Control of Asbestos at Work Regulations 2002

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MANAGING ASBESTOS

What does the law say?
Over the years there have been a number of sets of Regulations specifically addressing the risks from working with asbestos. These have tended in the past to relate to specific industries and specific processes.

The Control of Asbestos at Work Regulations 1987 extend the requirements to control the risks to most operations where asbestos fibres could be released and include monitoring and laboratory analysis.

We must also consider other more general sections of law:

• Health and Safety at Work etc Act 1974;
• Management of Health and Safety at Work Regulations 1999;
• Construction (Design and Management) Regulations 1994;
• Workplace (Health Safety and Welfare) Regulations 1992.

All legal requirements are aimed at reducing exposure to asbestos fibres to as low as is reasonably practicable for employees and anyone else who might be affected. These laws all rely on duty holders knowing that asbestos is present and taking appropriate precautions. The new Control of Asbestos at Work Regulations 2002 will include the new duty to manage asbestos. The new duty to manage will require duty holders to look for ACMs not just wait until they are found.

WHY IS THE NEW REGULATION NEEDED AND WHAT DOES IT SAY?

Most of the existing regulations assume that the employer or self-employed person knows that the substance is asbestos and can then comply with duties. In building maintenance, asbestos may be encountered unexpectedly or may not be identified at all if workers do not suspect it is there. This can lead to repeated exposure which can be high depending on material being worked on and the tools being used as illustrated in the earlier table.

It is not just building workers being exposed. People working or living with damaged ACMs in circumstances where fibres may be disturbed are also at risk of small but repeated exposures. There was therefore a missing link in the law and the Health and Safety Commission recommended the inclusion of the specific duties to manage the risk from asbestos in buildings under regulation 4 of the new 2002 Control of Asbestos at Work Regulations. The new regulation only consolidates the duties imposed generally by existing law and relates them specifically to the hazard of asbestos in buildings.

THE TEXT OF THE PROPOSED WORDING IS ATTACHED. IN ESSENCE IT REQUIRES DUTY HOLDERS TO IDENTIFY ACMS AND PRESUMED ACMS IN THEIR PREMISES, RECORD THEIR LOCATION AND CONDITION, UNDERTAKE A RISK ASSESSMENT, PREPARE AND IMPLEMENT A PLAN TO MANAGE THE RISKS FROM THEM (INCLUDING PROVIDING INFORMATION TO THOSE WHO MAY DISTURB THEM).

How this will work in practice?
Detailed guidance on this subject will be provided in the new Approved Code of Practice (ACOP) which will accompany the new Regulations. This will cover various examples, eg where responsibilities are shared between the owner and occupier of premises, where responsibilities are shared between many parties or where a managing agent looks after the maintenance of a building. The regulation refers to the terms of any tenancy or agreement and this should be the first point of reference in cases of uncertainty. The ACOP and guidance will give further information but in serious cases of dispute, the legal processes may need to provide a definitive interpretation.
Other issues for duty holders include:
change of tenancy or occupation;
domestic rented premises - duty applies to common parts but not to landlords in respect of individual houses or flats. Duties under other legislation may apply to asbestos in premises.

SELECTING A SURVEYOR

The survey(s) can be carried out in-house or by a third party. If the surveys are to be done in-house, it should be ensured that the staff selected have sufficient training and competence to do the work. If you decide to employ a third party, you should ask whether the individual or organisation concerned: have adequate training and experience in such work; can demonstrate independence, impartiality and integrity; have an adequate quality management system; and are carrying out any survey in accordance with recommended guidance, MDHS100 Surveying, sampling and assessment of asbestos-containing materials.

To assess whether the third party has the above qualities, you can check whether the organisation are accredited by the United Kingdom Accreditation Service (UKAS) as complying with EN45004 to undertake surveys for ACMs. When selecting a surveyor you should ask for information about the number of surveyors qualified to undertake asbestos survey work and ask for a 'resume' for each of the surveyors who may be working on your contract. Some companies may only have one or two suitably qualified and experienced surveyors and you should be assured that any inexperienced surveyors will be closely supervised. Surveyors who hold BIOH qualifications in the P402 module or the S301 module are likely to be competent to undertake this work.

Alternatively, your organisation can check if an individual surveyor has personnel certification for asbestos surveys from a certification body, which has been accredited by UKAS under EN45013. A number of organisations, including the British Institute of Occupational Hygienists (BIOH), the Royal Institution of Chartered Surveyors (RICS) the Asbestos Removal Contractors Association (ARCA) and the Asbestos Control and Abatement Division (ACAD), are currently helping to develop an asbestos personnel certification scheme and may become certification bodies.

If you decide to train someone within the organisation, attendance on the BIOH P402 or S301 modules with some practical experience will be a suitable starting point. You will need to identify a laboratory to analyse any samples (to identify if they contain asbestos) taken as part of a Type 2 or Type 3 survey. Information on laboratories undertaking this work can be obtained through BIOH via their consultancy directory. Asbestos Testing and Consultancy (ATAC), part of the Asbestos Removal Contractors Association, also have details of laboratories carrying out this type of work. The laboratory should be able to demonstrate its competence to carry out bulk asbestos analysis (eg staff training records, certificates from external training providers, participation in quality assurance schemes, satisfactory performance in national proficiency testing programmes, accreditation to ISO 17025 or able to demonstrate equivalence). The Asbestos in Materials Scheme (AIMS) is the UK national proficiency testing programme for asbestos analysis of samples. UKAS can provide up-to-date information on those laboratories which are accredited to ISO 17025 for asbestos analysis of samples, and information on AIMS is available on the Health and Safety Laboratories web site( www.hsl.gov.uk).

By 2004, it will be mandatory for organisations using an external company to undertake analysis of samples to identify asbestos, to use a laboratory accredited to ISO 17025. Those who use their own employees will have to meet the same criteria under this standard.

An important issue during the selection of an external surveyor/consultancy is the extent of their professional indemnity insurance cover. Errors during asbestos surveys can lead to costly remedial works and expensive court cases, both civil and criminal. It is therefore of importance to establish that the surveyor's cover is adequate. Professional indemnity cover for carrying out this type of work should be in the region of £1 million but will depend on the extent of the liability. Where there is additional exposure due to the potential losses associated with a decrease in the value of a property following the discovery of asbestos after purchase, the professional indemnity cover will need to be much higher; that is high enough to cover the potential loss. (For example, if a commercial property owner intends to purchase a property in central London and commissions a survey, they should be sure that the surveyor has enough cover to compensate the consequential losses associated with a decrease in the value of the property if asbestos is discovered following a survey which stated it was free from asbestos.)

Draft duty to manage regulation in the control of Asbestos at work regulations 2002

Duty to manage asbestos in non-domestic premises

1. Every employer shall ensure that a suitable and sufficient assessment is carried out as to whether asbestos is or is liable to be present in non-domestic premises occupied by him and in which persons work.
2. It shall be the duty of every person who has, by virtue of any contract or tenancy, an obligation of any extent in relation to the maintenance or repair of-
   1. the premises; or
   2. any means of access thereto or egress therefrom,
to take such measures as are necessary, so far as is reasonable given the nature and extent of that obligation, to enable the employer to comply with the requirements of this regulation.
3. In making the assessment-
   1. such steps as are reasonable in the circumstances shall be taken; and
   2. the condition of any asbestos which is, or has been assumed to be, present in the premises shall be considered.
4. Without prejudice to the generality of paragraph 3, the employer shall ensure that-
1. account is taken of building plans or other relevant information and of the age of the premises; and
2. an inspection is made of those parts of the premises which are reasonably accessible.
5. The employer shall ensure that the assessment is reviewed forthwith if-
   1. there is reason to suspect that the assessment is no longer valid; or
   2. there has been a significant change in the premises to which the assessment relates.
6. The employer shall ensure that the conclusions of the assessment and every review are recorded.
7. Where the assessment shows that asbestos is or is liable to be present in any part of the premises the employer shall ensure that-
   1. a determination of the consequent risk is made;
   2. a written plan identifying those parts of the premises concerned is prepared; and
   3. the measures which are to be taken for managing the consequent risk are specified in the written plan.
8. The measures to be specified in the plan for managing the risk shall include adequate measures for-
   1. monitoring the condition of any asbestos or any substance containing or suspected of containing asbestos;
   2. ensuring any asbestos or any such substance is properly maintained or where necessary safely removed; and
   3. ensuring that information about the location and condition of any asbestos or any such substance is -
      1. provided to every person liable to disturb it, and
      2. made available to the emergency services.
9. The employer shall ensure that-
   1. the plan is reviewed and revised at regular intervals, and forthwith if-
      1. there is reason to suspect that the plan is no longer valid, or
      2. there has been a significant change in the premises to which the plan relates;
   2. the measures specified in the plan are implemented; and
   3. the measures taken to implement the plan are recorded.
10. In any proceedings for an offence for a contravention of any of the provisions of this regulation it shall, subject to paragraph (11), be a defence for the person charged to prove -
    1. that the commission of the offence was due to the act or default of another person not being one of his employees (hereinafter called "the other person"); and
    2. that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
11. The person charged shall not, without leave of the court, be entitled to rely on the defence referred to in paragraph (10) unless, within a period ending seven clear days-
    1. before the hearing to determine mode of trial, where the proceedings are in England or Wales;
    2. before the intermediate diet, where the proceedings are summary proceedings in Scotland; or
    3. before the first diet, where the proceedings are solemn proceedings in Scotland,
he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of the other person as was then in his possession.
12. For the purposes of this regulation, an employer shall be deemed to occupy the common parts of premises where he has control over maintenance or repair activities in those parts of those premises.
13. In this regulation, a reference to-
    1. "the assessment" is a reference to the assessment required by paragraph (1);
    2. "the premises" is a reference to the non-domestic premises referred to in paragraph (1); and
    
    "the plan" is a reference to the plan