Friday, 18 July, 2008 8:28 PM
Protect: Three Actions Our Leaders Must Take in Order to Save America's
of Midwest land under 10 feet of water, a major bridge collapsing
to the ground, a flood-ravaged New Orleans—these are all images
we won't soon forget. But how can we keep history from repeating
itself yet again? Barry B. LePatner offers some suggestions.
courtesy of www.engr.uiuc.edu
I-35W Bridge collapse in 2007.
York, NY — Our nation's infrastructure is in dire
shape. If the past few weeks of flood coverage following the Midwest's
30-plus deadly levee breaks doesn't convince you, think back a year
or so ago. Just last summer, the collapse of the I-35W Bridge left
many of us pondering the safety of our highways and byways. And
who could ever forget the shocking images of post-Katrina New Orleans?
If you're wondering what America has done in response to these disasters,
construction attorney Barry B. LePatner says the answer is "not
nearly enough"—and that does not bode well for the future.
of these infrastructure breakdowns could have been prevented,"
says LePatner, coauthor of Structural & Foundation Failures
(McGraw-Hill, 1982, coauthored with Sidney M. Johnson, P.E.) and
author of Broken Buildings, Busted Budgets: How to Fix America's
Trillion-Dollar Construction Industry (The University of Chicago
Press, October 2007, ISBN-13: 978-0-226-47267-6, ISBN-10: 0-226-47267-1,
$25.00). "Take the Midwest floods, for instance. In 1993 the
same areas experienced massive flooding that resulted in over $10
billion in damage as well as loss of life. The current flooding
has so far cost $1.5 billion and that number is sure to grow.
makes you wonder What went wrong?" he continues. "Why
weren't proper measures taken to keep this type of flooding from
happening again? Who dropped the ball—and why were they allowed
to drop it? We as a society need to ask these questions, not to
point the finger of blame, but to make certain that what was avoidable
can be prevented in the years to come."
If you want
to pinpoint a common problem in each of these infrastructure failures,
look no further than the systems used to identify needed repairs
and to allocate funds for infrastructure remediation, says LePatner.
Since the 2005 National Transportation Act, states are allowed to
do what they choose with the money given to them by the federal
government. For the very first time, the federal government has
stepped back from establishing national guidelines for the design
and maintenance of our critical infrastructure facilities.
the powers that be—politicians constantly vying for re-election—prefer
to spend that money on things that get noticed by the public. Simply
put, they get far more political mileage from, say, beautifying
an old park than from making (less glamorous) repairs on a bridge
or levee. Consequences can be disastrous.
of money makes infrastructure repair a losing battle," says
LePatner. "After all, allocating minimal amounts to keep a
failing bridge or a levee in status quo condition is just plain
wrong when facing the inordinate rebuilding costs and economic damage
that will result after it fails and causes huge devastation. Post-infrastructure
failure costs are always astronomical—in terms of dollars
and human lives—and far outweigh the costs of any preventive
measures that could have been taken."
that the Midwest floods have wreaked their havoc, will our nation
change its irresponsible ways in regard to its infrastructure needs?
LePatner provides a few of his own solutions:
inaccurate statistics as justification for not spending the necessary
monies on infrastructure. In some locations in the Midwest the recent
flooding and that which occurred back in 1993 was designated as
"500-year flooding." Despite popular belief, this does
not mean that such floods happen once every 500 years but that they
have a 1/500 (or 0.2 percent) chance of happening in a year. According
to a recent Kansas City Star story, if FEMA determines that a levee
can withstand a 100-year flood—i.e., a flood that has a 1
percent chance of happening in a given year—then the area
that levee protects is not considered to be in a flood plain. This
designation means federal flood insurance isn't required for residents
who live in the area.
areas are flooding more and more frequently," says LePatner.
"Despite that fact, officials from organizations like the Army
Corps of Engineers and FEMA like to shirk responsibility by saying
they couldn't have predicted the severity of the flooding. That
may be true, but what they can control is how risk is assessed in
these areas. Some of the methods being used for risk assessment—like
floodplain maps—are outdated and inaccurate. Money needs to
be allocated so that risk can be reassessed based on current circumstances
so that levees can be built up and strengthened where they need
bottom line is that people need to know if there are areas where
they shouldn't build their homes or establish their businesses,"
he adds. "Relying on inaccurate information to make these decisions
puts families and businesses at risk and extends the potential for
high costs in damages in the future."
"real costs" when making decisions regarding the long-term
impact of potential disasters. Needed infrastructure repairs are
often ignored because the money it would take to make them in the
short term a) isn't easily available, or b) would restrict the amounts
of money politicians could spend in areas more favorable for them.
But what happens when you look long term—all the way down
the road to future disasters, in other words? Suddenly, you realize
the costs of infrastructure remediation pales in comparison to the
future costs of ignoring it.
use the levee breaks and flood wall breaches that resulted from
Hurricane Katrina as an example," says LePatner. "Before
Katrina struck, it would have taken an estimated $10 billion to
repair the levee system so that it could withstand such a storm
and protect most but not all of the New Orleans metro areas. But
that's not the end of the story: You must also take into account
that New Orleans' population has been reduced by nearly 50 percent,
and trade and commerce in the area may never fully recover.
point is that we must start considering all of the 'what ifs' related
to our failing infrastructure," he adds. "Katrina should
have served as an example that 'hoping nothing happens' is not an
acceptable course of action. Anyone who truly took the long view
would quickly see that it's almost always a terrible mistake to
let infrastructure repair needs slide. Consider, for instance, that
a recent report from the American Counsel of Engineering Companies
shows that California alone estimates that it is losing $15 billion
or more a year in loss of production due to the lack of necessary
spending to repair the state's infrastructure. State governments
should take into account how much they are losing by avoiding the
repairs their infrastructure needs. Money is being lost whether
there is a disaster or not; the only thing that differs is how much
money is lost."
and other government officials to act on expert recommendations
given to them. Our nation's infrastructure is frequently inspected,
but recommendations for repairs often fall on deaf ears or get held
up due to lack of funding. The I-35W Bridge is a prime example.
According to a recent investigative report commissioned by the Minnesota
Department of Transportation and compiled by the firm Gray Plant
Mooty, MnDOT hired outside consultants to a) assess the fatigue
life and fatigue cracking in the bridge and b) determine whether
it was necessary to add "redundancy" to the bridge, providing
extra support to the original structure, as a safety precaution.
Long story short, neither was accomplished. According to the report:
"MnDOT initially recognized the need for redundancy but later
focused on the fatigue analysis. Ultimately, the Bridge did not
receive any materially different treatment than it had historically
and redundancy was not added to the Bridge."
turns out a bent gusset plate was photographed and filed in 2003
but none of the inspectors or MnDOT officials who looked at the
photo noticed," says LePatner. "As it turns out, the bending
of multiple plates is what caused the collapse of the bridge. If
the repairs and inspections above had been carried out as planned,
perhaps the bent gusset plate would have been noticed and the bridge
could have been closed to protect the public. According to the investigative
report, as a result of the bridge collapse that happened because
these repairs weren't made, 'lives were shattered...So too, was
confidence in the [state's] bridges.' Fixing infrastructure problems
that could lead to loss of human life is compulsory, not optional.
We should create an independent system that requires that monies
are used as designated and which then oversees the system to ensure
that projects get completed as planned. It should not be earmarked
money or pork barrel spending, but a non-discretionary spending
item that must go towards its intended purpose."
a quote from the recent I-35W Bridge investigative report that says,
'When a bridge collapses, so does public faith in government,'"
says LePatner. "Given what has recently happened in the Midwest,
we can change the word 'bridge' to represent any form of infrastructure
in the country and in doing so one realizes how critical the situation
better or worse, Americans rely on the government to protect them
from harm, and clearly government at all levels is falling down
on the job," he continues. "We hear about the billions
of dollars spent on the War on Terror while here at home we are
at risk every day because our infrastructure is crumbling. As a
government and a society we must make safety at home a priority—and
shoring up our infrastructure is the natural place to start."
About the Author:
LePatner is the founder of the New York City-based law firm LePatner
& Associates LLP. For three decades, he has been prominent as
an advisor on business and legal issues affecting the real estate,
design, and construction industries. He is head of the law firm
that has grown to become widely recognized as one of the nation's
leading advisors to corporate and institutional clients, real estate
owners, and design professionals.
is widely recognized as a thought leader in the construction industry.
His new book, Broken Buildings, Busted Budgets: How to Fix America's
Trillion-Dollar Construction Industry (The University of Chicago
Press), which was reviewed in the Wall Street Journal, has created
a national debate among owners, designers, and other key stakeholders.
Mr. LePatner has been featured in BusinessWeek, the Boston Globe,
the New York Times, Crain's New York Business, the Chicago Tribune,
and other prestigious publications. His articles and speeches on
the perilous state of our nation's infrastructure have garnered
him widespread attention. He has appeared on many television and
radio broadcasts, including a CNBC appearance and several National
Public Radio segments. A November 2007 Governing Magazine article
stated, "If there's a guru of construction industry reform,
recognized speaker, Mr. LePatner has addressed audiences on topics
central to trends affecting the real estate and construction industries
at recent events sponsored by: The International Economic Forum
of the Americas, the Real Estate Board of New York; FIATECH, the
National Realty Club, the Construction Owners Association of America,
the Construction Management Association of America, the Construction
Financial Management Association, and MC Consultants Inc.'s Construction
Defect and Construction Law Conference. He also routinely presents
CLE-accredited courses to other law firms and organizations on how
the construction industry actually works and how they can best protect
their clients from the vagaries of the construction process.
co-sponsored "Real Estate Outlook," an annual executive
seminar series for corporate and real estate leaders; "Protection,
Survival, Readiness: Project Strategy in the Post-9/11 World,"
a seminar presented to institutional, developer, and corporate real
estate executives; and "Secure Space," a building security
seminar for corporate owners and developers. He has also presented
"Construction Cost Integrity: Equitable Risk Allocation Agreements"
and "Protecting the Owner from Pitfalls in Today's Construction
Projects," a series of Continuing Legal Education lectures
to law firms and their in-house real estate departments; and the
highly successful "Marketing for Design Professionals"
course at the Harvard Graduate School of Design's Summer Program,
from 1990-2004 with A. Eugene Kohn, founder of KPF Associates.
has written extensively and is widely quoted in the media on the
subject of construction law. He previously co-authored the legal
sections of the Interior Design Handbook, McGraw-Hill 2001, and
Structural & Foundation Failures: A Casebook for Architects,
Engineers & Lawyers, McGraw-Hill 1982, with Sidney Johnson,
published articles include: "Sarbanes-Oxley's Wake-Up Call
to the Construction Industry," The CPA Journal, December 2007,
co-authored with Henry Korn, Esq., and Anthony Chan, CPA; "Today's
Construction Contracts: Drafter Beware," Legal Times, September
2007; "The Industry That Time Forgot," Boston Globe, August
2007; "Construction Cost Increases: Owners Should Know the
Difference Between the Myths and Realities," New York Real
Estate Journal, October 2006; and "Are You Prepared—Disaster
Management Plans Help Owners Protect Their Investments" in
the March/April 2006 issue of Commercial Investment Real Estate
magazine. Articles published in the New York Law Journal include:
"Caveat Advocatus—Drafting Construction Agreements for
Your Client's New Construction Project Ain't What It Used to Be,"
March 27, 2006; "Insuring a Construction Project Against Water
and Mold," October 25, 2004; "Building Security Measures
and Owner Liability After Sept. 11," May 1, 2003, co-authored
with Henry Korn, Esq.
In May 2002,
LePatner was elected by the American Institute of Architects to
receive an Honorary AIA Membership, one of the highest honors the
organization can bestow upon an individual who is not an architect
and which is granted to those who have devoted their careers in
service to the architectural profession.
2001, LePatner was elected to the Board of Trustees of DIFFA, the
Design Industries Foundation Fighting AIDS. He has also served on
numerous advisory committees, including: the Advisory Board, Society
for Marketing Professional Services, 1990-93; the board of the New
York Building Congress; Board of Advisors, Legal Briefs for the
Construction Industry, 1981-89; American Institute of Architects
Advisory Committee, 1984; and the National Academy of Sciences,
1984-85. He is a member of the Association of the Bar of the City
of New York, the New York State Bar Association, and the American
Busted Budgets: How to Fix America's Trillion-Dollar Construction
Industry (The University of Chicago Press, October 2007, ISBN-13:
978-0-226-47267-6, ISBN-10: 0-226-47267-1, $25.00) is available
at bookstores nationwide, from major online booksellers, and direct
from the publisher at press.uchicago.edu.
DeHart & Company