What do you do when an authority having jurisdiction owns an imminently hazardous building? 7

[throwaway69]

Throwaway account because my main has parts of my name.

I'm acting as a subconsultant on a historic facade restoration project for a municipal client. The unreinforced stucco on a part of the structure is in bad shape. One exposure has probably 10' by 10' sections which have de-laminated from the substrate and spalled. Given that it is unreinforced, it is basically only held in place along its edges. The condition has gotten worse since it was first inspected about a year ago, and at least one nearby maybe 1sf spall recently blew off the building during a storm and fell 45' to a pedestrian accessible area. The main spall is located about 35 feet directly above one of the primary pedestrian routes for the building complex (though it is largely closed - see below).

Our firm has covered our asses and informed the prime consultant in writing on at least 4 occasions and the municipality directly at least once. They don't seem to be taking it seriously based on their actions. They adjusted some fencing to keep people at bay. Right now the facility is closed, even though pedestrians can use the surrounding walkways. But overall there's no real need for anyone not working for the facility to use this particular foot traffic route right now.

My gut tells me when they're scheduled to re-open, the municipality is just going to take the fencing down and sweep this under the rug, leaving thousands of people per day to walk under this death trap where 2000# of concrete could come down in a strong wind. We've made different recommendations that are more than "remove the stucco" (e.g. protective bridging.)

If I was working directly for a private client I would call the municipality as soon as they moved those fences an inch. So my two questions -
With this being a municipal client who's ignoring me, who am I supposed to call? The municipality already knows, since it's their building, and I told them about it.
And do I have any different ethical obligations since I am a subconsultant with a municipal client?

TIA.

 

[throwaway69]

Thanks retired. I do not think our firm has run out of options yet and the situation is handled for the moment. Hopefully no one has to escalate it in 2 months and the municipality does the right thing.

 

[Rabbit12]

So the building owner has fenced the area off so no one is supposed to enter the area correct? That seems like a reasonable solution that would prevent someone from getting injured or killed should the stucco fail. I wouldn't take this any further unless they remove the barricades without fixing the stucco.

Since you seem convinced you need to escalate this, what would be an acceptable response by the building owner that'd you'd be happy with? I have to think a full repair immediately isn't likely feasible.

 

[throwaway69]

Yes. The facility is closed and has extremely limited pedestrian access under the area, and has been fenced off. Reasonable for now.
But in a couple months when the facility reopens to the public, they will need pedestrians to get around this complex of buildings somehow so I think they will remove the fencing. If they don't, parts of the building will be functionally inaccessible, and they rely on these for revenue. I am trying to understand my options on the assumption the fence comes down.

They're clearly trying to kick the can down the road for a year or so until they start repairing the stucco. Removing it with a cherry picker or installing overhead debris protection (common in downstate NY) would make the area safe for people to walk under until they can do the repairs. Those have been our recommendations. I would think either of these solutions is minimum $50k and I'm guessing they don't want to spend that with $10-20m in rehab coming down the pike that includes this work.

 

[r13]

I think you may suggest, upon reopening of the facility, the owner to provide pedestrian walkway with overhead protection, similar to fencing on the busy urban streets.

 

[JoshPlumSE]

EdStainless -

I don't get where you're coming from. It's not like the OP's firm can magically wave a wand and make everyone obey their recommendations. The actions described are (IMO) a reasonable escalation. It's reasonable for them to give their client and the municipality the benefit of the doubt and give them time to act. It seems like they have acted.... just not as rigorously as the OP would like. Certainly some follow up with them is warranted.

I believe this post is mostly about "what happens next" if the owner / client try to perform an insufficient patch job, pretend everything is okay and re-open this area to the public. What's the reasonable escalation and the moral obligation the OP has at that time?

At least that's how I've interpreted the thread.

I tend to be careful when an engineer talks about their "responsibility to protect the public" as a reason for taking action. The reason is because it's such a vague term. It's dangerous (professionally) to be overzealous and over sanctimonious in this regard. Do your job, do it properly and with ethics. But, if you start marching around accusing a client or an owner or such of putting the public in harms way, then you better be confident (and willing) to prove it in court.... That's worth doing at times. But, there's a lot of grey area between reporting your concerns and turning them into allegations of true wrong doing or intentional / criminal negligence.

 

[r13]

Well said, JoshPlum.

 

[bones206]

Throwaway -

If at any time people are working at this site and there is a hazardous condition that has not been properly mitigated, you could notify OSHA. This standard applies both to the safety of construction workers and to facility employees.

 

[throwaway69]

Josh - yes you are correct on your understanding of where things stand at the site. I agree with your general perspective. I do a lot of litigation support and that is exactly how I would phrase it. Would a cabal of engineers on the other side agree you had no other choice if you were going to violate all your other ethics in the interest of protecting the public. That should be the standard. Blowing the whistle is an absolute last resort and you have to diligently document that you explored every other option first.

retired - we have recommended the sidewalk bridging you describe as our preferred solution, but they haven't done it yet. Fingers crossed they will.

bones - thanks. I'm not sure about the OSHA standards for falling debris on construction sites. Worth keeping in mind.

 

[dik]

retired13:
"1) IMO, you and your firm are free of any liability shall a law suit arise, because the hazardous situation wasn't created by you and your design.
2) You and your firm did not commit ethic violation, as the hazardous situation/condition was properly addressed in letters to the owner and his primary consultant. You did not intentionally hide the findings to benefit anybody."

I would disagree with both of these statements. As a technical person, and likely one of the few familiar with the site... problems could rest squarely on your shoulders. Having advised the client and being aware nothing has been done makes it that much worse.

If you are unaware that nothing has been done to remedy the problem, you may have a little 'wiggle room'... not so lucky if you are aware.

Dik

 

[throwaway69]

I mentioned earlier I deal almost exclusively in distressed and at-risk buildings and these situations are not as black-and-white as they appear in textbooks.

If engineers were at risk any time a client didn't listen to them, no engineer would touch these buildings with a thousand foot pole. They would refuse the work and effectively turn them all over to the municipalities, and say if they don't like the conditions then condemn the buildings. This is not what we should strive for, nor is it what we should hold each other to.

In this case given the severity of the condition and given that we had notified several people on several occasions we might be "more likely to be at risk of being found partially liable" for not escalating it more substantially. But the municipality fenced it off, so we are taking it easy until we see what they do and just pushing the prime consultant to get them to put up more permanent protection. It's worth reminding we informed the AHJ of the condition as we are ethically bound to do. God forbid something happened, the question should in part turn to the ethics of the decision-making that allowed our advice to go ignored.

 

[Rabbit12]

Are you actively monitoring the building to see if the condition changes?

I tend to think I'd trust that the owner/client/main consultant will do the right thing and wouldn't be going out of my way to make sure they do as recommended. For all you know maybe they will get another recommendation from a different engineer that says it's ok until next year. I'm all for ethics and doing the right thing, but we aren't police. At some point we have to have faith in the fellow man.

Now if you happen to drive past the site on your way somewhere else and noticed they took the barricades down without following your advice, you probably need to escalate things.

 

[r13]

dik,

1) I still hold he has no fault in the existence of the bad situation. Technically he has done nothing, so no wrong here.
2) That's a fine line there. As a sub-consultant, the prime consultant is the EOR, he went through the proper channel, first addressed the concern to the EOR, then escalated to the owner, this proof he acted properly and ethically without dropping the concern (a probable judgement call) when facing higher command (his company and EOR) in the chain.

It appears to me that he has received very little, if any, response from the EOR and the owner, but it does not mean there were nothing done as it appears. However, if the owner and EOR decided do nothing and he went alone with, then he would be hold responsible and charged guilty of ethic violation.

 

[IRstuff]

but we made our recommendation to protect the public, and fencing wasn't it

But, this is the crux of your current situation; it's a disagreement of opinion, since you cannot categorically say that the current situation is hazardous to the public, because they have no access.

But in a couple months when the facility reopens to the public, they will need pedestrians to get around this complex of buildings somehow so I think they will remove the fencing.

So, you have no knowledge that they will actually do as you fear. Until they do so, or announce that they will do so, I don't see how you have anything to argue, since it's purely speculation on your part.



TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

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[BUGGAR]

In cases similar to this where I judged there to be a danger to the public but have been ignored by the AHJ, I have respectfully notified the City Attorney of the issue because they will have to pay any claims on this. As a tax payer, I feel I have this right, and it fulfills my moral obligation. I chased one of these issues up to the CA State Attorney. Of course I lost but I have it in writing from Kamala Harris's Secretary and now I can sleep.

 

[bones206]

I cherrypicked a few OSHA regs:

1910.28(c)
Protection from falling objects. When an employee is exposed to falling objects, the employer must ensure that each employee wears head protection that meets the requirements of subpart I of this part. In addition, the employer must protect employees from falling objects by implementing one or more of the following:

1910.28(c)(1)
Erecting toeboards, screens, or guardrail systems to prevent objects from falling to a lower level;

1910.28(c)(2)
Erecting canopy structures and keeping potential falling objects far enough from an edge, hole, or opening to prevent them from falling to a lower level; or

1910.28(c)(3)
Barricading the area into which objects could fall, prohibiting employees from entering the barricaded area, and keeping objects far enough from an edge or opening to prevent them from falling to a lower level.

1910.29(a)(1)
Ensure each fall protection system and falling object protection, other than personal fall protection systems, that this part requires meets the requirements in this section. The employer must ensure each personal fall protection system meets the requirements in subpart I of this part; and

1910.29(a)(2)
Provide and install all fall protection systems and falling object protection this subpart requires, and comply with the other requirements in this subpart before any employee begins work that necessitates fall or falling object protection.

1910.29(k)(3)
The employer must ensure canopies used for falling object protection are strong enough to prevent collapse and to prevent penetration by falling objects.

 

[oldestguy]

Ditto many times over to IRstuff

 

[throwaway69]

IR/oldest - yes I've mentioned in the thread a few times I/we are not escalating this right now as their solution may not have been what we wanted but is appropriate for the current time. It is definitely speculation but the re-opening is a few weeks away and I/we need to prepare a way to handle it on the assumption they will continue to downplay these issues.

We are not currently engaged to regularly monitor the site and do not expect that. We will be returning for the next phase of work probably right around when they are re-opening. I doubt we will be chasing the resolution on this if we do not have to. All I know is they fenced off the area.

 

[r13]

Glad that it seems you have found "peace" in your mind. You were correct then, and you are correct now.

 

[IFRs]

Can you tell us where it is so we can avoid that particular sidewalk?

 

[IRstuff]

Somewhere in New York, apparently, which is probably an entire state to avoid, at the moment.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

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