The hidden costs of not dealing with asbestos-contaminated land

It is no longer customary for asbestos to be used in UK industries such as construction and shipbuilding, unlike the situation for much of the 20th century. In fact, the naturally occurring mineral has been banned in this country since 1999. However, that doesn’t mean it has ceased to be a factor across a broad range of buildings and sites in this part of the world.

Common asbestos-containing materials (ACMs) – such as asbestos cement roofing sheets, insulating board, textiles, gaskets, and washers – are thought to still be present in as many as 1.5 million UK buildings. Although, not all such asbestos products are necessarily intact in such buildings; in some cases, they may be buried, fragmented, and/or broken up in the ground.

This may have occurred at your own site due to any of a variety of circumstances. For example, industrial activity may have formerly taken place on the land, or a building that once stood there might have been demolished with ACMs still inside.

Putting aside the matter of how your land may have become contaminated with asbestos, there is also the matter of what happens if you don’t deal with it. Below, we will set out the possible implications.

Why is ignoring asbestos-contaminated land a costly mistake?

Many landowners and contractors in the UK don’t necessarily take very swift action – or any action at all – in response to their land being contaminated with asbestos. A lack of awareness of the problem, as well as cost concerns once they are aware of the problem, can contribute to such slowness and hesitancy.

However, one of the factors that makes asbestos so dangerous to human health, is the fact that it does not break down over time. So, you can’t depend on any ACMs buried in your ground simply “disappearing” over the years. In fact, the problem will worsen the longer it is ignored, not least as previously intact ACMs on your site gradually deteriorate and potentially release lethal asbestos fibres into the air.

Even outside it’s imperative to protect human health, a failure to address asbestos contamination of your land can lead to escalating costs in legal fees, fines, and remediation. So, trying to “put off” dealing with the issue can eventually hit you a lot harder in the pocket than if you had moved quickly to have the ACMs removed or otherwise remediated.

What are the legal and financial penalties for not managing asbestos-contaminated land?

A strong reason not to delay dealing with asbestos-contaminated land, is the stringent legislation and regulatory requirements that govern this issue in the UK today:

• The Control of Asbestos Regulations 2012, or CAR 2012, is Great Britain’s overarching asbestos legislation; it sets out a “duty to manage” asbestos at non-domestic premises.
• The Environmental Protection Act 1990, Part 2A, defines “contaminated land” as land where substances such as asbestos exist at levels that could bring about significant harm to people, property, or the environment.
• The Health and Safety at Work etc Act 1974, or HSWA, doesn’t specifically mention asbestos. It does, however, impose a requirement on UK employers to undertake their work in a such a way that their employees will not be subject to health and safety risks.

Under the current UK legal situation, failing to manage asbestos properly can lead to unlimited fines, often reaching millions of pounds, and up to two years in prison for those responsible. If exposure results in death, companies face corporate manslaughter charges, director disqualification, and devastating legal and financial consequences.

You only need to look through the industry news section of the Oracle Solutions website, to see some of the consequences that can arise for those failing to deal with the asbestos contamination of their land (or worse, who knowingly allow asbestos to be present on their site).

We recently reported on an ex-builder from Devon, for instance, who permitted asbestos to be dumped on his land, and who was imprisoned for 32 months. A £200,000 confiscation order was also imposed for when his property was next sold.

How can asbestos-contaminated land impact property value?

Another key element of the financial harm your land being contaminated with asbestos can bring, is the adverse impact it can have on the value of your property.

The consequences of not dealing with the issue can include:

• Difficulties in selling the contaminated land: prospective buyers and developers are likely to avoid sites they perceive as posing a high risk.
• Decreased land valuation: surveyors who discover the presence of asbestos at a site typically flag it as a liability.
• Higher insurance premiums or the refusal of coverage due to the environmental risks that insurers perceive.
• Mortgages and loans being more difficult to obtain for the site, as many lenders may be inclined to refuse financing for asbestos-contaminated land.

What are the health risks of leaving asbestos-contaminated land unmanaged?

There has been a unsettling persistence in the numbers of people in the UK dying from asbestos-related disease over the years; the number continues to hover at around 5,000 annually. This situation, despite the use of asbestos having been formally banned for more than a generation, sadly underscores the risks that ACMs can still present.

One reason why asbestos-contaminated land can be so dangerous if left unmanaged, is the scope for asbestos fibres in the soil to become airborne in the event of disturbance. Such factors as farming, construction, and/or natural erosion can all disturb ACMs.

As a consequence, loose asbestos particles could spread, even beyond the obvious boundaries of the land. This could put workers, residents, and the public alike at heightened risk of developing potentially fatal asbestos-related health conditions, such as mesothelioma or asbestos-related lung cancer, in later life.

How can delayed asbestos management increase remediation costs?

If you try to put off the management of asbestos in the soil at your land, you could be risking even relatively minor contamination of the ground becoming a major problem. This could happen, for example, due to previously largely intact ACMs gradually breaking down.

From there, the individual asbestos particles could spread through soil movement, weathering, and construction work. This, in turn, could mean higher excavation and disposal costs over time, compared to if you had dealt with the contamination as soon as you became aware of it.

Examples of such costs include:

• Asbestos testing, which can range from £500 to £3,000, depending on the complexity and extent of contamination at the site
• Soil removal, which will typically set you back about £100 to £250 per tonne
• Full site remediation, which can cost more than £100,000 for large sites.

It can be particularly expensive a process to deal with asbestos-contaminated land if emergency removal is required due to the problem only being discovered mid-project.

Can you be held liable for asbestos exposure on your land?

The short answer to this question is: yes. Landowners and employers have a duty to care under current UK law. If, then, workers, tenants, and/or the public are exposed to asbestos from a neglected site that is under your control, you could be at risk of being hit with lawsuits.

Given that the average mesothelioma claim payout in the UK is believed to be over £100,000 – and that doesn’t even account for the legal costs incurred in defending such claims – we are sure you will agree, this is a level of expense you will be desperate to avoid.

How does asbestos-contaminated land affect development and construction projects?

If you are looking to build on or otherwise develop your land in some way, asbestos being present in the soil can bring about a range of undesirable consequences:

• Planning permission delays: further environmental assessments may be required for land that is discovered to be contaminated with asbestos.
• Unexpected costs during excavation: inevitably, if asbestos is found at your site, there will be a need to halt construction while you consider how to best address the problem.
• Heightened regulatory scrutiny: local councils and environmental agencies may impose restrictions in relation to your site if they become aware of asbestos contamination of your land that has not been dealt with.

What are the best ways to manage asbestos-contaminated land to avoid these costs?

So, you know waiting to act on asbestos in the ground at your site is a bad idea. Here, then, are the courses of action our consultants at Oracle Solutions would urge you to take:

• Arrange an asbestos soil survey at an early stage If you suspect that asbestos may be present in soil for which you are responsible, we would typically recommend that you have a full asbestos contamination land survey undertaken.However, we would advise you to speak to us first, so that we can ascertain the specifics of your situation and point you towards the right service(s). You will then be able to make informed decisions in the knowledge of such factors as the amount of asbestos that may exist at your site, as well as the asbestos type, and the depths to which it is embedded in the ground.

• Choose the right asbestos remediation strategy Once you are aware of the exact asbestos situation at your land, you will be well-placed to decide between remediation options such as encapsulation or removal.We have previously written about some of the factors that might cause you to choose one asbestos remediation option over the other. Encapsulation, for instance – which entails “sealing off” the surface of an ACM to protect against any future release of loose asbestos fibres – may be your choice if the given asbestos is relatively intact and in a low-risk part of your site.On the other hand, if the asbestos at your premises is beneath the surface, has fragmented to a significant degree, and/or is in a part of your site where future disturbance would be inevitable or extremely likely, you might need to arrange the full removal of asbestos-contaminated soil. If so, this waste would then need to be transported to a licensed asbestos landfill site for disposal.

  Whatever you do, we would always urge you to work with suitably accredited asbestos specialists, so that you can be confident of always complying with relevant regulations.

  If you take a course of action that will leave some asbestos in the ground, it will also be necessary to plan for long-term monitoring and management, in order to prevent future risks.

Final Thoughts

We hope this guide has left you in no doubt about the unwanted and damaging financial, legal, and health consequences that can arise if you ignore asbestos in the ground at your site.

By, then, moving swiftly to arrange for early risk assessment and proactive asbestos management at your site, and consulting a specialist to have your site evaluated, you can help ensure you are doing everything possible to combat these risks.

Schedule a professional asbestos soil survey today to protect your investment and compliance at your site. Our team at Oracle Solutions can be reached via phone or email.