First published in New Law Journal, 20 January 2006.
Introduction
Under Health and Safety at Work etc. Act 1974, s 16(2) the Health and Safety Commission (HSC) must consult widely on the introduction of proposed health and safety legislation. To this end, HSC has issued a 28-page Consultative Document - Proposals for revised Asbestos Regulations and an Approved Code of Practice - which seeks views on the government’s proposed response to the Asbestos Worker Protection Directive 83/477/EEC. The consultation period closes on 31 January 2006.
The medical problems of asbestos
The term asbestos describes a family of naturally occurring minerals with excellent heat resistance and mechanical properties. Historically asbestos has been used widely in the construction industry, principally for insulation. In the UK the three most commonly used forms were crocidolite, amosite and chrysotile. They were generally referred to as blue, brown and white asbestos respectively. Asbestos is currently defined by reference to the Control of Asbestos at Work Regulations 2002 (SI 2002/2675) and the Asbestos (Licensing) Regulations 1983 (SI 1983/1649). The proposed changes slightly alter those definitions to cover six particular minerals.
All types of asbestos can cause mesothelioma, an aggressive cancer of the lining of the lung or peritoneum or pericardium, which is resistant to treatment and normally proves fatal within 12 months of diagnosis. Most people suffering from mesothelioma have been exposed to asbestos, if only for brief periods or at low levels. Asbestos exposure can also cause or contribute to lung cancer.
Asbestos exposure can also cause the benign conditions of pleural plaques, pleural thickening and asbestosis. The dangerous feature of mesothelioma is there is no safe lower limit of exposure and even small exposures can lead to death decades later.
The legislative management of risk
HM Inspector of Factories first warned about health risks associated with the asbestos industry in 1898. By the 1950s it was known that asbestos exposure could cause lung cancer. In 1962–63 firm medical evidence emerged that exposure to low levels of asbestos could cause mesothelioma. In 1965 this knowledge became widespread when the Sunday Times Insight team published the results of their investigations and it was this that led to widespread knowledge and calls for action.
The Asbestos Regulations 1969 were directed at those who worked with asbestos or manufactured asbestos products. They aimed to reduce or eliminate exposure by asbestos workers. These regulations and other measures greatly reduced the extent to which asbestos was used in the construction and insulation industries so that the importation of raw asbestos, the processing of asbestos and the production of asbestos products has now virtually ceased in the UK.
The proposed and existing Control of Asbestos at Work Regulations (SI 2002/2675) and the Code of Practice are principally directed at protecting people from exposure to asbestos that is present within the fabric of buildings, rather than protecting people from using asbestos materials. The legacy of the asbestos industry is that a huge swathe of the UK’s building stock contains asbestos in varying amounts. The needs of the occupants require a variety of work to be undertaken on these buildings: extensions; demolition; cabling; plumbing or ventilation. All such activities run the risk of releasing asbestos into the air which can be inhaled and may subsequently cause mesothelioma.
Present regime
The current regulations (SI 2002/2675) define a “dutyholder” of non-residential property as someone who has an obligation regarding the maintenance and repair of premises, and means of access or egress. The obligations are detailed. They include undertaking surveys and keeping records regarding the presence and condition of asbestos within the premises and within the fabric exemptions of the premises in particular. They include giving information to employees (reg 16(1) (SI 1987/2115); reg 21(1)(8)(SI 2002/2675)) who have been exposed to asbestos at or above the “action level”.
The Asbestos (Licensing) Regulations 1983 (SI 1983/1649) and the Asbestos (Prohibitions) Regulations 1992 (1992/3067) also stand to be swept up in the new proposals. Presently they provide for regulation and licensing of those entitled to undertake prescribed work involving asbestos.
Replacing action levels with exemptions
The regulations (SI 2002/2675) apply certain controls on asbestos work by reference to an “action level”. It is proposed to replace this regime with a new three-stage test:
- provided that worker exposure is sporadic and of low intensity; and
- it is clear from the results of the risk assessment that the “control limit” will not be exceeded in the air of the working area; and
the work involves:- short non-continuous maintenance activities;
- removal of materials in which the asbestos fibres are firmly linked in a matrix; or
- encapsulation or sealing of asbestos-containing materials; or
- air monitoring and control and the collection of samples to ascertain whether a specific material contains asbestos;
then certain requirements of the regulations may be waived.
Work that satisfies these criteria will be exempt from “notification” and “medical surveillance” requirements but persons who carry out such work need not hold a Health and Safety Executive licence.
The stated aim is to align and simplify the regulations, so that one ‘trigger point’ will have multiple effects when reached.
Alongside the regulations there will be a new Approved Code of Practice (ACoP), providing guidance as to how to interpret the regulations. The aim is to maintain the status quo, so work that currently requires a licence will continue to require it and work that does not require a licence will not need one in future. However, there will be changes.
Some asbestos workers who do not currently have regular medicals may have to in future. These are the workers whose work does not fall in to the “exemptions” outlined above.
Textured decorative coatings
Perhaps the most contentious change proposed relates to “textured decorative coatings” that contain asbestos. At present work upon such materials is regulated and the employer or contractor must be licensed. People who work with such materials need medical examinations in certain circumstances. The employer may need to keep medical records. Under the new proposals work on these materials no longer requires such regulation. The change is recommended on the basis of research from the Health and Safety Laboratory that exposure levels from working with such materials are “sporadic and low intensity” to such a degree that the levels of exposure are “orders of magnitude” lower than exposure levels associated with other materials that require a licence and, indeed, lower than work with asbestos cement which does not require a licence even under the present regulations.
Minimising exposure
The Directive requires that asbestos exposure be reduced to a minimum and certainly below the control limit. The Control of Substances Hazardous to Health (Amendment) Regulations 2004 (SI 2004/3386) apply to work involving asbestos and set out a hierarchical control system to reduce and avoid asbestos exposure. The HSC proposes that the new Control of Asbestos Regulations adopt the same provisions to simplify the regulatory regime, arguing that this approach will drive exposure levels down below the control limit.
Fibre counting
The Directive requires a change in the way fibres are counted. This will generally increase the number of asbestos fibres counted in a sample but in some cases the number will be significantly reduced.
Control limit
The Directive requires a control limit of 0.1 fibre per cm3 (fcm-3 ) for all types of asbestos. The present limits are 0.2 and 0.3 fcm-3 respectively for amphibole asbestos (including blue and brown asbestos) and for chrysotile (white asbestos). The new limits therefore tighten controls. The HSC recite various technical reasons why they support and recommend the “single control limit” approach:
- it is simpler;
- industry rarely distinguishes between the various types of asbestos when conducting fibre counts;
- Chrysotile (white asbestos) is frequently contaminated with amphiboles (blue and brown asbestos); and
- the new limit maintains HSC policy of bearing down on exposure levels.
Benefits of change
The HSC is obliged to carry out a regulatory impact assessment as part of any consultation exercise. The HSC estimates the cost of implementing these proposals at between £1.17bn and £1.658bn over the next 50 years. This estimate includes the cost of full compliance with existing regulations and the existing ACoP - it is difficult to extract from HSC Consultative Document any figure for the cost of complying with these amendments alone.
The HSC notes that there are currently 3,500 asbestos-related deaths in the UK each year. As a matter of logic these deaths are the result of exposure in the past.
The HSC estimates that in future (after May 2004) there will be some 9000 deaths attributable to asbestos exposure that has not yet occurred but that will occur if the current proposals are not introduced. This is in addition to the 3500 odd annual deaths attributable to historic exposure. The HSC estimates that of these deaths: 4,700 will arise from exposure in commercial premises; 3,100 will arise from exposure in residential premises; 1,200 will arise from environmental exposure. Looking at the “premises exposure”, i.e. non-environmental, figures from a different angle, HSC estimate that 4,500 of these deaths will arise from direct occupational exposure; 2,000 deaths from indirect occupational exposure and 1,300 from domestic (non-occupational) exposure.
The HSC estimate that the new regulations will save about 2300-2400 - Consultative Document, Annex D(A), A134 - deaths by reducing the amount of asbestos exposure that occurs in the future and by increasing the adoption of suitable respiratory protective equipment. The proposed new amendments may perhaps make only a small contribution to those figures (see Consultative Document, Annex D(A), A131-137).
The proposals aim to combine three sets of regulations into one; some of the existing regulations overlap and duplicate each other’s functions. The virtual elimination of the supply and use of asbestos renders much of the old licensing regulations redundant. The HSC argues that a single set of regulations relating to asbestos will prove simpler for industry.
The existing short term exposure limits, which govern exposure over 10 minute periods in some circumstances, are to be removed and replaced with a maximum peak level of exposure of 0.6fcm-3 over 10 minutes for all types of asbestos. However, these new peak levels will be contained within the ACoP, not the regulations, because they are not contained within the Directive.
The options
The options available to the Government are to:
- do nothing
- adopt the Directive in full
- adopt the Directive with some amendments
There is an obligation on the state to implement the EU Directive by means of UK regulations by 15 April 2006. The proposed regulations upon which HSC is consulting are intended to have that effect. Thus there is a short period only between the end of the consultation period and the due date for implementation.
Conclusion
On paper, the Directive and proposed regulations tighten the regime governing asbestos works. They involve only a minor additional burden on industry; those who already adopt current best practice will not have to change their work processes greatly. Overall there is little evidence that the levels of occupational exposure will increase if these amendments are adopted.
However, there is likely to be concern that the new proposals might allow some currently licensed work to be carried out by unqualified ‘cowboys’ and that the new proposals specifically remove some types of work from regulation. As often happens, there is a mismatch between the word and the deed of the proposed statutory regime; HSC says the huge cost of implementation is in fact the cost of 100% compliance with existing regulations. The question remains: can the construction industry live up to the high expectations placed upon it by the directive and the regulations?
For further information, please contact Andrew Morgan.