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Extinguishers overcharged

 
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xray
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Joined: 06 Sep 2007
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PostPosted: Tue Apr 13, 2010 1:04 pm    Post subject: Extinguishers overcharged Reply with quote

I'm happy to say that I just won an appeal on overcharged rechargeable fire extinguishers, and I'd like to see what others think of the argument I developed for this.

First, I need to stress that this appeal included a letter from the fire extinguisher contractor backing up my claim that the extinguishers were fully functional and that they had approved them. I don't necessarily think we would have won this appeal without that letter - but this does at least set a precedent someone else could duplicate if needed.

My appeal document said:

The UPCS protocol states that a fire extinguisher defect exists when:

“Level 3: For all buildings, more than 10% of the fire extinguishers are missing, damaged, or expired.
-OR-
There is not an operable/non-expired fire extinguisher on each floor."


The UPCS definitions make no mention of the gauge. The Compilation Bulletin Revision 1 however includes the following statement:

UPCS protocol requires inspection of existing fire extinguishers. This consists of visually checking the gauge and the certificate attached on the unit of a re-chargeable extinguisher. This requirement is intended only for re-chargeable fire extinguishers.

However, for properties using disposable (or nonrechargeable) fire extinguishers, the evaluation consists primarily of a visual check of the gauge, which must clearly indicate that the fire extinguisher is adequately charged. (i.e. The arrow in the gauge is pointing within the green area and is not under nor over charged.)


This does not state that a defect exists when a rechargeable extinguisher is overcharged. It clearly distinguishes between rechargeable and disposable extinguishers as emphasized by the word “However,” and then states that (presumably because non-rechargeable extinguishers do not always have an inspection tag to indicate that an expert has approved the charge level) a disposable extinguisher will be considered defective if under or over charged.

Despite the very slight overcharge of the extinguishers at this property, they had been inspected and approved by our extinguisher contractor, who had determined that they were within acceptable operating range, and still had tags proving that they had been approved. We requested that the contractor re-check these extinguishers and the contractor confirmed in writing that they were fully functional. See attached letter from the contractor.

Let me also say that, while I wish everyone would go by this standard, you inspectors are probably risking an OoS if you do. Don't change what you're doing because of this. I'm not trying to instruct you... I'm just sharing information on a successful appeal.

There was another item on the same appeal: http://reacinspectors.org/forum/viewtopic.php?t=820
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Bow Tie
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Joined: 21 Feb 2009
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Location: Upper Midwest

PostPosted: Wed Apr 14, 2010 4:31 am    Post subject: Reply with quote

This is surprising and just a bit disturbing. I gotta say, if I had been reviewing this, I would have denied the claim. The drawing of a distinction between disposable and rechargeable extinguishers based on the criteria provided seems arbitrary at best. It really appears that it goes counter to the intent of the overall definition. The fact that the needle was in the red on the extinguisher was something which should never have gotten past the contractor or the maintenance staff.

Knowing how difficult it would be to rewrite the protocol, I am surprised by this "letter of the law" loophole. I would assume that the reviewers would take a more restrictive approach to interpreting the protocol in a case like this.

None of which means I am not taking note of this for future use. Thanks again. Very Happy

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xray
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PostPosted: Wed Apr 14, 2010 7:09 am    Post subject: Reply with quote

Well... you know... the gauge on a rechargeable fire extinguisher is not a real high precision instrument. I'm sure the pressure varies a little bit with temperature and so on, and I'm sure that some people who work with these things feel that a frog hair over the green slice of the pie on the gauge is not a dangerous thing. It certainly doesn't mean that the extinguisher won't function.

This said, all my clients are putting policies in place that they need to check the gauges and NOT accept this kind of lazy work by their extinguisher contractors.

When you consider that a couple of extinguishers can cost the property as much as 18 points on their score on a single building property, it does seem a little draconian to drop their score that much because an outside contractor is a little negligent on something that has no real effect on anything... it's a "symbolic" defect only, unless the extinguisher is so overcharged that it might explode or malfunction.

Bottom line in this case is that someone who is more expert than REAC or the inspector put their signature on a statement that it was not a real problem. I don't see why that would surprise you, that this would be acceptable.
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Bow Tie
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Joined: 21 Feb 2009
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PostPosted: Wed Apr 14, 2010 7:40 am    Post subject: Reply with quote

I'm not saying you were wrong to have appealed and won. I am saying that HUD applying such common sense to a situation where there protocol appears to be designed to produce a different result surprises me.
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CheezHead
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Joined: 13 Apr 2008
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Location: California

PostPosted: Thu Apr 15, 2010 1:08 am    Post subject: Reply with quote

xray, not to burst your bubble...but isn't it true you could write the same exact appeal for 2 different properties and 1 would be accepted and the other denied?

I've had a ton of POA's complain about this...it really just boils down to who gets the appeal at HUD from what I've heard. Sounds like flipping a coin really.
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xray
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PostPosted: Thu Apr 15, 2010 7:01 pm    Post subject: Reply with quote

Oh, you're not bursting my bubble, I absolutely agree! That's why I was so happy to win this one! Smile

Thanks for acknowledging that, like so many things related to REAC - LQAs, the design of the scoring system, the behavior of (only) a FEW inspectors, defects, appeal results, etc. - this can be totally freaking arbitrary.

I just had to share. I was so happy with this one, I couldn't keep it to myself. Smile
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CheezHead
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PostPosted: Fri Apr 16, 2010 12:27 am    Post subject: Reply with quote

Much congratz Smile
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stampburg
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Joined: 29 Sep 2007
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PostPosted: Fri Apr 16, 2010 5:41 am    Post subject: Reply with quote

CheezHead wrote:
xray, not to burst your bubble...but isn't it true you could write the same exact appeal for 2 different properties and 1 would be accepted and the other denied?

I've had a ton of POA's complain about this...it really just boils down to who gets the appeal at HUD from what I've heard. Sounds like flipping a coin really.


I've heard this also. Which is why I wish that some QAs would stop telling properties which items can be appealed and which can't. QAs don't know. Nobody does.

I know of a PHA employee whose job is mostly the REAC inspections. He brags about all the points he "shoudn't" get back on appeal but does.

I wish we had that kind of system when we're appealing an LQA!

SB
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xray
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PostPosted: Fri Apr 16, 2010 7:58 am    Post subject: Reply with quote

We "should" have gotten these points back, but I know what you mean, exactly.

For QAs or inspectors to record defects that they don't quite feel right about, and to say "you can appeal this," is a cop-out. There are tons of things that can't be successfully appealed without extremely thorough and rigid documentation, and there are other things that are a slam dunk - whether it is right or not - IF you can get someone to provide a letter saying it is okay.

I've said it once, and I'll say it again: REAC publicly claims that they require the inspector to use "professional common sense," which suggests that the inspector has discretion to overlook a marginal defect if they seriously doubt that it affects function or safety. Privately, REAC tells inspectors that, "if they might err, they should err on the side of safety."

This idea of "erring on the side of safety" ends up meaning not only that the inspector makes a tougher call when human safety is at risk, but when the inspector is at risk for "an out of standards" on an LQA.

Everybody seems to know that inspectors are almost never called out of standard for being "too tough," but are often OoS for being "too lenient," or "missing" defects.

An inspector can be deemed "too lenient" for exercising "professional common sense" in favor of the property, but not for "erring on the side of safety."

REAC dismisses this by saying that "the property can appeal."

Here's an appeal I lost recently:

A property was cited for "clogged roof drains," because there was a pile of debris at the BOTTOM of a DOWNSPOUT, which seemed to (possibly) restrict the flow of water coming out at the bottom.

The definition for "clogged roof drains" specifically states that this defect does not apply to downspouts.

I only had a day to prepare this last minute appeal, so I could not get a roofing contractor to go look at it, but I thought this would be an easy one.

We said in the appeal that the building did not have a flat roof with drains, only downspouts, and that, furthermore, the inspector never went on the roof - so he could not have seen a clogged roof drain. We included a picture of the downspout with the pile of leaves that had gathered and explained that this was the situation, and we cited the definition, which clearly said this doesn't apply to downspouts.

This one got rejected, with the reviewer saying that "we failed to prove that the roof drains were not clogged," even thought here ARE NO ROOF DRAINS.
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Gizmo
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Location: Virginia and elsewhere

PostPosted: Fri Apr 16, 2010 2:30 pm    Post subject: Reply with quote

Unbelievable!! Sometimes, you just can't win!!
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