Legal Update: Asbestos removal

The legislation covering asbestos in the UK is set to change. Tony Thiaray sums up the new rules and explains how it will affect your business.

7 June 2012

Asbestos was traditionally used in buildings for its thermal and electrical insulation properties, as well as its high tensile strength. However, despite its use being banned in the UK, there are approximately 1.5 million asbestos-containing buildings nationwide.

As most facilities managers know, contact with asbestos and its removal is heavily regulated by law, particularly in light of the implementation of the Control of Asbestos Regulations 2012 (the '2012 regulations'). Such compliance is necessary because it is a legal requirement for all duty holders of non-domestic premises to comply with the Control of Asbestos Regulations (as amended).

Most facilities management companies will, or should, be familiar with the legislation applicable to the handling and management of asbestos, especially if they have responsibility for the repair and maintenance of premises.

The key legislation in question is the Duty to Manage Asbestos (Regulation 4 of the Control of Asbestos at Work Regulations 2006), where the duty holder has a responsibility to:

• identify asbestos-containing materials (ACMs) present
• assess the risk posed by ACMs
• prepare a detailed written plan on how to manage the risk of asbestos
• implement the plan
• review and monitor the plan to ensure compliance with legislation at all times.

Key point: The above legislation applies to all non-domestic premises. This includes all commercial, public and industrial premises. It will also apply to common parts of domestic premises, for example stairwells, lift shafts and corridors in a block of flats.

The new regulations

The 2012 regulations came into force on 6 April 2012, repealing, modifying and re-enacting the Control of Asbestos Regulations 2006 (the '2006 regulations').

The 2012 regulations were required as a result of a European Commission ruling that the omission in the 2006 regulations of certain terms from the EU directive on the protection of workers from the risk related to exposure to asbestos at work meant that the UK had failed to implement the directive fully.

Effectively, the 2012 regulations change the current two-tier regime, where work with asbestos is either licensed or non-licensed, depending on whether it can be carried out by contractors who are not licensed. Arguably, one of the most significant changes imposed by the 2012 regulations affects the current non-licensable work on asbestos that impinges on the vast majority of work carried out on asbestos within the UK.

The non-licensable category is further split into two and an additional category is created termed 'notifiable non-licensable work' (NNLW), sitting between the current non-licensable and licensable categories.

As from 6 April 2012, some non-licensed work will need to be notified to the relevant enforcing authority (using an online form at the HSE website). This category of work will be known as 'notifiable non-licensed work' (NNLW).

In brief, NLNW will require:

• notification before work starts
• medical examinations every three years
• health records
• compliance with risk assessments
• control of exposure
• training requirement.

The requirements in respect of licensable work have not changed and the 2012 regulations do not amend the requirements for carrying out risk assessments, planning work, implementing appropriate control measures and/or training workers. The above amendments also update references to other areas of legislation such as REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals Regulations 2006).

The 2012 regulations are also important for those submitting tenders into the public sector for services or works including asbestos, or for bid writers working in organisations dealing with asbestos, such as FM companies, or specialist asbestos companies, which will be expected to be compliant with the 2012 regulations and who, in turn, may well have to demonstrate their compliance to the same when completing a PQQ or when writing a tender for a contract.

Key point: In all cases, no matter what obligations or duties fall to each individual, group or organisation, the need to know the location, type and condition of asbestos-containing materials is paramount to ensure effective compliance. In order to locate, identify and assess asbestos-containing materials, an asbestos survey of some type will be required.

Summary

In practice, the changes brought in by the 2012 regulations may be limited. Nevertheless, strict compliance is vital as the new laws will affect anyone who owns, occupies, manages, or otherwise has responsibilities for the maintenance and repair of buildings that may contain asbestos. Facilities management companies responsible for the repair or maintenance of such buildings, therefore, ought to be aware of the changes brought in by the 2012 regulations. They should re-familiarise themselves with all legislation relating to working with asbestos in order to avoid potentially large fines and criminal convictions, and ensure that any work involving asbestos is done safely and in compliance with the law.

Tony Thiaray is a legal consultant at ICE Legal.