As of this week, all organisations must demonstrate compliance with the Control of Asbestos at Work Regulations 2002. Ian McNeil points out what this will mean for the 500,000 commercial, industrial and public buildings thought to contain asbestos in the UK
From tomorrow, any organisation not actively managing the risks associated with the presence of asbestos-containing materials could face prosecution by the Health and Safety Executive under regulation 4 of the Control of Asbestos at Work Regulations 2002. HSE and local authority inspectors are set to investigate premises, but are organisations really aware of what the amended regulations mean for them?
CAWR 2002 requires duty-holders to assess premises for the presence of asbestos, and then to assess and manage it. However, the duty to manage does not require the automatic removal of ACMs, especially when the material is in good condition and proactively monitored.
Not all types of asbestos are equally hazardous, and the same applies to ACMs. Consequently, they do not all require the same treatment. The most hazardous materials, such as sprayed asbestos or asbestos coatings, release airborne fibres easily and can only be worked on by a licensed contractor, except in limited circumstances; whereas asbestos cement, which does not usually release asbestos fibres, can be worked on by anybody provided they comply with the CAWR requirements.
Asbestos risk management programmes should be in place for all premises by 21 May. They require planning and ownership, education and awareness, implementation and regular review. A set of audited procedures should govern the programme and also cover what to do in case of contractors on site or emergency situations, as well as detail contingency plans such as asbestos register back-up files in case of major property damage or loss.
The HSE has stated it is unrealistic to expect full compliance by this deadline, but is keen for duty-holders to have considered compliance by addressing the following questions: what type of asbestos inspection or survey is appropriate; who will manage the process; who will carry out the work; which buildings or sites should be dealt with first; how will information be recovered, recorded and managed; how will maintenance and contractors know where asbestos is present; and how will the process be reviewed and how often?
Evidence of such a strategy will demonstrate to the HSE that the organisation has made good progress towards compliance. This is the first step to long-term asbestos risk management.
The obvious starting point is to find out where asbestos is and what condition it is in. There are several ways to do this: through existing documents such as building plans; through the experience and knowledge of building managers and other staff; or by commissioning a survey. A survey is essential if there is any doubt, in which case it should be assumed that asbestos is present until proven otherwise.
There are three types of surveys an organisation can commission as defined in HSE document MDHS100 Methods for the Determination of Hazardous Substances - surveying, sampling and assessment of ACMs. A type 1 survey is visual and assumes the presence of asbestos, identifying and prioritising potential areas of risk. Type 2 also includes sample collection and analysis and risk assessment of the findings. Types 1 and 2 are intrusive but not destructive.
Finally, a type 3 survey, which aims to examine the base structure of the building, is both intrusive and destructive and can reveal ACMs that previous non-destructive surveys have not.
If ACMs are found but are in good condition and left undisturbed, there is no need to remove them - the HSE produces a flowchart for determining whether removal is necessary. However, the details for ACMs being managed in situ need to be recorded in an asbestos register citing location, quantity and condition. The data contained within this register provides the foundation for an organisation to manage the issue in the longer term.
Not complying with CAWR may result in enforcement action that could lead to prosecution, proportionate to risk and exposure levels. Fines can be up to £5000 for failure to comply with the regulations or up to £20,000 and/or six months in prison if an improvement or prohibition notice is breached. This is in addition to the continued exposure of staff or contractors to asbestos, potentially affecting their long-term health if ACMs are not adequately managed.
Other ramifications of identifying ACMs too late include business delays.
HSE-licensed asbestos removal contractors need to notify the HSE two weeks before starting asbestos removal work that may be required before building or maintenance work takes place. And it is easy to imagine situations where this notice period could result in extensive business interruption; for example, when previously unidentified asbestos is discovered during building work, such as lagging on pipes above ceiling tiles. The HSE can issue a waiver for the notice period but these are now rarely granted and are unlikely to be issued when an organisation has not previously looked for asbestos or has failed to pass on information about ACMs to the contractor.
If an organisation believes a building does not contain asbestos, it needs to be able to prove this beyond reasonable doubt by keeping a case file of documentary evidence. However, if this view is based solely on the findings of type 1 and 2 surveys or other documentation, the organisation cannot be completely sure there are no ACMs present inside the skin of the building.
Putting an asbestos risk management plan in place is still relevant even if there are no ACMs, as procedures need to be in place if ACMs are later discovered or if an organisation purchases new premises.
CAWR is non-negotiable, and organisations have had 18 months to become compliant. Yet by last August, only 27% of businesses surveyed had a plan in place to manage the risks associated with asbestos. Awareness needs to increase dramatically if organisations do not want to risk prosecution.
In addition to being compliant, identifying the presence of asbestos in premises also means an organisation is better placed to manage the serious health and safety risks it presents to anyone using the premises.
Thorough initial investigations, robust and well-implemented policies and procedures and good communication are all vital to protect people, and have the additional benefit of minimising the potential for costly business interruption.
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