Tom Székely, P.E., LEED AP

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11 August 2008


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Construction Codes and The Law of Unintended Consequences – Part II


While I had intended to this year pump out an issue a month of this newsletter, my embarrassment at having busted the LEED exam, together with how busy I’ve been with work, had prevented that from happening. While the proximate cause for the former was my lack of adequate preparedness, my mitigating excuse is the statement in the USGBC accreditation Candidate Handbook that” . . . some candidates may take the exam without any study, . . .”  Apparently, by the time I’d taken the exam, USGBC had decided to do something about the exam’s reputation for being something of a pushover for licensed design professionals with the result that it’s now a serious test of intimate knowledge of all aspects of the LEED project accreditation


The latter (my being so busy with work) is what’s prevented me from re-taking the exam as yet, as well as having taken so-o-o long to get this second issue of the year out to you.  As it happens, during the hiatus, things have happened here in NYC with regard to the Commissioner of the Department of Buildings that have led to the second piece in this issue. First, however,  allow me to recap  where we were at the close of this piece in the last issue.


The specifics of the issue implied in the title of the piece had to do with how the International Energy Conservation Construction Code (IECCC) and its NYS/NYC implementation has had the unintended effect of causing air conditioning systems to become larger than they used to have to be because the fresh air requirements in the International Mechanical Code (IMC) referred to in the IECCC are in excess of those in the soon to be superseded NYC Building Code.


As I closed the last issue I wrote of needing to look at the Energy Code, its software, or its worksheets to see if my belief that the ventilation requirements were built around the IMC rather than the requirements of the NYC Building Code was in conformance with the facts.

It was.


The NYS Energy Conservation Construction Code (NYSECCC) does, in fact, rely on the NYS version of the IMC for its ventilation requirements. 


The bad news is that more fresh air will be required, and thus AC systems will be larger.  The worse news is that it also applies to residential occupancies, whereas the old NYC Building Code exempted such via its definitions of “habitable” and “occupiable” spaces.


The out which negates the bad news, however, is the fact that the new mechanical code appears to allow an exemption in permitting any space to be naturally ventilated by means of windows, which was expressly prohibited in the old NYC Building Code for commercial (“occupiable”) spaces that were air conditioned.


The fact remains however, that if a space is air conditioned and mechanically ventilated, it will likely require more fresh air than is currently the case under old code.




Collapsing Cranes, Building Commissioners, and Inspections, or the Unqualified Tending to the Unknowing


Unless you’ve spent recent months in a cave, you’re aware that we have an acting Building Commissioner here inNew York City, largely the result of a spate of construction crane accidents since the beginning of the year.  What you may not be aware of, however, is that there is a bill, Intro 755A, in front of the City Council which would amend the City Charter to allow an unlicensed person to serve as NYC Buildings Commissioner, something NYSSPE went to Court over the last time we had an unlicensed Commissioner. 


The ”A” in 755A indicates the bill has been amended, largely as the result of the hue and cry of the design professional community, to require that the First Deputy Commissioner be a licensed design professional.


There remains, however, a rather large problem with the thus amended bill, as well as a similarly large problem with the state of public ignorance which leads governments to enact new laws instead of seeing to it existing law is properly enforced, whenever there is a perception existing law is not working.


First, the problem with the amended bill is its next to last sentence: “Nothing in this local law shall be construed to affect the power of the commissioner of buildings under section eleven hundred one of this charter.”


What do you suppose section 1101 allows the head of any City Department to do? “ . . . at pleasure, remove so many deputies as may be provided by law . . .” 


This leads to the problem that if the deputy so removed is the First Deputy, the “ . . . powers granted to the commissioner by subdivision (b) or (d) of section six hundred and forty-five of this chapter . . .” end up reverting to the unlicensed commissioner, the very situation we now find ourselves in, which is problematic because those subdivisions include the practice of engineering  as defined in section 7201 of New York State Education Law, “. . . wherein the safeguarding of life, health and property is concerned, when such service or work requires the application of engineering principles and data.”


This is why we sued the Department of Buildings last time around – the unqualified commissioner tending to the unknowing public, with the latter being the raison d’être for professional licensing in the first place.


Of course, everything I just wrote of with regard to Engineering also applies to Architecture, which is the segué to the second problem.


That is, not only does New York State not have specialty registration (one is not licensed as a Professional Engineer in any given discipline), but anything an Engineer can do, an Architect can do, and vice-versa. 


While one would have to be registered as a Structural Engineer to practice such in, say, California or Florida, in New York, one can practice in any area in which one is competent.  This is an offshoot of why licensing is by State rather than by the Federal Government; in states like California and Florida there are environmental concerns  (earthquakes and hurricanes respectively) which call for more specialization than would be necessary in a state like New York.


As a matter of fact, when I took the licensing exam in 1981 (having kicked around in places like Bechtel since 1963), one was not limited to answering questions in only one specialty as is presently the case. Those two facts (practice competence and past generality of examination) put the lie to the DOB’s recently promulgated rules regarding special inspections, and Acting Commissioner LiMandri’s Statement of Substantial Need for Earlier Implementation as approved by the mayor this past June 30th is as clear an example of a self-serving non-sequitir as I have ever seen.


That is to say while DOB’s in-house design professionals have their hearts in the right place, the Special Inspector rules which must have been developed in consultation with those professionals are a mess, and Acting Commissioner LiMandri’s representation in the Statement of Substantial Need, that technicians under the supervision of licensed design professionals has enabled tests and inspections to be performed by the unqualified, would be no one’s fault but the City’s. 


It would make more sense to require technicians be NICET qualified than it does to in effect attempt to rewrite State Education Law via the City’s Special Inspector Rules, and in the Statement’s “ . . . prescribing qualifications beyond those possessed by registered design professionals . . .”, it does just that.  Note that the statement did not say “ . . . beyond those which may be possessed by certain registered design professionals. . .”


Not only is the hubris attendant with such a point of view offensive, it’s breathtakingly backward and counterproductive.  As vice-president for the New York City Region for the New York State Society for Professional Engineers, I’ve been offering for years  to help the City convince certain design professionals they should be in another line of work.


Instead, they come up with this, where it’s us vs. them; we’re the enemy, and it’s run at DOB by a bunch of inexperienced kids.

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