Keeping a tight rein on asbestos
Paul Sankey looks at how regulations controlling asbestos at work creates the role of a dutyholder
Most businesses may not be particularly concerned as to whether or not their buildings contain asbestos.
Asbestos is not harmful until it disintegrates or is removed, and it may lie concealed from view.
However, the issue is rapidly becoming one of importance not just for all employers but for all occupiers of non-residential property.
Regulations controlling asbestos at work came into force on 21 November 2002.
There is an 18-month breathing space until the key regulation 4 comes into force on 21 May 2004, imposing extensive new obligations on a wide range of people.
Firms of solicitors and employers generally will need to comply.
Regulation 4 of the Control of Asbestos at Work Regulations 2002 imposes a duty on anyone with an obligation to maintain non-domestic premises to investigate whether asbestos is present, monitor its condition, put control measures in place, and notify anyone who may be at risk.
Asbestos is a generic term for several natural fibres harmful to the respiratory system.
Once inhaled, asbestos fibres remain in the lungs where they can trigger disease.
Asbestosis is a progressively disabling condition resulting from prolonged exposure.
Other life-threatening diseases include lung cancer and mesothelioma, a particularly aggressive, incurable cancer.
Vulnerable workers
The workers most at risk from contact with asbestos to date have been those closely connected with the asbestos industry: miners, dockers loading and unloading raw asbestos, manufacturers of asbestos-related products and laggers.
Fitters in power stations and on board ships who worked alongside laggers were often exposed to dust and were at risk.
Asbestos can no longer be imported or used.
Few people now work closely with it and any such work must be licensed.
However, 4.4 million buildings are thought to contain the substance and maintenance workers - electricians, plumbers and carpenters - may unwittingly encounter it.
The new regulations aim to protect this vulnerable group and save 3.8 million lives this century.
The regulations create the notion of a 'dutyholder'.
This includes: anyone who has a maintenance obligation for non-domestic premises (the obligation can arise by virtue of a contract or tenancy); and anyone who has any control of any part of non-domestic premises where there is no such contract or tenancy.
Landlords, tenants, lessors and lessees, management companies and maintenance contractors are covered.
Furthermore, a wider group comprising 'every person' is required to co-operate with the dutyholder to ensure that the duty is fulfilled.
Employees, trade unions, surveyors, architects and maintenance contractors are required to assist.
Virtually all employers will fall within the definition of 'dutyholder', solicitors' firms included.
The regulations apply to 'non-domestic premises'.
These include factories, workshops and offices.
They also include institutional buildings - hospitals, libraries, prisons and churches.
They apply equally to the common parts of residential property.
Of the 4.4 million buildings containing asbestos, two million fall into the category of 'non-domestic premises' and are affected by the new regulations.
The Health and Safety Commission is considering an extension to residential property, particularly to local authority and housing association property.
This fits in with the aim of protecting vulnerable workers.
Risk assessment
The dutyholder must carry out a risk assessment and record it in writing.
The risk assessment must consider whether asbestos is present, its location and condition.
The dutyholder must carry out an inspection of reasonably accessible parts, consider the building plans 'or other relevant information' and take account of the age of the premises.
Otherwise there are no other prescribed requirements as to how to carry out the task.
A more extensive investigation could involve analysing samples.
It may be cheaper to incur the increased costs of a thorough risk assessment at the outset rather than have to set up more extensive control measures if and when work needs to be done.
Risk assessment is a continuing process.
It must be reviewed 'forthwith' should circumstances change or fresh information come to light.
Where asbestos is present or is 'liable to be present', the dutyholder must ensure that certain actions are taken.
A determination must be made of the risk and a written plan prepared.
The plan must show what parts of the premises are concerned and set out measures to manage the risk.
There are three key duties which will apply to dutyholders.
They must:
- Monitor the condition of the asbestos on their premises;
- Ensure that it is properly maintained or safely removed if necessary, and;
- Ensure that information about its location and condition is provided to two groups of people.
The first is 'every person liable to disturb it'.
In the main, this will be the maintenance contractors who the regulations aim primarily to protect.
The second is the emergency services.
Carrying out work
The bulk of the regulations govern how work with asbestos - largely its removal - is to be done.
They impose duties on employers and they replaced the Control of Asbestos at Work Regulations 1987 on 21 November 2002.
The new regulations differ from their predecessors in a number of ways.
This will be of interest largely to asbestos contractors and employers where asbestos is actually being removed.
The 18-month gap before the duty to manage asbestos comes into force should enable dutyholders to plan ahead, consider the nature of the risk assessment they must carry out, and how best to do it.
It will also enable them to budget for the job.
The Health and Safety Commission expects the cost of complying with these regulations to vary from 167 to 16,248 per site, at an average cost per site of 4,000.
In the meantime, it envisages the development of accreditation and certification schemes for surveyors.
Paul Sankey is a solicitor in the personal Injury department at the Bristol office of Russell Jones & Walker
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