UK: Revised asbestos regulations

The HSC has published a Consultation Paper containing proposals for revised asbestos regulations. This stems from the amendments to the European Asbestos Worker Protection Directive (AWPD).

The revised regulations will consolidate the current three sets of regulations controlling exposure to asbestos into one. Good news for property owners, the ‘duty to manage’ introduced in the last round of revisions remains largely untouched.

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An HSC Consultation Paper has been published containing proposals for revised asbestos Regulations and a revised Approved Code of Practice to implement amendments to the European Asbestos Worker Protection Directive (AWPD). The draft regulations consolidate the current three sets of regulations controlling exposure to asbestos; (Control of Asbestos at Work Regulations 2002 (CAW), Asbestos (Licensing) Regulations 1983 (ASLIC) and Asbestos (Prohibitions) Regulations 1992 (Prohibition Regulations), into a single set of regulations aiming to reduce duplication and simplify the regulatory regime.

The key proposals include:

The amendment redefines the current definition of 'asbestos' contained in CAW and ASLIC to specify exactly which minerals it is intended to cover. The current definitions would be amended to:

• Asbestos actinolite, CAS No 77536-66-4(9)

• Asbestos gruenerite (amosite), CAS No 12172-73-5(10)

• Asbestos anthophyllite, CAS No 77536-676-5(11)

• Chrysotile, CAS No 12001-29-5(12)

• Crocidolite, CAS No 12001-28-4(13)

• Asbestos tremolite, CAS No 77536-68-6(14)

No new categories of asbestos minerals are included in the proposed revision, however the definition of a), c) and f) above are broadened to include these minerals in any state. Currently these minerals are included within the definition if they are present in a fibrous state.

The current Action Level control measures set out in CAW would be replaced with a new three-part risk based concept for exempting certain requirements of the AWPD for low risk work. The Action Levels are defined in CAW as limits of worker exposure to asbestos fibres in the air, measured and averaged over 12 weeks. The proposed changes would replace the use of these Action Levels with exemptions from certain requirements where worker exposure is sporadic and of low intensity and when 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.

The key exemptions would apply in relation to licensing requirements, notification of work with asbestos, arrangements to deal with accidents, incidents and emergencies, health records and medical surveillance requirements.

The risk assessment would have to make it clear that the Control Limit will not be exceeded and detailed guidance in this respect is contained in the revised ACoP.

The new regulations propose amending the existing wording that requires worker exposure to asbestos to be reduced to as low as is reasonably practicable with a new hierarchy of controls, set out in order of priority, which should be adopted to reduce such exposure (this aligns with the new wording included in the Control of Substances Hazardous to Health (Amendment) Regulations 2004). The current wording would be amended to include the following:

"(1) Every Employer shall –

(2) Where it is not reasonably practicable for the employer to prevent the exposure of his employees to asbestos in accordance with paragraph (1)(a), the measures referred to in paragraph (1)(b)(i) shall include, in order of priority –

and the employer shall so far as is reasonably practicable provide the employees concerned with suitable respiratory protective equipment in addition to the measures required by sub-paragraphs (a) and (b).

(3) The employer shall –

These amendments aim to simplify the regulatory regime since a similar hierarchy under COSHH already applies even where CAW does not and therefore no additional regulatory burden on the employer is envisaged by this change.

The AWPD will require a change to the present European Reference Method (ERM) for fibre counting used by laboratories to measure the level of airborne asbestos fibres. The method to be adopted is that of the World Health Organisation: this method does not permit (as ERM does) discounting of fibres if fibres are in contact with particles greater than 3 microns in width. This is a technical change that is likely to result in a slightly higher fibre count in any given sample. However, whilst the present system for fibre detection does not permit discrimination of mineral fibre type, the WHO method does allow for discrimination of fibre type, thereby ensuring that only asbestos fibres are counted. Therefore, in situations where there are also other mineral fibres in a sample, the fibre count could be significantly reduced.

In line with the amended AWPD the new regulations would implement a single Control Limit of 0.1 f/cm³ (equivalent to 0.1 f/ml) as a four-hour time weighted average. This limit will apply to all types of asbestos and is lower than the current limits of 0.2 f/ml for blue and brown asbestos and 0.3 f/ml for white asbestos.

The rationale for adopting this lower single limit is that (1) all forms of asbestos are carcinogens and so all forms present a significant risk, (2) the Control Level is believed to be technically achievable and reasonably practicable for all forms of asbestos and in practice asbestos removal operators rarely make a distinction between types of asbestos,

(3) the emphasis should be on reducing exposure and (4) a single Control Limit makes planning and implementation controls easier.

The AWPD proposes an 8 hour time frame over which to measure exposure to asbestos such that exposure is measured over 8 hours and the average level taken to assess whether the Control Limit is being exceeded. However, the new regulations maintain the current practice of assessing exposure levels over a four hour time frame with exposure levels determined using a time-weighted average calculation. This means that under the AWPD exposure levels during a four hour shift would permit an exposure level of up to 0.2 f/cm³, the maximum permitted under the new regulations would be 0.1 f/cm^3.

In addition to the notification and medical surveillance exemptions referred to in section 2 above, the proposals also link such exemption from the requirement to hold an HSE licence to this three part assessment. The requirement to have a licence would be based on whether or not the worker exposure is likely to be sporadic and low intensity. For most work with asbestos this will remain unchanged, however new research into asbestos-containing textured decorative coatings (TCs) estimate that the risk associated with asbestos in TCs are much lower than that for other licensed materials and lower than that for work with asbestos cement which does not require a licence.

The proposal at this stage is that work with TCs that takes more than two hours will no longer need to be carried out by a licensed contractor. The HSE is undertaking further research in this area during the consultation period and it may be that the licence requirement for work with TCs will be removed altogether.

This exemption is deemed no longer to be appropriate: the exemption originated from a time when there was still some manufacturing and use of asbestos containing materials. It was not designed to apply to asbestos removal or maintenance work and since the importation, supply and use of materials containing asbestos is banned under the Prohibition Regulations, this exemption has not been included in the draft regulations.

The regulations propose to extend the current accreditation requirements of ISO 17025 and 17020 to include those issuing clearance certificates for reoccupation after asbestos removal work. The four-stage process of site clearance certification was introduced into the ACoP in 2002. Some parts of the four-stage process were not covered by accreditation and as a result HSE have developed, together with UKAS, an assessment and accreditation regime for all four stages. Under the proposed regulations laboratories contracted to issue clearance certificates will be required to be accredited to the ISO standards for all four stages. (Many laboratories have already applied to extend the scope of their accreditation accordingly).

The AWPD requires employers to take all necessary steps to identify asbestos-containing materials before commencing work. The draft regulations propose to introduce a requirement for employers to undertake a suitable and sufficient assessment of the presence and type of asbestos prior to commencing work. Where there is any doubt as to whether asbestos in present, the employer would have to assume that it is and that it is not chrysotile alone and therefore all applicable provisions of the regulations would need to be complied with. Currently, CAW 2002 only requires the employer to identify the type of asbestos.

The amended AWPD introduces an explicit requirement that employers shall provide appropriate training for all workers who are likely to be exposed to asbestos. This training must enable workers to get the necessary knowledge and skills on a specified range of issues. The current legislation includes a range of general training requirements, however this falls significantly short of the detailed list in the amended AWPD. At present this level of detail is contained within the ACoPs. It is proposed that the additional training requirements under AWPD will be incorporated into the new regulations. Since these requirements are already contained within the ACoPs this amendment is unlikely to have any significant impact on those already complying with CAW 2002.

To supplement these training requirements the new regulations will aim to ensure that only those competent to do so are permitted to enter areas where high risk asbestos work is going on. Thus, employers will be required to ensure that their employees are competent before they can go into a 'respirator zone' (as detailed in the regulations). This will mean that only those deemed competent will be able to work inside asbestos removal enclosures. The proposed definition of competence is that, considering the task that they are required to perform and taking account of the size and/or hazards of the job, the person possesses sufficient training, experience and knowledge appropriate to the nature of the work to be undertaken.

No amendments to the current requirements of the Prohibitions Regulations have been made in the draft regulations other than to remove transitional derogations that have now expired and to introduce specific prohibitions on the extraction of asbestos and asbestos products.

To view the HSE Consultation Document click:
http://www.hse.gov.uk/consult/

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 17/11/2005.