Ross Fairley and Claire Smith, from Allen & Overy's environmental law group, look at how to comply with the new duty to manage asbestos
The Health and Safety Executive (HSE) estimates that approximately 3,000 people a year in the UK die from diseases caused by past exposure to asbestos. This figure is expected to rise to
approximately 10,000 by 2010. A strict statutory control regime is already in place to control any work with, on or around asbestos. However, this regime only protects workers from exposure to asbestos when its presence is known.
According to the HSE, over 500,000 non-domestic premises still have asbestos-containing materials (ACMs) which were used for throughout the 1960s and 1970s. Those working in building and maintenance-related trades therefore, remain at risk of inadvertently exposing themselves and others to asbestos fibres during the course of routine works as they often have little or no information about ACMs.
A new duty to locate, record and manage ACMs in non-domestic premises is consequently being introduced by Regulation 4 of the Control of Asbestos at Work Regulations 2002 (SI 2002/2675) (CAW Regulations) to minimise such risks in the future. In addition to buildings, the duty will require the management of asbestos in fixed plant and machinery – asbestos lagging and gaskets for example – as well as in the common parts of domestic premises.
What is the new duty to manage?
Employers already have general duties to ensure that their employees and others are not exposed to health and safety risks in the workplace. However, under Regulation 4, duty-holders will now have specific legal obligations to take reasonable steps to identify and assess the condition of any ACMs that are, or are liable to be, present at the premises.
Significantly, the duty-holder must presume that ACMs are present unless there is strong evidence to the contrary. Where the assessment shows that ACMs are, or are presumed to be, present, a written record of their location and condition must be created. The likelihood of anyone being exposed to asbestos fibres must be assessed and an appropriate long-term management plan put in place. Information about the location and condition of ACMs must be made available to anyone liable to disturb them and the asbestos record and management plan must be regularly reviewed.
Under Regulation 4, those with repair and maintenance
responsibilities or access by virtue of a contract or tenancy, will have a duty to manage asbestos in non-domestic premises. This could include employers, occupiers and licensees of commercial premises, or local authorities that control the common parts of domestic premises. Where there is no contract or tenancy, the duty will fall on those with control over all or part of the premises – an owner of a vacant office block carrying out renovations for example.
The CAW Regulations came into force on 21 November 2002. There is an 18-month lead-in period for Regulation 4, which will not come into effect until 21 May 2004. However, the HSE is encouraging duty-holders to take action now. A five-year awareness campaign has been launched and an approved code of practice on how to comply with the duty has been published.
The contractual relationship between duty-holders will dictate, where possible, the extent of their duty and thus the costs of compliance. This could present problems where responsibilities are shared between several parties.
In such cases, the owner/landlord may elect to take the lead in co-ordinating information and compiling an asbestos register and management plan, if necessary, on the basis that it can subsequently recover its costs from other duty-holders (e.g. tenants) via the service charge. Alternatively, an owner/landlord may decide to delegate its management responsibilities – but it cannot delegate its legal duty.
Co-operation will be key to the success of any asbestos management strategy and there is an express legal duty requiring individuals to co-operate with the duty-holder “so far as is necessary” under Regulation 4. As much information as practicable will need to be collated.
Architects, surveyors or building contractors will be obliged to disclose any relevant information at a reasonable cost. An owner with no maintenance/repair obligations will also need to provide any information required to help confirm the presence or absence of ACMs, while those in control of access may need to provide information about ACMs stored on-site to maintenance workers.
The type of asbestos management strategy implemented by companies will depend on a variety of factors such as the size of the organisation, age of buildings, the location of asbestos and the risk of exposure.
Compliance with the new duty
Compliance is a step-by-step process. The first step that companies will need to consider is what ACMs are present and how they are being managed.
If there is overwhelming evidence that no ACMs are present, then a record of this fact may be sufficient to comply with Regulation 4 – new buildings post-1999 are extremely unlikely to contain asbestos, but this should be confirmed with corroborative evidence from experts such as architects.
If a company is unsure whether ACMs are present, it may decide to assume that the premises contains ACMs and introduce precautionary measures to ensure that no works that could disturb the fabric of the building are carried out until the presence or absence of ACMs has been established.
The next step is to determine whether there is a current exposure risk through an asbestos survey, a ‘damage and disturbance inspection’, or a mixture of the two. Asbestos surveys specifically look for ACMs, whereas inspections are essentially site walkovers for the purpose of locating building materials that are damaged or could easily be disturbed.
Options for management
A small company with a limited number of premises, where refurbishment, repair and maintenance works can be easily controlled may decide to implement precautionary measures to prevent exposure – such as undertaking sampling prior to any works – coupled with an on-site damage and disturbance inspection.
In contrast, a company with a large property portfolio may find that on any given day there are a large number of unplanned maintenance or repair activities that cannot be easily controlled and may take the decision to conduct asbestos surveys for all its premises.
Information from these surveys could then be converted into an electronic asbestos register for easy access by contractors via the internet, which can be updated as and when required. Until a survey is carried out, a company should presume that premises contain ACMs and put the necessary precautionary measures in place.
The HSE recognises that budget and time constraints mean that not everything can be tackled straight away and that some sort of risk prioritisation may be necessary. A company may want to put in place an initial screening process – by using questionnaires for example – to find out preliminary information about ACMs.
Developing a plan
The next steps are to assess the risk of exposure and develop a management plan. According to the HSE, risk assessment models should be based on the type or condition of ACMs and the likelihood of those ACMs actually being disturbed by contractors/employees.
The risk assessment helps to prioritise site works and determine management options. If the ACM is in good condition, it can be left in situ, labelled or colour-coded. If the ACM is in reasonable condition but vulnerable to damage, it could be protected by an enclosure or encapsulated to give it strength. If the ACM is damaged slightly, it can be repaired. If none of these is practicable or the ACM is in poor condition, it must be removed.
The management plan should set out the rationale for each management option, an implementation plan for new procedures (including an explanation of the roles and
responsibilities of employees and arrangements for awareness training where necessary) and a works timetable.
Companies must also consider the most effective way of passing on information about the location and condition of ACMs and choose an appropriate system to control maintenance or building works (i.e. a permit-to-work).
The final step is to implement the plan. A mechanism for regular monitoring and review of the plan – typically on an annual basis or when major works are planned – is essential to test the success of the procedures and overall progress.
It will be important to maintain good lines of communication between those responsible for managing and updating the plan and the asbestos register and those carrying out works.
In order to comply with the new duty, a company will need, at a minimum, to conduct a comprehensive and co-ordinated information-gathering exercise involving all relevant parties – whether a survey is undertaken or not – and to put precautionary measures in place in the interim.
If asbestos is, or is presumed to be present, some form of risk prioritisation and assessment will also be required, followed by the development and implementation of a proportionate and flexible management plan.
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