States.[69]  The Department has provided no evidence that the failure rate for AAVs is greater than the failure rate for traditional methods using vent pipes, which are also subject to blockage.

95.           The Department also states that the “design of a system using AAVs is inferior to traditional venting systems even when AAVs work as intended.”[70]  The Department’s concern in this regard is that plumbing systems designed to use AAVs often rely on installation of AAVs to provide much of the drainage venting of the system, and have only one vent pipe coming out the roof of the building.[71]  The Department states that “it is easy to conceive of situations in which water already in the system would prevent air from escaping to a roof vent that is attached to piping on a distant end of the building.  In those situations the pressure of water draining from one fixture could easily result in sewer gas being blown out of trap seals in other fixtures in the house or building.”[72] 

96.           AAVs have been installed in buildings for 30 years.  The Department does not provide any data to indicate that this situation, which it states could “easily result,” has ever occurred.

97.           The Department’s next category of objections is that the “use of AAVs makes it more difficult to ensure that homeowners doing their own plumbing will maintain systems that meet the requirements of the plumbing code.”[73]  The Department explains that under the current code, there is little concern that a homeowner will compromise the plumbing vent system because it almost never fails, and when it does, it can often be fixed by simply filling a dried-out vent trap.  Should the code allow use of AAVs, the Department is concerned that a homeowner may try to replace a failed AAV and do so improperly, or fail to retest the plumbing system, after the installation of the AAV, to prove its continued integrity.  The Department is also concerned that if the Minnesota Plumbing Code allows certain brands of AAVs and not others, homeowners could inadvertently purchase a noncompliant AAV for installation in their home plumbing system. 

98.           The concern that do-it-yourself plumbers will make mistakes in conducting repairs is one that would apply to all plumbing issues.  There is no evidence in the record that this is an issue particularly associated with AAVs.  Furthermore, MN-ASPE responds that most hardware stores in Minnesota currently sell AAVs, some of which do not meet the standards required by the proposed revision.  Thus, the anticipated problem of homeowners’ purchase and installation of unapproved AAVs is already a possibility that a code change would not affect.

99.           Studor maintains that AAVs provide many benefits to builders, architects, plumber and engineers, and consumers, including: reducing labor and materials costs for complex open pipe venting systems; increasing efficiency by requiring less coordination of trades on the job site between the plumber and roofer; eliminating the risk of leakage around vent pipe flashings on the roof; preventing pests from entering through vent pipes; enhancing building design by eliminating vent pipes that mar a sleek roof line; preventing sewer gases from escaping from open vent pipes into the atmosphere, polluting the environment; preventing the chimney effect in vent pipes in case of fire; and reducing the need for firestopping devices.[74]

100.       The Department responds that the “proposed benefits of AAVs are minimal, and do not outweigh the potential costs.”[75]  The Department asserts that any cost savings that may be achieved by using AAVs is “more than offset by the potential for sewer gases to enter buildings and the corresponding health and explosion risks that they bring.”[76]  As noted above, there is no evidence in the record that AAVs are associated with any health or explosion risks at all.  

101.       Finally, now that the draft 2001 standard has been finalized, the Department maintains that it needs more time to analyze any differences between the draft and final language.  Studor provided copies of the 2002 ASSE Standard 1050 and the 2001 Draft Standard 1050 under which its AAVs were tested.

102.       The record as a whole supports the conclusion that AAVs that are properly tested to the ASSE/ANSI standards function in a manner that is as safe as the traditional method of open pipe venting.  The arguments advanced against them appear to be arbitrary and inconsistent with the authorizing statute, which requires the Department to make decisions based on the application of scientific principles, approved tests, and professional judgment.  The code is intended to encourage the use of new methods or materials that tend to lower construction costs if the new methods or materials are consistent with recognized standards of health and safety.  The Department is not required, however, to support a rule that is not proposed for amendment, and there is no legal basis for requiring the Department to make the changes requested.  The Administrative Law Judge strongly recommends that the Department reconsider its position concerning AAVs.

103.       The Department has established that the existing rule is reasonable. [77] 

 Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1.               The Department gave proper notice of the hearings in this matter.

2.               The Department has fulfilled the procedural requirements of Minn. Stat. §§ 14.14, subds. 1, 1a, 1b and 14.14, subds. 2 and 2a, and all other procedural requirements of law or rule.

3.               The Department has demonstrated its statutory authority to adopt the proposed rules and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1, 14.15, subd. 3 and 14.50 (i) and (ii).

4.               The Department has documented the need for and reasonableness of its proposed rules with an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 2 and 14.50 (iii), except as noted at Finding of Fact No. 36.

5.               The amendments and additions to the proposed rules which were suggested by the Department after publication of the proposed rules in the State Register do not result in rules which are substantially different from the proposed rules as published in the State Register within the meaning of Minn. Stat. §§ 14.05, subd. 2 and 14.15, subd. 3.

6.               The Administrative Law Judge has suggested action to correct the defect cited in Conclusion No. 4 as noted in Finding of Fact No. 36.

7.               Due to Conclusion No. 4, this Report has been submitted to the Chief Administrative Law Judge for his approval pursuant to Minn. Stat. § 14.15, subd. 3 or 4.

8.               Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.

9.               A finding or conclusion of need and reasonableness in regard to any particular rule subsection does not preclude and should not discourage the Department from further modification of the proposed rules based upon an examination of the public comments, provided that the rule finally adopted is based upon facts appearing in this rule hearing record.

          Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

          IT IS HEREBY RECOMMENDED: that the proposed rules be adopted, except where specifically otherwise noted above.

 

 

Dated this

3rd

Day of

February

2003.

 

                                                                

/s/ Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

 

Reported: Court Reporter; Transcript Prepared.

 

NOTICE

 

          The Department must wait at least five working days before taking any final action on the rules.  During that period, this Report must be made available to all interested persons upon request.

 

          Pursuant to the provisions of Minnesota Rules, part 1400.2100, and Minnesota Statutes, section 14.15, subdivisions 3 and 4, this Report has been submitted to the Chief Administrative Law Judge for his approval.  If the Chief Administrative Law Judge approves the adverse findings of this Report, he will advise the Commissioner of actions which will correct the defects.  If the Department elects to make any changes to the rule, it must resubmit the rule to the Chief Administrative Law Judge for a review of those changes before adopting the rule.

 

          However, in those instances where the Chief Administrative Law Judge identifies defects which relate to the issues of need or reasonableness, the Department may either follow the Chief Administrative Law Judge's suggested actions to cure the defects or, in the alternative, if the Department does not elect to follow the suggested actions, it must submit the proposed rule to the Legislative Coordinating Commission, and the House of Representatives and Senate Policy Committees with primary jurisdiction over state governmental operations for the advice of the Commission and Committees.

 

          When the rule is filed with the Secretary of State, the Department must give notice on the day of filing to all persons who requested that they be informed of the filing.