Control of Asbestos Regulation
Control of Asbestos Regulations 2006 - summary of revisions
On 31 January 2006, the consultation period for the revisions to the Asbestos Regulations and the Approved Code of Practice came to a close. The majority of the changes within the documentation were necessary to implement the amendments required to the European Asbestos Worker Protection Directive (AWPD).
A number of the changes are technical and will have little noticeable impact beyond the asbestos abatement industry. Asbestos fibre counting is currently undertaken using the European Reference Method, this will be changed to the World Health Organisation method; the impact of this will be the need for cross training of those involved in asbestos monitoring works.
Alongside this we will see the introduction of a uniform Control Limit for asbestos fibres, this will mean that the differentiation between Amphibole and Serpentine asbestos materials will disappear and all asbestos types will now be subject to the same levels of control. The directive requires that this Control Limit be measured over an eight-hour period, in the UK the standard period for measurement of Control Limits is four hours and the proposal is that this should remain thereby providing a higher level of control in the UK than elsewhere in Europe.
Relationship to COSHH
The control of asbestos has differed from that of other hazardous substances covered by the Control of Substances Hazardous to Health Regulations (COSHH) and it is now proposed to align the requirements of the Control of Asbestos Regulations with those of COSHH, with the principles of asbestos control also following those of COSHH.
Potentially one of the biggest areas that could impact upon facilities managers is the issue of training. The AWPD will, if implemented, introduce a requirement that employers provide training for all those likely to be exposed to asbestos. For the first time this training has been defined within the documentation and may necessitate the training of staff in the use of RPE and PPE. It has been suggested that these requirements may encompass as many as 1.4 million individuals and will not only need to consider those traditionally viewed as being exposed such as plumbers or carpenters but also other, not necessarily considered, occupations such as surveyors and other building professionals.
The training for these individuals will obviously require considerable resources but the impact could be far reaching. The potential question for any FM may be, will the Duty holder have to ensure that the contractors that he or she is about to employ are ‘asbestos aware’ and how will he or she ensure that the training given meets the requirements of AWPD?
Sporadic and low intensity work
A considerable change currently being looked at is the introduction of the term ‘sporadic and low intensity’. This is a term that has been produced within the AWPD but lacks the clarity that it could be argued prevails with the existing licensing structure. The current view is that work which will not exceed the Control Limit will be defined as low intensity.
However, the definition of sporadic is still unclear. The present structure is such that works are based upon the material itself, and that this is further augmented by time limits which will allow some minor works on licensed materials to be conducted by non-licensed contractors complying with the Control of Asbestos at Work Regulations. On this basis it is not difficult to determine if a licensed contractor is needed or not.
Under the proposals the situation will be less than clear and it will be dependant upon an assessment to determine if the work will be sporadic and low intensity, or if a licensed contractor will be needed. It is generally regarded that this will create considerable confusion amongst all involved in the industry and will require considered clarification by the Health and Safety Executive (HSE) in its supporting documentation.
The HSE's past research has indicated that for some activities involved with the removal and handling of asbestos cement (currently unlicensed) the proposed Control Limit can be regularly exceeded. Therefore the work cannot be regarded as low intensity. Evidence would also suggest that roofing contractors are regularly working upon this type of material, and the extent of the material being far greater than any other asbestos product would suggest that the term sporadic cannot be applied.
On this basis it is possible to foresee a situation where only licensed asbestos contractors could be employed for this type of work. However, this is not what was intended by the AWPD and therefore clarification will be necessary.
The most debated issue concerning the implementation of the AWPD has been the decision of the HSE to remove textured finishes such as ‘artex’ from the scope of the asbestos licensing regulations. It has been argued that these types of materials should not have been included within the scope of the regulations initially and that the time is now right to correct this anomaly.
The asbestos removal industry, supported by a number of trade unions, is opposed to this move for a number of reasons. The HSE has recently undertaken insurance industry sponsored research into the removal of these finishes and concluded that the levels of exposure, and hence risk, are very low.
It has been suggested that the insurance industry sponsored the research in order to determine if the methodology was appropriate to the risk presented, and it has been concluded that the current approach is in excess of the risk that the material presents.
Opponents to the changes have stated that unlike other asbestos materials, finishes such as artex are predominantly present in residential premises and the changes are likely to result in people being exposed to low levels of asbestos at a younger age.
At the time of writing the HSE was conducting further research into the alternative methods that had been proposed, but this has not yet been published.
These proposals have also been subject to considerable debate within Parliament, which has resulted in an Early Day Motion in the House of Commons currently signed by over 110 MPs.
This debate has caused considerable confusion. We have encountered Local Authorities that believe that the de-licensing of products such as ‘artex’ amounts to de-regulation and that the work can be undertaken in a uncontrolled manner without training or any of the other requirements currently in place, alongside one Local Authority that believed that regulation only applied to licensable asbestos work and that all other works were outside the scope of the Control of Asbestos at Work Regulations.
On this basis it will be important for the HSE to ensure that the correct message and detail of the requirements is issued in the near future to clarify the requirements of the AWPD. The HSE has, within the consultation document, sought agreement to clarify the current regulatory requirements by combining the requirements of the Asbestos Licensing Regulations, the Asbestos Prohibition Regulations and the Control of Asbestos at Work Regulations into a single combined set of Control of Asbestos Regulations. This, in conjunction with rationalised supporting documentation, should make the requirements concerning asbestos less confused.
This article was first published in Workplace Law Magazine. Visit the website at www.workplacelaw.net