Article Business Practice Data Management

Bothered by unwanted telemarketing calls?

- by
Tags: marketing Telephone Preference Society

Under Government legislation introduced on 1st May 1999 and replaced on 11th December 2003 by the Privacy and Electronic Communications (EC Directive) Regulations 2003, it is unlawful to make unsolicited direct marketing calls to individuals who have indicated that they do not want to receive such calls.

For some time, individuals have been able to do this by registering with the Telephone Preference Society. (Registering a mobile number will prevent voice calls but not text messages). The service works well and calls drop to almost nothing within a month or so.

The good news is that since June 2004, companies have also been able to register their wish not to receive unsolicited sales calls. It prevents most calls – and there is a certain satisfaction in being able to inform offenders that what they are doing is illegal. The click of a receiver being replaced is generally the last you will hear from them. Fax spam can also be prevented by registering with Fax Preference Society.

Telephone: www.tpsonline.org.uk
Fax: www.fpsonline.org.uk

Article Business Practice Contaminated Land Executive Loss Prevention

Report of AGS Chairman’s visit to ASFE Conference

- by
Tags: ASFE brownfield sites committee Geo-environmental

At the invitation of the President of ASFE, I attended the ASFE Autumn Conference in Scottsdale, Arizona. The conference was held over two days (Friday and Saturday) with Board committee meetings held on Thursday and Sunday. The whole event was very well organised, extremely sociable, informative and thought provoking. I gave a presentation to the Conference of the current initiatives and concerns of the AGS which was well received.

Perhaps most surprising to me was just how many of the issues of concern to ASFE were common to the AGS. In particular this was illustrated by concerns over the trend in the Client community to expect “perfection” from their geotechnical/ geo-environmental advisors. Such Clients then appear hold reasonable (?!) expectations of recovering any financial over-runs from their advisors even if such costs have not resulted from any negligence by that advisor. ASFE have just published a Handbook ‘Limitation of Liability’ which although specifically related to the US experience, also provides much useful information for the UK practitioner. A copy has been given to the AGS Loss Prevention Group who will be looking to see how best to utilise this tool in the UK market. [You can see the ASFE publication list and order copies on www.asfe.org].

Interestingly, and contrary to what I had anticipated, the levels of liability agreed by parties in the US are far lower than those currently being accepted here in the UK. For example, many ASFE members are able to limit their liability to the level of fee or to levels as low as $50,000.

Training is also an issue which is concerning the industry on both sides of the Atlantic. The availability, consistency and quality of training for members and employees is recognised as being critical in ensuring the continuing professional development of the industry. To its credit ASFE has over 50 training presentations (‘brown bag talks’) on its web site for use by its members. I believe that the AGS now needs to give further consideration to its role in the provision of training to the industry.

Geo-environmental aspects are assuming an increasing importance for both ASFE and AGS members. In the US geo-environmental work is now more important than geotechnical for the majority of ASFE members. This is reflected in moves in the US to create an “Institute of Brownfield Professionals”. This proposal essentially mirrors the SiLC [Specialists in Land Contamination] registration scheme which has been set up in the UK with the active support / participation of the AGS. Also of current concern to ASFE have been recent developments at the Environmental Participation Agency and the specification of a Standard – which defines the amount of site investigation needed on Brownfield sites. The Standard refers to only a simple option [the ASTM – All Appropriate Inquiry (AAI)]. ASFE has concerns that this signals movement at the EPA from their previous position of preferring ‘performance based standards’ to one of the ‘prescriptive standards’. Again, this has parallels in the UK and it will be important for the AGS to monitor the implementation of the Model Procedures for the Management of Contaminated Land (CLR11) by the various regulators, to ensure that this document does provide a framework for assessment and not a straight jacket.

One element of the conference that did surprise me was the very open/honest atmosphere that ASFE has created over the years. This was exemplified by the presentation of several ‘Case Histories’. These presentations by ASFE members describe in unambiguous words of few syllables how and why things went wrong on their projects which led to liabilities and costs against them. The topics covered ranged from; foundation/pavement design, a de minimus site investigation and to a case of unfair dismissal [in this instance a claim for $25 million by the employee who had been employed for less than 1 year!]. In each case the lessons learned by the member company were clearly spelt out for the benefit of all. The question and answer sessions were particularly illuminating.

In the UK we are perhaps less prepared to wash our dirty linen in public. However, these sessions were so powerful and reinforced the written advice that both ASFE and AGS are giving to members that I believe we would do well to adopt this practice to our own Members Day. Watch this space!

This is now the third time that the AGS Chairman has attended the ASFE conference and the potential benefits are beginning to be realised. There is much more still to be gained by developing this liaison further over the coming years and I am pleased to be able to report that Dan Harpstead, the new ASFE President, was a guest speaker at this year’s AGS Members’ Day.

Hugh Mallett

Article Safety

Letters to the Editor

- by
Tags: archaeological risks archaeology industrial safety

Integrating archaeology into geotechnical surveys

Dear Colleague

Unexpected archaeological discoveries can cause costly construction delays. There are number of things which AGS members can do to reduce archaeological risks and help better preserve our heritage as well.

One of the simplest is recording archaeology, as well as geotechnical details, from boreholes and test-pits. The added cost can be minimal but the information gained can forewarn of potential problems and help further archaeological studies, later in the development, to flow more smoothly. The whole project can benefit – and the client’s costs can be reduced.

Terra Nova Limited has carried out a study of ways in which archaeological recording could be better integrated into geotechnical site investigations.

You can find the report on our website at www.terranova.ltd.uk

We need your comments to find out if the idea of closer integration could ever be widely accepted – and how this might be achieved.

If you already build archaeology into you site investigations or coordinate geotechnical and archaeological studies from the start we would like to hear about your experiences.

If you haven’t integrated work in this way what would be your main concerns? What might persuade you to do so?

We have tried to angle the study towards the practicing geotechnical engineer but it is also intended for archaeologists, since the push for integration would have to come from both sides if it were to succeed.

Thanks for your help

David Jordan
Director, Terra Nova Ltd

=======================================

Unexploded Ordnance

Dear Sir

We are becoming increasingly concerned about the activities of some of the companies that offer threat assessments in respect of the risk of encountering unexploded ordnance on a site, (either during ground investigations or piling and excavation / construction etc). Usually the ordnance that might be present relates to unexploded wartime bombs (UXB). We are writing to see if any other member organisations have similar concerns.

We have commissioned a number of these desk studies / threat / risk assessments, with the results that basically if the site is anywhere near what was a built up area in the south of England during WW2, or an industrial area, port or military installation anywhere in the UK, then the results always seem to conclude that there is a risk (not really quantified) of UXBs being present and then go on to recommend / suggest expensive precautionary measures during investigation and development. This includes probing / magnetometer surveys etc in advance of each borehole, and it can double or treble the cost of the GI. The same measures would need to be put in place before piling also.

However, in most cases it is the very companies that offer the expertise to do the threat assessments that also carry out the ordnance clearance works that are needed. There is a potential conflict of interest here. Also, we have been unable to obtain quantitative assessments of risk (other than low / medium / high) from the companies concerned, so we cannot give objective advice on the actual degree of risk to our clients. This service sector appears to have a problem in quantifying the risks involved and we as an industry should be concerned about the consequences.

To put the risk in context we have had a brief canvass of colleagues in the industry and this suggests that there is only one recorded incident of an UXB being detonated by ground investigation or foundation construction activity and that was by a piling rig in Berlin, which must have been bombed much more heavily (and with larger bombs) than the UK.

We accept that there is an enhanced risk in heavily bombed areas such as the Thames Estuary / London Docklands, other docks and near major military sites etc, but not generally in many parts of post WW2 London and the south-east or in industrial areas away from docks further north. We believe that for many sites the cost of the special precautions recommended by the firms involved is not justified by the actual risk, but it is very difficult to ignore recommendations or suggestions in reports by these specialists once you have commissioned them. Equally as responsible Engineers, it is difficult to justify not commissioning the threat assessment in the first place for many parts of the UK.

Several of our major developer clients have also expressed concern at over-zealous safety requirements arising from such assessments and their feedback is that some of our consultant competitors do not appear to address UXB risk at all. Of course, as a practice we take an extremely responsible attitude to safety, which is of paramount importance, and it is essential that we respond to risks if they are genuinely present. However, we have no desire to be perceived by our clients as over-cautious in this particular respect, with a more expensive outcome for the developer.

We fear that this is going to become an even greater problem in the future as we all become more safety conscious and risk averse.

Perhaps the answer is for practitioners such as ourselves to develop their own independent expertise in carrying out such threat assessments on a quantitative numerical basis, so we do not have to rely on those that also carry out the clearance work. Then we would be able to give our clients objective advice on risk.

Are there other members’ concerns about this? Is this something AGS should be looking at, perhaps with FPS if there are similar concerns? Is there experience elsewhere in Europe to draw on? We would be pleased to hear the views of the Association.

Richard Thomas
Senior Associate
Peter Brett Associates.

Editors Note: Do you have a view on this issue – or anything else in the Newsletter? Feedback (whether or not for publication) is always welcome at the AGS office

Article Laboratories

MCERTS implementation still set for 1 March 2005

- by
Tags: analytical laboratory MCERT

In view of the fact that many companies will find that no laboratory has MCERT accreditation for all the tests they require, the EA has been asked for clarification and guidance about what interim measures may be applied.

The response indicates that moving implementation deadlines has not proved productive in increasing the number of MCERTS laboratories, and may in fact be counter productive, as some labs may believe the scheme will never be fully implemented and enforced. Therefore, the scheme will be fully implemented from 1st March.

The EA concede however, that some pragmatism may be required in the short term. In general, procurers of analytical services will be expected to choose the laboratory that best meets their requirements, i.e. the one that can carry out the highest percentage of the required Annex A parameters to MCERTS standard. In order for this to be accepted, evidence may be required in order to demonstrate that steps were taken to find the most appropriate laboratory.

Article Data Management

AGS 3.1 publication now available for download

- by
Tags: data format

The AGS Data Format committee wishes to announce the publication of Revision 1 to the third edition of the AGS Data transfer format.

The AGS Data Format subcommittee has monitored the use of the format within the industry since the launch of AGS 3 in 1999. The committee considers that it is now appropriate to issue AGS 3.1 to include the developments which have occurred over the last few years. In accordance with section 9 of the AGS 3 publication the majority of this document includes format additions requested by the industry.

There are no major changes from AGS 3 and therefore the committee have decided to call this Revision 1 of the AGS 3 format (AGS 3.1) rather than AGS 4. The changes in this revision are new fields, groups and pick list items all sitting within the AGS 3 framework.

AGS 3.1 is compliant with the rules in AGS 3 and therefore the ? remains in all new headings and groups even though these are now in common use.

This revision brings together AGS 3, the “The AGS-M Format – for the electronic transfer of monitoring data ” published by AGS and CIRIA in 2002 and other groups and headings, which have been suggested on the AGS website and used by the industry.

A complete list of all additions, revisions and their history is available on the AGS web pages (http://www.ags.org.uk) The AGS data format website has been updated to display all the additions in this document together will the appropriate guidance notes. The website also allows the visitor to view the field version history and an appropriate discussion threads that have contributed to the changes

It is expected that all registered users will be able to use these additional headings for projects starting after March 2005 but this is solely up to the relevant project members to agree.

Article Loss Prevention

AGS PI Insurance Survey

- by
Tags: Geotechnical group insurance insurers questionnaire

In an endeavour to discover AGS Members’ experience with PI insurance and their claims history, the Loss Prevention WG asked all Members to complete a short questionnaire.

Who responded

The questionnaire was sent to all 125 AGS Members. 41 completed responses were received – 3 of which were from respondents that did not hold PI insurance. These were more or less representative of the Membership. Large companies, however, were slightly under represented (partly because those with group insurance, or in some cases world-wide policies, did not have access to the required data). Personal Members, who appear to have been particularly hard hit by recent increases in premiums, were somewhat over represented.

Figure 1: Respondents compared to AGS Membership

AGS
Membership
Membership Type Response % responding
Member Firm 20 78 26
Associate MF 5 17 30
Affiliate 2 11 18
Personal 9 19 47
Not known 2
Grand Total 38 125 30

Consultants were predominant among correspondents (34 of the 38 who gave information) but this was not surprising given the nature of the survey. Two-thirds of the consultants undertake both geotechnical and geoenvironmental work. 15 respondents were contractors, but only 4 of these were not also consultants. (It must also be remembered that ‘contractor’ in the AGS can mean those whose primary activity is carrying out site investigations, as well as those involved in remediation of contaminated land, the construction of foundations or other geotechnical work.) Only 5 laboratories supplied information – and all of these companies also engage in either consultancy or sampling activities.

In short (and unsurprisingly), the replies primarily reflect the experience of consultants engaged in both geotechnical and geoenvironmental work.

Limit of Insurance

Even 10 years ago, there was a trend towards ‘aggregate’ cover for geoenvironmental insurance. Reports suggested that this has increased in the interim so Respondents were asked whether their insurance limits were ‘aggregate’ or ‘each and every’. As can be seen from Figure 2 – the trend towards aggregate’ cover is still prevalent – but by no means universal. Geoenvironmental cover is twice as likely to be aggregate but a significant number of policies are still written on an ‘each and every’ basis.

Figure 2: Basis of insurance cover*

Aggregate ‘Each & Every’
Geotechnical cover 16 17
Geoenvironmental cover 23 11

(* 29 companies held both geotechnical and geoenvironmental cover – sometimes on an ‘each and every’ basis for geotechnical and ‘aggregate’ for geoenvironmental .)

Premium Increases

No respondent reported that they had ever been notified that their premium was being increased because of their claims record.

Respondents were asked to indicate the year on year increases in premiums, excesses and turnover for the past 3 years. During this period there were widespread reports of large premium increases, and the insurance industry came up with a number of reasons why this should be so. Insurance industry explanations included the need to cover large claims resulting from losses due to the attacks on the World Trade Centre and the collapse of Enron, the loss of investment income following the stock market collapse, and, as far as the construction industry was concerned, reduced competition following the collapse of the Independent insurance company. The table below indicates how little of the increases were due to increases in turnover. It also indicates that although the rate of increase may now have slowed, premiums have yet to stabilise.

Mean Premium Increases over the past 3 Years
(compared to increases in turnover)
Last year 2 years ago 3 years ago
Geotechnical Policies 31% 32% 36%
(12%) (17%) (16%)
Geoenvironmental Policies 23% 49% -2%
(2%) (2%) (2%)
Combined Policies 30% 73% 71%
(8%) (11%) (16%)
 Overall Mean 28% 51% 35%
(7%) (10%) (11%)

Excesses

Word of mouth over the past 3-4 years has indicated that excesses on many policies have risen even faster than premiums. The survey results showed however that only 45% of companies had experienced any change in their excess during the period. Of those that had, some reported increments of 20%-30% year on year – but most had experienced a single large increase of 100% to 500% (and one respondent reported a 1,000% increase!)

Exclusions

More than half of the respondents reported changes to the policy exclusions – mostly relating to asbestos but toxic mould and terrorism also figured prominently.

Claims 

One of the primary purposes of undertaking the survey was to look at the claims record of the sector. There are two ways that insurers might track risk in the sector – by looking at possible claims notified and by looking at actual claims. Predictably, the claims notified out numbered those paid.

It is clear that many potential problems never come to fruition or are resolved without financial loss. Received wisdom is that insurers are wary of potential geoenvironmental liabilities – but these figures indicate that only 30% of the claims notified in this sector are settled or paid (compared to 60% in the geotechnical sector).

It would have been good to end with some conclusions about the value of claims paid over the last 5 years but the small number of claims reported in the survey makes this impossible. Interestingly, however, the mean value of claims made In each sector is virtually identical.

Conclusions

There is growing evidence that external issues have increased premiums. There is some evidence that geoenvironmental issues are no more likely to result in pay outs than geotechnical issues.

 

Article Safety

A Low Cost Support Tool for Single Manning Site Safety

- by
Tags: landfill gas safety policies

All member companies will have had experience of controlling single manning site safety be it office administrators, or at the other extreme, walking sites monitoring for landfill gas. Whatever the task single manning cannot always be avoided and the answer to the problem is implementation of well developed safety policies.

In recent months the computer press has been highlighting the service offered by Mapminder.co.uk, which allows subscribers to track the location of active mobile phones to within 300 m. The facility, called ‘Mapaphone’, is currently being trialled by Marquis & Lord.

If employees fail to call in at pre determined times, to register there location as ‘off site’, the safety phone is called via a website and a map is displayed showing the location of the unit. The advantage is obvious, if the phone remains static for a period of time and additional calls to it are not answered then further investigation is triggered. As with all system there are weaknesses. The primary ones with this equipment are those of patchy network coverage, and human error, remembering to switch the phone on is of course essential. Battery failure can also present problems.

The service is not a panacea solution but it is a very powerful safety tool when used in conjunction with other procedures.

Further details can be found at: www.mapminder.co.uk

Tim White – Marquis & Lord, Consulting Scientists

Article Contaminated Land Laboratories

MCERTS

- by
Tags: Chemical test data chemical testing laboratories MCERTS soils

The Environment Agency have advised that a policy titled ‘Chemical Test Data on Contaminated Soils – Qualification Requirements (307_03)’ has recently been published. The purpose of the policy is to implement the ‘MCERTS Performance Standard for Laboratories Undertaking Chemical Testing of Soils’, which was published in March 2003.

Chemical test data on soils is used by the Agency to support its regulatory activities under a number of regimes, such as Part IIA of Environmental Protection Act 1990, Pollution, Prevention and Control (England and Wales Regulations) 2000 and Waste Management Licensing Regulations 1994. The Performance Standard will be applicable to all laboratories and procurers of analytical services where results generated from the chemical testing of soil are presented to the Agency for regulatory purposes. After September 2004, the Agency expects that all soil testing results submitted will be from methods which have been accredited to BS EN ISO/IEC 17025:2000 for the MCERTS performance standard.

In the interim period, it is encouraged that all data provided to the Agency should be from a testing method accredited to BS EN ISO/IEC 17025:2000 and be accompanied by a brief method description, together with bias and precision estimates.

In addition to the policy, the Agency are producing a document for those who procure soil testing, for example consultants or local authorities, titled ‘Brief guide for procurers of analytical services’ which outlines what is expected of them and why it is required. All the documents mentioned above will be available from the Agency’s MCERTS website at www.mcerts.net.

Any technical queries relating to MCERTS should be addressed to Mike Healy, Technical Advisor, by email (Mike.Healy@environment-agency.gov.uk) and queries relating to the policy itself should be directed to Nicky Skidmore, Land Contamination Policy Advisor (Nicky, Skidmore@environment-agency.gov.uk).

Article Contaminated Land

The Landfill Directive – Nightmare or Opportunity

- by
Tags: brownfield sites Hazardous Waste Directive landfill pollution

[These notes were made after attending an EIC Seminar on the Landfill Directive held on 31 March 04. They represent the view of the author and do not necessarily reflect the views of the AGS.]

Summary

The European Landfill Directive (EC 2003/33) is due to be transposed into UK Law by 16 July 04, and be fully effective from 16 July 05. Transition arrangements for waste acceptance criteria will be in place from July 04 to July 05.

Legislative Background

The Landfill Directive sits with the Hazardous Waste Directive and the Waste Framework Directive.

The latter two have been in force for a number of years but will be effected by the Landfill Directive.

An updated European Waste Catalogue (EWC 2002) has now been published and this sets out which materials are (or potentially are) hazardous.

The EWC gives absolute and mirror entries. Absolute are classified as hazardous irrespective of their composition whereas mirror entries need to be checked for contaminants (both type and concentration).

The classification links back to CHIP3 regulations which are published by the HSE.

Waste sent to landfill will now be classified as hazardous or non-hazardous. The use of ‘inert’ seems no longer applicable.

Waste acceptance criteria (WAC) are shortly to be approved by the European Council and these will link into the Landfill Directive. The WAC require leaching tests to be carried out and limit a number of criteria which cannot be exceeded (eg TOC never above 6%). WAC is not due to be introduced until 2005 and interim criteria will be established to fill the gap.

The principle regulations

  • Pollution Prevention and Control Act 1999

  • The Landfill (England and Wales) Regulations 2002

  • The Landfill (Scotland) Regulations 2003

  • The Landfill (England and Wales) (Amendment) Regulations 2004

The Landfill Directive’s Rules

All hazardous waste sent to landfill must be pre-treated from July 04. No definition has been given as to what this means. However some reduction quantity and / or hazardous nature will have to be achieved.

Dilution (eg mixing of non-hazardous with hazardous) will be illegal from July 04.

Co-disposal is illegal from July 04 and sites will only be licensed to receive hazardous or non-hazardous. The most significant issue is that the number of sites licensed to receive hazardous waste will reduce from slightly less that 200 to about 10. Of these none re are located in Wales or the South East of England.

Waste

The latest definition of waste within the UK is that waste ‘shall mean any substance or object which the holder discards or intends or is required to discard’.

The hierarchy of waste treatment is re-use, reclaim, recover and recycle.

A waste remains as waste until complete recovery has taken place or the substance is put to its final use. It does not cease to be waste if someone intends to use it, if it has a value, if it is ready to recycle or if it is not polluting.

Environment Agency guidance indicates that all excavated contaminated land would be classified as waste.

It would appear that even excavated ‘clean’ soil on site may be classified as waste and thus and re-use would fall within the waste management licensing regulations.

What it all means

Despite the assembled hoard of experts at the Seminar, no-one really knew!

Confusion and uncertainty surround the issue, although something must happen in July to avoid serious Government embarrassment.

Some theories were:-

  • Landfill prices for hazardous waste are likely increase fourfold.

  • Haul distances will increase from an average today of 44 miles to 87 in 05.

  • Remediation by ‘dig and dump’ will become non viable in most situations

  • On-site remediation will to have increase dramatically but there is insufficient capacity in the UK to accommodate the probable demand

  • Many brownfield sites are likely to become non viable for development and consequently the Government objective of 60% development on Brownfield sites may be jeopardised.

Article Loss Prevention

Charging Interest on Late Payments

- by
Tags: businesses rights clients invoice late payment recovery

Tim White of Marquis & Lord (Consulting Scientists) writes about his experience in maintaining a positive cash flow

  • Are you aware of your business’ legal right to claim interest on late payments from other businesses?

  • Despite all business to business transactions since August 7, 2002, being applicable, many businesses are still unaware of their rights under the Late Payment of Commercial Debts (Interest) Act 1998.

  • Make sure you know about your businesses rights, and use them to help make sure you are paid on-time, every time.

These are the messages being put out by schemes promoting the use of the legislation. Many companies do not attempt to enforce their rights for fear of alienating clients. However, it is often the threat of enforcement of this statutory right which can improve your cash flow [This has been the experience of Marquis & Lord]. In all but a few cases late payment is as results of slipshod or non existent purchasing procedures in client organisations, rather than any malicious attempt to defraud. The constant threat of late payment charges causing embarrassment to the purchaser, for unauthorised expenditure, does wanders for their concentration in terms of ensuring prompt payment processing.

It is the ability to claim interest rather than the act of enforcement that has the most benefit. However, there are some pitfalls that must be avoided.

  1. Prior notice of your intent to invoke your rights under the Late Payment of Commercial Dept Act 1998 must be given prior to the issuing of an invoice.

  2. If you link your interest charges to an index bee sure to change your finance charge rate when the index alters, otherwise criticism could affect your chances of recovery.

  3. Keep the message live, i.e. make sure you mention your policy in your terms and conditions and place a footnote on every invoice.

  4. Send out statements of account two weeks before the payment is due carrying the same warning message that interest will be charged on late payment.

  5. Do not be shy about sending out invoices for interest charges, but do put a limit on their value; for example do not send them out for less than a minimum sum determined by you as a matter of policy.

If you feel uncomfortable about the process think of how you feel when you get your credit card bill and a finance charge has been applied. You don’t stop using it do you?

Finally, the practice of charging for late payment can have one supreme advantage if you are forced to negotiate payment of fees, for example if a client is in receivership, it is far less painful to accede to a lower amount than original charged if you can agree to write off the interest and get what you originally asked for.

Article Loss Prevention

Code of practice for legal admissibility and evidential weight of information stored electronically

- by
Tags: electronic storage systems good practice Procedures and processes Records management

Will the law admit your evidence?

Many AGS Members prepare reports which may have evidential weight. They may be backed by digital photographs or other electronically stored information. What measures need to be taken to ensure that these documents will be legally admissible should the need arise? a new document has been published by BSI in recognition of the large number of implementations of electronic information management systems, and of the continuing uncertainty about the legal acceptability of information stored on these systems. It provides good practice guidance for the electronic creation, storage and retrieval of information and practical advice and examples to assist you in increasing the evidential weight of your electronically stored information.

On a broader front, information is an asset and companies are increasingly committing key records and documents to electronic media. The application of electronic information management systems is changing the way in which many aspects of business and organizational life are operated, and is creating an electronic legacy for their successors.

This publication provides a framework and guidelines that identify key areas of good practice for the implementation and operation of electronic storage systems, whether or not any information held therein is ever required as evidence in event of a dispute. As such, compliance with this Code should be regarded as a demonstration of responsible business management.

Contents

  • Duty of care

  • Procedures and processes

  • Enabling technologies

  • Audit trails

  • Records management

  • Example information management

Ref: BIP 0008: Code of practice for legal admissibility and evidential weight of information stored electronically. Price: £55 

To purchase a hard copy of this publication, please contact BSI Customer Services on +44 (0)20 8996 9001 or email cservices@bsi–global.com.

Note: This document is very highly recommended by Steven Francis, chairman of the AGS Loss Prevention WG

Article Business Practice Contaminated Land Loss Prevention

Notes on Asbestos liability and Insurance Issues

- by
Tags: Asbestos Employers liability

From ABI Seminar on the availability of insurance for asbestos related risks and the impact of the new asbestos regulations

The ABI provided a series of well qualified and experienced speakers to address this topic from a selection of viewpoints. The delegates fortunate enough to attend came from a wide range of professions including consulting engineers, construction contractors, insurance brokers, insurance underwriters, research bodies, trade associations, government agencies, solicitors, surveyors asbestos removal contractors, regulators and analytical laboratories.

The scene was set by Bill MacDonald of the HSE who outlined the historic and future problems associated with asbestos. Currently asbestos related deaths run to around 3500 in the UK and are expected to rise until 2011, when the effects of improved working conditions and asbestos prohibitions will begin to kick in. However the nature of how the effects will diminish cannot be predicted. The new Regulations (Control of Asbestos at Work Regulations, 2002) react to conditions now, which indicate the greatest risk is due to occupational exposure within buildings, especially for workmen involved in internal and maintenance trades. The Regulations only apply to non-domestic properties

The Regulations impose a ‘Duty to Manage’ asbestos risk by assessing existing conditions, recording the findings, preparing action and management plans and advising/cooperating with others with respect to asbestos risks. The ‘Duty Holder’ is the person with contractual responsibility for maintenance repair of the building and may be the owner, occupier, managing agent, but in all cases will be ‘in control’ of the building.

The HSE advice is to: Adopt precautionary approach -NOW Carry out condition surveys – SOON Plan compliance strategy -START NOW These should take into account that compliance is a rolling process and that expenditure should be proportional to the level of risk. The HSE website has relevant information and guidance www.hse.gov.uk/campaigns/asbestos. HSE Information line 08701 545500

The background to why asbestos has become a major insurance issues was provided by Helen Hatchek of Royal Sun Alliance. The asbestos insurance market is global and it is the influence of the US experience, which is driving the market at present. Public liability claims are currently at $200 Billion and rising (equivalent to the twin towers x2), with average claims T $6-6.5Million. Under US law, most claims fall under public/product liability as employers cannot be sued. As such all industries in the supply chain are potentially affected. Class actions are normal, and due to joint and several liability, claimants target the defendant with most ‘funds available’. There has also been successful ‘unimpaired’ health claims, where compensation has been awarded for ‘worry’/ stress and cost of on-going health screening.

Although, all claims to date are related to Employers liability and judges currently set awards which is less emotive that those set by a jury, the UK market is showing signs of following the US. This has led to concern that additional claims may arise through public liability due to subrogation from Employers liability claims, ‘shake-down’, neighbours, product liability and corporate responsibility. The market has reacted by re-insurers excluding asbestos in its entirety, insurers have introduced exclusion and limitation wordings and in a market of declining appetite, some insurers have removed all cover, leaving limited availability.

Matt Farman of Howden Insurance Brokers discussed the developments in the PI market. They offer a bespoke scheme for UKAS accredited laboratories.

The current insurance market is hard with high premiums and restricted cover, but it should be borne in mind that insurers are commercial bodies and do not need to be exposed to high risks. Asbestos exclusions appeared in 2003, driven by the re-insurance market in light of huge asbestos related claims and losses suffered by the Employers Liability and Public Liability insurers worldwide, with an even more unsure future. In 2003 RICS voiced concerns about the lack of asbestos cover and set up a working party .to find a solution. This involved the asbestos cover being excluded by the re-insurers but with a ‘write-back’ clause added by the insurers reinstating some limited and very restricted cover. Typically this is around £250,000 on aggregate, ie the re-insurance limit. It is generally only available at the discretion of the insurers. The cover is limited to claims arising from negligence for rectification, remediation and loss in value, but excludes consequential loss and any form of bodily injury.

In the same way that ‘Pollution and contamination’ cover was originally withdrawn and the market softened so that it is now currently available on a restricted and ‘aggregated’ basis, asbestos cover may follow the same path, depending on how the re-insurance market responds to future events and information. However, in order to achieve the best available cover currently, professionals, their governing bodies and trade associations need to be pro-active to demonstrate sensible levels of risk assessment and management. This may include only offering suitable terms and conditions to clients, with restricted cover based on a multiple of fees and excluding consequential loss, using only experienced and qualified staff.

Insurance from a buyers perspective was discussed by Kevin Goodwin of AIRMIC Contractors Group. He noted that insurance was generally not available, but due to time lags over renewal dates, some contractors still had cover whilst others were unable to provide on-going cover, except where a ‘write-back’ clause could be negotiated. There is also a wide variation in the exclusion clauses seen with no apparent consistency.

In France and Germany, the problem is being addressed by government funding being provided to cover personal injury asbestos claims, but the UK government has not shown any sign of adopting a similar approach. Indeed, tightened regulations, which generate more asbestos ‘activity’, have coincided with the insurers pulling out of that market.

Liabilities with respect to asbestos for many can arise from a variety of sources. Typically those most affected are likely to be employers/property owners, consultants, contractors (licensed or not) and facilities manager. Insurance policies in all areas have responded to the asbestos risk.

Employers Liability:   may exclude asbestos cover, but cover may be found based on demonstrable risk management, but unlikely for asbestos contractors.

Public Liability: possible total exclusions, of which there are numerous versions, with possible ‘write-backs’.

Professional Indemnity: check wording of exclusions, PI liability will probably be covered but all health hazard risk excluded.

Director and Officer Insurance: -exclusions possible. Beware of clauses such as ‘Board’s failure to act under Regulations.’failure to maintain insurance’ (which may not be available!),

Beware of ‘silence’ within any policy. This should be queried.

In all cases, to demonstrate risk management to be able to obtain the best terms available, compliance with Regulations 9,10 and 15 of the CAWR 2002 will be essential ie employer ensuring adequate training of staff, and limiting potential exposure to minimum levels. However, where insurance is difficult and costly to obtain, there is potential for growth of the ‘black market’ contractors, ie with no insurance.

Roger Flaxman explained how RICS, as a professional body representing members dealing with asbestos, are approaching the problem associated with lack of available cover for its membership. Generally chartered surveyors face a high risk/reward ratio and are in competition with lesser qualified /experienced ‘inspectors’. P402 is seen as a low technical standard and RICS members believe that they would be expected to provide a higher standard. If the surveyors work to a higher standard and hence risks are reduced, proof of this should make obtaining affordable insurance a greater possibility. To this end RICS have introduced the National Individual Asbestos Certification Scheme (NIACS). This requires proof of suitable professional qualifications as a foundation to membership, supported by increased training requirements, and individuals (not forms) being examined and audited on technical capability related to both asbestos and building construction. It is further proposed that the NIAS qualification will be linked to UKAS accreditation.

Conclusions

The introduction of the CAWR Regs 2002 has coincided with re-insurers withdrawing from the asbestos insurance markets due to a huge potential for future asbestos related claims worldwide. This has resulted in insurance policies all excluding asbestos. The only way cover can be obtained is under ‘write back’ clauses where insurers provide very restricted and limited cover aggregated within the limit of the re-insurance requirements. This cover does not include any bodily injury claims. This insurance is also only available at the discretion of the insurers , typically to established clients who have a good no-claims record and demonstrate an adequate level of risk assessment and management with respect to asbestos.

The market is currently uncertain and therefore hard. Once the true level of risk becomes clearer and the insurance purchasers recognise that there is an onus on them to educate the insurers and re-insurers of the actual asbestos related activities and associated risks for which cover is required, it may be possible to purchase more bespoke cover. This is the aim of qualifications such NIACS as proposed by the RICS.

However it is unlikely that cover for ‘bodily injury’ will ever become available and there is a case for governmental provision to cover some of the future uninsurable compensation claims arising from asbestos issues.

Report by Jo Strange Card Geotechnics

Footnote: Policy wordings are very variable and must be studied carefully.