Governor’s Tracking No. AR 151
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE MINNESOTA
DEPARTMENT OF LABOR AND INDUSTRY
|
In
the Matter of the Adopted Rules of the State Department of Labor and Industry
Relating to the Residential Energy Code |
ORDER ON REVIEW OF RULES UNDER STATUTES, SECTION 14.26 |
The
Minnesota Department of Labor and Industry (“Department”) is seeking review and
approval of the above-entitled rules, which were adopted by the agency without
a hearing. Review and approval is governed by Minn.
Stat. § 14.26. On December 9, 2008, the
Office of Administrative Hearings received the documents that must be filed by
the agency under Minn. Stat. § 14.26 and Minn. R. 1400.2310. The Department supplemented the record on December
22, 2008. Based upon a review of the
written submissions and filings, and for the reasons set out in the Memorandum
which follows,
IT IS ORDERED:
1.
The agency has the statutory authority to adopt the rules.
2.
The rules were adopted in compliance with all procedural requirements of
Minnesota Statutes, chapter 14, and Minnesota Rules, chapter 1400.
3.
The rules are needed and reasonable, with the exception of Minn. R. part
1322.1101, subpart 8. Accordingly, this
rule part is DISAPPROVED as not
meeting the requirements of Minnesota Rules, part 1400.2100, items E and G.
4.
Pursuant to Minnesota Statutes, section 14.26, subdivision 3(b), and
Minnesota Rules, part 1400.2300, subpart 6, the rules will be submitted to the
Chief Administrative Law Judge for review.
Dated: December
31, 2008
/s
BARBARA
L. NEILSON
Administrative
Law Judge
MEMORANDUM
Pursuant
to Minnesota Statutes, section 14.26, the agency has submitted these rules to
the Administrative Law Judge for a review as to legality. The rules adopted by the Office of
Administrative Hearings identify several types of circumstances under which a
rule must be disapproved by the Administrative Law Judge or the Chief
Administrative Law Judge. These
circumstances include situations in which a rule was not adopted in compliance
with procedural requirements, unless the judge finds that the error was
harmless in nature and should be disregarded; the rule is not rationally
related to the agency’s objectives or the agency has not demonstrated the need
for and reasonableness of the rule; the rule is substantially different than
the rule as originally proposed and the agency did not comply with required
procedures; the rule grants undue discretion to the agency; the rule is
unconstitutional[1]
or illegal; the rule improperly delegates the agency’s powers to another
entity; and the proposal does not fall within the statutory definition of a
“rule” or by its own terms does not have the force and effect of law. [2]
Defect in
As proposed, this rule includes the
following language:
Insulation used on the
exterior for the purpose of insulating foundation walls shall be a
water-resistant material and comply with ASTM C578, C612, or other approved standards.
[Italics added.]
The italicized language is unduly vague because it does not provide any
information about what standards are being referenced, or by whom such
standards must be approved. As such, it
fails to provide adequate guidance to the regulated public regarding how to
comply with the rule. As a result, this
portion of the rule is unenforceable. This
constitutes a defect in the proposed rules and must be disapproved pursuant to
Minn. R. 1400.2100 E. and G. To cure
this defect, the Administrative Law Judge suggests that the Department clarify
the provision by identifying the organizations that must have approved the standards
at issue, citing the particular standards that will be deemed appropriate or
deleting the reference to standards other than the ASTM standards cited in the
proposed rule. These changes to the rule
would be needed and reasonable and are not substantial changes from the rule as
proposed.
Recommended
Technical Changes
Repealer
The
Notice of Intent to Adopt Rules states that all of chapter 7670 of the
Minnesota Rules is being repealed in these rules. The Repealer section of the rules lists, as one
of the repealed parts, rule part 7670.0350.
There is no rule part 7670.0350 currently in existence. In addition, the Repealer does not list rule
part 7670.0325, which does exist, and which the Administrative Law Judge
presumes the Department intended to include as part of the repeal of chapter
7670. The Administrative Law Judge
recommends that the Department amend the language of the Repealer, deleting
part 7670.0350 and inserting part 7670.0325 as a part to be repealed.
Part
1322.0010 Definitions
A. Definitions of ASHRAE and ASTM:
The
definitions section of the proposed rules includes definitions for the acronyms
ASHRAE and ASTM. The definitions for
these terms read as follows:
ASHRAE. “American Society of Heating, Refrigeration,
and Air-Conditioning Engineers” or “ASHRAE” means the American Society of
Heating, Refrigeration, and Air-Conditioning Engineers.
ASTM. “American Society for Testing and Materials”
or “ASTM” means the American Society for Testing and Materials.
In a letter dated September 3, 2008, commenter
Bruce Nelson of the Minnesota Office of Energy Security pointed out that the
correct names of these organizations are the American Society of Heating,
Refrigerating and Air-Conditioning Engineers and ASTM International. In its response to Mr. Nelson’s comment, the
Department stated that it did not change its definitions because the
organization names as the Department stated them in the definitions section are
commonly understood and both terms are used interchangeably. While this may be true, it is better practice
to use the correct names of the organizations.
The Administrative Law Judge recommends that the Department correct the
names of these two organizations in the definitions section; and that the
definitions be shortened as follows to reduce redundant language:
ASHRAE. “American Society of Heating,
Refrigeration, and Air-Conditioning Engineers” or “ASHRAE” means the
American Society of Heating, Refrigeration Refrigerating, and
Air-Conditioning Engineers.
ASTM. “American Society for Testing and
Materials” or “ASTM” means ASTM International, formerly known as the
American Society for Testing and Materials.
These changes to the proposed rules would be needed
and reasonable and would not be a substantial change from the rules as
proposed.
B. Definition of Building:
“Building”
is defined in these rules as follows:
BUILDING. Building means only a one- or two-family
dwelling or portion thereof, including townhouses, that is used, or designed or
intended to be used, for human habitation, living, sleeping, cooking, or eating
purposes, or any combination thereof, and shall include accessory structures.
This wording defines a broad scope of uses within
its parameters. Because the dwelling can
be “used” for any combination of the purposes listed, a building which is used
only for cooking and eating, if located in a one- or two-family dwelling, would
be a “building” for purposes of the Residential Building Code. If it is not the intent of the Department to
include within the scope of this definition restaurants located in structures
which were originally designed as homes, the Administrative Law Judge
recommends the following technical change to the definition of “building:”
BUILDING. Building means only a one- or two-family
dwelling or portion thereof, including townhouses, that is used, or designed or
intended to be used, for human habitation, living, or sleeping, cooking,
or eating purposes, or any combination thereof, and shall include accessory
structures.
This
change to the proposed rule would be needed and reasonable and would not be a
substantial change from the rule as proposed.
Part 1322.0015 ADMINISTRATION AND PURPOSE
Subpart 2 – Purpose
This subpart begins:
The purpose of this chapter is to establish a minimum
code of standards for the construction, reconstruction, alternation, and repair
of buildings . . . .
It
appears that the word “alternation” is meant to be “alteration.” Assuming that that is so, the Administrative
Law Judge recommends that that spelling error be corrected. This change would be needed and reasonable
and would not be a substantial change from the rule as proposed.
Part 1322.1101 IRC Section N1101, GENERAL
Subpart 1 – Scope
Paragraph 7 under the “Exceptions” portion of the
proposed rule states:
This chapter does not cover buildings, structures, or
portions of buildings or structures whose peak design energy rate usage is less
than 3.4 Btu per hour per square foot or 1.0 Watt per hour per square foot of
floor area for all purposes.
Because a Watt is already a unit of power, Bruce
Nelson of the Office of Energy Security recommended that the rule refer to “1.0
Watt per square foot . . .” rather than “1.0 Watt per hour per square foot.” He pointed out that existing rule part
7672.0200, subp. 6, uses the language he is recommending. In its December 22, 2008, response to Mr.
Nelson’s comment, the Department merely stated, “The draft [of the proposed
rules] included the language that was consistent with the committee’s
recommendation and meets the technical intent of the committee.”
Because the current rule language refers to “1.0 Watt
per square foot,” no explanation has been given in the SONAR for changing the
terminology, and the advisory committee members may have erred in drafting this
language, the Administrative Law Judge recommends that the Department amend
this language in keeping with Mr. Nelson’s suggestion. This change would be needed and reasonable
and would not be a substantial change from the rule as proposed.
Rule 1322.1101, Subpart 8 – IRC Section
N1101.4 – Building thermal envelope insulation
This portion of the proposed rule contains the
following language:
An R-value identification mark shall be applied by the
manufacturer to each piece of building thermal envelope insulation 12 inches
(305 mm) or more wide. Alternatively,
the insulation installers shall provide a certification listing the type,
manufacturer, and R-value of insulation installed in each element of the building
thermal envelope as described in section N1101.8.
Because the purpose of these rules is to establish a
minimum code of standards for the “construction, reconstruction, alternation
(sic), and repair of buildings” and not to govern insulation manufacturers, the
Administrative Law Judge recommends that the proposed rules be revised to
state:
If Aan
R-value identification mark shall be has not already been applied
by the manufacturer to each piece of building thermal envelope insulation 12
inches (305 mm) or more wide. Alternatively, the insulation installers
shall provide a certification listing the type, manufacturer, and R-value of
insulation installed in each element of the building thermal envelope as
described in section N1101.8.
The
language, as modified, would clarify the rule and would not constitute a
substantial change.
Withdrawal of
Requests for Hearing
The
Department received thirty-two requests for public hearing on these rules. Eleven of those requests were withdrawn,
leaving less than 25 requests and allowing the Department to proceed without a
public hearing.
§ 14.25, subd. 2 requires that the Department must
give written notice of the withdrawals to all who requested a hearing. The notice must include “why the request is
being withdrawn” and “a description of any action the agency has taken or will
take that affected or may have affected the decision to withdraw the
request.” The notice must also invite
written comments on the withdrawal. In
this case, the agency provided written notice to all who requested a hearing,
with appropriate justification for the withdrawal. No comments were received in response to the
notice. After examining the record, the
Administrative Law Judge finds that the withdrawal is consistent with Minn.
Stat. § 14.001, clauses (2), (4), and (5) in that its use in this instance was
consistent with public accountability of administrative agencies, public access
to governmental information, and public participation in the formulation of
administrative rules.
Public
Comments
As
stated above, the Department received numerous requests for a public hearing. Most of the requests expressed concerns about
part 1302.1102, subpart 13, IRC Section N1102.6.1 and the original proposed
effective date, which was to have been five working days after publication of
the notice of adoption of the rule in the State Register. As a result of discussions with those concerned
about these two issues, the Department made changes to sections 1302.1102,
subpart 13, and part 1322.0020, item B; and changed the effective date of the
rules to June 1, 2009. The Department
made several other minor changes to the rules as they were originally
published. These changes were needed and
reasonable and did not make the rule substantially different. [3]
Other
comments included a letter from PV Burns Consulting suggesting that the minimum
permeance requirement for vapor retarder material for foundation insulation set
forth in 1322.1102, subpart 9, IRC Section 1102.2.6.11 should be different to
be consistent with the IRC language. Gary
Nelson of the Energy Conservatory submitted additional comments critical of the
foundation insulation requirements.
The
Department specifically chose to depart from traditional code language and
requirements for basement and foundation walls because “
A
letter from the Responsible Energy Codes Alliance (RECA) recommended using the
2006 International Energy Conservation Code (IECC) as a basis for these
rules. The Department has chosen,
instead, to use the International Residential Code (IRC) and the International
Building Code (IBC) upon which to build the rules. The IRC and the IBC are promulgated by the
International Code Council (ICC) which “routinely reviews, modifies, and
updates the IRC and IBC to provide the most current and complete criteria
relating to the design and installation of residential building systems.”[5] While the Department could have chosen the
IECC as the basis for these rules, its choice of the IRC and the IBC, which are
current and accepted in the building industry, was reasonable.
Bruce
Nelson, with the Office of Energy Security, also expressed concerns about the
wording in part 1322.1102, subpart 9, IRC Section N1102.2.10. That subpart governs insulation required in
sunrooms and includes an exceptions clause for ceilings, walls and floors in sunrooms
which are not conditioned to hold heat.
Mr. Nelson’s comment called for clarification about the requirements for
windows in sunrooms. After reviewing the
Department’s response to Mr. Nelson’s comments, the Administrative Law Judge
does not recommend further clarification.
The thermal insulation requirements apply to sunroom windows. Sunroom windows are not included in the
exceptions where the sunroom is not conditioned to hold heat. The intent of the Department is clear from
the wording of the rule.
B.L.N.
[1] To be constitutional, a rule must be sufficiently
specific to provide fair warning of the type of conduct to which the rule
applies. Cullen v.
[2] Minnesota Rules part 1400.2100.
[3] See Department Exhibit N, Order Adopting Rules.
[4] SONAR at page 17.
[5] SONAR at page 1.