Construction Risk

Keeping the Water Flowing

The project to install an intake tunnel beneath Lake Mead has been beset with delays and insurance losses.
By: | August 4, 2014 • 7 min read

It has been described as one of the most challenging tunneling projects in the world. As if the technical demands weren’t tough enough, a major city is waiting on its completion in order to avert a potential water supply crisis.

Lake Mead is the largest reservoir in the United States, fed primarily from snowfall from the Rocky Mountains. The lake is the primary water source for Las Vegas (providing 90 percent of its drinking water), but due to increasing droughts, water levels are gradually declining, putting the city’s and surrounding areas’ water supply at risk.

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The lake currently feeds the valley through two intake pipes, but with water levels dropping year-on-year, it is projected that one of the existing pipes will soon find itself above the water and obsolete.

If successful, an $817 million project to build a third intake pipe under Lake Mead, sponsored by the Southern Nevada Water Authority (SNWA), will vastly improve the efficiency of water flow to Las Vegas. At present, almost half of the water piped through the existing intake routes is lost through leakage.

Video: This CBS Evening News report on the drought in Nevada and California highlights the Lake Mead construction.

However, Lake Mead Intake No. 3 has been beset with problems and delays. The ground beneath the lake has proved hazardous and unpredictable. Since construction began, the tunnel has suffered collapse, flooding and even a fatality.

SNWA declined to speak to Risk & Insurance® about the project as it was in the midst of negotiating insurance renewals. However, it did confirm that the latest setbacks — worse than expected ground conditions and damage to a major digging machine — have pushed the projected completion date back to “summer 2015.”

Mark Reagan, leader of Marsh’s Global Construction Practice, assembled the project’s insurance program on behalf of SNWA and lead contractor SA Healy (parent of Las Vegas Tunnel Constructors). It is an insurance program that has already been put to the test.

According to Reagan, the program — which is underwritten jointly by numerous leading insurers from around the world, including the major European reinsurance markets — has so far taken the various losses in its stride.

“Builders risk coverage is designed to deal with issues arising from collapses and other unforeseen events, and is responding appropriately. There is still some work to do, but a substantial portion [of the claims activity] has been agreed to,” he said.

While the Lake Mead project may be challenging, engineering underwriters suggest that collapse, flooding and even fatalities are nothing new when it comes to projects of this nature.

The safety and working conditions of the contractors, who toil in high temperatures and unpredictable conditions, are covered by a workers’ compensation policy. Sadly, one contractor was killed in 2011 when a pressure build-up behind a wall he was working on led to a lethal explosion.

“It is always tragic when there is a fatality. In this case, the workers’ compensation was effective and kicked in immediately,” said Reagan.

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In addition, the program includes professional liability policies, while the various contractors and subcontractors on the project may also arrange separate property insurance for certain machines and equipment.

On revenue-generating projects, delays like those experienced at Lake Mead could cause billions of dollars of business interruption losses, which would often be insured under a delayed start-up policy. However, said Reagan, public entities with large balance sheets typically choose to absorb this risk rather than buy insurance.

Regardless, there is no potential income from the Lake Mead intake tunnel to insure; its entire purpose is to improve the water supply to Las Vegas. Yet, while the delays may not have catastrophic financial implications, they could be a disaster for the city if the project is not completed soon. One working intake pipe is simply not enough.

Risky Business

While the Lake Mead project may be challenging, engineering underwriters suggest that collapse, flooding and even fatalities are nothing new when it comes to projects of this nature.

“Tunneling projects all over the world have encountered problems, and it is not unusual for a tunnel project to face a delay,” said Manfred Schneider, head of engineering, North America, for Allianz.

The biggest challenge when tunneling, he said, is that it is almost impossible to predict how the ground beneath the surface will perform.

“Any tunnel project, to a degree, faces uncertainty. The problem is that you can only be 100 percent sure what you are facing when you start digging,” Schneider said.

“There are always imponderables when you start digging hundreds of meters under the earth.”

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According to Marsh’s Reagan, even the most well prepared tunnel engineers can face setbacks.

“You could go to a site and drop 100 test bores, but until you put your 5- to 6-foot diameter pipe or 20-foot tunnel in the ground you just don’t know.”

“It is vital,” said Patrick Bravery, an underwriter at Lloyd’s syndicate Talbot Underwriters, “to have a system in place enabling you to react to what you find and adjust your design and processes to meet the challenges the ground throws at you.

“The challenge is to weigh the technical requirements the ground imposes upon you against the commercial realities of trying to deliver the project on time and on budget — that’s where tension can arise.”

According to Bravery, a major concern for tunneling underwriters is that the cost to repair a tunnel problem is often more than the original construction cost.

“This gearing effect has caught insurers out in the past,” he said.

He added that problems and costs can be further exacerbated when tunneling under a body of water.

“It is essential to keep the tunnel bore dry and open — if you lose that position and the bore becomes inundated, the cost to recover the situation is going to climb very rapidly.”

Reagan said that, while the issues experienced at Lake Mead have caused lengthy delays, the cost could have been worse.

“It wasn’t as bad economically as some collapses have been, relative to the cost of the project,” he said, estimating that the most recent collapse equated to about 4 percent to 5 percent of the value of the tunnel.

Reagan added that only underwriters able to absorb potential catastrophic losses involve themselves in these projects.

“This is a beefy business; you don’t get hobbyists in this space,” he said.

“Tunneling is a high hazard, catastrophic loss business. Insurers need strong balance sheets, engineering expertise and appetite.”

Market Capacity

Reagan — whose employer, Marsh, brokers the majority of the world’s major tunnels — estimated there is typically capacity of about $500 million for large tunneling projects. But according to Schneider, insurers were “scratching their heads” back in the early 2000s over whether to even continue insuring tunnels due to the high levels of uncertainty and frequency of expensive losses.

Since then, the insurance and tunneling industries jointly produced a code of practice for contractors designed to mitigate risk.

“The code of practice didn’t solve all the issues, but it did make tunneling more insurable,” Schneider said, explaining that, while not all insurers insist on contractors meeting code of practice standards as a condition of coverage, it is common practice — particularly in Europe.

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“We expect contractors to demonstrate they are following a rigorous risk management program,” said Bravery, noting that Talbot benchmarks potential clients against the code. And according to Bravery, risk management standards have improved dramatically over the last 10 to 15 years.

“Insurers can take some credit, but most of the credit has to go to the contractors and client bodies who recognized that the best way to get secure funding and approvals was to demonstrate they could work underground more predictably, on time and on budget,” he said.

“Regular collapses were not helping them.”

With loss experience improving, competition to insure tunnel projects is increasing.

“The number of insurers prepared to consider tunneling projects has grown massively in the last five or six years,” said Bravery.

“The appetite for tunneling projects is sufficient and quite competitive now, compared to 10 or 12 years ago.”

Events at Lake Mead have done little to dispel the perception of tunneling as one of the riskiest construction endeavors. But there is no time to dwell on that.

Insurance is doing its job to keep the project going, and the future of Las Vegas depends on it.

Antony Ireland is a London-based financial journalist. He can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Absence Management

Establishing Balance With Volunteers

It’s good business to allow job-leave for volunteer emergency responders, whether or not state laws apply.
By: | January 10, 2018 • 7 min read

If 2017 had a moniker, it might be “the year of the natural disasters,” thanks to a phenomenal array of catastrophic or severe events— hurricanes, tornadoes, wildfires, ice storms and floods.

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Combined with smaller-scale fires and other emergencies, these incidents tax the resources of local and state emergency services, often prompting the need to call volunteer emergency responders into action.

But as lean as most organizations are already running, volunteer activities can sometimes cause friction between employees and employers. Handling conflicts the wrong way can potentially lead to legal headaches, harm employee morale and batter a company’s reputation.

State by State Variations

Most employers are aware of the various federal and state leave laws protecting their employees, including family and medical leave, pregnancy leave and military leave. But leave laws that protect the livelihoods of volunteer emergency responders are more likely to fly under the radar of some HR managers and risk managers.

Such laws don’t exist in every state, but more than 20 states do have some type of law in place to protect volunteers including emergency responders, firefighters, disaster workers, medical responders, ambulance drivers or peace officers.

Marti Cardi, vice president of Product Compliance for Matrix Absence Management

The laws vary broadly. Nearly all specify that such leave be unpaid, and that employees disclose their volunteer status to employers and provide documentation for each leave. But there is a spectrum of variations in terms of what may trigger an eligible leave. Some, for instance, apply for any emergency that prompts a call from the volunteer’s affiliated responder group. Others may require a government declaration of emergency for the law to be triggered.

While many of the laws do not explicitly require employers to let employees leave work when called to an emergency during a shift, most specify that an employee may be late or even miss work entirely without facing termination or any other adverse employment action.

Some states mandate a maximum number of unpaid leave days that a volunteer can claim. But others may place more significant burdens on employers. In California, for instance, employers with 50 or more employees are required to grant up to 14 days of unpaid leave for training activities in addition to any leave taken to respond to emergency events. For multistate employers, keeping on top of what obligations may apply in each circumstance can be a challenge.

Significant Risks

Large or mid-sized employers may rely on absence management providers to keep them in compliance. For smaller employers though, it may be as simple as looking up a state’s law via Google to find out what’s required. However, checking in with the state department of labor or the company’s attorney may be the best way to get the correct facts.

“I would caution that just because you don’t find something [on the internet], it doesn’t mean it’s not there,” said absence management and employment law attorney Marti Cardi, vice president of Product Compliance for Matrix Absence Management.

For example, Cardi said, an obscure Texas law provides job-protected leave for volunteer ham radio operators called into service during an emergency.

Cardi said employers should task HR to investigate the laws in each state the company operates in, and to ensure that supervisors are educated about the existence of these laws.

“If a supervisor is told by one of his or her employees, ‘Sorry I’m not coming in today … I’ve been called to volunteer firefighter duty for the [nearby region] fire,’” she said, you want to be sure that the supervisor knows not to take action against the employee, and to contact HR for guidance.

“Training supervisors to be aware of this kind of absence is really important.”

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An employer that does terminate a protected volunteer for responding to an emergency may be ordered to pay back wages and reinstate the employee. In some cases, the employee may also be able to sue for wrongful termination.

And of course, “you don’t want to be the company in the headlines that is getting sued because you fired the volunteer firefighter,” she added.

If an employer bars a volunteer from responding, the worst-case scenario may be a third-party claim. Failure to comply with the law could give rise to a claim along the lines of “‘If you had complied with your statutory obligation to give Jane Doe time to respond, my loved one would not have died,’” explained Philadelphia-based Jonathan Segal, partner at law firm Duane Morris and managing principal of the Duane Morris Institute.

“That’s the claim I think is the largest in terms of legal risk.”

Even if no one dies or is seriously injured, he added, “there could still be significant reputational risk if an individual were to go to the media and say, ‘Look, I got called by the fire department and I wasn’t allowed to go.’”

The Right Thing to Do

What employers should be thinking about, Segal said, is that whether or not you have a legal obligation to provide job-protected leave for volunteer responders, “there’s still the question of what are the consequences if you don’t?”

Employee morale should be factored in, he said. The last thing any company wants is for employees to perceive it as insensitive to their interests or the interests of the community at large.

“Sometimes employers need to go beyond the law, and this is one of those times,” — Jonathan Segal, partner, Duane Morris; managing principal, Duane Morris Institute

“How is this going to resonate with my employees, with my workforce, how are people going to see this? These are all relevant factors to consider,” he said.

There’s an argument to be made for employers to look at the bigger picture when it comes to any volunteer responders on their payroll, said Segal.

“Sometimes employers need to go beyond the law, and this is one of those times,” he said. “Think about the case where’s there’s not a specific state law [for emergency responders] and you say to a volunteer, ‘No, you can’t leave to deal with this fire’ and then people die. You as an employer have potentially played a role, indirectly, because you didn’t allow the first responder or responders to go,” he said.

The bottom line is that “it’s the right thing to do, even if it’s not required by law,” agreed Cardi.

“I feel that companies should have a policy that they’re not going to discipline or discharge someone for absences due to this kind of civic service, subject to verification of course.”

Clear Policy

While most employers do strive to be good corporate citizens, it goes without question that employers need to guard their own interests. It’s not especially likely that volunteer responders will try to take advantage of the unpaid leave allowed them, but of course, it could happen.

That’s why it’s important to have policies that are aligned with state laws. Those policies could include:

  • Notifying the company of any volunteer affiliations either upon hire or as soon they are activated as volunteers.
  • Requiring that employees notify a supervisor as soon as possible if called to an emergency (state requirements vary).
  • Requiring documentation after the event from the head of the entity supervising the volunteer’s activities.

If at some point it becomes excessive – someone has responded to emergencies five times in nine weeks, then it’s time to examine the specifics of the law and have a discussion with the employee about what’s reasonable, said Segal. It may also be time to ask specifics about whether the person is volunteering each time, or are they being called.

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In some cases, the discussion may need to be about finding a middle ground, especially if an employee has taken on an excessively demanding volunteer role.

“We encourage volunteers to pick the style that best fits their schedule,” said Greta Gustafson, a representative of the American Red Cross. “Disaster volunteers can elect to respond to disasters locally, nationally, or even virtually, and each assignment varies in length — from responding overnight to a home fire in your community to deploying across the country for several weeks following a hurricane.

“The Red Cross encourages all volunteers to talk with their employers to determine their availability and to communicate this with their local Red Cross chapter.”

Segal suggests approaching it as an interactive dialogue — borrowing from the ADA. “Employers may need to open a discussion along the lines of ‘I need you here this week because this week we have a deliverable on Friday and you’re critical to that client deliverable,’” he said, but also identify when the employee’s absence would be less critical.

No doubt there will be tough calls. An employer may have its hands full just trying to meet basic customer needs and need all hands on deck.

“That may be a situation where you say, ‘First let me check the law,’” said Segal. If there’s a leave law that applies, “then I’m going to need to comply with it. If there’s not, then you may need to balance competing interests and say, ‘We need you here.’” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]