Legal compliance checklist: asbestos soil testing in the UK

The potential presence of asbestos at a site for which you are responsible can be a source of concern for many reasons. One of those reasons will – of course – be the risks that this now-outlawed carcinogen can pose to human health if someone comes into direct contact with it.

However, there is at least one other dimension that you may urgently wish to know more about, if you suspect asbestos may exist on your land. That dimension is the legal one.

You might have many questions about legal compliance as far as asbestos soil testing is concerned, including what specific laws are relevant to this specialised process, and what actions you need to take to achieve compliance.

So, in this article, we will explore the legal aspects of asbestos soil testing in the UK, to help you approach the management of your own land feeling more confident and informed.

Why is legal compliance essential for asbestos soil testing?

Such individuals as developers, contractors, and landlords, as well as anyone who would be classed as a “dutyholder” in accordance with the Control of Asbestos Regulations 2012 (which we will elaborate on in a moment), need to be aware of the legal and regulatory requirements underpinning the testing of soil for asbestos.

Essentially, if you are responsible in some way for managing and/or maintaining a site or premises where asbestos-containing materials (ACMs) may be present, you will typically need to comply with laws like those set out below.

Failing to adhere to the obligations imposed by these regulations could leave you open to risks such as project delays, safety hazards, and/or legal action.

The Control of Asbestos Regulations 2012 (CAR 2012)

As Great Britain’s overarching legislation for asbestos management, CAR 2012 isn’t only pertinent to dealing with ACMs in buildings – it provides a crucial legal framework for how asbestos is managed in soil, too.

This legislation sets out legal duties and minimum standards for protecting workers from being exposed to asbestos, during work involving ground materials (such as asbestos soil testing).

The Construction (Design and Management) Regulations 2015

Also sometimes referred to as the “CDM regulations”, these are the principal set of regulations for managing the health, safety, and welfare of construction projects in the UK. These regulations therefore have a considerable impact on how such projects are planned.

The CDM regulations are relevant to asbestos in soil testing because they require clients to make sure asbestos risks are managed during construction projects, including groundworks.

One key requirement under CDM 2015, for instance, is to ensure the results of any asbestos surveys for a given site are available and incorporated into the construction phase plan.

The Environmental Protection Act 1990

It is Part 2A of this Act that is of particular interest with regard to asbestos soil testing. This section of the legislation provides a definition of “contaminated land”, in addition to setting out the responsibilities that local authorities have in the management of such land.

In the event of asbestos being present in soil at a given site, and this posing a significant risk to human health, the land can be classified as “contaminated” in accordance with this Act.

If the asbestos contamination of land is identified, local authorities are required to take appropriate action to tackle the risk. This could entail such measures as regularly monitoring the soil, or taking remedial measures to prevent exposure, such as “sealing off” the asbestos or removing the contaminated soil.

When are you legally required to test soil for asbestos?

The short answer to this question, is that it becomes legally necessary to test soil for asbestos in the UK when you suspect it is present in the ground at a site for which you are responsible. This is outlined through both workplace and environmental regulations in the UK.

The aforementioned CAR 2012, for example, stipulates that the dutyholder for a particular site must identify and manage ACMs, including in soil, where there is a reasonable likelihood of the now-banned substance being present.

There are certain situations in which the risks of asbestos disturbance could be especially great at your site, such as if the site is a brownfield one, has recently been subject to demolition work, or is set to be redeveloped. In such scenarios where the soil might be disturbed in the near future, it may be especially crucial to test the soil for asbestos.

Legal compliance checklist for asbestos soil testing

Making sure all these elements are ticked off, can help ensure you are always on the right side of the law in relation to asbestos soil testing in the UK:

1. Assessing risk before any work begins

In addition to conducting a review of the history of the site – which will help draw your attention to factors potentially heightening the probability of asbestos being present – you should be performing what is known as a “Phase 1” preliminary risk assessment.

Also sometimes referred to as a “Desk Study”, this preliminary environmental assessment is aimed at identifying possible risks associated with asbestos contamination in the soil.

A key element of this will be a walk-over inspection of the site, to enable you to pick out any signs of contamination that might be immediately visible.

2. Meeting the requirements of CAR 2012

As we touched on above, the scope of CAR 2012 goes beyond the intact ACMs that may be found inside buildings.

Even if asbestos is suspected to be loose in the ground, dutyholders and employers have obligations under this law to identify and manage asbestos, assess the risks the material could pose, and implement appropriate measures to prevent or control asbestos exposure.

A vital step here, will be ensuring asbestos in soil testing is carried out at the given site before any intrusive works are done. After all, such works could otherwise accidentally disturb asbestos in the ground and cause the release of dangerous asbestos fibres.

3. Complying with the CDM Regulations 2015

The CDM regulations are not focused exclusively on asbestos. Nonetheless, they play a pivotal role in how asbestos needs to be dealt with during a construction project.

These regulations impose a duty on clients, principal designers, and principal contractors to ensure any asbestos in soil is safely managed.

Clients, for example, are obliged to provide the principal designer with pre-construction information, including about any asbestos that is suspected or known to be present in the soil.

4. Using UKAS-accredited laboratories

When it comes to the laboratories that undertake asbestos soil testing and analysis, it is crucial to choose one that produces accurate, reliable, and legally defensible results.

CAR 2012 makes clear the importance of using a laboratory that has been independently assessed and recognised by the United Kingdom Accreditation Service (UKAS) as compliant with ISO/IEC 17025 standards.

When you entrust a UKAS-accredited laboratory with your asbestos soil testing, you can be confident that it has the competence to undertake accurate and unbiased asbestos analysis.

5. Determining the need for WAC testing

If soil that you are seeking to dispose of is classified as hazardous, or the soil is non-hazardous but you are considering disposing of it at an inert landfill site, it will be necessary for Waste Acceptance Criteria (WAC) testing to be arranged.

You can read more about WAC testing on our dedicated page for this process. Broadly speaking, there are three stages of WAC testing for asbestos-contaminated soil waste: the soil screening, the gravimetric analysis, and then potentially fibre counting.

6. Handling, transporting, and disposing of contaminated soil

The Environmental Protection Act 1990 imposes a duty of care on anyone involved with controlled waste – such as producers, carriers, keepers, treaters, and disposers.

This duty obliges these parties to take reasonable steps to ensure waste is handled safely. It therefore encompasses such elements as preventing unauthorised or harmful disposal, making sure waste is only transferred to authorised parties, and maintaining proper records.

We have previously written in detail here at Oracle Solutions about the steps that need to be taken when disposing of asbestos waste, including the relevance of such aspects as the Hazardous Waste Regulations 2005 and Hazardous Waste Consignment Notes.

7. Checking local planning and environmental permits

Planning permissions for developments often include conditions stipulating that asbestos soil testing, remediation, or monitoring must be undertaken, in order to ensure safety and compliance with environmental standards. Planning applications and decisions for a given property can be seen via a local authority’s online planning portal.

Environmental permits, meanwhile, are needed for activities involving asbestos-contaminated soil, such as remediation or the handling of waste, to ensure compliance with environmental and health regulations.

The Environment Agency or local authorities issue such permits, which may be tied to planning conditions. Permits for waste carriers, treatment facilities, or landfills dealing with asbestos waste can be confirmed by accessing the agency’s online register.

8. Maintaining legally required documentation

Various documentation requirements are associated with asbestos soil testing. These encompass such vital elements as testing reports, risk assessments, and waste records.

Focusing specifically on CAR 2012, for instance, a site-specific risk assessment will be needed in order to identify asbestos in soil, assess exposure risks, and decide on appropriate control measures. Linked to this, an asbestos management plan will also likely be required.

By practising the highest standards of record retention and audit readiness, you can help ensure you are consistently on the right side of the UK’s stringent asbestos, workplace, and environmental regulations.

What are the consequences of failing to comply?

Failing to adhere to the legal requirements associated with asbestos soil testing can leave you at risk of such consequences as:

• Enforcement notices and project shutdowns
• Fines, reputational damage, and possible prosecution
• Heightened remediation and disposal costs at later stages of your projects.

Conclusion: make compliance part of your testing strategy

As we hope our checklist will have helped make clear, compliance is never “just” a legal issue. The reality is that it plays a central role in the protection of your project, people, and reputation – so, the repercussions of getting it wrong can be severe.

By assessing early, testing properly, and documenting everything, you can go a long way to ensuring you are constantly in compliance with the UK’s stringent laws in this area.

Contact the Oracle Solutions team today to learn more about the expertise and assistance we can lend to your projects, where there is a need to proactively and safely manage asbestos.