The release of a guidance note concerning compliance
with The Control of Asbestos Regulations 2006, shows the
seriousness of the HSE's approach to enforcement of duty
holders' asbestos management duties, says Myles Levy
The release of a guidance note concerning compliance
with The Control of Asbestos Regulations 2006, shows the
seriousness of the HSE's approach to enforcement of duty
holders' asbestos management duties, says Myles Levy
The HSE has made it clear to duty
holders that a range of serious
infringements of their duties
under the regulations which result in a
discernable risk to building users are
likely to result in enforcement
proceedings being brought against them.
Duty holders under the regulations are
defined as those persons or entities who
have significant tenancy or building control
responsibilities for the maintenance of nondomestic
buildings. The HSE guidance
notes however make it clear that all
persons who have knowledge of or a
dealing with potentially harmful asbestos
in such premises have a duty to proactively
advise on its existence and whereabouts.
Asbestos maintenance and removal are
strictly controlled by mandatory legal
requirements. The current regulations
require that only licensed contractors are to
be engaged for the removal of most types of
asbestos or asbestos containing materials
from sites where the requisite surveys and
risk assessments have identified asbestos
and revealed that its removal is necessary
to safeguard health and safety. There are
certain asbestos related products upon
which risk control or removal works can
be carried out by contractors who are not
licensed asbestos removal contractors.
These include asbestos cement, articles
made of rubber, plastic, resin or bitumen:
including vinyl floor tiles, electric cables
and roofing felts; and products which
may be used at high temperatures but
have no insulation purposes: for example,
gaskets, washers, ropes and seals.
The HSE's guidance to licensed
contractors confirms the importance for
both contractors applying to be licensed
and existing licensed contractors to
maintain high standards of training,
medical certification, implementation of
respiratory protective equipment during
works to acquire and keep their licences.
Once asbestos is identified in a survey
a risk assessment relating to potential
asbestos maintenance and removal must
be carried out by a competent person. The
HSE guidance confirms that contractors
should only work on asbestos or asbestos
containing materials if absolutely
necessary, and such work must be
controlled so as to reduce to a minimum
potential asbestos fibres release. The use of
tented enclosures and staged air testing is
frequently required in prescribed
circumstances to reduce the risk of
harmful fibres release. A caution based
assumption of risk approach is advised.
The potential risks must be fully assessed
and established to help to identify
appropriate work methods. The risk
assessment must also include details of
the expected exposures, the nature, scale
and duration of proposed work, and
whether the anticipated exposures are
likely to exceed the prescribed control
limits. This information assists the
selection of suitable respiratory protective
equipment by the contractor for the
health and safety of its operatives.
Preparing a plan of work
The regulations require employers to then
prepare suitable written plan of work for
any asbestos or maintenance or removal
works undertaken. The plan must cover
the works to be performed as identified by
the risk assessment, the location and
methods to be used including the
prevention and control measures
identified in the assessment. It must
include also the type of equipment to be
used, and the protective and
decontamination procedures specified for
those carrying out the work.
The HSE's guidance confirms that the
licensed contractors should provide their
input on the risk assessment and the plan
of work to maximise the prospect of
effective risk avoidance.
The HSE advises that asbestos-related
diseases are currently account for more
than 4,000 deaths in the UK and the
number is still increasing. This represents
the largest single work related killer.
Construction firms should note that the
HSE is prone to cast a wide net with
regards to imposing liability for
compliance breaches of legal requirements
on all responsible parties participating in
asbestos maintenance or removal processes
in non domestic buildings. Construction
firms should be clear on the high level of
compliance and competence required of
all engaged in asbestos control activities.
Myles Levy is a solicitor at Howard Kennedy
