Taking control of asbestos

Employers already have responsibilities under the Health and Safety at Work Act, 1974, to ensure the wellbeing of their employees whilst at work. This includes the need to maintain a safe working environment without risks to health and to take care for the safety of those who may be affected by any actions or omissions of the employer.

This can be interpreted as including addressing risks related to asbestos in buildings. However, the latest changes to the ‘Control of Asbestos at Work Regulations’, 1987, (CAW), implemented in November 2002, and assisted by the associated new Approved Code of Practice, remove any doubt as to these responsibilities and increase the scope of their application.

The Regulations now impose a duty not only on employers but on all companies which own, occupy, manage or have a contractual responsibility for maintenance or repair of non-domestic properties. They now have a specific responsibility to identify and manage the risk from asbestos containing materials, or co-operate with those who manage such risks.

Duty to comply

It is worth noting that all non-domestic premises are covered by the Regulations including communal areas within commercial buildings and housing developments. Therefore, anyone responsible for maintenance of such property, whether that is the owner, occupier or their agent, has a duty to comply with the latest requirements of CAW.

The Duty Holder now has to comply with a number of key legal obligations, including;

• l a requirement to make a suitable and sufficient risk assessment to locate asbestos materials in the building. In making this assessment, suspect materials are presumed to contain asbestos unless there is evidence to the contrary;

• maintenance of a written record of the location of any asbestos – real or assumed, within an ‘asbestos register’;

• implement an asbestos risk management plan including, where necessary, the removal of asbestos and the protection or maintenance of asbestos materials in good condition;

• the implementation of management plan, which must be reviewed and amended accordingly through an audit process. This must also include emergency procedures and a testing protocol;

• the condition of in-situ materials must be monitored and,

• a documented system introduced to inform others who may be affected by the presence of asbestos.

Furthermore the obligations do not stop with the Duty Holder. Third parties also have some responsibility in complying with CAW. Relevant information and knowledge must be made available and access provided to allow identification, remediation, monitoring and maintenance. Third parties must also assist in preparing and implementing the management plans and ensuring that the information is made available to others who may be otherwise at risk.

The Duty to Manage takes effect in May 2004. By that time a company must be able to demonstrate that it has done everything possible to control the risks due to asbestos. Typically, this would involve producing a documented risk management system and demonstrating an audit and review process – as described in the Approved Code of Practice, December 2002.

It would also be prudent to review existing and future revisions to leases and maintenance contracts to ensure that the responsibilities are apportioned clearly. In doing so, bear in mind that it may not be reasonable to delegate all responsibilities and that some liabilities may still be retained.

Companies should familiarise themselves with the requirements of CAW and start to prepare the necessary surveys and registers so that specific problem areas can be identified and dealt with as soon as possible.

In particular, developers commissioning assessment reports, for sites with buildings requiring demolition before redevelopment, should request an asbestos survey. This should ensure compliance with the CAW and enable costs to be assessed during the planning stages.

Subject to the confirmation of the relevant Duty Holder’s responsibilities, companies in possession of, or managing, a portfolio of properties used by tenants should consider undertaking a Type 1 and 2 survey of the properties.

The findings of these surveys can be used to produce a management plan to reduce the risk potential posed to tenants and any contractors undertaking work on the building. The surveys will also act as an asbestos register for the building(s).