Volume 41, Issue 12 - December 2006

GANA Perspectives

A Legal Issue
GANA Appeals Procedural Error at IECC Hearing
by Kim D. Mann

The Glass Association of North America (GANA), in an unprecedented strategy designed to provide relief for its Building Envelope Contractors (BEC) division members and the glass and glazing industry, has joined with the Aluminum Extruders Council (AEC) and code consultant Craig Conner to co-sponsor a proposed change in the model building code governing energy conservation in commercial construction. GANA is a co-proponent of EC9-06/07, a proposal requesting the administrators of the International Energy Conservation Code (IECC) to revise Section 102 of the IECC to permit contract glazing companies, builders and glass specifiers to use an American Architectural Manufacturers Association (AAMA) standard, AAMA 507-03, Standard Practice for Determining the Thermal Performance of Fenestration Systems Installed in Commercial Buildings, as an alternative path for rating the energy performance of commercial fenestration. Currently, the IECC only recognizes and approves compliance with National Fenestration Rating Council (NFRC) procedures to determine U-Factors, solar heat-gain coefficient and air-infiltration for site-built (as well as residential) construction. 

A Compliance Option 
GANA’s sponsorship of EC9 seeks to make available through the IECC a new compliance option that GANA believes is a more user-friendly and economically-viable option. The commercial fenestration industry already uses AAMA 507 extensively and finds it produces essentially the same results as NFRC’s site-built program, but far less expensively and in days, rather than the months required, to comply with NFRC’s complex system. Contract glaziers almost universally consider NFRC site-built procedures unworkable and very rarely use them, even though technically mandated in jurisdictions adopting the IECC.

The International Code Council (ICC), administrator for the international set of model codes, including the IECC, held public hearings in late September 2006 in Orlando, Fla., to consider all code-change proposals for the next code cycle. GANA representatives participated in these hearings, testifying with other co-sponsors of EC9, the Glazing Industry Code Committee (GICC) and several energy consultants in support of EC9 before the IECC Code Development Committee. NFRC supporters testified in opposition to the proposal. This IECC committee is a 14-member body comprised of a mix of building officials, industry members, consumer groups and code consultants and includes three members of the board of directors of NFRC as voting members. (NFRC is the primary opponent of EC9.) The IECC committee makes the initial determination for the ICC on all proposed changes in the IECC.

When the IECC committee announced at the Orlando hearing it was calling for public testimony on EC9, NFRC board member and IECC committee member Chuck Anderson of Simonton Windows immediately and voluntarily stepped down from the committee. GANA then raised a “point of order,” requesting the two remaining NFRC board members on the IECC committee step down temporarily and not participate in the committee’s deliberations and not vote on EC9 because of the inherent conflict of interest created by their dual positions. (IECC rules prohibit committee members from hearing and considering proposed code changes when they have an undisclosed conflict of interest.) 

The two NFRC board members, Gary Curtis and Chris Mathis, adamantly refused to do so, not only once, but twice.

Testimonies and Voting
Following the very public procedural wrangling over its members stepping down, the IECC committee proceeded to hear testimony from GANA and other witnesses in support of EC9, as well as opposition to it, primarily from NFRC members. The committee publicly discussed the merits of the testimony they heard and then voted 11-2 against approving EC9. Curtis and Mathis actively and aggressively participated in questioning the witnesses who testified before the committee and in shaping the internal committee debate over EC9. The two voted, of course, to disapprove EC9.

On October 11, 2006, after the conclusion of the ICC hearings on EC9, GANA lodged a formal appeal with the ICC Appeals Board. The GANA appeal challenges the procedural irregularities that enabled Curtis and Mathis to participate actively in the IECC hearings on EC9, despite their allegiance to NFRC through their positions on the NFRC board. The GANA appeal complains about the blatant conflict of interest of Curtis and Mathis serving on the NFRC board of directors and the IECC committee while hearing a request for IECC to create an alternative code-based option for compliance with NFRC procedures. It also alleges that both have significant personal financial stakes in perpetuating the NFRC control over energy rating programs for commercial glazing systems, vested interests they failed to disclose 
to the ICC staff or to the IECC 

GANA’s appeal asks the ICC Appeals Board to remove Curtis and Mathis from the IECC committee and to declare the committee’s decision on EC9 null and void because it was the product of a corrupted hearing process, tainted by the divided loyalties of Curtis and Mathis. The ICC Appeals Board has not yet acted upon the GANA appeal, and it may be months before it does so. GANA expects the appeals board will call for a separate hearing on the GANA appeal, inviting interested parties 
to present witnesses offering testimony for and against sanctioning Curtis and Mathis for their conduct. GANA intends to appear and testify at the designated date, time and place. 

Kim D. Mann, from the Washington, D.C. office of the Indianapolis-based law firm, Scopelitis, Garvin, Light & Hanson, is the general counsel for GANA.

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