New TREC SOP Commentary update 2/12/09

[Michael R. Boyett]

Here are my notes from yesterday's TREC SOP Commentary Sub-Committee meeting:
---------------------------------------------------------------
The TREC Inspectors Advisory Committee SOP sub-committee met by teleconference on 2/11/09 to continue work on and drafting of a Commentary to the new 2009 TREC Inspector’s SOP. All four of the sub-committee members were in attendance along with four public attendees. The intent of this meeting was to continue agreeing on wording and drafting the Commentary which will then be posted for public comment sometime in the future, probably 4-6 weeks from now or so. The Commentary is to explain the thought process that went into the new SOP and to provide examples and clarifications. I will not go into all of the boring details of the teleconference but rather touch on a couple of the more interesting topics.

It is my opinion that one of the sub-committee members who happens to actually be the sub-committee chairman continues to have a mindset that the SOP should be more prescriptive rather than less and, in some opinions, to go well beyond the traditionally accepted scope of a visual inspection. He is single-handedly responsible for the new SOP requirement for Texas HI’s to lift roofing shingles to inspect the fasteners. That same expanded concept of an inspection was clear during the meeting when the chairman proposed putting in the Commentary that electrical outlet boxes, especially those in a Kitchen backsplash, should have cover plates removed to inspect for proper maximum gap ( ¼” ) between the j-box and the cover plate. Occasionally, a j-box will be installed recessed too far into the wall or new tile, backsplash or other wall coverings will be installed that cause that gap to widen to greater than ¼” in which case, the NEC calls for a box extender to be installed to reduce that gap to less than ¼”. The argument against including that example or requirement in the Commentary was that the SOP specifically says cover plates do not need to be removed unless there is evidence or suspicion of aluminum wiring in which case a random sampling of outlets and switches are required to be further inspected. Debate and discussion went on for awhile and a vote of the sub-committee members was taken as to whether or not to include that wording in the Commentary. The vote was tied at 2-2 at that time. Subsequent discussion resulted in another vote which ended 2-1 in favor of Not including that wording in the Commentary. It should be noted that one of the sub-committee members had left the meeting just prior to the 2nd vote so that is why the proposal failed. It could very well come back into consideration at the next sub-committee working session however.

During other discussions on another area of the Commentary it was proposed to add the word “reasonable’ to the clause that refers to “in the judgment of the inspector”. This clause shows up several times in the new SOP and the Committee’s public member lawyer opined that the adding of ‘reasonable’ actually made the inspector more liable rather than less liable. That wording could give any opposing counsel more ammunition to use against an inspector. For example, an opposing counsel could simply suggest that an action or opinion by the inspector was not reasonable in the counsel’s opinion thereby putting the onus back on supporting counsel to defend the reasonableness of said action or opinion. All legal gobbledy-gook but nonetheless important. End result…the word reasonable was added to the Commentary where applicable.

I will post more notes after the next sub-committee working sessions.

[Jack R. Robnett]

Mike

Thanks for keeping us informed. Is the commentary going to be an enforceable document, or simply an opinion.

Jack

[Michael R. Boyett]

Well, that's a great question Jack. Historically, that has been TREC legal counsel's argument against such a document, i.e. it would not have the force of law without being adopted by TREC as a 'rule' and perhaps they didn't have the authority to do that. Some think that was just TREC's attempt to keep such a document from existing that would pin them down and essentially take much of their enforcement discretion away. TREC counsel seems to have taken a new stance on this and is allowing the Commentary to move forward at this time. My personal opinion, is that the Commentary will be adopted in such a manner as to be an opinion only with little legal standing but it will go along way in helping Texas HI's better understand what the SOP is really looking for.

[John Cahill]

The Commentary must be adopted into Rule to be enforceable.

I will remain silent on other aspects of the Commentary. Will not show my cards.