OAH Docket No

OAH Docket No. 11-1904-16962-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF LABOR AND INDUSTRY

In the Matter of the Administrative Penalty Order Issued to Charles Corrin

FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION

This matter is pending before Administrative Law Judge Barbara L. Neilson pursuant to a Notice and Order for Prehearing Conference filed on December 15, 2005. On December 11, 2006, the Administrative Law Judge issued a Recommendation and Order regarding the Department’s Motion for Summary Disposition in which she recommended that the Department’s Motion be granted as to citations 4-8 of the underlying Forgivable Administrative Penalty Order, but denied as to citations 2-3 and 10-12.[1] Citations 1 and 9 were deemed to have been withdrawn.

The matter came on for hearing on the remaining citations on May 3, 2007, in the Municipal Building, 600 – 4^th Street, International Falls, Minnesota. The Department submitted its post-hearing Memorandum on June 20, 2007. The OAH record was held open until July 30, 2007, to give Respondent Charles Corrin an opportunity to submit post-hearing argument after obtaining or reviewing a hearing transcript or listening to a copy of the tape recordings of the hearing, but Respondent declined to do so. .

Julie A. Leppink, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127, appeared on behalf of the Minnesota Department of Labor and Industry (Department). Alan B. Fish, Attorney at Law, 102 - 2nd Avenue Northwest, Roseau, MN 56751, appeared on behalf of the Respondent.

STATEMENT OF ISSUES

1. Whether the plumbing was covered prior to inspection and testing in violation of Minn. R. 4715.2830.

2. Whether there was evidence of the use of primer on the PVC pipe and fittings prior to joining as required by Minn. R. 4715.0810, subp. 2.

3. Whether the backwater valve was installed on the main branch for the entire home, rather than on a separate branch drain serving the fixtures below the elevation of the curb or property line as required by Minn. R. 4715.1160.

4. Whether Respondent failed to perform a manometer test as required by Minn. R. 4715.2820, subp. 3.

5. Whether the State properly took jurisdiction over the City of International Falls’ complaints about Respondent’s plumbing in this case.

6. What penalty, if any, Respondent should be required to pay.

7. What corrective action, if any, Respondent should be required to take.

Based on all the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. This contested case proceeding was initiated based upon the Respondent’s appeal of an Administrative Penalty Order issued by the Department of Health on February 1, 2005, alleging that he committed certain violations of the Minnesota Plumbing Code in connection with the plumbing work he performed at a residence in International Falls, Minnesota.

2. Respondent is a Master Plumber who is licensed through the State of Minnesota. Respondent’s Master Plumber license number is M3050. He began as an Apprentice in 1973, and became a Journeyman Plumber in 1977 and a Master Plumber in approximately 1981.[2]

3. In 2003, Respondent bid on the plumbing work to be performed at a new residential home to be constructed at 106 Fern Wood Lane, International Falls, Minnesota (the Fern Wood House). The general contractor on that construction was Rick Debenedet. Mr. Debenedet had been employed as a city inspector in the past but he was not acting in that capacity with respect to the Fern Wood House.[3] The property owner of the House was Derek Mason.[4]

4. In May and early June of 2003, permits for the work, including the plumbing, were obtained through the City of International Falls (“the City”).[5]

5. Under local ordinance, the City has adopted and administers the Minnesota Plumbing Code for plumbing that takes place within the City limits. The local building inspector for the City at the relevant time was Martin Ostrowski.[6]

6. In the course of plumbing the Fern Wood House, Respondent used PVC piping. Under the Code, “[s]olvent weld joints in PVC and CPVC pipe must include use of a primer of contrasting color to the pipe.”[7]

7. In order to achieve a “solvent weld,” primer must be applied first, both to the base pipe and to the fitting. Primer softens the PVC pipe. While the primer is still wet, solvent cement is applied to both the base pipe and to the fitting. The combination of the chemicals in the primer and the chemicals in the cement causes the pieces of PVC pipe to dissolve and, as the chemicals evaporate, the pieces of pipe re-form and dry as one piece of pipe.[8]

8. A solvent weld is different from an adhesive joint. An adhesive joint may be achieved by simply using the solvent cement without PVC primer. An adhesive joint is like gluing the two pieces of PVC together, resulting in a joint which is susceptible to failure because of the tendency of PVC to expand and contract with normal plumbing use.[9]

9. PVC cleaner and PVC primer are not the same. PVC cleaner removes dirt and grease from PVC pipe but it does not soften PVC pipe to allow a solvent weld to be created.[10]

10. The Minnesota Plumbing Code requires that solvent weld joints in PVC and CPVC pipe “must include use of a primer of contrasting color to the pipe and cement.”[11] The purpose of the contrasting color requirements is so that a plumbing inspector can easily verify that primer has been used to join PVC pipes. Before the time that contrasting color primer was required, plumbers would often use clear cleaner instead of primer and there were many problems with failures of PVC joints.[12]

11. When the PVC joints fail, the pipes can separate, liquid can leak under the floor or in the walls, and sewer gases can be allowed into the building. The sewer gases and mold that can form as a result of leaking pipes can cause significant health problems. It is not possible to predict when this kind of leakage might occur.[13]

12. Respondent did not use contrasting PVC primer in any of the plumbing work he did at the Fern Wood House. Respondent used clear PVC cleaner and PVC cement.[14]

13. During his work on the Fern Wood House, the Respondent either used Oatey brand PVC clear cleaner and Oatey brand cement or Do-It-Best brand cleaner and Do-It-Best brand cement.[15] Do-It-Best brand cement contains some amounts of cyclohexanone and tetrahydrofuran, the softening ingredients generally found in PVC primer.[16]

14. Some time between early June and early August of 2003, Respondent completed the “groundwork” (i.e., the plumbing installed in the ground) at the Fern Wood House. The day after completing the groundwork plumbing, Respondent left a note at the office of Martin Ostrowski, the building inspector for International Falls. The note, which Respondent left on Mr. Ostrowski’s desk, said “Ready for inspection, groundwork.” Respondent signed the note, and indicated that the note referred to the construction at Fern Wood.[17]

15. The groundwork plumbing was not covered up with concrete for approximately one and one half weeks after Respondent completed it. During that time, Respondent observed Mr. Ostrowski at the Fern Wood House work site on at least one occasion. Mr. Ostrowski did not discuss the groundwork with Respondent between the time that the groundwork was completed and the time that it was covered. Rick Debenedet, the general contractor, was responsible for deciding when the concrete was poured and had it poured without first informing Respondent.[18]

16. If the proper administrative authority does not appear for an inspection within 24 hours of the time set, the Minnesota Plumbing Code specifies that “the inspection or test shall be deemed to have been made, and the plumbing contractor is required to file an affidavit with the proper administrative authority that the work was installed in accordance with the code, the approved plans and permit, and that it was free from defects and that the required tests had been made and the system found free from leaks.”[19] The affidavit is also required to indicate whether the owner or the owner’s authorized agent was present when the inspection or test was made. Respondent did not file such an affidavit in connection with the Fern Wood House.[20]

17. Respondent installed the plumbing work for the in-floor heating system at the Fern Wood House, which is incorporated into the concrete.[21]

18. Respondent also installed a backwater valve on the main sewage line branch for the entire home. A backwater valve is designed to stop any sewage traveling up the sewer due to flooding in the main sewer outside the home. Without a backwater valve, flooding in the sewer could back up and enter the home, causing property damage and health hazards. A backwater valve is intended only to protect plumbing below the curb level.[22]

19. The Minnesota Plumbing Code requires that a backwater valve “shall be installed only in that branch or section of the drainage system which receives the discharge from fixtures located below the elevation of the curb or property line.”[23]

20. The reason that the backwater valve requirement in the Minnesota Plumbing Code applies only to the portion of the drainage system which receives discharge from fixtures below the curb or property line elevation is to allow the air to travel down the main sewage line to avoid a blockage from occurring there. When a single valve is installed on the line in the front of the home, as was the case with Respondent’s installation at the Fern Wood House, the flapper inside the valve is held shut by the water and does not allow air to flow out, thus potentially causing backup in the plumbing fixtures in the upper levels of a house.[24]

21. In installing the backwater valve at the Fern Wood House, Respondent followed the same approach that Mr. Debenedet had approved when Mr. Debenedet was acting as the inspector on prior construction jobs, including a project at the home of Mr. Debenedet’s parents.[25]

22. On August 18, 2003, Respondent performed an air test on the plumbing with Mr. Ostrowski present. The air test consisted of capping the openings to the plumbing with the system dry and increasing the air pressure. If the air pressure does not drop after 15 minutes, the system has been shown to be leak-free. The plumbing in the Fern Wood House maintained its air pressure throughout the test.[26]

23. At the time of the air test, Mr. Ostrowski told Respondent that he had never inspected the groundwork but that the air test showed that everything was fine and that Mr. Debenedet could proceed with the sheetrock.[27]

24. Also on August 18, 2003, Mr. Ostrowski signed the “rough-in” plumbing approval on the building permit. The signature for “rough-in” plumbing is called for at a later point on the form than the underground plumbing section. Because underground plumbing is considered part of rough-in plumbing, an approval signature on rough-in plumbing is considered an approval of underground plumbing as well. [28]

25. In a letter dated October 30, 2003, Mr. Ostrowski informed the homeowner, Mr. Mason, that he had inspected the House on October 29, 2003, and found a number of items still needing to be fixed before a Temporary Certificate of Occupancy would be issued. The letter did not mention either the backwater valve or the PVC primer concerns. It did state that the “Plumbing final” was not yet complete.[29]

26. In November of 2003, the plumbing was almost finished, except that one of the pressure-assisted toilets arrived broken. By the time a replacement arrived, it was snowing and there was ice on the roof of the Fern Wood House. Mr. Ostrowski wanted Respondent to conduct a manometer test to fulfill the final requirements for the plumbing, but Respondent refused because the test would require him to go onto the roof and he was concerned about the dangers of going onto the icy, snowy roof. Respondent offered to perform the manometer test in the springtime.[30]

27. Respondent and Mr. Ostrowski spoke with Brad Jensen, Plumbing Standards Representative at the Minnesota Department of Health, in November of 2003, after Respondent refused to perform the manometer test. Mr. Jensen agreed that the test could be performed the following spring.[31]

28. Mr. Jensen and Mr. Ostrowski visited the Fern Wood House and observed the roof sometime shortly after Respondent declined to perform the manometer test, but Mr. Jensen and Mr. Ostrowski did not conduct any plumbing inspection during that visit.[32]

29. On December 1, 2003, the Department of Health received a form dated November 24, 2003, which was entitled “Consumer Complaint Form for Plumbing Work.” The complainant was listed as Martin J. Ostrowski and the plumber who was the subject of the complaint was Respondent. Mr. Ostrowski stated on the form that he had tried to resolve the situation with Respondent by writing correction notices and giving verbal instructions. In addition, in an attachment to the complaint form, Mr. Ostrowski provided the following “description of plumbing work that does not meet code or problems I have had regarding Charles Corrin’s work” at the Fern Wood House:

· Did not call for air test before pouring concrete floor.

· Island vent was used at the kitchen sink location and there is no island;

· The plumbing contractor has refused to do a monometer [sic] test.

· To date, the contractor has not passed any of the inspections.[33]

30. Mr. Jensen traveled to International Falls on or about July 13, 2004, and met with Mr. Ostrowski, Mr. Mason, and Respondent at the Fern Wood House.[34]

31. Respondent was prepared to conduct the manometer test at the time of Mr. Jensen’s arrival at the Fern Wood House. Instead of observing the manometer test, Mr. Jensen went to the basement of the House and began to ask Respondent questions about whether Respondent had used PVC primer and other details about Respondent’s plumbing at the Fern Wood House. Mr. Jensen refused Respondent’s offer to conduct the manometer test, and instead told Respondent that the pipes would have to be changed because Respondent had used the incorrect preparation on the PVC pipes.[35]

32. On approximately July 14, 2004 (the day after Mr. Jensen’s inspection), Respondent and the International Falls Fire Chief spoke to James Peterson, Plumbing Program Supervisor at the Department of Health, by telephone. The Fire Chief was present to act as a kind of “buffer” so that Mr. Ostrowski’s presence was not needed. During the telephone conversation, Mr. Peterson expressed concern about the State getting involved in a local plumbing situation without a written request from the City. Mr. Peterson said he was not aware of the Department of Health having received such a request earlier.[36]

33. In a letter dated July 19, 2004, Mr. Ostrowski told Mr. Jensen that Respondent was “unreasonable, uncooperative, and unresponsive as well as, lacks [sic] knowledge and competency.” The letter also stated that Mr. Ostrowski was “turning over all matters with this address to your office . . . until this home has passed all required inspections you deem necessary . . . .”[37]

34. Mr. Ostrowski attached two Correction Notices to the letter to Mr. Jensen. Both notices were dated 8-18-03. One Correction Notice had to do with concerns that were resolved between the parties before this matter went to hearing. The other Correction Notice stated:

Underground plumbing was not inspected nor approved prior to concrete being placed. Proof of an approved primer and glue must be made. Contractor and plumber are working at there [sic] own risk if work is continued.[38]

35. Respondent did not recall receiving the Correction Notices until after Mr. Jensen conducted his July 13, 2004, inspection of the House.[39]

36. In a letter dated November 1, 2004, the Health Department notified Respondent of a number of violations found by Mr. Jensen during his July 13, 2004, inspection of the Fern Wood House. Respondent was required to respond within 10 days of receipt of the letter. Listed as violations 3 and 4 in the letter were “no evidence of the use of primer on the PVC pipe and fitting prior to joining” and “backwater valve should only be installed on drainage piping serving the fixtures below the elevation of the curb or property line.” Violation 11 stated “[t]here is no evidence of a manometer test after the fixtures were set . . . .” Violations 12 and 13 required Respondent to “[u]ncover or otherwise make available for inspection all plumbing that has been covered” and instructed that “defective work or material shall be replaced and the inspection and test repeated. . . .”[40]

37. As an alternative to inspecting and replacing all of the PVC pipe joints in the Fern Wood House, the Department offered Respondent the opportunity to take samples of several joints that he had installed to send to a testing agency to determine whether they met the requirements for solvent welding. If such a test showed that the sample joints were properly welded, the Department was willing to assume that all of the joints were in compliance with the plumbing code requirements.[41]

38. The Health Department issued the original Forgivable Administrative Penalty Order which is the subject of this proceeding on February 1, 2005. The Administrative Penalty Order alleged that Respondent violated certain provisions of the Minnesota Plumbing Code. It stated that the $5,000.00 penalty would be forgiven if Respondent corrected, or took appropriate steps to correct, the violations cited therein within 30 days of the date of the Order.[42]

39. The penalty amount of $5,000.00 was determined using the Department of Health’s process called a “Penalty Calculation Forum.” That forum considered factors such as the seriousness of the violations and Respondent’s lack of a history of violations in arriving at the $5,000.00 penalty.[43]

40. Responsibility for enforcement of the State Plumbing Code was transferred by Executive Order of the Governor to the Department of Labor and Industry in May of 2005. The Department of Labor and Industry initiated the current contested case proceeding.

41. Prior to the hearing in this matter, Respondent corrected, or showed that he was already in compliance with, all of the alleged violations except those concerning the use of primer for PVC pipes, the installation of the backwater valve and the manometer test.

42. Completing the remaining corrections sought by the Department in this proceeding would involve (1) ripping up carpet or other flooring, breaking through concrete to disable the backwater valve and installing new backwater valves in one or more locations; (2) breaking through additional concrete, including damaging pipes in the in-the-floor heating system, pulling out PVC plumbing pipes, replacing and re-welding the PVC pipes, repairing or replacing any damaged heating system pipes and re-pouring concrete; and (3) cutting sheetrock walls, removing, replacing and re-welding PVC pipes in the walls, and repairing or replacing damaged sheetrock walls. Respondent estimates that this work would cost approximately $40,000-$50,000.[44]

43. In addition to the financial cost of performing the corrections required by the Correction Order, the repairs would cause significant hardship to the homeowners, who have not reported any problems with the plumbing.[45]

CONCLUSIONS

1. The Minnesota Department of Health previously had authority to enforce the Minnesota Plumbing Code. Effective May 16, 2005, pursuant to an Executive Order of the Governor, the Plumbing and Engineering Unit of the Minnesota Department of Health became part of the Department of Labor and Industry.

2. The Administrative Law Judge and the Commissioner of Labor and Industry have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 144.99, subd. 4 and 144.991 (2004).

3. The Notice and Order for Prehearing Conference are proper in all respects and the Department has complied with all substantive and procedural requirements of law and rule.

4. The Minnesota Plumbing Code, which is set forth in Minnesota Rules Chapter 4715, “applies to all new plumbing installations . . . “ In new buildings, “[a]ll plumbing materials and plumbing systems or parts thereof must be installed to meet the minimum provisions of [the] code.”[46]

5. At the time that the Fern Wood House was under construction, the City of International Falls, Minnesota, had adopted and was administering the Minnesota Plumbing Code for plumbing that took place within the city limits.

6. Respondent was a licensed plumber pursuant to Minn. Stat. § 326.83, subd. 15, at the time he began work on the Fern Wood House project in the City of International Falls.

7. The Department of Health properly assumed responsibility for enforcement of the Plumbing Code in this matter following Mr. Ostrowski’s requests for it to do so pursuant to Minn. Stat. §§ 326.39 and 144.99.

8. Respondent fulfilled the notification requirements of Minn. R. 4715.2810 by leaving a note for Mr. Ostrowski informing him that the underground plumbing was ready for inspection not less than 8 working hours before the work was to be inspected.

9. Respondent failed to file the affidavit required by Minn. R. 4715.2810 when Mr. Ostrowski did not inform Respondent that Mr. Ostrowski had performed the inspection within 24 hours of notification as required by the rule.

10. Respondent reasonably relied on Mr. Ostrowski’s verbal and written approval of the air test and the rough-in plumbing as approval of the underground plumbing.

11. Respondent failed to provide evidence that he used primer on the PVC pipe and fittings in the Fern Wood House prior to joining as required by Minn. R. 4715.1160, subp. 2.

12. Respondent failed to install the backwater valve on a separate branch serving the fixtures below the elevation of the curb or property line as required by Minn. R. 4715.1160.

13. Respondent failed to demonstrate that his installation of the backwater valve in the main branch for the entire home is a method of installation which is superior to that required by Minn. R. 4715.1160.

14. Because the Department refused Respondent’s offer to perform a manometer test at the House on July 13, 2004, Respondent did not violate Minn. R. 4715.2820, subp.3.

15. The Commissioner of the Department of Labor and Industry is authorized to require Respondent to pay a penalty of an appropriate monetary penalty. The Commissioner is also authorized to require Respondent to expose and, if necessary, repair the PVC pipe joints in accordance with Minn. R. 4715.1160, subp. 2, and to repair the backwater valve installation in accordance with Minn. R. 4715.1160, subp.2.

16. These Conclusions are reached for the reasons set forth in the Memorandum below, which is incorporated by reference in these Conclusions.

Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS RECOMMENDED that:

1. The Commissioner of the Department of Labor and Industry impose an appropriate monetary penalty on Respondent.

2. The Commissioner of the Department of Labor and Industry require Respondent to install a backwater valve on a separate branch serving the fixtures below the elevation of the curb or property line at the Fern Wood House, as required by Minn. R. 4715.1160, and to remove or disable the backwater valve Respondent previously installed in the main branch for the entire house.

3. The Commissioner of the Department of Labor and Industry require Respondent to expose and remove one PVC pipe joint and to have the joint sent, at Respondent’s expense, to a laboratory of the Commissioner’s choosing, to determine whether the pipe was joined as a solvent weld or whether it was merely glued by the PVC cement as described in the testimony of Mr. Jensen and Mr. Peterson.

4. If the pipe is joined as a solvent weld, the Administrative Law Judge recommends that the Commissioner require Respondent to repair the place where the pipe was removed but not to require further repair and replacement of the PVC pipes.

5. If the pipe is glued but not welded, the Administrative Law Judge recommends that the Commissioner order an appropriate remedy, such as periodic testing/monitoring, if possible, or require Respondent to remove and replace all of the PVC plumbing joints and to replace them with joints that are treated with PVC primer of a contrasting color before the PVC cement is applied as required by Minn. R. 4715.1160, subp.2.

6. The Commissioner require Respondent to perform a manometer test of all plumbing installation at the House after work is completed on the PVC joints and on the backwater valve.

Dated: September 18, 2007 s/Barbara L. Neilson __________________________

BARBARA L. NEILSON

Administrative Law Judge

NOTICE

This report is a recommendation, not a final decision. The Commissioner of Labor and Industry will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Commissioner shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the Commissioner must consider the exceptions in making a final decision. Parties should contact Nancy Leppink, Deputy Commissioner, Minnesota Department of Labor and Industry, 443 Lafayette Road North, St. Paul, MN 55155 to learn the procedure for filing exceptions or presenting argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

Pursuant to Minn. Stat. § 14.62, subd. 1, the Commissioner is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.

MEMORANDUM

In this case, the Commissioner seeks both a penalty and a remedy. The Administrative Law Judge agrees that the monetary penalty is appropriate. Whether through carelessness or ignorance, Respondent violated parts of the plumbing code designed to protect the integrity of a home as well as the health and safety of its occupants. Nonetheless, requiring Respondent to tear up significant portions of the Fern Wood House would be costly beyond what would be a reasonable penalty to impose upon Respondent under the circumstances; and, equally important, would severely disrupt the homeowners and their family.

Nothing in the evidence presented in this case tends to show that Respondent violated the plumbing code because he was attempting to cut corners or to do a less-than-professional job. Mr. Ostrowski, the building inspector who should have been able to provide some quality control in this situation, was apparently unaware of Respondent’s mistakes until it was too late. The personal animosity which developed between Mr. Ostrowski and Respondent further complicated a difficult situation. On the other hand, regardless of the situation and Respondent’s motives, the uncorrected code violations involving failure to use a contrasting primer and the incorrect installation of the backwater valve put the Fern Wood House and its occupants at risk and cannot be ignored.

Underground Plumbing and PVC Joints

Both parties presented some evidence about whether Respondent violated Minn. R. 4715.2830 by permitting the underground plumbing to be covered with cement before it was inspected. The Department did not refute Respondent’s testimony that he left a note for Mr. Ostrowski informing him that the underground plumbing was ready for inspection. This shifted the burden to Mr. Ostrowski to complete the inspection, which he apparently failed to do. Respondent’s failure to file an affidavit stating that the underground plumbing was in full compliance with the code also violated the code, but Respondent relied, reasonably, on Mr. Ostrowski’s acceptance of the air test, including his signed approval of the plumbing rough-in, to conclude that Mr. Ostrowski found his work on the underground plumbing satisfactory. This is especially so because it is clear that Respondent did not realize that his failure to use a PVC primer was a code violation.

Even if Mr. Ostrowski had visually inspected the underground plumbing, there is no reason to believe that he would have noticed or known that Respondent’s failure to use a PVC primer of a contrasting color was a problem. Mr. Ostrowski did have the opportunity to visually inspect the plumbing in the walls before the sheetrock was in yet he failed to note the PVC primer problem there. The only evidence that Mr. Ostrowski might have been aware or concerned about the primer question before Jensen’s July 2004 inspection is the August 18, 2003 Correction Notice which says that “[p]roof of an approved primer and glue must be made.”

Mr. Ostrowski is no longer employed by the City of International Falls and did not testify at the hearing, but is it doubtful whether the Correction Notice was actually written as early as August 18, 2003. There are four reasons to question the Notice’s reliability. First, Respondent testified that he never saw the Notice before July of 2004. Second, Mr. Ostrowski could not say for sure to whom he had given the notices. Third, the Notice is dated August 18, 2003, which is the same date that Mr. Ostrowski signed off on the plumbing rough-in. It would be inconsistent for Mr. Ostrowski to approve the plumbing rough-in on the same date that he wrote a Correction Notice stating that “underground plumbing is not inspected nor approved” and that “[c]ontractor and plumber are working at their own risk if work is continued.” The fourth document that sheds doubt on the authenticity of the Correction Notice allegedly written on August 18, 2003 is Ostrowski’s October 30, 2003 letter to Mason, informing him of ongoing concerns with the project. Nothing in that letter mentions the PVC primer question. The rough-in approval and the October 30 letter are incompatible with the Correction Notice – yet the Department did not challenge the authenticity, the date or the content of either the rough-in approval or the October 30 letter. To the extent that the Correction Notice is inconsistent with the other two documents, it is the Correction Notice which lacks credibility.

Without that Correction Notice, the Department offered no evidence to show that Respondent, or even Mr. Ostrowski, was aware of the PVC primer problem before Mr. Jensen arrived on the scene. Thus, there is no evidence that, had Mr. Ostrowski conducted an inspection of the underground plumbing, he would have been aware of the PVC primer problem. Under these circumstances, and because the homeowners would be subject to such significant disruption, it is unduly harsh to require Respondent to demolish much of the basement floor, the heating system and many of the walls unless that is absolutely necessary to preserve the integrity of the House and to protect the health of its occupants.

Respondent was not certain whether he used the Oatey Cleaner and Cement, which would mean that the solvent weld could not have occurred; or whether he used Do-It-Best Cleaner and Cement, which could mean that the solvent weld may have been achieved with the softener present in the cement. Given Respondent’s uncertainty, and the suggestion of the Department’s own witness that a sample of the PVC joints could be removed and analyzed to determine whether the softening agent was employed and resulted in a solvent weld, the Administrative Law Judge recommends that the Commissioner require that as a reasonable initial step.[47] If the pipes are appropriately joined, there would be no need for further demolition. If the pipes are merely glued together and there is no other periodic testing that could be done to monitor the situation, then the danger to the house and its inhabitants justifies the severely burdensome step of requiring that all of the PVC pipe joints be re-done.

Backwater Valve Installation

Respondent attempted to show that his method of installing the backwater valve was superior to the method required by the plumbing code. He argued that, in the event of a massive flood, having the backwater valve on the main drain for the house would prevent sewage from rising up the pipes to the upper floors and inundating the upper floors with raw sewage. While Respondent’s analysis may have some appeal, the Department presented persuasive testimony that the plumbing code’s requirement for the placement of backwater valves is reasonable. Not only does it make sense to require the backwater valve to be on the branch drain serving the fixtures below the elevation of the curb or property line, which are the fixtures most likely to be at risk in the event of a sewer backup, it is also reasonable to require that the main drain not have a backwater valve, thus facilitating a flow of air throughout the system to keep the lines from the upper floors open. Furthermore, the issue in this case is not whether Respondent could present a viable alternative to the rule requirement. The issue is whether Respondent complied with the rule. Respondent acknowledges that he did not. Therefore, it is reasonable to require Respondent to correct the backwater valve installation so that it complies with state and local plumbing codes.[48]

Manometer Test

It is undisputed that Respondent offered to perform a manometer test in July of 2004 at the time that Mr. Jensen met with the Respondent, Mr. Ostrowski, and Mr. Mason at the Fern Wood House. Mr. Jensen declined to observe the test. Mr. Mason’s letter to the City Council states that Respondent performed the manometer twice, successfully, before Mr. Jensen and Mr. Ostrowski arrived.[49] Respondent has not had an opportunity to perform the test since, because the Department does not consider the work on the plumbing complete. Respondent should not be held responsible for a failure to perform a test which he has offered to perform for the Department but which the Department has declined to observe. It is reasonable to require Respondent to perform the test once he has carried out the other activities required by the Commissioner’s final order.

Jurisdiction

Respondent raised some question about whether the state had jurisdiction to pursue the city’s complaints against him. It is clear that the city had the authority to make the state aware of the city’s concerns about Respondent’s performance in this matter. Furthermore, once that report was made, the state had the authority to pursue the questions of rule violations. The evidence showed that Ostrowski first brought his concerns about Respondent to the state’s attention by December 1, 2003. Therefore, the state properly exercised its jurisdiction in pursuing the matter.

B. L. N.

[1] The Department acknowledged that, by the time of the Summary Disposition proceedings, citations 1 and 9 were no longer at issue. Those two citations were, therefore, deemed withdrawn. See ALJ’s December 11, 2006 Recommendation and Order, p. 8.

[2] Hearing Exhibit (Ex.) 3, (Deposition of Charles Corrin (Corrin Deposition)) at 6-9.

[8] Testimony of James Peterson (Peterson), Hearing Transcript (Trans.) at 84-85.

[13] Testimony of Brad Jensen (Jensen), Trans. at 35; Peterson, Trans. at 103-104.

[14] Testimony of Charles Corrin (Corrin), Trans. at 169, 181-182.

[16] Corrin, Trans. at 166-167; Exhibits. 20, 21, 31; Testimony of James Peterson (Peterson), Trans. at 196-201.

[20] Minn. R. 4714.2810; Corrin, Trans. at 180.

[28] Corrin Deposition at 24, and Ex. 5; Jensen, Trans. at 58-60; see Minn. R. 4715.2820, subp.2.

[30] Corrin, Trans. at 163-164 and Exhibit 12. A manometer test is similar to an air test, only the system has water in the traps. Corrin Deposition at 47-49.

[35] Corrin, Trans. at 166; Jensen, Trans. at 38-40; Ex. 12.

[43] Jensen, Trans. at 46-47; Peterson, Trans. at 105; Exhibit 15.

[47] Because there is no dispute that Respondent did not use PVC primer in the underground plumbing; and because Respondent apparently used the same brand products throughout the project, it may be possible to pull sample joints out of the walls rather than having to break through concrete to get to them. If the joints in the walls are welded appropriately, then it may be safe to assume that the joints underground are as well.

[48] Apparently, not all localities require backwater valves at all. If the City of International Falls does not require a backwater valve, Respondent could opt to simply open the main drain valve he installed and not install a new valve. If the city requires a backwater valve, Respondent must both open the main drain valve and install a new one that is placed in compliance with the plumbing code.