Anything that is acceptable for DOW CoP reuse is not waste, so no landfill permit is required.
As has already been said, asbestos is but one of many potential ‘hazardous’ contaminants that may be incorporated into material that is retained and reused on site using the DOW CoP,
so why make an exception for asbestos? We don’t require that the presence of other contained contaminants is flagged and CAR2012 does not explicitly require an asbestos management plan under Reg. 4 to be developed.
In this latter respect, note that Chapter 15.7 of the CIRIA C733 guidance states that in respect of asbestos-containing soils (ACSs) that remain on site following remediation:
“Where such ACSs are known to be present at non-domestic premises, CAR2012 requires adequate documentation to ensure that inadvertent exposure to asbestos can be prevented and exposures
during subsequent planned disturbance of the soils can be controlled and managed. However, there is currently no guidance on how the presence of ACSs should be recorded.
Full details of the ACSs, including the location and depth, asbestos type, form, condition and concentration etc should be recorded. The appropriate documents could include one (or
more) of the following: …”
CIRIA C733 guidance was published in 2014, two years prior to the publication of CAR-SOIL, which presents the definitive guidance in the interpretation of CAR2012 as applied to asbestos-contaminated
land. It is also of note that the author of CAR-SOIL consulted and collaborated with the HSE in its preparation, specifically agreeing an appropriate formulation as applied to Reg. 4 for land.
Reg. 4, which provides for a duty to manage asbestos in non-domestic premises (specifically buildings), does not apply to land (on non-domestic premises) where ACSs have been retained
on site following appropriate risk-based remediation and verification. This is especially so where remediation has been completed and verified to the satisfaction of the Local Authority such that a site is no longer likely to be designated as being Contaminated
Land under Part 2A.
Consequently, there is no requirement, statutory or otherwise, to prepare an asbestos register for any non-domestic premises (or domestic for that matter) where ACSs have been reused
following appropriate remediation and verification in accordance with an approved Remediation Strategy and in accordance with the DOWCoP. It is noted that these HSE-agreed positions are contrary to the view that is expressed in CIRIA C733 chapter 15.7, where
considered opinion on this matter is effectively superseded by CAR-SOIL industry guidance supported by and written in conjunction with HSE.
With respect to the notion expressed in CIRIA C733 chapter 15.7 that alternative means to adequately document the presence of ACSs might involve placing notices in the deeds to the property,
it is my understanding that this requirement does not generally apply to any other type of contamination emplaced below a suitably engineered and verified cover system on remediated sites. No special case need to be made, therefore, for asbestos.
Granted, this may be recorded in the CDM file, but that is not made public, although the Remediation Strategy will often be publicly available via the Planning Portal.
I have had numerous discussions about the ‘can we/can’t we reuse it’ argument, and there is no universally accepted and definitive position - yet. My own considered opinion is this (I
am assuming that the risks arising from any remediation work and/or movement/placement are considered separately under CAR2012 and risk assessed and properly controlled so have discounted these):
1. For
beneficial reuse under the DOW CoP, must you remove visible fragments/agglomerations of ACM in order to make the material suitable, e.g. geotechnically, for
use?
a. It may be argued that if there are a lot of visible fragments/agglomerations then the material may not be suitable, just as if there were a lot of visible fragments
of e.g. glass, timber etc.
b. If you must remove visible fragments/agglomerations of ACM in order to make the material suitable for use, can in fact you achieve that successfully, e.g. with
friable asbestos materials, weathered AIB, insulation, coatings, loose clumps etc.?
c. At what point would such an exercise be considered ‘successful’, e.g. no visible ACMs at all, some; then how to check this has been achieved? Might you still
end up with material that is unsuitable and/or presents an unacceptable risk/does not meet all of the DOW CoP tests?
d. Even if acceptable post-remediation, there still has to be a determination of potential risks post-placement of material from residual ACM and free fibres,
e.g. what is excavations are dug through the engineered cover system for foundations, services. This may or may not be acceptable dependent on site, local CLO opinion etc.
e. If the material is unsuitable for reuse without some remediation and this cannot be achieved successfully, e.g. due to the nature/extent of the ACM, then the
material may have to be disposed of.
2. For
beneficial reuse under the DOW CoP, is it possible to determine that the material is suitable, e.g. geotechnically, for use without first removing low levels of visible fragments/agglomerations of ACM?
a. It may be argued that if there is only minor contamination by visible fragments of e.g. asbestos cement then material may be suitable.
b. If you do not need to remove visible fragments of ACM in order to make the material suitable for use, where is the benefit in doing so?
c. Even if acceptable without remediation, there still has to be a determination of potential risks post-placement of material from residual ACM and free fibres,
e.g. what is excavations are dug through the engineered cover system for foundations, services. This may or may not be acceptable dependent on site, local CLO opinion etc.
So, essentially the main tests are:
3. Suitability of the matrix material containing the ACM; and
4. Potential risks of exposure from future disturbance of emplaced material.
As ‘asbestos’ is not one homogeneous ‘thing’ and every site is different, possibly with different regulatory opinion on what you can and cannot do, you really must consider the site specifics
and do what is best/possible in the circumstances, without entailing unnecessary costs. I am currently looking at exactly this for a remediation options appraisal as part of a large claim/potential litigation. At the end of the day, the Court will want
to see all necessary steps taken to mitigate loss whilst still complying with the minimum requirements of the EA and the Planners/CLO. ‘Unnecessary’ remediation may well not be claimable!
Of course the big unknown may well be the minimum requirements of the EA and the Planners/CLO, which is where some nationally-agreed guidance would come in handy!
Note that in Scotland, SEPA state:
“The reduction of contamination at source is the preferred option and should always be considered first. However, it is possible that materials containing contaminants can be used
on site for construction and engineering purposes without treatment. This will depend on:
• the risks and pollutant linkages identified during the site investigation;
• the measures to mitigate those risks described in the remediation plan.”
“• SEPA does not consider asbestos to be a suitable material for backfilling or other construction purposes. Bulk asbestos must not be backfilled
or otherwise reused in site works. Such backfilling is considered as disposal of waste by landfill and a PPC landfill permit will be required.”
I guess that the question here – in Scotland at least - is: “what is ‘bulk’ asbestos”? Again, no universally accepted and definitive position – yet!
Steve Forster BSc, MSc, CEnv, FGS, MIEnvSc
Chair – Joint Industry Working Group on Asbestos in Soil and C&D Materials
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If this work was proposed I would advise the proposer that an Environment Agency landfill permit would likely be required and that the site would be
formally identified by the Local Authority as landfill
I would be very surprised if a landowner and/or their financiers accepted the long-term liability of re-use of visible ACM at depth due to above.
Ruth Willcox
Planning Officer
Strategic Planning and Infrastructure
It’s a good question, and my experience mirrors yours, the sites I’ve been involved with the visible ACM is picked, and soils containing free fibres re-used at depth.
However, I haven’t found anything so far that stops you re-using soils contaminated with visible ACM fragments, so long as you can show that it doesn’t present a risk. So if re-using, say, at
1m depth under, a sports pitch, I cannot see an obvious risk (assuming that you have long term control over the site etc).
In addition, if evaluating the overall risk, is the risk associated with picking greater than the risk posed with the soils re-use?
I did note on the CAR-SOIL course it was discussed whether the requirement to manage under CAR 2012 conflicted with DoWCoP, but that would also apply to soils with just free fibres.
I’m interested to see if this is addressed with the new DoWCoP due out soon.
Contaminated Land Specialist
I wondered if I may seek the opinion of the Group.
It is widely accepted and practiced to reuse soils contaminated with asbestos as free fibres under DoWCoP subject of course to all the necessary assessments, controls and compliance with requirements of the DoWCoP.
As a practitioner (and before you ask, I do consider myself competent even by the very comprehensive definition recently posted by Steve Forster), my experience and advice is that soils containing both free fibres and visible ACM should not be reused nor is
DoWCoP appropriate for this scenario. We would always look to pick the ACM first as far as reasonably practicable and again under controlled conditions and in accordance with Control of Asbestos Regulations 2012 (CAR2012) and CAR-SOIL. All regulators we have
dealt with would also advocate the picking first.
My rationale is that in most circumstances (there are always exceptions I accept), free fibres are sufficiently fixed within the soil matrix and pose less risk of release and exposure. ACM poses a greater risk of
exposure through possible deterioration and the easier liberation of air borne fibres and, the possible increase in free fibres in the soil. The risk from picking is likely to be far less compared with significant mechanical handling, tipping and compaction
of soils with free fibres and ACM.
I suspect there is no simple answer here but is anyone aware of any particular legislation that would prohibit the reuse of soils contaminated with visible ACM so long as their use is compliant with the contaminated
land and environmental permitting regime? I cannot see anything specifically in CAR2012 but was wondering about Asbestos (Prohibition) Regulations (as amended).
The Group’s thoughts on my rationale and the applicable legislation would be appreciated.
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I would not wish to disagree with any of that.
I spend a lot of time training/explaining to asbestos management (and brownfield practitioners) that ‘contaminated land’ is not really for those with a chronic lack of understanding of
process. Many in the ‘traditional’ asbestos management sector do suffer from a great deal of ignorance when it comes to long-established principles and practice for contaminated land assessment.
On a recent bespoke CL:AIRE CAR-SOIL training course for a national asbestos management consultancy the commercial director enquired of me, and I paraphrase: “We have many large construction
clients that approach us for assistance with asbestos in the ground; what’s to stop us rocking up on site with a JCB and digging trial pits to take samples for analysis?”
To which I replied, and again I paraphrase: “Off the top of my head; 1) unexploded ordnance risks; 2) buried services risks (electrocution, explosion etc.) and 3) the potential to open
up a pollution pathway through which NAPL could migrate through a clay horizon into a shallow aquifer and onwards into a controlled watercourse, to name but a few.”
In my own experience, the following encapsulates the issue with many asbestos management practitioners quite nicely (as espoused in the Rumsfeld Uncertainty Principle):
“Unknown unknowns are risks that "come from situations that are so out of this world that they never occur to you. For example, the term was used in evidence given to the British Columbia
Royal Commission of Inquiry into Uranium Mining in 1979:
Site conditions always pose unknowns, or uncertainties, which may become known during construction … and possibly lead to damage of the environment or endanger public health and safety.
The risk posed by unknowns is somewhat dependent on the nature of the unknown relative to past experience. This has led me classify unknowns into one of the following two types: 1. known unknowns (expected or foreseeable conditions), which can be reasonably
anticipated but not quantified based on past experience as exemplified by case histories. Unknown unknowns (unexpected or unforeseeable conditions), which pose a potentially greater risk simply because they cannot be anticipated based on past experience or
investigation.”
“A thirteenth-century Persian poet, said there are four types of men:
One who knows and knows that he knows... His horse of wisdom will reach the skies.
One who knows, but doesn't know that he knows... He is fast asleep, so you should wake him up!
One who doesn't know, but knows that he doesn't know... His limping mule will eventually get him home.
One who doesn't know and doesn't know that he doesn't know... He will be eternally lost in his hopeless oblivion!”
I shall reflect on which of the two quotes might be most appropriate for future training!
Steve Forster BSc, MSc, CEnv, FGS, MIEnvSc
Chair – Joint Industry Working Group on Asbestos in Soil and C&D Materials
Remedia Group Limited is a Company Limited by Shares and Registered in England No. 9483601.
Registered office address: Suite L, Radford Business Centre, Radford Way, Billericay, Essex CM12 0BZ
This email and any attachments to it are confidential and intended solely for the use of the person to whom they are addressed. If you are not the addressee you shall
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I too as an expert have seen competent asbestos surveyors fail to realise the basics of site investigation - to their
and their clients' cost. It needs to be appreciated by all that site investigation and contaminant assessment requires a multidisciplinary team which, collectively, has the required competencies for the site in question. While it is true that many SI providers
will need to upskill with respect to their technical competence regarding asbestos in soils (and CAR compliance for HSW) – indeed many already are – but that significant improvements need to be made by the traditional asbestos industry with regards to the
competent, safe and technically sound, investigation and assessment of asbestos in soils.
We also need to be careful that we don't over egg the asbestos in soil pudding at the expense of other more exotic dare
I say emerging contaminants.
I strongly welcome the AGS update of its guidance on asbestos and see that as a potential opportunity for the GI sector
to ensure its unique skill set is appreciated, valued and, dare I say it, remunerated.
Sent from my BlackBerry 10 smartphone.
Sent: miércoles, 25 de julio de 2018 11:32
Reply To: Stephen Forster
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I’m glad that you mention competence.
Here’s is my take on that WRT asbestos ...
https://www.linkedin.com/pulse/asbestos-national-planning-policy-framework-stephen-forster
Steve Forster BSc, MSc, CEnv, FGS, MIEnvSc
Chair – Joint Industry Working Group on Asbestos in Soil and C&D Materials
Remedia Group Limited is a Company Limited by Shares and Registered in England No. 9483601.
For comparison, the 2012 NPPF main wording wrt contamination:
109. The planning system should contribute to and enhance the natural and local environment by:
● preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil, air, water or noise pollution or land instability; and
● remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate.
110. In preparing plans to meet development needs, the aim should be to minimise pollution and other adverse effects on the local and natural
environment. Plans should allocate land with the least environmental or amenity value, where consistent with other policies in this Framework.
120. To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment
or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development
rests with the developer and/or landowner.
121. Planning policies and decisions should also ensure that:
● the site is suitable for its new use taking account of ground conditions and land instability, including from natural hazards or former activities such as mining, pollution arising from previous uses and any proposals for mitigation including land remediation
or impacts on the natural
environment arising from that remediation;
● after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental
Protection Act 1990; and
● adequate site investigation information, prepared by a competent person, is presented.
Chris Dainton
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