AGS - The Association of Geotechnical and Geoenvironmental Specialists

On his appointment as Minister for Construction, Nigel Griffiths wrote to all trade associations and professional bodies and invited them to submit a concise briefing note on the issues which Members feel are vital to making Britain world leaders in construction. He indicated that he expected the note to raise our main concerns.

After discussion in the Working Group and the Executive Committee, the following response was sent on behalf of the AGS:

The Association of Geotechnical and Geoenvironmental Specialists (AGS) is a trade association representing almost 100 companies who are specialists in ground engineering. Activities range from geotechnical engineering, ground investigation, and the design of foundations, to the geotechnical and chemical analysis of soil, rock and water and the identification, assessment and remediation of contaminated land.

In responding to the invitation from Nigel Griffiths MP for a concise briefing note, we have concentrated on issues on which our Members specialise and which are within the field of Government influence.

Additionally, the AGS as a Member of the Ground Forum, fully supports the comments made by Ground Forum, particularly in respect of, i) the need for greater funding of post graduate courses in geotechnical engineering and engineering geology; and ii) the need for clarity (possibly via a register) in defining areas of engineering expertise in order that clients can identify specialists with appropriate qualifications and experience for their projects.

The amount spent on investigation of the ground prior to construction is typically 1% to 5% of the whole project value (usually the lower end of this range). The cost of claims and additional expenses due to unexpected ground conditions (i.e. unexpected because the site investigation was not adequate) can be as high as 50% of the total cost overrun on the project. Furthermore, some (generally smaller) developments do not have any ground investigation at all. We believe very strongly, that an adequate ground investigation should be a requirement of the planning process. We understand that consideration is being given to harmonising building and planning regulations. This therefore presents an ideal opportunity to introduce such a requirement. We therefore propose that the Minister actively supports and promotes the introduction of such a requirement into the harmonised regime.

The current difficulties in the availability and cost of Employers Liability and Public Liability insurance have affected AGS Members, as other businesses. However, the major concern has been the soaring cost of Professional Indemnity insurance. This is compounded by the continuing trend for clients (including public sector clients) to require higher and higher levels of insurance cover with high/ unlimited limits of liability, often totally disproportionate to the value of the fees involved. This is particularly the case in regard to work involving contaminated land. It is a common misconception in many client organisations that a consultant's Professional Indemnity policy is there to cover any loss incurred by the client, however such a loss occurs. This is of course, not the case. A consultant's Professional Indemnity in there to protect the consultant in the event of a successful claim of negligence. All consultants in the AGS have signed up to our own Code of Conduct which is designed to ensure the potential for negligent act or omission is minimised. In addition, most companies have their own Quality Assurance system (many accredited through the British Standards Institute to relevant international standards, e.g. ISO14001). It is also a fact that to date the number of successful claims specific to our industry is very low.

It is therefore unfairly onerous on the industry for clients to require levels of Professional Indemnity cover and limitations of liability which are often out of all proportion to the fee charged for the services offered by our members (e.g. a liability level of £5m is commonly required for a project with a consultancy fee of less than £2,000). Such a requirement is particularly disadvantageous to small companies who are simply unable to obtain such cover, and are therefore excluded from contracts even when they have appropriate expertise and/ or relevant local knowledge.

Government and other public sector clients could helpfully demonstrate best practice in this respect by entering into such contracts with appropriate requirements for insurance (both level of cover and limit of liability) which reflect inter alia the fee for the project.

Members work for RDAs in connection with the assessment and remediation of contaminated land. The standard RDA contract terms require the consultant / contractor to provide a collateral warranty with unlimited liability for anyone using the site in the future, and to ensure that the site is 'fit for purpose' This is unreasonable on two counts:-

i) Neither unlimited indemnity nor 'fitness for purpose' can be covered by insurance . In the event of a successful claim therefore, the only recourse for the company will be to close down and surrender all their assets. This is a totally unacceptable way to enter into a contract.

ii) Contaminated land can be cleaned to a variety of standards, (e.g. the standard required for a factory car park is lower than that required for housing). It is not reasonable to expect the consultant /contractor, working to a specification (given by the RDA client) to warrant that the site will be suitable for all purposes and all users in the future - which is the legal implication of these terms. The normal standard is to warrant that the work has been carried out with due care and diligence.

RDAs (or their legal advisers) argue that their public duty requires these contract terms and that they will be held to account should a problem arise and the consultant/contractor is found to have limited liability. In reality, they are limiting their selection of consultants and contractors to the small number of concerns who are prepared, for what ever reason, to take the unreasonable risks that these contract terms represent. Furthermore, in pursuing this policy RDAs are endangering the Government's targets for the redevelopment of brownfield land.

The Minister could usefully explore this matter with RDAs to ensure that an appropriate balance is obtained between the need to demonstrate appropriate accountability for public monies with the necessity of redeveloping brownfield land.

Notwithstanding liaising with Environment Agency officials in our Committee and Working Group, in day to day, site specific activities, our members invariably find interaction with the Environment Agency extremely frustrating for a number of reasons:-

i) There is no consistency between local offices. Although the specialists in the EA issue guidance (generally after public consultation), there is no onus on local offices to follow the guidance. Consequently each office (and each officer within that office) follows their own understanding of how to implement the policy/guidance. Consequently a development which would be permitted in one area, in another faces undue, excessive costs, delays and may eventually be refused permission.

ii) There appears to be no way of appealing against a decision made by a local office even when higher officials acknowledge that the decision is wrong. The process of appeal is very unclear and local offices appear to have unchallengeable autonomy.

iii) Guidance essential to the development of brownfield land is delayed - often for years. For instance, only a very small number of soil guideline values (that specify the permissible amount of certain toxic chemicals in soil) have been issued. Chemicals not covered by SGV's must be assessed in some other (unspecified) way. The EA has the right to reject the conclusion of the consultant if officials do not agree with the methodology. The local authority regulator is therefore in an impossible situation when trying to assess proposals for brownfield land redevelopment (particularly for housing schemes). The recent disbandment of the National Centre will exacerbate this problem.

iv) EA policy leads to uncertainty. Developers expect their consultants to be able to advise on the measures which must be taken in order to obtain planning permission. Because of the uncertainties (above), consultants cannot be confident in their advice. However, if the consultant's advice turns out to be unacceptable to the EA (resulting in additional costs and delays) the client may try to recover costs from the consultant's insurance - putting further pressure on insurance requirements and the viability of consultants businesses. (See Item 2).

Action, direction and resources to rectify these problems at the Environment Agency need to come from Government. The Environment Agency is not currently fulfilling its stated functions with an appropriate balance. Unless improved guidance, consistency and expertise is forthcoming from the Environment Agency, the Government targets for the remediation and redevelopment of brownfield sites will be seriously jeopardised.

It is becoming increasingly clear that regeneration projects on brownfield sites are being frustrated by Waste Management Legislation and the Environment Agency's approach to its implementation. The crux of the problem is the recent move by the Environment Agency to interpret the definition of waste more restrictively. The result is that a considerable number of practices on site that were not previously considered necessary to regulate now fall within waste management legislation. The consequence of this is as follows:

i) The requirement for / presence of a Waste Management License (WML) on a development site will severely inhibit redevelopment potential of many sites. This is particularly the case for re-development of large sites where phased development is the only way to make the redevelopment process financially viable. The presence of an active WML on a housing development would effectively prevent sale of homes during the development programme.

(ii) Property Blight: New houses built on 'licensed' land are often seen as being built on the equivalent of 'Waste Tips' resulting in loss of value. A recent RICS report suggests the negative effect on property prices can be as much as 40%

(iii) Loss of potential for re-use of site derived soils: The reluctance of construction companies to operate waste management licenses will result in materials defined as waste being removed to landfill rather than being re-used as secondary aggregates (and the consequent need to import virgin aggregates from quarries and pits, entailing haulage and other environmental impacts of quarrying).

DEFRA and ODPM are developing the option of a Single Regeneration Permit to overcome the problems highlighted above. In reality however, the government is progressing inappropriate and increasingly restrictive legislation in isolation of the legitimate needs of the construction industry. It is important to note that other European countries are not interpreting the legislation in the same way and are not imposing similar constraints on their construction industries. This restrictive approach will jeopardise the achievement of the Government's target of 60% of new homes on brownfield sites. Government is therefore urged to address this matter will all interested parties and in particular the Environment Agency.

The Environment Agency issued a new policy and guidance on protection of land quality and preparation of site reports under the Integrated Pollution Prevention & Control (IPPC) regime in August 2003 (www.environment-agency.gov.uk/business) The aim of the changes is to place more emphasis on pollution prevention measures within the PPC permit rather than site investigation at the time of application. It also hoped that the change will speed up processing of permit applications by the EA.

The site report accompanying the permit application (now referred to as the Application Site Report) should normally comprise the results of a desk study and site reconnaissance only. This is similar to a Phase 1a site report in the EA's earlier terminology. Completion of intrusive investigations at this stage is NOT required except in special cases, e.g. there is insufficient data on site geology to develop the site conceptual model.

There is also now a requirement for operators to prepare a Site Protection and Monitoring Programme (SPMP) detailing how pollution of land will be prevented during the life of the installation. This has to be submitted to the EA within 2 months of the permit being issued.

Intrusive investigations to obtain 'reference data' (i.e. a Phase 1b or 2 assessment) are only required for zones of the site where there is 'a reasonable possibility of future pollution of the land' from installation activities. The guidance states that such investigations will always be required for sites with bulk storage of liquid chemicals, inadequate preventative measures or a history of pollution incidents unless it can be shown that there is little likelihood of future pollution occurring. The investigations will form part of the SPMP and where required have to be submitted to the EA within 6 months of the permit being issued.

The EA has also issued templates for the Application Site Report, design and reporting of a Site Protection & Monitoring Programme.

These changes apply to all sites in England and Wales where PPC permits have yet to be issued. Policy and guidance in Scotland and Northern Ireland currently remain unchanged. There are clearly implications for AGS members to ensure that appropriate advice is being provided to site operators applying for permits and that the most up-to-date guidance is being used.

Technical Guidance Note by IPPC H7
Integrated Pollution Prevention and Control (IPPC) Guidance on the Protection of Land under the PPC Regime: Application Site Report and Site Protection and Monitoring Programme
H7 Reporting Template 1 - Template for an Application Site Report in PPC Applications
H7 Reporting Template 2 - Design of a Site Protection and Monitoring Programme for Installations Requiring Reference Data to be Collected
H7 Reporting Template 3 - Design of a Site Protection and Monitoring Programme for Installations that DO NOT Require Reference Data to be Collected
H7 Reporting Template 4 - First Phase Reporting of the Site Protection and Monitoring Programme for Installations where Reference Data is Required
H7 Reporting Template 5 - First Phase Reporting of the Site Protection and Monitoring Programme for Installations where Reference Data is NOT Required

In January 2003, issue number 45 of the AGS Newsletter contained an article by Bruno Guillaume, of Arup Geotechnics, who outlined the MCERTS performance standard for the chemical testing of soils. The following is an update, and a view from an analytical chemist`s perspective.

On the Environment Agency website reference has been made to the fact that the Agency is aware that it will take time for laboratories to gain approval through the appropriate accreditation process. An eighteen month period, starting from March 2003, has been given for laboratories to bring their soil testing methods up to the MCERTS standard.

During this period laboratories reporting data to the Agency have as a minimum to be accredited to the ISO 17025 standard for the soil test methods. It is also recommended that tests should have a brief method description together with estimates of bias and precision. From September 2004 only data from laboratories that have been accredited to ISO 17025 for MCERTS will be accepted.

Since the last article in the newsletter, Version 2 of the MCERTS standard has been published, and this was available from February 2003. The standard highlights particularly important areas, namely contract review, bias and precision targets, quality control( both internal and external), method validation, and uncertainty of measurement. Important differences from the first version are the exclusion of expected limits of detection for methods, and the inclusion of an improved protocol for validation.

The issues can be confusing but the standard simply aims to establish a level playing field in a competitive market, based on the Agency`s requirements, and to set a minimum acceptable performance. In short the data received by the laboratory`s customers must be accurate, reliable and comparable.

The analysis of soil is complex in terms of the chemistry involved. It aims to determine both macro and trace components in a matrix that is, quite often, dirty in both a physical and chemical context. There is a need to analyse for trace organic and metallic contaminants in soils that contain large quantities of other industrial materials, such as oil or tar, in a background that also contains high concentrations of naturally occurring, or artificially polluted, inorganic compounds.

We all use "parts per million" as routine terminology, but the significance is commonly ignored. 1 part per million is more easily visualised as 1 grain of salt in a swimming pool. When we talk of the concentrations of polynuclear aromatic hydrocarbons (PAH), an important environmental parameter, we often refer to micrograms per kilogram, which is three orders of magnitude lower.

The contaminated land testing industry has grown very quickly, and methodologies have been borrowed from other more well established areas of analytical chemistry, such as food or potable water. The only industry standard for analysis of soils in the UK are the robust and technically sound " British Gas Methods ", but even these were not designed to tackle the lower end of detection, and do not take advantage of some of the more modern developments in analytical chemistry.

MCERTS effectively defines a standard for the performance of analytical methods, and includes the requirements of ISO 17025 in terms of certification of instrument performance, approved competency of personnel and the accreditation of laboratory procedures and organisation. It means that it is no longer sufficient that the laboratories follow a rigorous UKAS quality system in line with the international standard, but that the methodologies must also be demonstrated as fit for purpose.

The Environment Agency has not, in its standard, adopted the principle of prescriptive methods, as has been the example in the USA, through the so-called EPA procedures. This approach can commit the industry to inappropriate analytical techniques, a long time in their reform once committed to paper, and takes away the flexibility of developing new improvements for the industry as a whole.

It cannot be relied upon that environmental specialists, requiring the services of an analytical laboratory, will have the depth of technical to knowledge to understand the concepts of analytical bias or precision. MCERTS is designed to take away the need for such expertise.

Another variable that stops a customer from being able to compare "apples with apples" is the limit of detection (LOD) quoted. This can vary widely depending on how the laboratory defines it. A sound statistical principle is to use three times the standard deviation associated with a blank, or a sample with a very low concentration of the determinand of interest. This is all carried out interspersed with other standards and samples over eleven separate days. Other lesser definitions than this one seem to describe a "better" LOD, but mislead the customer into thinking they are getting an improved service, and can give false positive concentrations on soils where none of the contaminant actually exists.

All of these concerns are addressed by the MCERTS standard. Precision and bias must be of an acceptable standard, as must LOD. "Recoveries", namely what happens when a soil is spiked with known amounts of the material of interest and is reanalysed, are examined in the standard to ensure acceptable performance. The validation must be carried out on three completely different soil types with two spiking levels, and include the use of certified reference materials wherever possible. Detailed methodologies, together with a prescribed uncertainty of measurement must also be given.

The Contract Review is the point at which the client`s needs must be understood, and the point at which the laboratory must document them. What does " Total PAH" mean, or "Total TPH", and what does the client consider to be the critical level of interest? This is an area quite often poorly addressed, and to which the standard lends some priority.

The laboratory`s quality control also comes under close scrutiny. At least 5% of the resources allocated to a test must be used to ensure validation. In addition the laboratory must participate in as many of the acknowledged external proficiency tests as is appropriate, such as Contest, Aquacheck, and the SPH test scheme. The results of these must be readily available for inspection by the client.

It is generally recognised amongst the community of analytical laboratories that there is a real challenge in order to be able to comply with the new version. The standards relating to bias and precision and, in particular, the guideline that "the limit of detection usually regarded as being fit for purpose is 10% of the concentration regarded as the critical level of interest" are extremely demanding. There are some method improvements required within the industry before these levels of performance can be achieved. Most laboratories, however, will feel a relief that any ambiguity is now removed, so that everyone can compete to provide a well defined product, and be able to market its expertise without confusion.

Whilst addressing the vagaries of analytical results the Environment Agency has also acknowledged the uncertainty associated with other areas, and is considering certification schemes to address field aspects, including sampling. Other subjects, for example the suitability of leachability tests, toxicity assessments and the bioavailability of metals need to be topics for guidance by the regulator.

In order to prevent homes being sold and occupied before completion, the Council of Mortgage Lenders (CML) initiative was implemented in April 2003 and has wide ranging implications for anyone involved in property transactions involving brownfield sites, and in particular house builders. Before providing a mortgage on a property, funders now require confirmation by solicitors and licensed conveyors acting on behalf of purchasers, that a new property has been signed off or 'finalled' (see below) and has a full warranty in place. This is often an NHBC warranty or similar from another warranty provider.

Prior to April 2003, the standard approach to brownfield redevelopment was to remediate the site with development progressing behind the remediation works as sections of the site are completed. It is usual to carry out appropriate validation testing by a third party, typically a geo-environmental consultant, to demonstrate compliance with outstanding planning conditions relating to contamination. On completion of the whole site, the planning authority and its statutory consultees, including the Environment Agency, would then review the validation data and indicate their acceptance of the work as complying with the relevant planning conditions. In addition the consultant responsible for the validation process may also have been required to complete an NHBC Form of Validation, or similar, to enable the developer to obtain a warranty for the property. Therefore, on medium size and large developments, many of the properties would be completed and occupied before the site warranty was signed off. This will no longer be possible.

In order to prevent developments becoming unmortgageable, remediation designers need to take a staged approach to both remediation works and validation, so that sites can be completed in sections. Each section is then signed off individually on completion. However, this approach has to be agreed in advance with the Regulators so that the implications of phasing on both completed areas and on-going remediation works can be considered.

It is suggested that phasing is introduced as a concept in any remediation statements and mirrored in planning applications, to avoid any future confusion as to how the site is to be redeveloped and released for sale. This may have been implied previously, but must now be clearly identified in development and remediation proposals. This places an onus on developers to have well developed plans before planning submission, where possible, so that changes to proposed phasing are minimised, or to ensure that proposals are sufficiently flexible to incorporate future changes, without compromising previously 'approved' phasing and remediation methodologies.

Similarly, environmental consultants acting on behalf of developers should include reference to validation also being completed in phases. In this case, validation documents may be structured such that they can be issued in sections relating to each individual phase. For large projects the validation report may be a series of volumes or a 'log book' style document with several addenda.

By taking this approach, which in reality only represents a minor but potentially critical modification of previous protocols, the planning authority and statutory consulates will be accepting the premise of staged development and validation and should be well placed to be able to sign off planning conditions piecemeal. As a result, delays to 'finalling' and the all-important sale should be prevented.

In future the NHBC will adopt a consistent approach to determining what will and what will not prevent the necessary confirmation that a warranty is in place. In order to facilitate this, any outstanding information, defective design or non-compliance with standards on site must be classified as either RED (prevents warranty) or GREEN (will not prevent warranty) by applying the following sequential logic test:

1. A risk to health and safety?
2. A claim against the warranty?
3. Significant disruption to the occupier (in order to rectify the issue)?

If the answer to any of the above questions is yes then the item will be classified as RED and confirmation that a full warranty will be in place will be withheld until the relevant issue is resolved. If the answer to the three standard questions is no then the item will be classified GREEN and confirmation would be provided. It remains the builder's responsibility to address any outstanding Green issues.

In relation to design issues, inadequate or unsatisfactory information is generally the reason preventing a warranty being in place. Hazards where information will normally be requested by NHBC Engineering include:-

High water table, Made Ground, Mining or other Cavities, Multiple Hazard, Peat, Soft Ground, Steep Slopes (more than 1 in 10), Sulphates, Landfill gas and Peat, Contaminated Land other than Landfill Gas.

Example:
Geotechnical site investigation report, gas test results and proposals for gas membranes received from a builder for a site with known made ground, past shallow mining and within 250m of a landfill site.

Mining report and foundation proposals not received, therefore fails the logic test and hence would be classified as RED until such information is received and approved.

Are AGS Members aware of the potential impact Japanese Knotweed (JKW) may have on the development of sites?

If this is not identified when carrying out walk over surveys and ground investigations, the additional cost to the client of clearing the plant from site and the possibility that the 'Ground Investigation Specialist' could be blamed for not identifying it in the first place as a potential 'contaminant', could result in significant potential liabilities, e.g. A site in the Midlands is currently clearing JNW off site at a cost of over £250,000, as an extra over cost!

The AGS and current British Standards for ground investigation (reporting guidelines) do not appear to specifically cover such potential 'contaminants'. Should we not be providing advice to both Geotechnical/ Geo- Environmental specialists/ Clients etc in how to identify these invasive plants or at least provide them with guidance as to what specialists should be appointed to identify and deal with such problems? Is this part of our role? What do members think? The EA currently provide guidance notes on their web site www.environment-agency.gov.uk.

In addition the implications of a ground investigation contractor spreading the JKW by vehicle wheels/tracks, samples etc could again be costly. Whilst this weed is widely distributed in Cornwall and Wales, its encroachment into other parts of the UK is rapid.

Any comments or discussion back would be appreciated.
Chris Eaton, Geotechnical Developments (UK) Ltd

A Knotty Problem

Japanese Knotweed is an invasive perennial that can hinder the growth of many native species of plant. It can grow to around 3m high and expands rapidly once it takes hold of a site.

Japanese Knotweed was introduced to the UK during the 19th century as an ornamental plant and can be spread easily the movement of contaminated soil. The plant is characterised by thick canes with red shoots and bears white flowers. It is notoriously robust and can survive being cut back due to an extensive underground root system.

The Wildlife & Countryside Act of 1981 makes it an offence to spread Japanese Knotweed and any excavated soil that is taken off site must be disposed of at a licensed landfill site.

The Environment Agency website: www.environment-agency.gov.uk contains very useful information about knotweed, how to deal with it, and what precautions need to be taken if it is encountered on site.

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