Who’s to Blame?

To avoid difficult disputes over post-installation issues, get everyone involved in your projects to follow these steps

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One day you receive a call from an upset client because the system that you recently installed is seeping over his backyard. On arrival, you see septic effluent surfacing over the lawn but without doing a full inspection of the tank and drainfield, you aren’t able to suggest what the problem might be.

You recall that the site evaluator found the soil to be suitable and that the county approved it. You carefully followed the designer’s plans and specifications for the system, which had been approved after the county made some changes.

Before the final covering of the system, the county regulator stopped by and approved the installation. What could have gone wrong? Now the finger-pointing has begun. You realize you are going to be blamed and will be expected to repair the system at your cost.

Is it really your fault? Unfortunately, you might never know. Any one of the parties involved in the siting, designing, permitting, installation, and subsequent use of the new system could be at fault.

 

Get everyone involved

To avoid such pitfalls, everyone involved with the job – you, your employees, your subcontractors and suppliers – must agree on what their individual roles on the project will be, and understand what you expect from them. These roles and expectations should be put in writing for each group, and you and the responsible person from each group should sign off.

A simple contract works well for this. And don’t forget the regulator and the owner. Maintaining good and frequent communication with everyone involved is important to ensuring that you all are on the same page.

This doesn’t solve all your problems but it can avoid many of them. Knowing who was responsible for the given tasks should eliminate much of the finger-pointing. This doesn’t mean it’s easy, though.

 

Conflicts of interest

For example, many regulators believe that part of their role is to protect consumers from incompetent or unscrupulous practitioners. It is not uncommon for regulators to intervene in the project where they might assume authority for the siting, design, or equipment preferences.

They should not have this authority, because as government employees they cannot accept the responsibility for any consequences of their activities. Though they may be well-meaning, such regulatory intervention can blur the lines between the roles and responsibilities of the owner, designer, and practitioners. That can lead to liabilities for the regulatory authority, and you.

Furthermore, effective enforcement is difficult because the regulator could be faced with writing orders against a system that was effectively sited and designed by him or her. If the local regulator performs the site evaluation, you might be left holding his spade and paying any damages for errors he might have made, because as a state employee he probably has immunity against claims made against him.

It is a significant conflict of interest, and should not be allowed, but unfortunately it often occurs. If you find yourself in this situation, you should carefully review the regulator’s report, as you would if you had hired a private site evaluator, and discuss any concerns you might have with the findings from the evaluation.

If anything is changed or if disagreements are not resolved, these should be recorded and initialed in the regulator’s report.

 

Dealing with changes

Similar issues can occur with the system design and final inspection. Your designer will prepare construction documents and send them to the county for review and permitting. However, some regulators will make changes to the design – and again this is a significant conflict of interest and should not occur.

If this happens, be sure your designer reviews any changes made and initials the changes if he or she accepts them. If he doesn’t, do not do anything on the project until the designer and the plan reviewer agree. To protect yourself, you need to make sure all parties involved in each phase are aware of any changes, and that all are in agreement in writing of those changes.

During construction, continually update your designer on your progress. He or she needs to be aware of any changes that were made so as to prepare as-builts and certify after construction that the completed system substantially conforms to the design.

Often, regulators believe they should perform the final inspection, but again, it is a conflict of interest to certify someone else’s work, particularly since the regulator is seldom on the site during construction. If the system fails, the owner could sue you because the regulator certified the construction, effectively absolving the designer.

 

Avoiding the pitfalls

These issues can be sorted out in court, but that costs money and time. It is better to avoid them in the first place by:

Clearly understanding the scope of authority each party has to perform services before the job begins

Thoroughly reviewing any reports, evaluations, drawings or other products provided by others

Not leaving the owner’s property until the system has been tested, the owner is taught and understands how it is to be operated, maintained and serviced, and you have left the owner with an appropriate O&M manual, including your contact information.



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