UK: Control of Asbestos Regulations 2006

New Asbestos Regulations will be coming into force on 13 November 2006.

CAR introduce a more stringent single control limit of 0.1 asbestos fibres per cm³ of air (averaged over 4 hours) for work with all types of asbestos.Work includes removal, repair or disturbance of asbestos and associated activities. This replaces the previous distinction between the chrysotile (white asbestos) control limit of 0.3 fibres per cm³ of air and the 0.2 fibres per cm³ of air control limit for other forms of asbestos (including blue and brown asbestos).

The reasoning behind this is that chrysotile asbestos (which is considered to be the less dangerous form) may be contaminated with other more dangerous forms of asbestos. In any case employers do not always make the distinction between different forms of asbestos. The regulations have also taken out references to ‘action level’.

The duties of employers to employees and third parties relating to minimising exposure to and reducing spread of asbestos are now solely defined by reference to the single control limit rather than by reference to control limits and ‘action levels’ (based on cumulative exposure over a 12 week period) e.g. in relation to the need for air monitoring, areas designated as asbestos areas etc.

Work with asbestos is generally carried out under licence from the HSE and has to be notified. ‘Work’ includes ancillary work such as supervision and cleaning of equipment contaminated with asbestos. The licensing regime previously contained absolute exemptions for work with asbestos cement and exemptions for work with certain types of asbestos insulation (if of short-term duration).

There are no absolute exemptions anymore and exemptions are instead given based on risk: the activity must fall within a specified list; cause ‘sporadic and low intensity exposure’; and there must be a satisfactory risk assessment (reg 3(2)). The list includes short and non-continuous maintenance activities, encapsulation of Asbestos Containing Materials (ACMs) which are in good condition, air monitoring and collection and analysis of samples.

In addition, the activities relating to removal of insulation are now set out more generally as ‘removal of materials in which the asbestos fibres are firmly linked in the matrix’ and it is the ACoP which gives more specific guidance on what materials/activities fall within this exemption.

One new activity is the removal of textured decorative coatings which contain asbestos (one such form of this was known as Artex). Research has shown that the level of exposure to asbestos fibres from such work is low and comparable to risks from previously exempted materials. Other activities such as removal of asbestos cement or asbestos insulation may still be non-licensable provided they fulfil the other risk criteria.

The draft ACoP notes for instance that removal of asbestos cement will normally fulfil such requirements and therefore not need to be carried out under a licence (This information is, however, derived from the draft ACoP and is not yet certain).

Licences are now limited to a maximum 3 year period.

CAR introduce specific mandatory training requirements for anyone liable to be exposed to asbestos (see Reg 18(4)). The draft ACoP also notes that this could include general maintenance staff, gas fitters, painters, and telecommunications engineers.

They also require (see Reg 20(4)) persons carrying out asbestos clearance and providing certificates of reoccupation after asbestos removal works to be accredited by the United Kingdom Accreditation Service (UKAS). This requirement is the only requirement not in force from 13 November 2006 as it is intended to come into force on 6 April 2007.

Part I of CAR sets out mores specific definitions of the types of asbestos and the new control limit (Reg 2). However, it does not provide definitions for asbestos insulation or asbestos cement as previously provided. It defines ‘sporadic and low intensity exposure’ which is the criteria which in combination with a satisfactory risk assessment and a selection of specified activities (e.g. asbestos sampling) allows exemption from certain licensing and notification requirements. However, no exposure to asbestos can be considered to be sporadic and of low intensity if the concentration of asbestos in the atmosphere is liable to exceed 0.6 fibres per cm³ of air measured over 10 minutes in any working day (See Reg 3(3) and HSE press publication of 20 October 2006). It also require analysis of the concentration of asbestos in the air to be measured in accordance with the 1997 World Health Organisation recommended method.

Part 2 effectively embodies the requirements previously set out in the Control of Asbestos at Work Regulations 2002 and the Asbestos (Licensing) Regulations1983.

Part 3 contains those requirements previously covered under the Asbestos (Prohibitions) Regulations 1992. In addition, it also contains further definitions in relation to the prohibitions defining asbestos cement.

There are to be two Approved Codes of Practice (ACoP's) providing statutory guidance and which should be consulted in relation to any offences under the Regulations.

Work with materials containing asbestos - ACoP L143 is intended to give details of what work is licensable, what training is necessary and how to undertake work with asbestos containing materials and is due to be available from 13 November 2006 (replacing ACoP's L27 and L28). Also, an updated ACoP, the Management of Asbestos in Non-Domestic Premises, L27 is also due to be published at the same time (replacing L127).

As the new ACoP's have not yet been published - comments made in this briefing which are drawn from the draft ACoP cannot be treated as definitive.