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12-1900-16739-10 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Petition of the Minnesota Pipe Trades Association for a Declaration that the Interim Approval for Air Admittance Valves Issued by the Commissioner of the Minnesota Department of Health is an Unadopted Rule |
ORDER AMENDING DECEMBER 14, 2005, ORDER |
On December 14, 2005, the Administrative Law
Judge issued an Order in the above-entitled matter directing the Department of
Labor and Industry to cease enforcement of the “Interim Approval for Air
Admittance Valve as an Alternate Fixture, Appurtenance, Material or Method.” On December 16, 2005, the Commissioner of the
Department of Labor and Industry, M. Scott Brener, filed a letter requesting
clarification of a sentence in the Order.
All parties were provided copies of the request.
On December 22, 2005, the Petitioner, filed a
letter agreeing with the clarification sought by the Commissioner of Labor and
Industry, and requested that the clarification of the sentence be expanded by
deleting the phrase “a local building official” and replacing it with “the
administrative authority.” On December
23, 2005, the Department filed a letter concurring with the additional clarification
sought by the Petitioner.
On December 27, 2005, Intervenor Studor objected
to the post-Order letter submissions of the other parties and filed a Petition
for Reconsideration or Rehearing.
Based on the file and proceedings herein, the
Administrative Law Judge makes the following:
ORDER
1. That the second full paragraph on page 7 be amended to read as follows:
Even if AAVs are not
expressly prohibited by the Plumbing Code, the Administrative Law Judge
concludes that the Interim Approval issued by the Commissioner of Health is not
a permissible application of the alternate approval process set forth at a local building official the
administrative authority to approve the use of an AAV in a particular
building. The Interim Approval issued by
MDH, however, is not the result of an individual application for a specific
use. Instead, it is an “agreement” of general
applicability reached after protracted negotiations between MDH, Studor and
manufacturers of AAVs. The result is a
general or global change to the Plumbing Code that authorizes the use of
an alternate fixture or method that does not comply with existing plumbing
principles set forth in the Code. Such
an across-the-board change that is inconsistent with the Plumbing Code may only
be accomplished by amending the rules through formal rulemaking under the
Administrative Procedure Act. The
alternate fixture approval process may not be used to circumvent rulemaking
under the APA.
2. That the Department not publish the Administrative Law Judge’s Order of December 14, 2005, in the State Register, and instead publish the attached Amended Order in the State Register with the changes made to the paragraph above.
3. That Studor’s Petition for Reconsideration or Rehearing is DENIED.
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Dated: January 3, 2006 |
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/s/ Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |