Loss Prevention Alerts

ALERT 27:  CHANGES TO ASBESTOS REGULATIONS

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS. It highlights issues that the LPWG considers may be of relevance to members. It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.

Employers already have responsibilities under the Health and Safety at Work Act, 1974, to ensure the health and safety of employees whilst at work, to maintain a safe working environment without risks to health and to take care for the safety of those who may be affected by their actions or omissions. This could 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), now CAWR 2002, implemented in November 2002, and assisted by the associated new Approved Codes of Practise, remove any doubt as to these responsibilities and increase the scope of where controls on asbestos apply.

The Regulations now impose a duty on not only employers but all duty holders who own, occupy, manage or have a contractual responsibility for maintenance or repair of non-domestic properties to:

a) identify and manage the risk from asbestos containing materials, or

b) co-operate with those who manage such risks.

It is worth noting that all non-domestic premises are covered by the Regulations including communal areas within commercial buildings and residential buildings. Note: this will include common areas of domestic flats. 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 CAWR. The duty holder may be more than one person, and hence the need for co-operation to determine the degree of obligation and contribution in achieving compliance.

The duty holder now has to comply with a number of key legal obligations, including;

• 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. (N.B. any asbestos analysis testing is required from November 2004 to be carried out by UKAS accredited laboratories.)
  
• maintenance of a written record of the location of any asbestos, "real or assumed", within an 'asbestos register',
  
• implementation of an asbestos risk management plan, including where necessary removal of asbestos, protection or maintenance of existing asbestos materials in good condition.
  
• audit of management plans, which must be reviewed and amended accordingly through an audit process. This must also include emergency procedures, a testing protocol, monitoring of condition of in-situ asbestos, 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 CAWR, such that relevant information and knowledge must be made available and access provided to allow identification, remediation, monitoring and maintenance. Third parties also have a duty to assist in preparing and implementing the management plans and ensure that the information is made available to others who may be otherwise at risk.

It is also worth noting that demolished sites with rubble containing asbestos remaining across the surface are not covered by the aforementioned management requirements. However, under the CAWR 2002, Asbestos Prohibition Regulations 1992 as amended and Special Waste Regulations 1996, such material would have to be handled and disposed of by a suitably qualified contractor. In addition, the owner of a site in this condition may also find the site under threat of determination as contaminated land by the local authority under Part II A of the Environmental Protection Act, 1990, or prosecution with respect to nuisance and/or health and safety legislation, unless mitigating action is taken to reduce the potential health risk.

The legislation is enforced by the HSE, through its inspectors, who may bring prosecutions under criminal law, usually in the Magistrates Court. Typically, successful prosecution would result in a fine. Recent asbestos case history indicates fines in the region of £2,000-£24,000 plus costs, the latter of which may be greater than the fine imposed..

WHAT CAN YOU DO TO AVOID POTENTIAL PROSECUTION?

The 'duty to manage' introduced by CAWR, 2002 takes effect in May 2004 and by that time a company must be able to demonstrate that it has taken suitable and sufficient action to control the risks due to asbestos. Typically, this would involve producing a documented risk management system and demonstrating an audit and review process. This process is described in the Approved Code of Practice (L127) as well as the guidance INDG 223 and HSG 227, which was issued in 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, bearing in mind that it may not be reasonable to delegate all responsibilities and that some liabilities may still be retained.

It is therefore recommended that companies familiarise themselves with the requirements of CAWR and start to prepare the necessary surveys and registers such that specific problem areas can be identified and dealt with as soon as possible.

It is suggested that developers commissioning site assessment reports for sites in their ownership with buildings requiring demolition prior to development, should request an asbestos survey Type 3 1. This should ensure compliance with the CAWR and that associated costs can be assessed during the planning stages.

Companies in possession of or managing a portfolio of properties used by tenants, subject to confirmation of relevant Duty Holders responsibilities, should consider undertaking a Type 1 and

survey of the properties. The results of the survey can be used to produce a management plan to reduce the risk posed to tenants and any contractors undertaking work on the building. This document also acts as an asbestos register for the building(s).

Such works can be commissioned from most reputable environmental consultants, who offer asbestos related services. A number of AGS members offer such services.

Under the duty of co-operation, landlords and managing agents should also be aware that they may also have a duty under this terminology to render assistance and information etc to the duty holder. Therefore, they should be prepared to comply with such requests relating to asbestos.

Date of Issue: 2 May 2003