Construction Expert Denounces the NTSB's Report on the I-35W Bridge Collapse

An NTSB report over a year in the making cites faulty gusset plates as the cause of the 2007 Minnesota bridge collapse. But Barry B. LePatner says the report contains a glaring sin of omission: It ignores key problems inherent in our nation’s infrastructure oversight system that continue to put the public in danger every day.

New York, NY (November 2008)—It’s been more than a year since the collapse of the I-35W bridge in Minneapolis. And now, the final report put forward by the National Transportation Safety Board has concluded from its investigation: (1) the steel gusset plates originally designed in the mid-1960s to reinforce the bridge’s joints were half an inch too thin; (2) the probable causes for the collapse were additional modifications to the original design, which added substantial weight to the bridge, and the weight added by construction materials placed on the bridge by a contractor just prior to the collapse. That’s it. And if you’re thinking Surely, there was more to the collapse than that, construction expert Barry B. LePatner says you are right. And by ignoring the other (extremely critical) factors, the NTSB is perpetuating a problem that puts millions of Americans in danger every day.

"The NTSB is severely neglecting its duty to protect Americans," 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). "By placing the sole blame for the bridge collapse on the gusset plates and the added weight factor, the Board has ignored the inefficiency and irresponsibility among the government agencies responsible for the bridge, which also contributed to the disaster."

At the heart of many of these problems is the Minnesota Department of Transportation, which (and here’s a scary thought!) has long been considered one of the better state transportation departments in the country. Basically, MnDOT failed to protect the public from a preventable disaster that was long in the making. And the problems faced by MnDOT are far from isolated. DOTs everywhere are struggling to keep the highways and byways that connect this nation in working order.

We must put these struggles in perspective: There are 12,000 bridges in our country whose designs are similar to the I-35W Bridge. Furthermore, according to statistics from a 2007 U.S. Department of Transportation/Research and Innovative Technology Administration report, there are over 72,000 bridges that are labeled "structurally deficient" and over 81,000 bridges identified as "functionally obsolete." Every one of these bridges needs detailed inspections to ensure their safety.

One important factor contributing to the poor state of America’s infrastructure is the seeming irresponsibility and inefficiency exhibited by those who have been elected or appointed to government positions that supposedly exist to ensure the safety of the public. To illustrate, LePatner has identified several red flags that should have warned MnDOT and other officials that the I-35W bridge was in trouble, but instead were ignored, misunderstood, or simply not acted upon in time:
• The I-35W bridge was first rated as "structurally deficient" in 1990. Despite annual reports describing a continuing section loss and build up of corrosion at key places, as well as the attention of a number of consultants who recommended substantial remedial action be taken, at no time between 1990 and its collapse in 2007 was the I-35W bridge’s condition ever raised above its "poor" rating.
• Photographs exist of gusset plates "bowing and arcing" as early as 2003, but the photos, taken by MnDOT consultants, were apparently dropped into a file folder and forgotten. MnDOT inspecting engineers did not deem these red flags to be serious enough to command attention.
• In 1996 a bridge on I-90 outside of Cleveland with a structure similar to the I-35W bridge collapsed as a result of improper gusset plate design. But although a) Federal officials investigated this serious failure, b) an official report from outside engineers was filed indicating that the gusset plates did indeed contribute to the bridge’s collapse, and c) Civil Engineering magazine published an article in 1997 detailing the Ohio bridge collapse, officials at MnDOT denied ever having heard of the Ohio bridge failure and said they were unaware of any prior problems with gusset plate design.
• Discussions concerning the need to add redundancy to the I-35W bridge had been underway years earlier—but action was never taken. And, in fact, MnDOT instead scheduled redecking work that overloaded sections of the bridge, and, according to the NTSB, contributed to the eventual failure of the gusset plates.

"Of course, none of this is meant to imply that Minnesota is the only state experiencing serious problems with its infrastructure," says LePatner. "The Colorado Department of Transportation has acknowledged that the cost to replace or rehabilitate 125 state bridges rated in poor condition in the state is $1.4 billion. Yet, bridge repair funding, a critical element in reducing the number of bridges that are considered structurally deficient, has been reduced from $32 million in 2007 to $18 million for 2009.

"Or consider a story out of Georgia in which reports identifying several bridges as hazardous were thrown away," he adds. "Why? Because the official in charge said handling the problem would have required too much paperwork and involved too many people. Stories like this one are clear indications that Minnesota isn’t the only state that has had its political head in the sand regarding its infrastructure problems."

Clearly, solving our infrastructure crisis will require more than a few patches here and there. In 2005 the American Society of Civil Engineers (ASCE) estimated that the cost of making the upgrades, repairs, and expansions needed on the U.S. bridge system will be $9.4 billion/year for twenty years. The report also said the U.S. road system required $92 billion/year for maintenance and $125.6 billion/year for improvements—an updated report from the ASCE next year will likely reflect an even larger cost for these repairs.

And even if our cash-strapped government could come up with the money and ensure that it’s properly applied, there’s little indication that builders could get it done at that price. The construction industry itself has been rife with problems for quite some time now, wasting an estimated $120 billion each year. Those problems have easily flooded over into public projects, the prime example being the Big Dig and its billions of dollars in cost overruns.

We must begin taking steps, right now, to shore up America’s infrastructure, asserts LePatner. Not to do so is to invite more death and destruction. Every engineer in the field of bridge design can testify that the corrosive effects of inadequate maintenance of our bridges and tunnels will only get worse—they are not self-healing. And while the problem is far too massive and widespread to repair overnight, we can take steps now to start chipping away at it.

"We must do everything in our power to end the downward spiral of our nation’s infrastructure," says LePatner. "As the incoming Obama Administration prepares to tackle America’s ailing economy, it should make repairing the nation’s infrastructure an important part of those plans. Doing so will not only help prevent future catastrophes; it will actually contribute to our nation’s prosperity.

"Every $1 billion in infrastructure spending is estimated to create 47,000 new jobs, a critical factor at a time whe
n our unemployment rate is at a 14-year high," he adds. "By taking the steps necessary to tackle our infrastructure problem now, we have an opportunity to improve our economy with the great ROI of a better, safer infrastructure system that will lead to a stronger nation."

About the Author:
Barry B. 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.

Mr. LePatner 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, it’s LePatner."

A nationally 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.

LePatner 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.

Mr. LePatner 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, P.E.

Recently 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.

In July 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 Bar Association.

About the Book:
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) is available at bookstores nationwide, from major online booksellers, and direct from the publisher at For more information, please visit

Road Work Ahead: Four Solutions for Repairing the Nation’s Infrastructure
By Barry B. LePatner, 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)

We all know the nation’s vast infrastructure problems cannot be fixed overnight. However, by aggressively moving toward a solution now—rather than just applying a series of ineffective "band-aids"—we can begin to make real improvements that will benefit our country for generations to come. Barry LePatner says tackling our critical transportation and infrastructure problems will require a national commitment and a strategic plan that should include the following solutions:

Create a national clearinghouse and database, accessible to every state transportation agency and the general public. The database will identify all design and construction issues affecting our nation’s infrastructure. Much as the airline industry has alerts that immediately advise all airlines of problems with an aircraft, this database should alert all state transportation departments of any bridge failure in the nation and include methodologies for remedial design as well as maintenance problems for all of the nation’s 600,000 bridges.

This information can no longer be buried in state files, particularly given the fact that politicians in many states have evinced a history of ignoring significant problems and leaving them for future administrations. By making this information the subject of alerts and available to the public, we will enable state transportation engineers to take preventative action more quickly, help members of the public avoid the unsafe bridges, and put
politicians and officials on notice that they will be held accountable for neglecting to take appropriate action.

"There is already evidence that making infrastructure problems public can lead to protective measures," says LePatner. "In May 2008, nearly a year after the collapse of Minneapolis’ I-35W bridge, Minnesota’s Department of Transportation closed the Winona Interstate bridge because inspectors had documented rusted and corroded gusset plates in 2006 and 2007. The bridge had not been closed until that point because officials said they did not deem the corroded plates to be critical until federal officials preliminarily identified defective gusset plates as the potential cause of the I-35W bridge collapse. Equally important, MnDOT officials had no prior knowledge that a failure of gusset plates similar to those they experienced on the I-35W bridge had occurred over the Ohio River in 1996."

State governments should step up their efforts to protect their citizens. State governments must do everything in their power to ensure they have informed their citizens—either through hearings, press conferences, or news releases—about bridges that have received structurally deficient ratings. In addition, they should be obligated to develop a game plan for correcting problems within six months of a bridge’s designation as "structurally deficient." The public should receive annual updates on the remediation progress and be given notice if funding for the repairs is not provided within 18 months.

Enact a plan to deal with our nationwide shortage of civil and structural engineers. These professionals are trained in advanced inspection methodologies and are experts in remediation of deficient bridges. But the lack of these types of engineers on the staffs of state transportation departments—positions that have been systematically downsized due to decreased transportation funding—prevents them from adequately performing the inspections critical to assessing the safety level of each state’s bridges.

"Not only should we create initiatives to help encourage the nation’s young people to pursue these careers, but state transportation departments must increase compensation to hire and retain engineers to keep them from departing to private industry," says LePatner. "Engineers are often the first to be laid off from state transportation departments because of their high salaries. This can no longer be the case. State governments can and must find other areas to cut."

Invest in advanced technologies that help save money and provide more accurate inspections. By the time cracks appear in a bridge’s structure, the costs for remediation have skyrocketed. The problem is, many of the inspection techniques today fail to detect cracks until they are visible to the human eye. In addition, FHWA has acknowledged that visual inspections of bridges are highly subjective and not totally reliable in detecting incipient structural problems.

"Technology exists to anticipate bridge remediation years before rust, corrosion, and cracks in the structure appear," says LePatner. "We just need to fund it and use it. Enabling bridge inspectors to ensure precision and objectivity in their evaluation process, which in turn allows us to catch problems earlier when they’re easier to fix, can save us millions of dollars in unnecessary remediation costs."