Legal Update: Asbestos regulations

New regulations governing work with asbestos do not change basic good practice, but have introduced some additional requirements, writes Ian Goodliffe

6 September 2012

Widely used as a building material from the 1950s through to the mid-1980s, asbestos can still pose problems for facilities and building managers today.

Asbestos was used for fireproofing and insulation in all types of buildings, from houses to schools and offices to hospitals. The Health & Safety Executive (HSE) says that any building built before 2000 can contain asbestos.

Asbestos materials in good condition are safe unless fibres become airborne, which happens when materials are damaged.
When these fibres are inhaled they can cause serious diseases, which are responsible for around 4,500 deaths a year.

Asbestos is not always obvious within a building. In a typical older, unrenovated house it might be in soffit boards, floor tiles, cavity insulation, textured coatings on ceilings, or even in fuse boxes.

In other types of building, asbestos may have been used as packing between floors and in partition walls, in ceiling tiles, as lagging on pipework or sprayed onto structural beams and girders.

Managing asbestos
It is not always necessary or advisable to remove asbestos-containing materials. In many cases, the best course of action is to leave the asbestos in place, to record it and to seal it so that there is no danger of exposure to fibres.

Regulation 4 of the Control of Asbestos Regulations 2006 includes a 'duty to manage' asbestos, directed at those who manage non-domestic premises. The HSE says that, in many cases, the dutyholder is the person or organisation that has clear responsibility for the maintenance or repair of premises.

The regulation requires the person who has this duty to:

• Take reasonable steps to find out if there are materials containing asbestos in non-domestic premises and, if so, the quantity, exact location and condition
• Presume materials contain asbestos unless there is strong evidence that they do not
• Make and keep up-to-date a record of the location and condition of the asbestos-containing materials, or materials presumed to contain asbestos
• Assess the risk of anyone being exposed to fibres from the materials identified
• Prepare a plan that sets out in detail how the risks from these materials will be managed
• Periodically review and monitor the plan and the arrangements to act on it so that the plan remains relevant and up-to-date
• Provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.

Licensing regime
Work with asbestos falls into one of three categories: licensable, notifiable non-licensed work, or non-licensed work. Even if work is non-licensed, it still has to be carried out with the appropriate controls in place.

Which category any work falls into has to be determined in each case and will depend on the type of work you are going to carry out, the type of material you are going to work on and its condition. This risk assessment must be completed before you start work.

You don't necessarily need to bring in a specialist contractor to survey or deal with asbestos, it will depend on the material. For example, pipe insulation and asbestos insulating panels present a higher risk than asbestos cement.

The non-licensed category would include work on asbestos cement products, for example. Notifiable non-licensed work includes using gels/steam for large-scale removal of textured decorative coatings. Licensable work includes activities such as working with lagging and sprayed insulation.

If any high-risk asbestos containing materials (ACMs) need to be sealed, encapsulated or removed, you will need to employ a licensed contractor. There are over 500 licensed contractors listed on the HSE's website.

New legislation
The Control of Asbestos Regulations Act 2012, came into force on 6 April 2012. This updates the previous regulations because the European Commission considered that the UK had not fully implemented the 2009 EU Directive on exposure to asbestos.

The new regulations do not change the basic principles of managing asbestos - if existing asbestos-containing materials are in good condition and are not likely to be damaged, they may be left in place; their condition monitored and managed to ensure they are not disturbed.
The 'duty to manage' remains and training is mandatory for anyone liable to be exposed to asbestos fibres at work.

The requirements for licensed work have not changed, but some types of non-licensed work with asbestos now have additional requirements. From 6 April, employers have been required to: notify work with asbestos to the relevant enforcing authority; to ensure medical examinations are carried out; and to maintain registers of work (health records).

The enforcing authorities are the HSE, local authorities and the Office of Rail Regulation.
By April 2015, all workers/self employed doing notifiable non-licensed work with asbestos must be under health surveillance by a doctor.

Remember, asbestos is only dangerous when disturbed. If it is safely managed and contained, it needn't present a health hazard.The duty to manage is all about putting in place the practical steps necessary to protect maintenance workers and others from the risk of exposure to asbestos fibres. It is not about removing all asbestos.

For more information, see www.hse.gov.uk/asbestos