New asbestos regulations: Legal points to remember

Protecting workers from the effects of asbestos has been a priority of the Health and Safety Executive (HSE) for several years, so it is surprising to find that the Asbestos Regulations 2006 apparently did not fully implement the EU directive on asbestos.

While there could be some debate on whether the 2006 Regulations were compliant, HSE has now introduced some changes to the Regulations to meet the requirements of the European Commission, and these took effect on 6 April 2012. The changes in these latest Regulations affect work at the lower levels of risk.

What areas of asbestos management have not changed?

1. If asbestos is in good condition and not likely to be damaged, it can still be left in place.

2. Anyone managing non-domestic premises has a duty to manage the asbestos in those premises, which will usually affect buildings constructed prior to 2000. This is an area where there is a significant lack of compliance and many people are still unaware that asbestos is present in the buildings they occupy. HSE inspectors are observant people with wide powers of investigation, so it is a high risk strategy to ignore this obligation.

3. Any work on structures or plant which might contain asbestos needs to be planned carefully so that the asbestos is identified and its condition is assessed. The risks can then be managed appropriately.

4. Work which was previously licensed is still licensed. In most cases asbestos work needs to be carried out by a licensed contractor.

5. For non-licensed asbestos work, where the risks are low, effective controls are still needed to avoid excessive exposure to asbestos fibres. This is not just for those removing asbestos-containing materials, but also those who may disturb it during the course of their work, e.g. when installing cables.

What’s new?

The non-licensed work under the previous Regulations is now divided into two categories; some notified, and the rest not. There is therefore a new category of notifiable non-licensed work (NNLW). Work falling into this category was previously non-licensed but involves working with asbestos containing materials which are either friable or not well bonded, and a sporadic exposure of low intensity, not exceeding the control limit of 0.1 asbestos fibres per cubic centimetre of air. This includes, for example, repairing minor damage to a small section of asbestos-containing pipe insulation, removal of textured decorative coatings in a way which involves deterioration of the material, e.g. by steam treatment, hydrating gel or scraping off the underlying surface and removal of asbestos cement which is substantially degraded.

Work which falls into this category must be notified via a two page online form. This is the only way notification can be made and it should be done in advance of the work starting. The form will identify the nature and duration of the work and estimated exposure for each worker.

In addition, anyone carrying out NNLW must have a medical examination every three years. This last requirement applies from 30 April 2015 and after that date anyone carrying out NNLW for the first time must have a medical before they start work.

The HSE is keen to make the recordkeeping as painless as possible. The records could be as simple as a copy of the online notification with the names of the workers written on the form, which will already have details of the nature of the job and the type of asbestos likely to be encountered.

HSE does not expect that air sampling will be needed in many cases of NNLW, as the likely levels of exposure will already be known for that type of task. Anything likely to expose workers to significant levels of asbestos will require to be licensed anyway, so if air sampling becomes an issue, this could be an indication that work should be licensed in any case.

Will this help to avoid asbestos exposure for workers in the construction industry? The 2012 regulations require a little more thought from contractors dealing with non-licensed work. If that results in better management of work with asbestos-containing materials, it will be worthwhile.

The online form for NNLW can be found at http://www.hse.gov.uk/asbestos/licensing/notifiable-non-licensed-work.htm

Gillian Birkby is head of construction at Fladgate LLP