BORA Meeting Minutes August 2009

BROWARD COUNTY

Board of Rules & Appeals

One North University Drive, Suite 3500-B, Plantation, Florida 33324

Phone (954) 765-4500 Fax: (954) 765-4504

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BOARD OF RULES AND APPEALS

August 13, 2009

Meeting Minutes

Call to order:

A published meeting of the Broward County Board of Rules and Appeals was called to order by Chair Gary Elzweig at 7:02 p.m.

Roll Call

Gary Elzweig – Chair

Ron Burr

Gregg D’Attile

John Famularo

Shalanda Giles Nelson

Steve Kastner

Albert Korelishn

Allan Kozich

David Rice

Jay Shechter

John R. Smith

Dave Tringo

Hank Zibman

The presence of a quorum was established.

Approval of Minutes

The Chair asked for a motion to approve the minutes. Mr. Korelishn moved to approve the May 14, 2009 board meeting minutes. This motion was duly seconded by Mr. Kozich.

THE MOTION PASSED UNANIMOUSLY WITH A VOTE OF 13 – 0.

CONSENT AGENDA

1.Certifications

Mr. DiPietro stated that certifications are in the agenda packet and that a supplemental list was emailed to all Board members.

The Chair asked for a motion. Mr. Burr moved to approve the certifications and was duly seconded by Mr. Shechter.

THE MOTION PASSED UNANIMOUSLY WITH A VOTE OF 13 – 0.

REGULAR AGENDA

The public hearing was open – appellant and other parties wishing to speak were sworn in.

2.Appeal #09-01 – 1215 W. Newport Center Dr. Deerfield Beach

• Staff report was presented by Tarry Baker, Chief Electrical Code Compliance Officer.

Mr. Baker stated that there is a violation with respect to the National Electrical Code, edition 2005 section 90.7 and 110.3b and 110.a for labeling and listing of electrical machinery.

In a summary of facts in the 2008 code a change was made. They’ve added the word machinery which was not in there in the 2005, and that was to clarify the code, and that’s what it states in the reform proposals, if you go back and look at the documentation from 2004 for the 2005 Code. In the arrangement of the code and also for the Valve Research engineer it says “Note - All new electrical equipment and machinery will have tested laboratory approval NRTL.”

Mr. Baker reported that he had from the North Carolina Superior Court, Wake County vs. another appellant in the same situation as the appeal this evening. The Court in the state of North Carolina ruled in favor of Wake County. Accordingly, Mr. Baker’s recommendation is to deny the appeal. The equipment has to be listing and labeled. If you go back to Article 670 and there it states in part of 670.2 the definition of electrical machinery and associated other equipment, referenced the definition about electrical machinery, and by that it means that this is equipment, too, and it has to be listed and labeled.

Mr. Elzweig, the Chair, asked if the date and section of the Electrical Code applied to the above referenced court case.

Mr. Baker replied that, yes, it did.

• Appellant - Michael Cruz – Vice president for Valve Research introduced himself.

He told the Board that Leonard Chapman, the General Manager, has been doing the research related to this appeal, and will be speaking primarily regarding the actual case. We have been in Broward County for over 30 years. All the same machinery that we’re talking about right now has been in operation, none are new. We clarify that although the statement on the drawings does say new electrical equipment; our equipment that we are moving from one facility to another is not new equipment.

Mr. Cruz proceeded to tell the Board that every year they have the Fire Department come for the annual inspection, and there has never been any word about the UL listing or NRTL listing of the equipment. We ‘re just moving them basically a half a mile from where we have been in Deerfield for 25 years to a new, larger location in the Newport Center and we would just like to be able to operate our machinery as we have been in the past.

• Leonard Chapman – General Manager for Valve Research addressed the Board.

Mr. Chapman provided the Board with his background, i.e. - Navy Nuclear engineering for 5 years, submarines, also worked for NASA for five years. Mr. Chapman was the equivalent to our AHJ (Authority Having Jurisdiction). He stated that he signed paperwork for everyday took over contractors, sat in launch consults for 42 launches. Mr. Chapman continued to discuss his work experience, and stated that he worked for Pratt Whitney, where he ran space business units, rocket engine programs, and then took over the Russian Rocket Program. He went to school, came down to Pratt Whitney from NASA to go back to school and from there came to Valve Research to run the company.

Mr. Chapman further provided his educational background as follows:

Mechanical Engineering degree

Masters in Industrial Engineering

Masters in Business Administration - International Business

PhD – (accepted for dissertation) in Industrial Engineering, 2 classes on IT masters.

Mr. Chapman informed the Board he was qualified to read specs and texts. He told the Board that precedents around the country don’t agree with what we included in our Board of Rules and Appeals packet. The way the Board reads it, is that the code for equipment shall be listed and approved. Mr. Chapman goes on to refer to Section 90.7, where he points out that the examination for safety and the first sentence is driven by the NRTL program which is OSHA run, 29CFR.1910. Mr. Chapman maintains that the program is run by OSHA, although not every single piece. He references the OSHA sight where there are 37 categories of products that have to be listed.

Mr. Chapman referred to a letter he discovered that is included in the appellant’s portion of the agenda package that was written by the Director of OSHA as a formal position paper written by the former director of the program which controls the NRTL program as well. The letter, which was written to Intertect, (one of their quoting houses) is one of the big, national testing laboratories. Jennifer Silk stated to the Oregon OSHA Board that “nearly all electrical products must be certified, but not machines.” Mr. Chapman continued that there are 9 programs and none of them include field listing or labels according to NRTL guidelines. This letter is 10 years ago, so he contacted OSHA directly and talked to the department head of the NRTL program - The letter hasn’t been rescinded; that is still their position. In order to get a formal opinion to bring to the Board it was submitted to Williamson; he has correspondence and email. To submit a form for OSHA to provide me with a more updated form position letter stating that they still believe that position to be true. Under 1910.303A the definition of equipment - OSHA does not consider machinery electrical equipment. There is a category for electrical equipment, but it’s not machinery. That’s the basis we’re doing this whole argument on.

Mr. Chapman continued that this is the whole premise for the appeal; these machines were put in, and a machine costs us ten grand to put in, it’s got to be factory installed by a service engineer. It has to be installed by a licensed electrical contractor. All has to be done above and beyond what a regular piece of electrical equipment that you would buy at hardware store and bring to your building. These pieces are tested in detail, before they come to us for a couple of hundred hours and after us for at least another forty hours before we’re allowed to take delivery. This equipment isn’t a regular item that you would buy and be concerned as a risk for electrical shock. He explained that he was aware of whole safety issue and understood that they don’t want to plug something in that’s never been tested and is going to shock and kill somebody. He explained that industrial machinery is not of that category. It’s much more complex.

The Chair opened the discussion to questions from Board Members.

Mr. Korelishn questioned the fact that the equipment has been in that location for 25 years and asked the age of the oldest piece and the newest piece with respect to the code.

The Chair noted that the equipment hasn’t been in the same location for 30 years and that they are relocating it, but it’s been in operation.

Mr. Chapman explained that currently the run hours on the oldest machine have 56, 532 hours. The oldest machine in full operation is 30 years. The newest machine has 1,162 hours (which represents a year and a half).

Mr. Tringo inquired if there were any pictures?

Mr. Chapman responded that he does have photos on his computer, and went on to explain that the machine is as big as a house, half a million dollar machine 4 or five motors inside in it and a control panel.

Mr. Tringo stated that what he was leading to was whether this machine has enough devices and wiring, and reiterated that pictures would have been helpful.

Mr. D’Attile asked how many pieces of equipment were in question, and what types of equipment were they?

Mr. Chapman replied that they included C&C Lathes, C&C mills, hand grinders, 2 honing machines, one automatic power stroker and one old fashioned regular stroker. There are air purification systems which prevent the workers from breathing shop air.

Mr. D’Attile asked if all of this equipment was in question, and Mr. Chapman answered, that, yes, all of it, every single piece was in question.

Mr. Kozich asked if they had been getting electrical permits when bringing new machinery in, or have they been getting a master maintenance permit allowing the machinery to be moved.

Mr. Chapman explained what was entailed in the installation of a machine in the new building as follows: “Everything was done on a permit every single machine. All load calculations were provided. Everything was done and signed off before we moved the machines. To install a machine after everything is approved, we’re talking about 3 or 4 wires; that is a machine installation from the electrical perspective, the breaker, the service disconnect, the overcurrent protection, conductor size – All of that is done, the P.E. signed off by the city, so now I have four wires dangling. I take the machine, I fly the factory guy in; he unhooks the machine at the old building. I have a special rigger, rigs the machine over. I have the factory guy re-install it I have a field service engineer run it because it has to be dialed in – I have the state certified electrical contractor connect the 4 leeds to the phase check, the voltage check, the grounding check. And then, after it’s powered up, the field service engineer spends at least an average of 20 hours running the machine, and then he releases it to us.”

“Once he releases it to us, we do a CPK study; we’ve learned that any bad voltage drives motors nuts.” (Sic) “The machines are just so precise, it’s overkill, but you have to do it.”

Mr. Kozich referred to Item #4, on page 43, stating that that may apply when you move the machine around in your own facility, but doubted that was the case, and continued you just have to get a permit.”

Editor’s note: Item #4, page 43 reads “Field evaluations are only valid for a specific installation. By nature, many shops move equipment around based on the jobs in the shop at any given time. This is referred to as cellular manufacturing and is a popular method worldwide to shorten the cycle time of parts through a shop. Moving a “field listed” machine automatically voids the “field certification” but is required for partial business operation.”

Mr. Chapman responded that it’s on every quote, location is specific. He explained they tried to have the machines inspected at the old building. This was not allowed because moving the machine voids the certification because it’s a field certification, and they are treated differently.

The Chair asked how they reconcile the fact that in 2008 the National Electrical Code clarified the definition of machinery to include equipment or equipment to include machinery, and also asked, that assuming they are still in business and this machinery has been disconnected for some time, is it new equipment or new machinery that’s being used that’s producing the same product and is that machinery listed?

Mr. Chapman answered that no machine maker except one has a listed piece of equipment, nothing is listed other than Haas.

The Chair asked if they have equipment installed now that’s producing the same product. And is that machinery listed?

Mr. Chapman replied that they only have 3 pieces of equipment currently disconnected. The technical answer is yes, but they can work around them. Mr. Chapman continued that the machinery definition in 2005 and 2008 version: Machinery as a word is used 68 times. Electrical machinery is used 6 times. Electric is used 2 times. NEC 2005, Section 500.5, classification of locations: “Where mechanical failure or abnormal operation of machinery or equipment might cause explosive or ignitable mixtures to be produced and might also provide a source of ignition through simultaneous failure of electric equipment.”

The Chair observed that their point being, industrial machinery, what they have, is not equipment.

Mr. Chapman said that as defined by 670.2, industrial machinery has its own complete definition.

CITY RESPONSE TO APPEAL

Wahgih Messiha, Building Official, spoke on behalf of the City of Deerfield Beach.

Mr. Messiha brought the Board’s attention to an attachment and discussed page 13. He discussed an inspection and said his department was told that Valve Research was going to be relocating from the old premises. They informed Valve Research in November that none of the machines were listed. Some of them were Canadian labeled. Valve Research agreed to have those machines tested and labeled by UL.

Mr. Messiha’s inspector gave Valve Research a 6 month extension, so as not to interrupt their manufacturing and production in the City of Deerfield Beach. He pointed that that had tried to save the 70 laborers that were working there. The 6 months period expired and they had not heard anything from Valve Research. The City of Deerfield gave them an extension of 2 months to do the labeling and when the 2 months expired the City was notified that they were already been tested. Mr. Chapman, in person, had tested them. Our argument is those machines are electrically operated; the components are not certified as an assembly, and that’s why we asked them to get certified.

Mr. Tringo questioned the age of the machine. Mr. Messiha informed him that those machines have been installed for 25 years, and none of them have been permitted, tested or checked by the building department. There’s no record, whatsoever.

The Chair inquired whether Valve Research had given the City a reason for not wanting to use a third party products approval process. Mr. Messiha replied that there’s no record whatsoever that they had been inspected by the building department.

There was discussion between Board members, Mr. Korelishn and Mr. Smith. Mr. Baker and Mr. Messiha also participated. Mr. Messiha told the Board the city had asked them to disconnect all the machines that had not been labeled. None of the machines that we had seen were labeled. They reconnected these machines again. Discussion continued between Mr. Kozich and Mr. Baker. Mr. Baker informed Mr. Kozich that in most of the cases, the report that you receive from an engineer and the report that these people here would receive, I also receive a copy from the testing authority. When you move it to another location, the equipment now has that label on it and the listing. It’s not approved, it’s listed or labeled. The only one that can approve it is the Authority having jurisdiction under 110.2. The problem here arises that the equipment, when it’s field tested, they put the label on it and that’s for that piece of equipment. According to 90.7; he (the inspector) can rely on that label.

Mr. Baker commented that if it had been inspected and approved we would have said fine, and we wouldn’t be in this appeal process.

The Chair inquired whether their remodeling plans, their permanent plans, called for them to be labeled, and noted that after looking at page 13, it appears it did.

Mr. Baker remarked that would go by what the engineer of record quoted, which is “Location A to Location B.” If it had a sticker on it would have still been fine with the Building Department. Mr. Baker added, “I was out on the job site myself, and it’s a very nice facility. In the back they have all this machinery that we’re talking about. I did see labels on some of the smaller pieces of equipment that were there.”

Mr. Messiha stated that on this plan every piece of equipment that was approved says “new.”

Mr. Chapman said that the note was added as a record by Dave Cake on 12/7/07 who red-lined the blueprints on submission and required that the note be added by our engineer. The note reads “all new equipment will be inspected.” There are 46 machine shops with multiple machines in Deerfield. There are 291 in Broward, 3,059 in the state of Florida installed in the last year that does not have stickers. We’re clearly not a unique case. What bothered me most about this is each correspondence with the Building Department which we did have all came to our building, the city manager, the chief building inspector, and the local building inspector. Mr. Chapman stated that the equipment has to be listed and labeled, no discussion, no dialogue. Mr. Chapman continued that they did know from day one. “I knew I couldn’t go to the state; we got the red tag one day; we had the appeal out the next day.”