Asbestos for Surveyors

Bill Sanderson

• Publisher: Estates Gazette
• Year: 2016
• ISBN:
  9781135332853
• Edition: 2
• Topic: Law
• Subtopic: Property Law
• Index: Law

Asbestos for Surveyors is a practical reference guide for all those responsible for identifying and dealing with asbestos in buildings. The book is based upon the Control of Asbestos at Work Act 2002 and is intended to be a guide to the technical aspects of asbestos and why it was originally used. It illustrates where it may be found in buildings, what type of survey is required and how to undertake it. The information that the dutyholder needs from the surveyor to compile an adequate management plan is also detailed. This edition has been fully revised to take account of the Control of Asbestos Regulations 2006 (SI 2006/2739), which came into force in November 2006. The regulations, which replaced three existing sets of asbestos regulations with a single set of rules, reduce exposure limits and introduce mandatory training for those working with asbestos.

1
Legislation on Asbestos

Health and Safety at Work etc. Act 1974

The Health and Safety at Work etc. Act 1974 (HSAWA 1974) is the principal piece of legislation to consider. It was introduced following the Robens Commission under the Labour Government of the time but it was completed and enacted under the next Conservative administration. It has undoubtedly been the single most influential piece of legislation on health and safety in the workplace. Although it is now 30 years old, it is still a very effective and useful Act. It was intended to be a goal setting — setting procedures by which health and safety should be managed proactively. In effect, it provides a comprehensive structure for the management of health and safety in the workplace as well as its oversight and enforcement by the HSE with orders, and ultimately with prosecution through the courts.

One of its major features — an illustration of the power and influence enjoyed by the Trade Unions in the 1970s — is the prominence given to the rights and duties of the employee in the workplace. Before this, the regulations and Acts dealing with health and safety were directed principally at the employer with little involvement of the employee. Now, although the major duties remain with the employer, the employee had for the first time, rights of access to information, safety training, representation and consultation about safety management (section 2).

The other side of the coin, however, was the duty (section 7) on the individual to take due care and attention for their own safety as well as the safety of others who may be affected by what they do — or fail to do. This is no empty threat. There have been many prosecutions of individuals under section 7, including several for asbestos offences.

Clearly the industrial landscape in the United Kingdom has changed dramatically in the last three decades with the loss of so much heavy industry and with a switch to the service economy, and much reduced influence and power of the Trade Unions. The HSAWA could well be revisited to bring it up to date and this has been considered although overtaken by other political priorities.

Not only the industrial landscape, but also the role of the Health and Safety Commission as a policy-making body has changed. Health and safety matters, as in so many other spheres, now are driven very largely by European Directives. The structure of the HSAWA, however, gives a means of introducing new legislation to implement new directives. One of the exceptions to this rule was the introduction of the new Regulation 4, the duty to manage asbestos in non-domestic premises in the Control of Asbestos at Work Regulations 2002 (CAWR). Although some European countries have a similar, if not equivalent, regulation on their statute books, (Holland, Belgium and France, for example), this was driven by a domestic — not European — agenda.

Summaries of European Directives and UK Regulations

European Directive	UK Regulation
83/477/EEC	Control of Asbestos at Work Regulations 1987
91/659/EEC	Asbestos (Prohibitions) Regulations 1992
1999/77/EC	Asbestos (Prohibitions)(Amendment) Regulations 1999
1999/77/EC	Asbestos (Prohibitions)(Amendment) Regulations 2003
	Control of Asbestos at Work Regulations 2002
2003/18/EC	Control of Asbestos Regulations 2006

The HSAWA 1974 is referred to as an ‘enabling’ Act, since it gives powers to the Secretary of State to prepare regulations to implement the provisions of the Act with regard to a range of hazards and ensuring a safe workplace. Since 1974, several dozen regulations — some amended more than once — have been produced under this Act. With enabling Acts, Parliament spends a great deal of energy and time getting the Act right, and the regulations follow with relatively little discussion in Parliament. In most cases, the new regulation is laid before Parliament and is automatically put on the statute book, provided there is no objection in the House of Commons.

No new regulations or approved codes of practice can be issued, however, without due consultation (sections 15 and 16 HSAWA) and the HSE are duty-bound to take note of what people say in response. The process now is very accessible through the HSE website (www.hse.gov.uk), Consultative Documents are free from HSE Books (www.hsebooks.co.uk) or from the HSE website and responses can be submitted by e-mail to the appropriate person in HSE Policy. The HSE later issues a summary of the responses taken into consideration in the consultation process.

From the surveyor’s point of view, it is clearly important to recognise that the employer has a duty to maintain a safe workplace that does not expose employees and others to risks to their health (sections 2 and 3). This extends (section 4) also to protect others who use the premises, for example as tenants or sub-let premises, where the landlord is in control of the premises and is responsible for the repair and maintenance. This was the starting point for regulation 4 of the Control of Asbestos at Work Regulations 2002 — the ‘duty to manage asbestos in non-domestic premises’.

The duty on the surveyor to do his work safely and competently is found in section 7 — general duties on employees at work. Section 36 (and section 37 for corporate bodies) allows for any person, whose negligence or incompetence causes another person to commit an offence under any regulation, to be charged with that offence themselves, regardless of whether the other person is charged or not.

It is significant that an example of this has already occurred (1998) as a result of a superficial and incompetent survey where some obvious asbestos was missed in a demolition survey and later disturbed by the demolition contractor. It was the survey company that was prosecuted and fined a total of £43,000 including costs. This prosecution was for a survey of a Construction (Design and Management) Regulations 1994 (CDM) redevelopment project at a former hospital. To be fair, this is just one of several similar prosecutions brought by the HSE since 1998 and recorded on the prosecutions database on the HSE web site. There are at least 11 other similar convictions recorded, with total fines and costs awarded to the HSE of £192,000 at an average of £16,000 per case.

Approved Codes of Practice

Approved Codes of Practice (ACoP) are approved (after consultation) by the Health and Safety Commission as guidance on what an employer would be required to do in order to comply with regulations. They are written and issued by the HSE and are detailed and helpful indications of what is required. Although not statutory requirements, and only the courts can interpret the regulations, they are used in the case of a prosecution to determine whether a regulation had been complied with. The defendant’s case — and the burden of proof of innocence rests on the defendant — could be that what he or she did was at least as good as the requirement of the ACoP; that they had complied with the regulation in another equally good way; or that it was not reasonably practicable to comply with the regulation (if that is a defence) in the first place. Normally, if an employer has done what the ACoP required, they will have done enough to demonstrate they have fulfilled the requirements of the regulation.

There are now just two Approved Codes of Practice relating to the Control of Asbestos Regulations 2006 (CAR):

• L143 Work with asbestos containing materials This ACoP replaces the earlier L27 and L28 and covers all work on asbestos, whether licensable or not.

• L127 The duty to manage asbestos in non-domestic premises

Regulation 4 in CAR 2006 has its own ACoP. The regulation is very comprehensive and even though the regulation had a lead-in period of 18 months, many duty holders, particularly small and medium enterprises), have struggled to achieve any level of compliance within the given period.

The edition reissued in November 2006 remains substantively unchanged from the original version, mostly restricted to changes to refer to current legislation and guidance.

When the regulations came into force, the HSE made it quite clear that if a serious incident with asbestos occurred before 21 May 2004, where it was deemed that management controls had failed, the HSE would have had no hesitation in taking a prosecution under the Management of Health and Safety at Work Regulations 1999 (MHSAW).

HSE guidance

In addition to the regulations and approved codes of practice, there is general and specific guidance issued by the HSE for work in certain industries, formerly mostly as EH guidance notes but now, more usually, as HSG guidance notes. Guidance documents do not have the same legal or enforcement status as the ACoP, of course, but are recommended as best practice by the HSE.

This guidance is continually under review to allow the introduction of new requirements, techniques and procedures. Consequently, the last two years have seen a wholesale review of the guidance documents, many being swept away to be replaced by just two major documents, The Analysts’ Guide (HSG 248) and The Licenced Contractors’ Guide (HSG 247).

All of the following have been withdrawn and superseded by these two documents:

EH 10	Asbestos: exposure limits and measurement of airborne dust concentrations
EH 47	Provision and use of Hygiene Units for work with asbestos insulation, asbestos coatings and asbestos insulating board
EH 50	Training operatives and supervisors for work with asbestos insulations and asbestos coatings
EH 51	Enclosures provided for asbestos work with asbestos insulation, coatings and asbestos insulating board
EH 57	Problems with asbestos removal at high temperatures
HSG 189/1	Controlled asbestos stripping techniques for work requiring a licence

The following documents are still in operation:

HSG 189/2	Working with asbestos cement
HSG 210 &213	Asbestos Essentials and Introduction to Asbestos Essentials

‘Asbestos Essentials’ is an introduction and a series of worksheets for minor work on asbestos materials for which a licence is not required. It is, however, undergoing a major review after CAR 2006 and will be extended to deal with many more ‘minor’ works on asbestos (including ‘Artex’) than the original 25 activities in the first version. The HSE have indicated that they will be available as electronic versions (Adobe Acrobat® pdf files) on the HSE web-site, although printed copies may still also be available.

Methods for the Determination of Hazardous Substances

The Methods for the Determination of Hazardous Substances (MDHS) series includes specific and general methods developed and issued by the HSE for the sampling and analysis of a range of workplace hazardous materials. Some analytes can be sampled and measured by a number of different tech...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Table of Legislation and Regulations
• Foreword
• Foreword to the 1st edition
• Introduction
• 1. Legislation on Asbestos
• 2. Training for Asbestos Surveyors
• 3. Accreditation
• 4. Asbestos Sources and Properties
• 5. Applications of Asbestos in Buildings
• 6. Survey Types and Purposes
• 7. Preparation and Conduct of Surveys
• 8. Type 3 Surveys
• 9. Sampling Techniques and Strategies
• 10. Material Risk Assessments and Management Priorisation
• 11. Analysis of Samples
• 12. Reports and Registers
• 13. Asbestos Management Plans
• 14. Professional Matters
• List of Abbreviations
• Bibliography
• Index