Article Contaminated Land Data Management Laboratories

Contaminated Land Analysis – Introducing Doubt Into An Uncertain World

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Let’s be honest, to most of us in the ground engineering community, chemistry is something of a black art. It’s a subject we never properly understood at school and certainly not one we intended to revisit in our professional capacities. We can muddle through the uncertainties of soil mechanics and a few of us claim a vague understanding of finite element analysis. Imagine our horror therefore when chemistry abruptly re-entered our world in the form of contaminated land. Our inattention and tomfoolery at the back of class has suddenly come back to bite us. Hazy schoolday recollections of sodium fizzing around in the sink or the exploding magic green fountain aren’t going to get us out of this one.

And it gets worse! Chemistry is no longer even just a disagreeable side issue for many of us and on many developments it sits, gloating, athwart our critical path, knowing full well that not only do we not know the answer, we are often unsure of the right questions to ask as well.

So where is our white knight, to whom can we turn for help and enlightenment? In the past we might have turned to our laboratory for help. However over the last 15 years or so, there has been a complete rationalisation of the chemical testing market. Laboratories have tended to become bigger and more automated, offering cost effective analysis but consequently less consultancy support. Intense competition amongst the key players means that margins are so tight there is little room in modern production line chemistry for added value services. Testing has become a numbers game.

There are now several degrees of separation between the engineer and the chemist. Yet we are in fact very similar in one key respect and it is here that we close the circle. They don’t understand what we do and we don’t understand what they do.

Laboratories must adopt operating practices which enable them to make a profit under conditions of intense price competition. Their choices fundamentally affect the quality and reliability of the data they produce. We don’t even know what questions to ask and many laboratories in turn are less than forthcoming in disclosing the limitations of their data. We work together in blissful ignorance even though our interaction (or lack of it) has a critical influence on the quality of the data they produce and we then use.

Accreditation schemes such as UKAS, compliance schemes (e.g. Contest, WASP) and the recently developed MCERTS scheme championed by the Environment Agency are all designed to address quality issues in laboratory testing. However all have significant limitations which are not readily apparent and are certainly not advertised to a largely ignorant consumer.

So what’s the problem. Well the example in box 1 below illustrates this nicely. In it we have simulated total soil cadmium data from two simulated laboratories. One of the simulated laboratories is a reputable, highly regarded outfit with excellent quality control and in the case of our simulated sample it has if fact got an answer which approximates to the true value. The only downside is that quality costs and it charges £1 to undertake the analysis. The other laboratory has a less robust quality system and the cost savings allow it to charge just 50p for a cadmium determination. However its reported total cadmium concentration is in fact in this case woefully inaccurate. See if you spot the wrong answer.

Laboratory

A

B

Total Cadmium

 617.2 mg/kg Cd

 617.2 mg/kg Cd

The problem is of course that you can’t tell by looking whether data is reliable or not. Because buyers of chemistry are largely ignorant of chemistry, and the product we buy does not readily reveal its quality, then the key differentiator becomes price. Whilst there is an industry bottom line which we might say is policed by accreditation schemes such as UKAS, we should not be naïve enough to believe that this is in anyway a guarantee of a right answer. Now the punch line, and you fanatically precise engineers are not going to like this. We should recognise that even good data is not ‘correct’ in the right and wrong sense and that some degree of uncertainty is inherent in every result. Sometimes this uncertainty is very large indeed, 617.2 mg/kg could actually mean anything from about 80-1000 mg/kg and that should give us all some food for thought.

So what are the questions we should ask. Well here are some important ones for starters.

Basis, basis, basis

The basis on which you send your sample to the laboratory could be as follows. It is a cold and wet day. The wind is making life difficult and you are worried about getting caught in the traffic if you don’t get off site soon. You shovel a couple of kilograms of rubble into the bag and leave the bag by the gate for the laboratory to pick it up sometime later in the week. In a couple of weeks the laboratory (UKAS accredited as the contract specified) reports back to you and you are relieved to see the thiocyanate content is 24.7 mg/kg, just below your limit of 25 mg/kg. You’re in the clear, you can sign the site off – or can you? Have you considered these questions?

How was the sample prepared, and by whom?
What is the precision and bias of the method used?
On what basis are method precision and bias measured?
On what basis is the data reported?
On what basis is your acceptance criterion calculated?

Sample Preparation

We can’t emphasise enough how important initial sample preparation is. If it is not right then everything that comes after is wrong. Unfortunately good sample preparation is expensive, labour intensive and very repetitive – it is simply not fashionable and therefore often neglected. You will almost always find the least qualified staff in a laboratory carrying out the most important function – sample preparation.

Accreditation schemes accredit results and sample preparation does not produce a result. It is debatable therefore whether sample preparation falls within the scope of accreditation. Imagine that – you use a UKAS accredited laboratory and their single most important operation is not actually capable of being accredited and is carried out by the least qualified personnel in the company.

The Quality Control Con

Laboratory quality control focuses on the instrumental side of the analysis. QC data is usually generated from a point after samples have been prepared for analysis. Prepared QC samples or certified reference materials are finely ground, dry, inherently homogenous materials. Real samples are sun drenched, windswept, dirty, heterogeneous lumps. Don’t believe, therefore, that quoted QC data will necessarily bear any resemblance to that achievable in your samples.

For example the QC data for samples which are normally analysed wet (like cyanide) may in fact be determined on dry, ground reference soils which are spiked immediately before analysis. Doing it this way ensures excellent QC data but doesn’t really relate all that well to the true bias and recovery one might get from a mixed, wet contaminated soil.

Precision, bias, repeatability & uncertainty

Each measurement a laboratory makes is subject to any number of errors. Good laboratories minimises the impact of such errors by sound methodology and quality control procedures. You cannot however eliminate uncertainty altogether and a knowledge of uncertainty could be critical to your remediation scheme.

For example if you have a clean up criteria of 2500 mg/kg of mineral oil on a scheme and your sample shows a concentration of 2000 mg/kg you might be forgiven for breathing a sigh of relief. If you knew that the true precision of the analytical method is more like +/- 100% you might have cause to re-appraise your hasty signing off of the site.

Bias, or recovery is, in simple terms a measure of the amount you get out knowing what you originally put in. For example a laboratory quotes a UKAS accredited method recovery for DRO as 95%. Fine you think a 95% recovery is very good, and the method is UKAS accredited. What you don’t appreciate is that the recovery is quoted on a reference sample that has been dried and finely ground. In other words the recovery quoted does not account for any volatiles lost during drying and grinding.

We can however welcome the (relatively) new MCERTS scheme championed by the Environment Agency in so far as precision and bias data should now accompany all results of analysis.

How is data actually reported

Understanding the basis for reporting is really, really critical. Some samples are analysed wet, some dry, some with stones removed, some without. Some data is reported dry and some wet, some whole and some just on the fines. Data on the same sample may be reported on a different basis. Do you know on what basis your samples are analysed and reported? Do you know on what basis the acceptance criteria you use (CLEA, Dutch) are generated?

The example below illustrates this point demonstrating the range of total mercury values you can get depending upon how you choose to express the data or how that laboratory chooses to prepare your sample.

A 100g sample of a contaminated clay is submitted for total mercury analysis. It contains 500ug of mercury, and is composed of the fractions set out below. For this example we assume (fairly reasonably) that all of the mercury is present in the fines. Our acceptance criteria are the CLEA Soil Guideline Values of 8 mg/kg Hg for residential uses with plants and 15 mg/kg Hg for residential uses without plants.

Soil fines (less than 2mm diameter)

30 grams

Stones (2-10mm diameter)

20 grams

Stones (greater than 10mm diameter)

25 grams

Water

25 grams

Data reported on:-

Result (mg/kg Hg)

CLEA 8
SGV

CLEA 15
SGV

Whole sample

 5.0

pass

pass

Fines, dry

16.7

fail

fail

Whole, dry

 6.7

pass

pass

<10mm, dry

10.0

fail

pass

<10mm, wet

 6.7

pass

pass

The example illustrates a huge variation in ‘right’ answers which completely span the selected acceptance criteria. It also reveals that the same (or very similar answers) can be obtained by using completely different assumptions – a whole dry basis being very similar to a <10mm wet basis in this example. What is more worrying is that the fines dry result (arguably the most common way of determining mercury in soil) is over three times higher than the result expressed on the whole sample (arguably the true result).

Sample Homogeneity

We all know that reliable data depends upon the sample from which it was extracted. We all also know how difficult it can be to take representative samples from very mixed fill and contaminated ground. The apparent precision of laboratory data can be very misleading. In reality a result of 645.37 mg/kg lead (as Pb) doesn’t actually mean that the horizon we sampled contains a concentration of 645.37 mg/kg lead. The problem is we don’t know what it means because we haven’t estimated the variability of the sampled horizon and we haven’t got a clue about the limitations of the techniques the lab uses to prepare, extract, analyse and then correct the raw data to produce the reported result. Engineers who are used to dealing with relative certainties would be horrified to learn that the true precision of chemical data is very, very poor. In many cases the best you could expect might be orders of magnitude.

Conclusions – The Key Questions

There is no doubt that the reliability of the analytical data our industry routinely uses is seriously limited. There is also no doubt that many (perhaps most) practitioners don’t realise this. This is not because the laboratories are producing poor quality work. Rather it is a combination of the uncertainty inherent in sampling and analysis coupled with the limitations a price driven market places upon laboratories. Factor in a lack of understanding on both sides of the effect (or even existence) of such limitations and it is easy to see that we can easily find ourselves skating on thin ice without even realising it.

What are the answers then? Well the answers are really a series of questions we should routinely ask ourselves when assessing our methods, our laboratories and their data.

1. Laboratories broadly use the same analytical equipment. What gives to allow some laboratories to be a lot cheaper than others? 2. What are the limitations of the selected analytical method? There are always limitations. Do they matter in this case?
3. Absolutely critical. What is the basis on which my data is reported? Does it match the basis on which my acceptance criteria are calculated?
4. Is the laboratory QC data realistic or has it been generated in ideal conditions using ideal samples which are unlikely to represent the conditions on my site.

If you can make a reasonable attempt at answering these questions you will be a long way to understanding the basis on which your data has been generated and in turn you will be reasonably confident when interpreting your data and able to take due account of the uncertainty that exists in your data.

If you can’t immediately answer these questions then you don’t know the basis on which you are interpreting your data/running your computer model/applying your acceptance criteria/remediating your site/providing your client with a collateral warranty. And it’s as fundamental as that.

Richard Puttock Partner
Michael Dinsdale Associate
Peter Brett Associates

Article Contaminated Land Laboratories

MCERTS

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The Environment Agency’s Monitoring Certification Scheme for the Chemical Testing of Soils:
What it is. How it affects you. What you need to do.

MCERTS Monitoring Certification Schemes were first introduced in industrial sectors with regulated processes that resulted in stack emissions. The scheme requires those companies to deliver monitoring results that are “valid, reliable and accurate”. To get to this position depends on using the appropriate resources – correct test methods, competent personal, accredited organisations and suitable equipment and planning.

The MCERTS scheme for chemical testing of soils was introduced by the Environment Agency to support their regulatory activities and make informed, quality assessments on the management of contaminated land under a number of regimes, including, Part IIa of the Environmental Protection Act 1990, Pollution Prevention and Control Regulations 2000 and the Waste Management Licensing Regulations 1994.

The scheme is applicable to all testing laboratories and procurers of analytical services, where results generated for the chemical testing of soil are submitted to the Agency. In order to gain accreditation on the scheme, laboratories are required to have their processes, essentially test methods, in a quality management framework, by both the United Kingdom Accreditation Service (UKAS) to the international standard ISO 17025 and also MCERTS requirements.

There are increasing pressures on businesses to comply with Environment Agency regulations and European and international standards. Using a laboratory with MCERTS accreditation alleviates some of this pressure because it guarantees the proper use of suitable methods, standards, services and equipment, trained and qualified personnel, quality assurance and quality control all leading to reliable data. MCERTS accreditation also assures users that the laboratory meets performance standards set out in current international standards and the growing requirements of EC directives.

Failure to meet the regulations can be costly, both financially and to a company’s reputation. An MCERTS accredited laboratory assures the user that they have met standards in a number of areas including:

  • The selection and validation of test methods

  • Sampling pre-treatment and preparation

  • The estimation of measurement uncertainty

  • Participation in proficiency testing schemes

  • The reporting of results and information

The benefits of the scheme include:

  • Providing assurance to stakeholders of the quality of data from testing

  • A level playing field, based on the Agency’s requirements, is established

  • Identifying that the chemical testing of soil is a critical component in producing defensible data for regulatory purposes.

In order to guarantee reliable data from the chemical testing of soils and therefore reassurance that risks are minimised, procurers of testing should:

  • Ensure the chemical analysis results submitted to the Agency for regulatory purposes conform to MCERTS requirements.

  • Check that the laboratory conducting the testing has MCERTS accreditation for all the parameters requiring analysis. Accreditation is given on a parameter-by-parameter basis. If they do not have the correct accreditation sub-contracting of the test required to another MCERTS laboratory may be required. If a suitable laboratory does not appear to be available, contact the Environment Agency for advice.

  • Check that the test methods employed by the laboratory are appropriate and fit for purpose in terms of the parameter, the Critical level of interest (CLI) and the matrix. The CLI may be a soil guideline value or a regulatory limit.

  • Check with the laboratory that the sampling processes, preservation and transportation are appropriate.

  • In collaboration with your chosen laboratory, have complete audit trails available that address aspects such as sample location, depth of sample, date and time of sample, reference identity and the laboratory used.

The MCERTS scheme for the chemical testing of soils was phased in, but has been fully operational since 1 March 2005. Therefore, all data for regulatory purposes should now be to the MCERTS standard. Laboratories and the procurers of testing need to work together to ensure that the test data provided meets the requirements and satisfies the needs of the ultimate client.

Cliff Billings Group Technical & Quality Manager STL UK

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EA’s position on MCERTs

From 1st March 2005, the Environment Agency has required accreditation to our Monitoring Certification Scheme (MCERTS) where laboratory soil testing results are submitted to us as part of a regulatory regime for which we have statutory responsibility.

We strongly recommend that MCERTS accredited methods are used for soil testing in activities to do with site remediation, whether carried out on a voluntary basis or to comply with planning requirements. This is particularly important in relation to any waste management issues on the site.

Jackie Harrison Environment Agency

Contaminated Land Working Group Meetings

In recent meetings of the Contaminated Land Working Group, it has been clarified that the EA is a consultee but not a Statutory Regulator for planning applications. This means that MCERTs data may not always be required at the planning stage. Although the EA recommend MCERTS, the final decision is up to the Local Authority.

Some AGS Members feel that all tests should be to MCERTS so that the reports can be used at a later date. At present, the EA is expected to take a pragmatic approach to historical data obtained before the introduction of MCERTS and take account of whether the laboratory is now accredited, and other relevant factors. However, this may not always be the case, particularly for data collected after March 2005, and the need to ‘future proof’ data should be seriously considered.

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Meet NHBC Requirements with MCERTS

The NHBC welcomes MCERTs accredited testing and supports it’s use in association with robust and representative soil sampling strategies when investigating sites affected by contamination. It brings transparency and consistency to the analytical testing techniques and encourages discussion between the consultants and testing laboratories which can only be a positive step forward.

Article Business Practice

AGS Benchmarking Initiative gets underway

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After several false starts, the Business Practice WG has finalised plans for an AGS initiative to evaluate the quality of site investigations undertaken by Members. This will be the first time that an attempt has been made to qualify site investigation practice and the results are eagerly awaited.

The WG has identified 11 Key Performance Indicators (KPIs) and subsidiary headings:-

  • Appointment (Personnel, Responsibilities)

  • Preparation (Desk Study, Walkover Survey, Reports)

  • Design (SI Design, Laboratory Testing)

  • Risk Management (Risk, Availability of Information)

  • Procurement (GI Procurement Route, SI Award, Method of Measurement, Conditions of Contract, Specification)

  • Management (Project Management, Quality Management, Environmental Management)

  • Supervision

  • Reporting (Factual)

  • Reporting (Interpretative Report, Ground Model)

  • Outcome

  • Client Satisfaction

All AGS Members have been invited to participate. The number of projects that each participant will be asked to score will depend on the number of companies that agree to take part but will not be more than 10 (and probably less). It will not be necessary to identify the project being scored and the score of individual projects will not be revealed.

It is intended that once the initial benchmark has been set the exercise will be repeated annually to monitor changes in standards.

It is not too late to register as a participant. Please contact Jo Pascoe (jo@ags.org.uk) for further details.

Article Safety

Letter to The Editor

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Sir,

Richard Thomas’ letter published in last month’s edition of the AGS Newsletter opens up an interesting debate on how we quantify risk within our profession, especially those subsurface risks that are not readily identifiable or quantifiable. As with any potential risk, we have to address a number of questions, i.e. 1) is the risk real? 2) what are the consequences of the risk? and 3) can the risk be avoided?

Is there a real risk of encountering an Unexploded Bomb (UXB) in areas subjected to WW2 bombing raids? The answer is, despite all the implications, yes. In 1996, the then Armed Forces Minister, Nicholas Soames, released a list of 88 UXBs in the London area of which the Ministry of Defence had records. The location of many of these UXBs were not accurately recorded. In addition, there were many UXBs which went unrecorded altogether during and after the bombing raids of WW2, hence the need to carry out location specific threat assessments looking at all possible sources of information, including anecdotal. It should also be remembered that on many occasions the Luftwaffe aborted their bombing raids on prime targets resulting in indiscriminate bombing as bombs were released to conserve fuel for the journey home.

If the risk is real, how do we quantify that risk. Richard Thomas does not indicate what method he would adopt to differentiate between low, medium and high risk areas for an inherently random and erratic event. Even “low risk” means that there is some potential risk. One therefore has to assess the consequences.

WW2 bombs were designed to cause death and destruction. In recent years proof that time does not diminish a UXBs deadly has been demonstrated in Berlin, Austria and on several construction sites in Japan. A recent tragedy only reinforces the lethal nature of aged Unexploded Ordnance (UXO), only a few months ago 3 Dutch fisherman working near the proposed London Array wind farm site in the Thames Estuary were killed and 2 were badly injured when they hauled up a small “hand grenade like” device which exploded with tragic consequences.

If we were relatives of a victim of an explosion on a construction site, would we be comforted by the fact that the site had been the subject of a probabilistic evaluation and was considered as being “low risk”. I think not. Similarly, the victims of the recent tsunami can draw little or no comfort from the fact that the seabed eruption which resulted in massive destruction was a 1 in a 1000 year event. The “low risk” of occurrence did nothing to diminish the “high risk” consequences of that occurrence.

Traditionally in geotechnics we attempt to minimise risk during the design phase, i.e. engineering out the risk. Such an approach could be adopted in the case of UXBs, i.e. the use of shallow foundations and / or utilisation of any existing foundations. This would, in most cases, be an expensive and impractical alternative. In view of the consequences of the UXB risk both during and after construction and the associated costs of designing out the risk, a well planned threat assessment and survey should be a cost effective option. As a consequence, Fugro Engineering Services Limited have developed their own cone magnetometer technology to provide site specific data upon which the UXB risk can be directly quantified.

What should concern drilling contractors and consultants alike, is the absence of useful regulatory guidance on when and where UXO risk mitigation is needed. The Dutch Government will be introducing legislation regarding UXO surveys later this year. Regulatory guidance will provide the basis for a rational approach to the UXO surveys, focussing attention on risk and consequences rather than the more emotive and subjective topics of cost and probability.

M R Horsnell Director Fugro Engineering Services Limited

Article Data Management

Depositing AGS Format Data with the NGDC

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The National Geoscience Data Centre (NGDC) contains data gathered or generated by the British Geological Survey (BGS) as part of its national strategic mapping programme, alongside data provided by many external organisations. One of the most significant datasets is the borehole records collection, which includes borehole records deposited with the BGS under legislation relating to the following acts:

  • The Mining Industry Act 1926

  • The Petroleum Production Act 1934

  • Water Resources Act 1991, Water Act 1945 and Water Act (Scotland)

Additionally, a large majority of borehole records are given to the NGDC on a voluntary basis by organizations within the site investigation industry. Though there is no legislation requiring them to do this, there are clear benefits, including:

  •  Data security (secure accommodation and back-up);

  • Reduced storage costs;

  • Easy identification of available data – using the BGS Internet Geoscience Data Index at www.bgs.ac.uk/geoindex ;

  • Easy access to data for site-specific enquiries via: enquiries@bgs.ac.uk ;

  • Improved geological maps – supporting industry, education, and the general public;

  • Better decision-making, based on a more complete information base.

The major benefit to the BGS is access to modern data to help improve the geological synthesis of the country. Until recently all borehole records were deposited in paper form. However, data are now starting to be deposited digitally in AGS format. This trend is encouraged at the NGDC, as it allows more rapid processing and use of the data. Where data are received for use within the cost-recovery, Borehole Ordering Service (www.bgs.ac.uk/boreholes/home.html), borehole logs can now be made available to industry more efficiently. AGS format data can simply be sent to the BGS by e-mail, addressed to AGSdata@bgs.ac.uk (up to 10 MB file size). Alternatively copies of the digital files can be posted directly to the NGDC Data Collection Officer (see below for contact details). The BGS welcomes donations of data from anywhere in Great Britain, and NGDC staff are happy to receive your information in various formats, including analogue, digital and material samples for addition to appropriate National collections. For further advice and information on depositing data, please contact the Data Collection Officer: geodata@bgs.ac.uk Tel. +44 (0)115 936 3021 Fax: +44 (0)115 936 3276

National Geoscience Data Centre (NGDC) British Geological Survey Kingsley Dunham Centre Keyworth, Nottingham NG12 5GG UK

Article Contaminated Land

Mobile Plant Licences to become “Simpler, Faster, Lower-cost & Consistent”

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A joint Government and Industry Task Force established towards the end of 2004 has now reached agreement on the best way to resolve problems concerned with mobile plant licensing.

The Task Force was ask to deal with three main problems:-

1. Multiple licenses operated across multiple sites 2. Inconsistency in enforcement and no single point of contact for operators. 3. Speed of applications and poor clarity of information requirements.

Under the new system a single license (to be called a Mobile Treatment Licence) will be issued for a given remediation technology. The license will be able to be utilised across multiple sites. A new ‘Deployment Form’ will be adopted which will identify all key data including the applicants account manager, any site specific information and a guide as to what other permits may possibly be required.

A system of EA Account Managers will be established providing improved accountability, better communication and a single point of contact for industry –

The new system is expected to have a number of beneficial effects – not least of which will be a significant reduction in the regulatory burden placed on operators – and hopefully a reduction in the cost when plant is not in use.

It is also hoped that the reduced cost and more efficient bureaucracy will encourage the development of new technologies and reduce the amount of waste going to landfill.

Application forms and guidance for the new MTL will be available from October. Existing holders of MPL should have been contacted by the EA in early June and will be sent a further letter in due course to explain what they have to do to obtain the new licence. There will be a 6 month transition period and existing licences will be valid until April 2006.

Finally, changes to the Waste Regulations which came into effect on 1 July have broadened the definition of mobile plant. Previously this only covered soil, but now covers the treatment of contaminated materials, substances and products (e.g. the treatment of groundwater).

For information on who to contact regarding licences call the EA National Customer Contact Centre on 0870 8506506 – or local EA offices (although they will not have information until nearer October.)

Article Safety

Environmental Alert New Hazardous Waste Regulations

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NEW REGULATIONS

The Hazardous Waste and List of Wastes Regulations have been introduced replacing the existing Special Waste Regulations 1996 and come into effect on 16th July 2005. The definition of hazardous waste now covers a wider range and includes common items such as fluorescent tubes, television sets and computer monitors. It also covers any product bearing an orange hazard-warning symbol, such as certain types of paints and mastics and also a broader range of contaminated soils.

HAZARDOUS WASTE PRODUCER’S LEGAL RESPONSIBILITIES

Construction sites are classified as hazardous waste producers. The regulations will have a number of impacts on producers:

  • All producers of hazardous waste must register the premises at which the waste arises with the Environment Agency.

  • Producers must avoid mixing hazardous waste and non-hazardous wastes e.g. separate skips.

  • Producers must still complete a consignment note. There is a new format for consignment notes and guidance is available from the Environment Agency to assist with their completion.

  • The regulations require the Environment Agency to inspect producers of hazardous waste who can prosecute or issue a fixed penalty notice (£300) for the failure to comply with the requirements of the regulations.

NOTIFICATION

All hazardous waste producers must notify their premises to the Environment Agency by the 15th July 2005 and every time a new site starts producing hazardous waste. It will be an offence to produce or remove hazardous waste from any premises that are not notified or exempt, after this date.

The notification which needs to be renewed after 12 months, will be accompanied by a registration code (or premises code) that must be written on all consignment notes.

A list of ‘Frequently Asked Questions’ can be found at www.defra.gov.uk/environment/waste

Article Safety

Hand Arm Vibration

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HSE are becoming seriously concerned about hand arm vibration while breaking down piles. Members of the Federation of Piling Specialists have experienced difficulties with HSE Inspectors in some regions even when the client has been offered, and refused, the use of a debonding system.

The FPS will be preparing guidance about breaking down piles for publication on their website, and are about to publish the following information on the use of debonding systems:- ” Reinforcement debonding, or any other items attached to the pile reinforcement, can only be placed in the pile to the same tolerances as the pile reinforcement. These tolerances are given in the ICE Specification for Piling and Embedded Retaining Walls 1996. Engineers/Specifiers should therefore specify the same tolerances for pile cut-off-level if such systems are to be used.

·         Before specifying reinforcement debonding, or any other related systems, discussions must take place with the piling contractor in order to investigate the practicality of the proposed system for the chosen piling technique, pile size, the prevailing ground conditions. This technique is not universally applicable.

·         Any system installed should be protected from damage, otherwise the system may lose all intended benefits. For example, the debonding of bars will not be effective if the bars are bent during or after installation.

·         The lifting point for the removal of the concrete over the debonded length should be designed and specified by the main contractor following discussions with the piling contractor.

 Consultants should be aware of their responsibilities under CDM and advise clients accordingly.

Article Loss Prevention

Working on Another’s Land

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Following the publication of Loss Prevention Alert 33, which concerns the matters to which specialists should have regard when working on another’s land, a number of AGS members have made specific points and observations of which we ought to make the wider membership aware.

An important point is access to the site. It may well be that the licence itself designates the only route by which the specialist is to have access to and egress from the site in which case, should the specialist enter or leave the site by any other route, he risks committing a trespass and being made a defendant to proceedings. On large and complicated sites, where access by anything other than the agreed route can cause damage to the site (for example to crops) a plan might need to be appended to the licence to make it clear to the specialist where he should enter and leave. It may also be the case that, in order to enter a site, permission has to be sought from some third party because the specialist’s staff or equipment will have to travel over that third party’s land. Generally speaking, this is not the specialist’s problem and he should leave it to his client or his client’s advisors to ensure that the specialist has all the relevant permissions he needs to be able to enter, work on, leave the site as he envisages he will need to. In certain cases therefore, when access to sites might present a difficulty, it is recommended that a clause is included in the specialist’s appointment as follows:

The Client warrants and undertakes that all relevant permissions for the consultant/contractor to enter, leave and work on the site have been obtained and are not subject to any restrictions which might impede, in any respect, the consultant’s/contractor’s ability to undertake the Services.

The point has been made that there may be occasions where the consultant’s work creates unavoidable damage to the site. Typically, site owners will expect to be indemnified against such damage – especially where they have no particular interest or motivation in relation to the transaction the client is envisaging. But in this situation it ought to be made clear that unavoidable damage will be the responsibility of the client. The client will though expect the consultant/contractor to be responsible for unavoidable damage which occurs through his negligence or failure to take care.

Steven Francis, Eversheds

Article Contaminated Land Data Management Laboratories

SGV Task Force

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The Soil Guideline Values Taskforce (SGV TF) is a joint initiative between Government Departments, local authorities and other private and public sector stakeholder groups with the primary objective of providing a means of improving the production programme for Soil Guideline Values.

The group was originally set up by the Cabinet Office Business Regulation Team in 2004 in response to perceived delays in the delivery programme for soil guidelines values. The task force originally comprised public sector bodies (Cabinet Office, ODPM, DEFRA, Food Standards Agency, Health Protection Agency and Environment Agency) who are instrumental in the production process. Following a workshop in November 2004 at which a wider cross-section of interested parties were present, the SGV TF was expanded and a number of other parties are represented on the current task force including the AGS.

Business in 2005 has focused on addressing four principal questions which were highlighted at the November workshop as being the most pressing-

i) What do SGVs mean and when should they be used?
ii) How do we speed up production?
iii) What do we do in situations when SGVs generated by the usual methods are very low (below ambient levels or close to or below detection limits)?
iv) What do we do about training and information dissemination?

Since the beginning of 2005 there have been three meetings of the expanded task force resulting in some good progress and interesting debate from various parties.

The first and very fundamental questions above has been considered by a sub-group of the task force. Their report will take the form of a draft guidance document on what an SGV is and how SGVs should be applied. This may in due course be released as part of the CLR series or as an addendum to an existing document.

The question of speeding up production of SGVs has occupied a significant amount of task force time. The EA has resource and time limitations which are also called upon in the programme for development of the CLEA UK model, release of which is expected this summer /autumn. Interesting debate revolves around whether SGV production should take precedence over further examination of the algorithms / assumptions in CLEA. (The Chartered Institute of Environmental Health is particularly emphatic in their wish for the SGV’s to be produced as soon as possible). The AGS and EIC representatives have been more in favour of concentrating effort into refining models to attempt to reduce, or remove, some of the problems associated with “low” SGVs.

Positive moves have been made toward increasing production capability, including proposals to double the EA team by funding two new posts and by attempting to recruit a private sector secondee partially funded by public sector monies.

On other issues, a sub-group has been set up to identify training needs and to produce initial models of how these can be satisfied. In addition the EA has published on its website the first of what will be a series of bulletins on the CLEA programme.

Simon Edwards Merebrook Environmental Engineering Consultants

Article Loss Prevention

CONSULTANTS VULNERABLE TO A CONVICTION?

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I suspect that many of you are aware that there has been increasing concern about the number of fatalities and serious accidents on construction sites. The speeding up of construction processes, as the demands of clients on price and delivery are keener, has exposed cracks and weaknesses over 18 years of de-regulation. In recent years there have been a number of safety seminars, but in reality they appear to have made little difference. However, the government now appears to be getting tough and the Health & Safety Executive is sending out the clear message that it intends to address failings in all parts of the construction industry. Whilst the media concentrates on the legal imposition of safety duties on directors and bosses, it is clear the agency are now targeting consultants in an attempt to “clean up” an industry where serious accidents and fatalities regularly occur.

There are three main types of health and safety offences. (a) Manslaughter by gross negligence, (b) Offences under the Health & Safety at Work Act 1974 (“HSWA”) and (c) Offences under regulations issued under HSWA.

In this article, I will concentrate on offences under the Health & Safety at Work Act 1974, as this has been a growing cause of concern amongst consultants. More specifically, interest has focused on various prosecutions under Section 3(1) of the Health & Safety at Work Act 1974.

Section 3 states that “it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment, who maybe affected thereby are not exposed to risks to their health and safety”. It was this section that became a focus for the prosecution of Lindsey Barr Associates (a firm of consulting engineers) in relation to the unfortunate death of a contractor who was killed whilst carrying out refurbishment work, when a large section from the base of a foundation fell on him. Lindsey Barr Associates were prosecuted under Section 3(1) and this case illustrates the difficulty that all defendants will have in fighting a prosecution under Section 3(1). The core issue is that an enormously wide interpretation can be applied to the term “so far as was reasonable practicable”. How does one prove that everything reasonably practicable was done to ensure safety? I think we would all agree that there is nearly always some other measure that could have been employed to ensure safety, even if that measure was not realistic, given the particular set of circumstances. This section causes perhaps even more concern, when one considers that it is likely that where a serious offence is alleged to have been committed, the case is likely to be tried before a jury who may well be expected to understand complex, and at times confusing, issues without the benefit of a consultant background. It is not surprisingly that in such circumstances, a jury will often take a look at all the different factors and consider what they would have done in certain situations, regardless of how the law should strictly be interpreted. As such, it is arguably difficult to honestly review an incident without the benefit of hindsight.

Should a consultant fall foul of the HSWA, offences are triable summarily in the Magistrates Court or on indictment at the Crown Court. An offence under the Act could result in imposition of an improvement or prohibition notice or a full prosecution, if so in the latter case, in the Magistrates Court there is a maximum fine of £20,000 and/or six months imprisonment and in the Crown Court, unlimited fine and/or two years imprisonment.

Penalties for contravention of Section 3 can be harsh, and in the Lindsey Barr case, the consultants were fined £45,000 and ordered to pay £30,000 in costs. The court will take a number of factors into account, such as the degree of risk connected to the danger created by offence, and how far short of expectations did the defendant fall. The court will also take into account the defendant’s resources, but it is emphasised that the fine needs to be large enough to push health and safety matters to the forefront of the defendants’ minds. Other relevant factors will be matters such as the incident resulting in a fatality, or a consistent failure to heed warnings or the deliberate taking of risks for financial reasons.

The defendant may seek to mitigate it’s sentence by showing that he took action to remedy defects as soon as he was made aware of them, showing that he has a good safety record without any previous convictions, and that it has a good accident record in terms of number and severity of reported accidents. The level of resources of the defendant are also important, and the defendant will have to supply accounts and other financial information which is relevant to the prosecutor.

At present there have only been one or two prosecutions of designers under the Health & Safety at Work Act 1974 rather than the Construction (Design and Management) Regulations. However, I would have thought that the HSE will seek to ensure that many more consultants are prosecuted in the future. Ignorance of the legal impact of the Health & Safety at Work Act is leaving consultants vulnerable to criminal convictions for accidents on projects that they are designing and it is important that the Act is borne in mind, as if prosecuted under the Act, the effect of the consultant having to show and to prove that it took “reasonable and practicable” steps to protect workers from foreseeable risks, effectively reverses the burden of proof from the prosecution to the defendant. A hurdle, which to my mind, will in many cases be impossible to jump.

Michael Salau Email: michael.salau@blm-law.com

Michael Salau is a partner in the Construction and Environmental Group at Berrymans Lace Mawer