STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS, In the Matter of the Petition of OAH File No. 12-1900-16739-10 the Minnesota Pipe Trades Association ALJ Steve M. Mihalchick for a Declaration that the Interim Approval for Air Admittance Valves Issued by the Minnesota Department of Health AFFIDAVIT OF DOUGLAS WALLER Is An Unadopted Rule STATE OF MINNESOTA }ss. COUNTY OF HENNEPIN Douglas Waller, being first duly swom, upon oath deposes and says: 1. I am a member of the Minnesota Association of Plumbing-Heating-Cooling Contractors (“PHCC”), which has been permitted to intervene in the above-captioned proceeding. The PHCC consists of approximately 130 contractor members employing between 500 and 750 employees in Minnesota. I have also been a representative on the Minnesota Plumbing Code Advisory Council (the “Council”) for the past ten years. 2. The Council makes recommendations, among other things, regarding new plumbing products, methods, and materials. The Council has actively participated in all rulemaking proceedings affecting the Minnesota Plumbing Code (the “Code”), including the 2002 rulemaking proceeding regarding proposed amendment to the Code. Among other things, the Council supported the decisions of the Minnesota Department of Health (*MDH”), which for years, until October 2004, declined to revise the rules to permit Air Admittance Valves (“AAVs”) in Minnesota,3. Among the Council’s and MDH’s reasons for opposing AAVs have been that AAVs might leak sewer gas, even when working properly, AAVs might lead to mold growth, AAVs have not been tested under static conditions, AAVs violate the basic objectives of a vent piping system, and AAVs might not actually reduce construction costs or otherwise be economically superior to traditional open-pipe ventilation. (See attached Exhibit A, which is a MDH memorandum obtained by Petitioners’ counsel pursuant to Minn. Stat. § 13 ef seq.) The Council and MDH also believed that ventilation systems should be free of mechanical devices and that devices such as AAVs, which were marketed to be a cost-saving plumbing device, might be attractive to consumers yet not be safe. (See attached Exhibit B, which is an article describing the dangers of mechanical ventilation devices and the attractiveness of low-cost but unsafe plumbing devices.) 4. The PHCC’s interest in the plumbing industry, as well as its involvement as a member of the Council, renders it directly and adversely affected by the October 8, 2004 Interim Approval for AAVs issued by MDH. 5. First, PHCC’s Mission Statement is to “promote the plumbing-heating-cooling industry while protecting the public health and environment.” PHCC members financially contribute to our organization so that we may promote these interests. Our mission is to keep plumbing practices in Minnesota safe and to uphold the provisions of the Code. AAVs are directly prohibited by the Code, Minn. R. 4715.0200(D, as well as sound plumbing practices, and therefore PHCC has an interest in keeping AAVs out of plumbing fixtures 6. Second, if AAVs are permitted in Minnesota’s plumbing systems, even though the Code does not authorize their use and in fact specifically prohibits their use under Minn. R. 4715.02000 (1), our members could be subject to liability.7. Specifically, PHCC members represent a wide range of union and non-union plumbing, heating, and cooling contractors throughout the State of Minnesota, Our members employ thousands of plumbers who work in, on, and around plumbing fixtures and systems in both residential and commercial buildings. Our contractors bid on and enter into contracts of all sorts to build, install, maintain, and repair all types of plumbing fixtures and related systems. It is not economically feasible to refuse to bid on or perform work on a property involving AAV installation, maintenance, or repair because our members cannot afford to tum away work in the competitive marketplace. As such, the employees who work for our members are exposed to potential personal harm from any deleterious or unsound plumbing installation that may be pre- existing when they enter a structure, and our members may be subject to corresponding Worker’s Compensation claims if an employee is injured or harmed from a defective plumbing device, such as an AAV. Further, our members could be subject to liability from a landowner or a tenant if a defective or improper plumbing device is installed. If we are contracted to install, maintain, or repair an AAV that malfunctions, and sewer gas enters the structure and causes injury to a person, our members may be among those who get sued by the landowner and/or tenant. By analogy to our experience in multi-party construction litigation, when a contractor is sued for mold damage, for example, the contractor impleads every subcontractor who conceivably worked on the allegedly improper construction. If one of our members installs an AAV pursuant, to a contract that specified that AAVs should be installed, and the AAV malfunctions or was not appropriate for the building, our member might be a potentially responsible party for any ensuing injuries or damages.9. Moroni AAV ar pete t Be el tughout Minna under he Osobe 8, 200 ner. Aproa, OUEMSTERRSI AAVs purport be an alternative to open pipe, two-way ventilation systems in plumbing fixtures. AAV promotional ‘iterature boasts that it will “eliminate” traditional ventilation systems, on which our members’ ‘ivelihood depends, As such, (VAS aim to eliminate a significant amount of our industry by way of a device that is not even permitted by the Code. 10. Third, the Couneil is an appointed body of plumbing professionals whose mission is to look after the best interests of the public. Private plumbing-fixture distributors such as Studor may not be concerned with public health or safety. As a member of the Council, any plumbing device that PHCC does not approve of, we recommend that it not be permitted in the Code. AAVs are such devices. The fact that MDH decided to approve of AAVs as an alterative device, after previously and strenuously expressing its disapproval for AAVs based on safety, health, and the plain language of the plumbing Code, makes a mockery of the Council's recommendations. Dough Waller Subscribed and swom to before me this Sth day of _ 2005. EDWARD P. SHEU ROTARY PUBLIC ADNGSOTA ey commas np 3.780 Notary Public 0168287250001/390856_1