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Newsletter Issue 56 - May 2008
Establishing Ground RulesConcerns over the place of Ground investigations in relation to CDM led John Banks and Mouchel Parkman to raise queries with HSE and an APS Legal Adviser. We print below the critical exchanges for the benefit of all those who may encounter similar concerns/ problems. From John Bans (Technical Director of Mouchel Parkman and Finance Director of APSt) to staff at Mouchel Parkman “I have attached a copy of the legal advice received from The Association for Project Safety relating to the application of CDM Regulations to Ground Investigations. The reason for asking for a specific ruling was the attitude of the Contractor who despite being informed (via structure and correct ICE Conditions of Contract) that we expected them to be Principal Contractor, moaned about the fact once appointed. The work is small in scale: 3 days trail pitting, then a break and then returning to undertake the boreholes for 3 weeks. You will note that the ruling supplied states that it is the project that is important (building schools [and in fact most projects] generally takes longer than 6 weeks to construct) I know I have started this before but note that:
The only exception is where we are undertaking Ground Investigations and there is no final project (seeing if a site is within Part 11A, etc)”
The APS Legal Advisors had responded to John’s enquiries as follows: The ground investigation is part of a larger project. The definition of a project extends to include the planning and design, which is taking place at the same time as the ground investigation. It would be artificial to treat the ground investigation works as separate from the project as a whole. The difference between treating the ground investigation as part of a notifiable project, and treating it as a stand alone project which is not notifiable, need not be very great. The ground investigation contractor would of course have the duties of a principal contractor, but contractors have duties under CDM2007 in any event if their work is not notifiable (see regulation 13). Because of the limited nature of the works, the health and safety file would not need to be lengthy or elaborate. The health and safety plan would deal with the specific risks only. Similarly the health and safety file would not need to cover more than the residual risks arising out of the ground investigation works or which have become apparent as the result of those works.” The Mouchel Parkman Compliance manager had also sought the views of the HSE at Rose Court via infoline and received the following. “You are correct in every respect. The ground investigation works are part of the notifiable part of the project. It is not unusual for ground investigation works to take place early, perhaps long before the appointment of the Principal Contractor who will be undertaking the management of the main construction phase. However, it is still part of the same overall project. As the project is notifiable, and the ground investigation is part of the notifiable project, there needs to be a Principal Contractor (PC) appointed. If the only work being carried out on site is the ground investigation, then I do not understand why the ground contractor thinks they are not competent to act as PC- for themselves. The role of PC is essentially to co-ordinate the construction work on site, to ensure that it is carried out safely. I assume the contractor feels confident enough to do their own work safely. There will be a requirement to fence off the site, liaise and co-ordinate with the school/client to ensure safety to children, staff and the nearby public, and ensure welfare facilities. Their construction phase plan will only need to go as far as covering their involvement at the site. At the end of their work, presumable they relinquish the role of PC, which is subsequently taken up by the PC for the main construction phase plan. If there will be other contractors working at the same time as the ground investigation contractor, I can understand their reluctance if they have not been in a position to manage other contractors before, and they may not have personnel capable or competent to do this task. Otherwise, acting as PC for their own work only, should not create any extra demands. Ref: Article taken from APS newsletter/ October 2007 Construction Waste... and how to make it disappearHalf of construction waste already gets recycled, but the other half is still either being spread as waste (under various licensing exemptions) or simply landfilled. With the pressure to create less waste, and Site Waste Management Plans now a reality for England and Wales (and coming through the back door to Scotland) guidance on ‘when is an alleged waste not a waste’ has been published by commercial law solicitors Semple Fraser. If correctly applied, the legal answer to that question can legitimately transform what is asserted (often by the regulators) to be ‘waste’ into a genuine non waste ‘product’. The “CL:AIRE” advisory group on contaminated land is currently consulting on a new code of practice-( visit www.claire.co.uk to view Code of Practice), which may affect the way the regulators seek to interpret and apply Some helpful pointers to the existing law can be downloaded from Semple Fraser’s website at http://www.semplefraser.co.uk/index.php?s=50&c=180&p=1995. Defence cost in criminal prosecutionsIt is probably common knowledge that fines arising from Criminal Prosecutions for Health and Safety beaches are not covered by a designer’s Professional Indemnity Insurance Policy. Fines therefore have to be paid out of the company’s assets. Defending a Health and Safety prosecution can be difficult as the burden of proof is with the defendant to show that he has complied with the relevant legislation- it’s not for the prosecuting authority to establish in what way the legislation has been breached. Consequently defending criminal prosecutions can be very expensive and may in fact exceed the possible fine that may arise. This often results in the designer pleading guilty on the basis of getting a reduced fine even though he feels there was no breach. Although the fine cannot be met by a Professional Indemnity Policy, the defence cost can be. Many consultants are now considering that a significant feature of a particular PI policy is the ability to recover these defence costs. Note that not all PI policies offer this cover and the decision to defend a prosecution will rest with the insurer who will look at the merits and likely success of a defence.
Ewan MacGregor AGS manual handlingMore than a quarter of accidents that have occurred at work and have been reported to the enforcing authorities each year, are associated with manual handling. During the period from 1990 to 1995, an average of 1,181 people annually suffered major injury, and 51,103 suffered injury resulting in more than three days off work. This makes manual handling the largest single cause of injury at work. It is not just the lifting of heavy loads that causes injury – often relatively lightweight objects picked up and carried awkwardly can result in major injury. Virtually all aspects of our industry involve the manual handling of tools, samples, equipment, etc., of varying weights and dimensions. Handling can be significantly compromised by difficult site conditions, such as slippery, wet, sticky, or muddy ground surfaces and perhaps variations in ground levels.
Most drilling equipment associated with CP boreholes, for example: heavy drilling/sampling tools, sinker bars, standard penetration- test trip hammers/rods, casing, and certain drilling consumables, pose a significant manual handling risk to site operatives. Manual handling of, for example, the standard penetration test (SPT) trip hammer, at 110kg, remains a significant risk – and it is neither feasible nor practical to dismantle the hammer into manageable components. In these and other circumstances it is a requirement of legislation to eliminate or reduce the risk to an acceptable level by introducing control measures to achieve safe working practices. For carrying out a manual-handling risk assessment at any site, apply the acronym: ‘TILE’, which is derived from Task, Individual, Load and Environment, and described as follows: Task Consider distance of the load from the body, the movement of the body to pick up the item (including twisting, stooping and reaching), and frequency of the lifting task. Appropriate control measures may include the changing of working layout and the avoidance of lifting from ground level. This might include, for example, the placement of SPT rods on bandstands; the storage of materials at waste height, and the use of a drilling winch where appropriate. Individual Safe manual handling is dependent on the strength and physical fitness of the person carrying out the task, and whether the person has had appropriate manual handling training. Only the most physically competent and appropriately trained personnel, and appropriate number of personnel, should carry out the lifting of such heavy objects. Load Weight of load, centre of gravity of load, and size and shape of the load, should all be considered prior to load handling. If the handling risk is unacceptable, it may be possible to break the load into smaller, manageable components (for example, using shorter casing and sinker bar lengths). Smaller sample bags should be considered. Environment The working environment may significantly compromise manual handling tasks especially when they are performed outside on difficult terrain and in challenging weather conditions. Effective controls in such conditions include creating a safe and well-managed working area that has no trip hazards. The individual/s performing the task should be wearing appropriate clothing and personal protective equipment (PPE). All manual handling tasks associated with site-investigation activities should be assessed using the TILE acronym above. Other site tasks that involve the use (and lifting) of heavy equipment include: plate loading and California-bearing ratio (CBR) tests. The same precautions and rules for lifting apply, i.e. breaking down the load into manageable components to achieve safe handling practices. Where a reduction of load is not practical, a risk assessment should be carried out to assess the manual handling task and the necessary control measures required. Manual handling of lesser loads, e.g. samples, can pose a significant risk if not managed correctly. To avoid lifting excessive sample loads, the weight of bulk samples can be limited by the use of 15kg-bags, for example. Instructions can be given not to over fill bags. Environmental sampling commonly requires double or even treble sampling, some of the samples of which are stored in glass containers. Glass adds significantly to the total weight of samples recovered. Therefore, cool boxes used for storage and transportation of the glass containers should not be overfilled; the contents should be limited to a manageable load per box. In summary, manual handling poses a significant risk to site operatives when carrying out site investigations, although the risks can be significantly reduced by the breaking down of equipment and the adoption of good management and safe working practices, including the training of personnel. Where a load or task cannot be practicably reduced or broken down, a risk assessment must be carried out to ensure that there are no unacceptable risks to the individuals performing a lifting task.
References The Health and Safety Executive (HSE) Manual Handling Operations Regulations 1992, as amended in 2002(1), http://www.hse.gov.uk/.
John R Pulsford – Associate Director A new system for migrant workersOn Friday 29 February 2008, a new immigration system was launched to ensure that only those with the right skills or the right contribution will be able to come to the United Kingdom to work and study. The points-based system was designed to enable migration to be controlled more effectively, to tackle abuse and to identify the most talented workers. Underpinning the new migration system is a five tier framework. The five tiers and the dates from which we will start accepting applications under them are:
Ground Engineers fall under tier 2 and will need a certain number of points to qualify. People transferring within the company (Intra Company Transfer Route) should have enough points ( full details have not yet been anounced)and if Ground Engineers remain on the Shortage Occupation List, qualification should also be automatic. The Ground Forum have already submitted an application to retain Ground Engineers on the list). Most applicants coming to the United Kingdom, or wanting to remain in the UK to work or study, will need to have a certificate of sponsorship from a licensed sponsor to qualify for permission to enter or stay, as well as meeting the points-based assessment. To become an employer and sponsor of migrant workers a licence must be applied for. Sponsors must agree to meet a number of sponsorship duties which include record keeping, recording and compliance with the Home office and tier System. Once given a licence, employers will be added to the Register of Sponsors, and will be able to issue certificates of sponsorship when applications for the relevant tiers are accepted later in the year. The licence will be valid for four years, starting from the day it is issued or the day that applications start for the relevant tier, whichever is the later. Sponsors applying for a licence for Tier 2 (General) - skilled worker and/or Tier 2 - intra-company transfers can apply to go on the register of sponsors now.
Environmental Permitting regulationsThe Environmental Permitting (England and Wales) Regulations came into force on the 6th April 2008. They merge Waste Management Licensing (WML) and Pollution Prevention and Control (PPC) regimes into a single system focussed on environmental outcomes and customer services. In combining the regimes, the application forms and guidance have been simplified. The permitting options have also been improved by the introduction of standard permits. All PCC permits and waste licences have automatically become environmental permits. Permits will not be re-issued and the conditions have not been changed, customers will be notified of this when they receive their subsistence invoice. For more information, contact the Environment agency and request a copy of their booklet ‘Cutting Red Tape, Environmental Permitting Regulations’ Call: 08708 506 506
Eurocode 7 letterDear Editor I have been delivering lectures on EC7 parts 1 and 2 for a while now, and I remain amazed and appalled at the level of ignorance amongst our colleagues about the status of the EC7 documents, particularly the TC341 Standards, and the associated changes to the UK National Standards. I know that BSI update their indexes and provide update news, and I know that we have tried publication in Ground Engineering and lectures around the country, and these efforts should all continue. Nevertheless, at a recent lecture in Cambridge (regional group) only one out of about 60 present knew about the implemented standards, and that one had attended a previous lecture. Part of the problem may be that there is no one location where this information is pulled together, so I have done this on my website. I am offering to maintain this simple tabulation of the current status for the benefit of others. The link is http://www.drnorbury.co.uk/index.php?id=427. Regards David Norbury
Are your e-mails and websites legalRequirements of the Companies Regulations 2006 From 1st January 2007 external business emails issued by public and private companies and limited liability partnerships MUST include the following information in legible text:
These requirements were introduced in The Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 which updated the Companies Act 1985 in order to comply with European law, namely the First Company Law Amendment Directive. They effectively extend the requirements to show this information on companies’ “business letters” to all electronic documents and order forms. The same information must also be displayed on the websites of these classes of organisation. This requirement removes the ambiguities previously associated with the requirements of the E-commerce Regulations 2002 which referred to “geographic address” and required the registration number of organisations “registered in a trade or similar register” to be listed on their websites. This article is provided solely to raise readers’ awareness of new legislation. Readers should seek professional legal advice to ensure that their emails websites and documents comply with all relevant legislation.
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