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POSTED ON August 10th

The prevailing legislation concerning work with asbestos in the UK is The Control of Asbestos Regulations 2012, but it is interesting to note that the first piece of asbestos legislation was introduced in 1931. The first cases of “asbestosis” were seen as early as 1900 although this was not a recognised term at that time. The first published asbestos related death was Nellie Kershaw in 1924, a woman who had worked in an asbestos textile factory for some years. Asbestos cloth was woven into protective clothing because of its fire resistant properties. The report showed that her occupation had led to extensive lung damage. The term “asbestosis” was first used in 1927.

In the second decade of the 21st Century, we were living with the long tail health consequences of unsafe practices before 1980, connected with the manufacture, the use of, and contact with ACMs (Asbestos Containing Materials). On the relatively lighter side, we have the phenomenon of pleural plaques. Sadly, there were 2542 mesothelioma deaths recorded in the UK in 2015, and the numbers are likely to stay at around that level until 2020. There is a direct connection with the inhalation of asbestos fibres and mesothelioma. A smaller amount of deaths are attributable to asbestosis, and contact with asbestos fibres is a possible, or contributing, cause of many deaths from lung cancer.

In recent years the 2012 Regulations updated the 2006 Regulations because it was felt that the latter did not adequately reflect current EU legislation. The main change was the requirement for some non-licenced work to be notifiable with related requirements for medical surveillance and record keeping.

The HSE describe work requiring a licence as work:

  • where exposure to asbestos is not sporadic and of low intensity; or
  • where the risk assessment cannot clearly demonstrate that the control limit will not be exceeded i.e. 0.1 asbestos fibres per cubic centimetre of air (0.1 f/cm3) (averaged over a four hour period); or
  • on asbestos coating; or
  • on asbestos insulation or asbestos insulating board where the risk assessment demonstrates that the work is not short duration work.

“Short duration work” is where work with the relevant materials is not more than 2 hours in a seven day period and where no one person works for more than 1 hour out of that 2 hour period. Examples of short duration work could include some asbestos removal work, all work relating to sprayed asbestos coatings or pipe lagging and most work relating to asbestos insulation or asbestos insulating board (AIB).

Other work with asbestos can be undertaken by non-licenced contractors, but because some work is not possible without disturbing asbestos fibres, this will still be notifiable. Regulation 3 (2) stipulates when work is not notifiable as:

  • the exposure to asbestos of employees is sporadic and of low intensity; and
  • it is clear from the risk assessment that the exposure to asbestos of any employee will not exceed the control limit; and
  • the work involves:
    a. short, non-continuous maintenance activities in which only non-friable materials are handled, or
    b. removal without deterioration of non-degraded materials in which the asbestos fibres are firmly linked in a matrix, or
    c. encapsulation or sealing of asbestos-containing materials which are in good condition, or
    d. air monitoring and control, and the collection and analysis of samples to ascertain whether a specific material contains asbestos.

Any work with asbestos that does not require a licence but falls outside the above criteria will be notifiable to the appropriate authority prior to work commencing. In addition to this, there must be medical surveillance with medical examinations at regular intervals but at least once every three years. The records are to be kept for 40 years, which is similar to the requirements for licenced workers.

In March 2017 a contractor was held liable for breach of these regulations. This related to a demolition contract where the contractor had obtained an asbestos survey but failed to follow the advice of using a licenced contractor. The contractor was held to be in breach of Sections 5, 7, 8 and 16 of the Regulations.

What are these Regulations? There are too many to go through in this article, but Part 2 of the Regulations relates to the general requirements which consist of Regulations 4 to 24 which are:

  1. Duty to manage asbestos in non-domestic premises
  2. Identification of the presence of asbestos
  3. Assessment of work that exposes employees to asbestos
  4. Plans of work
  5. Licencing of work with asbestos
  6. Notification of work with asbestos
  7. Information, instruction and training
  8. Prevention or reduction in exposure to asbestos
  9. Use of control measures
  10. Maintenance of control measure
  11. Provision and cleaning of protective clothing
  12. Arrangements to deal with accidents, incidents and emergencies
  13. Duty to prevent or reduce the spread of exposure
  14. Cleanliness of premises and plant
  15. Designated areas
  16. Air monitoring
  17. Standards of air testing and site clearance
  18. Standards for analysis
  19. Health records and medical surveillance
  20. Washing and changing facilities
  21. Storage, distribution and labelling of raw asbestos and asbestos waste

Any business that is involved with asbestos or could come into contact with asbestos during their activities should know their responsibilities and duties under the Regulations. In general, though these are to:

  • carry out an investigation prior to work to ascertain the likelihood of the presence of asbestos and its condition;
  • undertake a risk assessment and devise a plan of work;
  • ensure that all employees that will come into contact with asbestos have the proper instruction and training;
  • prevent or reduce, as much as possible, the spread of asbestos fibres during the work.

A breach of the regulations does not just mean trouble with the Health and Safety Executive, but it is more than likely to affect any insurance pay out too. It is usual for asbestos cover to be conditional on compliance with the current legislation and any breach could result in no claim payment.

Of course, the regulations do not just apply to contractors. Persons or organisations that own property or are responsible for maintenance of property (Dutyholder) also have responsibilities.

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