What Price for Life? Code Adoption: Ohio’s Fight for Electrical Safety

The National Fire Protection Association (NFPA) is the leading advocate of fire prevention and is an authoritative source on public safety.1 The National Electrical Code, one of the 300 codes and standards published by NFPA, is a true consensus based code process. Changes are not made to theNational Electrical Codeunless such changes are substantiated by logical reasoning, research, data, and statistics that promote the practical safeguarding of persons and property from hazards arising from the use of electricity.

This consensus process includes public input, in the form of proposals and comments, regarding proposed changes to the Code, and subsequent review by code-making panels that have a balanced representation of experts from all areas of industry. Following the completion of the proposal and comment periods, there is yet a further opportunity for debate and discussion through NFPA’s annual meeting, held each June. The NFPA annual meeting gives another opportunity for public input and for NFPA membership to amend the respective code-making panels’ reports [i.e., the Report on Proposals (ROP) and Report on Comments (ROC)] on each proposed new or revised document.

Once this process is complete, the final step is for the NFPA Standards Council to issue the NEC as an official NFPA code or standard. The timeline for this process takes no less than two years and several hundred hours of review and research are completed by members of the code-making panels to ensure electrical installations continue to evolve with changing technology. The 2008 NEC was issued by the Standards Council on July 26, 2007, with an effective date of August 15, 2007. This edition of the NEC was approved as an American National Standard on August 15, 2007.

Local Adoption of the NEC — Ohio As a Case Study

Historically, state and local governments have recognized the need to adopt construction safety codes to protect the public health, safety, and welfare. The NEC is recognized almost universally in the United States, and every electrical apprentice and training program places a heavy emphasis on its provisions. State laws will vary throughout the country regarding the code adoption process; however, you will find there are similarities with code adoption processes. Many states and local jurisdictions continue to recognize the value of NFPA’s open and balanced code consensus process as evidenced by the continued adoption of the NEC across the country.

This article provides an in-depth review of the code adoption challenges Ohio faced, and will hopefully provide valuable insight for those presented with the same challenges.

Ohio has long been considered to be at the forefront of electrical safety technology. The Ohio Board of Building Standards (OBBS), the state agency responsible for the adoption of Ohio’s construction safety codes, has always placed the public health, safety and welfare as its top priority.2 In accordance with the OBBS document “Ohio Board of Building Standards Public Involvement in Our Rule Making Process,” Vision Statement, “The Board of Building Standards’ vision is to be a national leader in promoting a safer built environment for Ohio’s citizens through knowledge, training, service, and technology.”3

For the past several code adoption cycles, Ohio was one of the first to adopt the latest edition of the National Electrical Code. In the past, adoption of the NEC in Ohio was met with little or no resistance. The 2008 NEC was no exception, as the OBBS followed the rule adoption procedure prescribed by the Ohio Revised Code and subsequently adopted the 2008NECfor all structures.

This procedure included filing the proposed rules with the appropriate state agencies, notice of public hearings and filing on the Register of Ohio.4 The Register of Ohio provides an electronic publication that functions as a gazette to which members of the public may readily resort for notice of and information about rule-making processes. The proposed adoption of the 2008 NEC was published on the Register of Ohio and made readily available to the public for comment on September 28, 2007.

Following the required filing process, Ohio law requires all state agencies that adopt rules to go through a standard rule adoption procedure which includes two public hearings. The first was a public hearing of testimony supporting or opposing the adoption of the 2008 NEC, which was held on November 2, 2007, before the OBBS. The second was before the Joint Committee on Agency Rule Review (JCARR) to hear testimony relative to four prongs of the law to ensure state agencies adopt rules consistent with the Ohio Revised Code.5 These four prongs make sure that (1) the rules do not exceed the scope of the rule-making agency’s statutory authority; (2) the rules do not conflict with a rule of that agency or another rule-making agency; (3) the rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed; and, (4) the rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule.

Unlike the first hearing, the JCARR hearing was not a venue for reviewing the technical merits of the code, but rather to assure compliance with Ohio law and regulations. JCARR consists of five state representatives and five state senators. Once the committee confirmed the OBBS’ proposed rules to adopt the 2008 NEC met the four prongs of the law, the OBBS adopted the 2008 NEC on December 14, 2007, with an effective date of January 1, 2008.

Ohio Home Builders Association Challenges the 2008 NEC

In an unprecedented action, the Ohio Home Builders Association (OHBA) filed a petition with the Ohio Board of Building Standards on January 9, 2008, to recommend the OBBS rescind the 2008 NEC and replace it with the 2005 NEC. The OHBA alleged the actions to adopt the 2008NECwere unreasonable and unlawful because they failed to adequately address costs and impacts of adopting the 2008 NEC. In addition, concern of product availability to comply with the 2008NECwas raised. Included with the OHBA petition was a quote alleging a cost increase for a 1700-square foot home of $1,198. Another quote, which included only arc-fault circuit breakers, alleged an increase of $600.00 for a 2000-square foot home. Additionally, concern was raised in the petition regarding the reliability of arc-fault breakers and associated nuisance tripping.

Following closer review of the petition, Ohio Chapter IAEI board members O.P. Post, Tom Moore, and Tim McClintock determined the quotes included in the petition were inflated and were not substantiated with prices available from local supply houses or national chain stores such as Lowe’s or Home Depot. For example, one quote included a price for a 15-amp arc-fault circuit breaker to be $77. In addition to the inflated material cost, the quotes reflected well above the minimum number of circuits prescribed by the Code.

Consequently, in an attempt to help the entire industry (including the OBBS) understand what the true cost impact of moving from the 2005 NEC to the 2008 NEC actually is, the Ohio Chapter IAEI board members conducted extensive research and prepared a cost impact analysis for three different sized homes. This study revealed the following minimal cost impact: for a 900-square foot home, the total cost was calculated to be $160.18 or $.18/sq. ft.; for a 1700-square foot home, at $205.27 or $.12/sq. ft.; and for a 2100-square foot home, equaled $241.36 or $.11 /sq. ft. (see figures 1-3).6

Keep in mind the NEC establishes the minimum requirements for the safe electrical operation of a home. Additional circuits that accommodate extra lighting, specific known loads, or a desire to separate circuits for isolation purposes are additional costs that are, once again, not driven by theNEC. The additional lighting loads or appliances are not code-driven; they are upgrades similar to windows, roofing configuration, or brick versus siding.

In addition to the Ohio Chapter IAEI cost analysis presentation to the OBBS and to Ohio Governor Ted Strickland, several other electrical safety advocate groups stepped up in support of the adoption of the 2008 NEC in Ohio. A number of letters and other supporting documentation from National Electrical Manufacturers Association (NEMA), NFPA, the Electrical Code Coalition, and Ohio Chapter IAEI divisions were submitted to the OBBS and to the Governor’s office to show support and direction on why maintaining the adoption of the 2008 NEC is for the betterment of Ohio’s citizens by ensuring their safety through the available technology included in the 2008NEC.

Ohio Governor Ted Strickland Signs Emergency Order

Contrary to the information presented by the Ohio Chapter IAEI and other electrical industry safety advocates, Ohio Governor Ted Strickland signed an emergency order on March 31, 2008, that reinstated the 2005 NEC for one-, two-, and three-family dwellings. This order did not affect electrical installations for commercial/industrial structures and multifamily dwellings, which were still required to comply with the 2008 NEC. The Ohio Revised Code gives the governor the authority to adopt/amend a rule and to forego the normal rule adoption process, which includes public and legislative hearings. The emergency order also directed the OBBS to draft proposed non-emergency permanent rules to extend the governor’s emergency order. (In accordance with Ohio law, an emergency order issued by the governor will expire the 90th day after it is issued.) Additionally, the order directed compromised rules governing electrical installations to be submitted for legislative review by October 1, 2008.

Public Hearings

As previously discussed, rules proposed by state agencies are required to follow the rule adoption process prescribed by the Ohio Revised Code, which includes two public hearings. Even though the emergency order was signed by the governor, overwhelming testimony in support of the 2008NECwas presented at the first public hearing held May 2, 2008. Electrical safety advocates from around the state of Ohio and the country rose to the occasion. The vast majority of the testimony was in favor of adoption of the 2008NEC. Surprisingly, no one from OHBA provided opposing testimony.

The second public hearing held on June 2, 2008, before JCARR was to hear testimony relative to the four prongs of Ohio law (to ensure the OBBS-proposed rules meet the requirements of the Ohio Revised Code), as outlined earlier in this article. The OBBS’ rule was being challenged on the fourth prong, referencing its fiscal analysis. According to the OBBS’ cost analysis, “The increase in cost of compliance with the 2008NECvaries with the design of and the size of the electrical system of a home. The additional cost of compliance could range anywhere from as little as $300 per home to as much as $1000 per home, depending upon the electrical system design. However, the cost of the newly required arc-fault circuit interrupters and tamper-resistant receptacles could be offset by the potential to save hundreds of lives and perhaps millions of dollars in property loss due to electrical fires as reported by the National Fire Protection Association.”

Having been presented with the Ohio Chapter IAEI cost analysis, it was apparent that the OBBS was attempting to present installation costs that reflected both a code-minimum costs impact, as well as an above-code-minimum impact. However, as stated previously, the additional cost to install above the minimumCoderequirements are not driven by theNEC. Despite testimony that was provided to invalidate OBBS’ rules on the fourth prong, JCARR voted to approve the proposed rules. Subsequently, the OBBS voted on June 13, 2008, to permanently rescind the 2008NECand readopt the 2005NECfor one-, two-, and three-family dwellings. The effective date for this rule was June 24, 2008, which was six days before the governor’s emergency order expired.

Ohio Electrical Ad Hoc Committee Appointed

At the same time electrical industry safety advocates continued to fight for safety at hearings and other public fronts, Director Kimberly Zurz of the Ohio Department of Commerce appointed an Ohio Electrical Ad Hoc Committee to comply with the directive of the governor’s order. The committee’s objectives were to identify specific issues of concern relative to the new requirements included in the 2008 NEC. In addition, the committee’s goal was to formulate a consensus and a recommendation to the Ohio Board of Building Standards regarding the adoption thereof. The committee had balanced representation from the construction industry, including residential construction contractors, building officials/inspectors, electrical trades people, Ohio Fire Marshal representative, OBBS staff members, and a manufacturer representative.

The first committee meeting was held May 22, 2008, at the OBBS office in Reynoldsburg, Ohio. Initial discussion revolved around the economic impact of the new requirements, as well as the important safety aspects included in the proposed 2008 NEC. The committee decided on five issues with the 2008 NEC that were subject to review:

210.8, elimination of exceptions for GFCIs;
210.12, expansion of AFCIs;
406.11 tamper-resistant receptacles;
406.8 WR/TR receptacle requirements; and
310.15(B)(6) service/feeder conductor sizing.

Chairman Charlie Ruma, a homebuilder from the Columbus, Ohio, area, directed the committee to collect facts and data relating to the new Code, along with a review of applicable NFPA ROPs and ROCs, for review at the next committee meeting.

In response to the chairman’s request, committee members Tom Moore and Tim McClintock prepared a 165-page report that included a four-page white paper summarizing the Code requirements the committee was reviewing, along with a detailed response supporting those requirements. 7 In addition to the white paper, included in the report were copies of the applicable ROP/ROC sections, Ohio Fire statistics, the Ohio Chapter IAEI cost impact analysis, and other supporting data published by NEMA, NFPA, and the Consumer Product Safety Commission. The Ohio Chapter IAEI had copies of this report placed in a spiral bound binder and provided a copy for each committee member at the next meeting.

The second and final committee meeting was held on June 19, 2008. Discussion included the presentation of the 165-page report to the committee and the Ohio Chapter IAEI’s goal to recommend adopting the 2008 NEC without amendments. Historically, Ohio’s modification to construction codes involves modifying the administrative sections of the Code to avoid conflict with Ohio law. Modifying the technical provisions of theCodewithout sound statistical data and facts will only compromise the safety and welfare of Ohio’s citizens.

Extensive deliberation revolved around whether or not the committee should make modifications/amendments to the 2005 NEC and propose for adoption, or should make modification/amendments to the 2008 NEC and propose for adoption. Consensus was finally reached that modifying a national standard that has already gone through the code development process with NFPA was not favorable and could even create liability issues.

Additional discussion revolved around the cost impact of the 2008 NEC. Chairman Ruma presented a quote from his personal electrician that reflected a cost increase, from the 2005 to the 2008 NEC, of around $485 for a two-story 2400-square foot residential dwelling. The committee agreed that these costs were not inflated, but did exceed the Code minimum for branch circuits.

Next, discussion followed regarding the advantages of the technology and safety benefits of the 2008 NEC. Assistant Fire Marshal Don Cooper discussed the Ohio Fire Marshal statistics for 2006 and 2007. Fourteen Ohioans died in fires as a direct result of electrical equipment arcing and overloading. These statistics clearly reflected that Ohio needed to take advantage of the available safety technology included with the 2008 NEC.

Further discussion regarding the reliability of both AFCI and GFCI devices followed. Information included in the report booklet revealed that the technology has been around for a number of years and nuisance tripping today is attributed to potential problems with the appliance and/or branch-circuit wiring. Members on the committee representing the building industry suggested the manufacturing industry needs to become more actively involved in helping to educate the public. Committee Member Tom Domitrovich, with Eaton Corporation, agreed to look at launching a program that will increase public awareness on this subject.

Conclusion

As a result of Governor Strickland’s emergency order and the rules adopted by the OBBS, Ohio will continue to utilize the 2005 NEC for one-, two-, and three-family dwellings for the remainder of 2008. However, the Ohio Electrical Ad Hoc Committee finally reached a consensus, that because technology is available that increases safety and has a minimal cost impact, Ohio should move forward with adopting the 2008 NEC.

The only unresolved item was the recommended date for readopting the 2008 NEC. Several dates were presented for consideration by the committee and ultimately, consensus was reached to recommend the OBBS readopt the 2008 NEC, for one-, two-, and three-family dwellings, without amendments with an effective date of January 1, 2009.

The OBBS held its August 15, 2008, conference meeting and voted to approve the recommendations by the Ohio Electrical Ad Hoc Committee, the Residential Construction Advisory Committee, and the OBBS Code Committee to readopt the 2008 NEC for one-, two-, and three-family dwellings without amendments, with a proposed effective date of January 1, 2009. Electrical safety advocates will need to keep a watchful eye on this process and continue to promote the safety benefits included in the 2008 NEC. Once the OBBS files the proposed rules, there will still be critical hurdles to overcome, which include the two required public hearings prescribed by Ohio law.

While immediate 2008 NEC reinstatement following the expiration of the governor’s emergency order would have been preferable, tremendous strides were made in educating the building community about the important safety aspects included in theCode. For many years, NEC adoption was assumed.

Today, the question presents itself, why do we fight against safety? The actions of the state of Ohio earlier this year created a safety differential between one-, two- and three-family dwelling units and commercial construction, such as apartments, by reverting back to the 2005 NEC for the single-family dwelling. The family purchasing a home on one side of the road gets less protection from shock and fire than the family in the apartment being built across the road, based on the events that have transpired here in Ohio over the past several months.

Fortunately, Ohio will be back at the forefront of electrical safety through the actions and recommendation of this committee. Hopefully, Ohio can remedy the safety differential by readopting the 2008 NEC for one-, two-, and three-family dwellings. Everyone here in Ohio has gained a much better understanding of the code development process and our goal for the 2011NECwill be to begin the process of educating the entire industry immediately following NFPA’s adoption.