New Asbestos Regulations

The Health and Safety Commission (HSC) issued proposals in December 2005 for amendments to the current Regulations dealing with asbestos. The new Regulations, to be entitled the Control of Asbestos Regulations 2006, will replace The Control of Asbestos at Work Regulations 2002, The Asbestos (Licensing) Regulations 1983 (as amended) and the Asbestos (Prohibitions) Regulations 1992 (as amended). The draft Regulations consolidate the current three sets of Regulations into a single set of Regulations and implement the amendments made in 2003 to the European Asbestos Worker Protection Directive 83/447/EEC ("AWPD"). The HSC has stated that it will shortly be submitting full details of the proposed Regulations and the accompanying Approved Codes of Practice to Ministers for approval. The HSC aims to have the new Regulations in place as soon as possible before the end of the year. This e-bulletin examines the changes that are proposed by the new Regulations.

The key changes include:

• A new single lower control limit;
• Replacement of action level control measures;
• A new hierarchy of controls to minimise worker exposure;
• Change to the method for fibre counting;
• Amended training requirements.

The Control Limit is a level of asbestos fibres in air which an employer is required to ensure is not exceeded. If it is exceeded then the employer must ensure that work does not continue in the affected area until measures have been taken to reduce employees' exposure to asbestos to below the control limit; they must identify the reason for the level being exceeded and take the appropriate measures to prevent the level being exceeded again.

To establish the level of asbestos in the air, asbestos is measured over a set period of time. To implement the AWPD the new Regulations will introduce a single Control Limit for all asbestos types which is lower than the current limits. The new limit will be 0.1f/cm3 as a four-hour weighted time average. This reduces the limit for amphibole asbestos (blue and brown asbestos) from 0.2f/ml and for chrysotile (white asbestos) from 0.3f/ml.

Replacement of Action Level Control Measures

An Action Level is a level of asbestos in the air which, if exceeded, means certain controls by an employer must be applied. These controls are the keeping of records of assessments on site, notification of work with asbestos, designated areas, exposure monitoring, health records and medical surveillance. In the existing Control of Asbestos at Work Regulations 2002 ("CAW") the Action Level is a measure of worker exposure to asbestos fibres in air calculated over 12 weeks. The Action Levels are presently 48 fibre-hours per ml of air for amphiboles and mixtures of asbestos types and 72 fibre-hours per ml of air for chrysotile.

The AWPD amendments replace the use of Action Levels with a new system. The proposed new Regulation 3(2) states that if the exposure of employees to asbestos fibres is "sporadic and of low intensity" and it is clear from the risk assessment that the Control Limit for asbestos will not be exceeded in the air of the working area, the requirements of licensing, notification of work with asbestos, requirement of health records and medical surveillance, and arrangements to deal with accidents, incidents and emergencies shall not apply. For it to apply the work must involve either:

1. Short, non-continuous maintenance activities;
2. Removal of materials in which the asbestos fibres are firmly linked in a matrix e.g. asbestos cement and asbestos-containing textured decorative coatings (TC's);
3. Encapsulation or sealing of asbestos-containing materials, or
4. Air-monitoring and control, and the collection of samples to ascertain whether a specific material contains asbestos.

During the consultation period for the new Regulations, concern was raised by stakeholders that the phrase 'sporadic and low intensity' was not clear. In light of this the Regulation now includes a provision for the Commission to approve an exposure limit beyond which exposure would not be considered to be of sporadic or of low intensity. The Approved Code of Practice states that the limit is to be 0.6 fibres per cm3 in the air measured over a ten minute period for all types of asbestos. This is equivalent to the short term exposure level for white asbestos in the current Regulations. The Approved Code of Practice provides further guidance on the types of work likely to fall into this category.

If the work is not 'sporadic and of low intensity' and the control limit is liable to be exceeded then the requirements of licensing, notification of work with asbestos, requirements of health records and medical surveillance, and arrangements to deal with accidents, incidents and emergencies shall apply, as under the CAW Regulations 2002 and the Asbestos (Licensing) Regulations 1983.

There will be a new major exception to the requirements in the case of working with TC's (e.g. Artex covering). Recent research carried out by the Health and Safety Laboratory (HSL) has shown that working with TC's results in a much lower intensity exposure level to asbestos fibres than other asbestos-containing materials. It is therefore proposed by HSC that work with TC's will no longer require a licensed contractor to be notified nor require the maintenance of medical records. However all work with TC's must still be undertaken by trained workers following a risk assessment and in accordance with appropriate controls to prevent exposure to asbestos fibres. The proposed control measures will be contained in the Approved Code of Practice.

Minimising Worker Exposure

The new Regulations propose amending CAW Regulation 10 that requires employers to reduce exposure to asbestos to as low as is reasonably practicable. This is in order to align the new Regulation more closely with the new wording included in the Control of Substances Hazardous to Health (Amendment) Regulations 2004. The CAW Regulations focus on reduction of exposure to asbestos whereas the new Regulations place emphasis first on prevention of exposure to asbestos as far as is reasonably practicable, and if not possible, Regulation 11 of the new Control of Asbestos 2006 Regulations lays out a new hierarchy of controls, set out in order of priority which should be adopted to reduce such exposure. These controls state that an employer shall:

1. take the measures necessary to reduce the exposure of his employees to asbestos to the lowest level reasonably practicable by measures other than the use of respiratory protective equipment, and
2. ensure that the number of employees who are exposed to asbestos at any one time is as low as is reasonably practicable.

The measures necessary to reduce exposure referred to in paragraph 1 above include in order of priority:

1. the design and use of appropriate work processes, systems and engineering controls and provision and use of suitable work equipment and materials in order to avoid or minimise the release of asbestos;
2. the control of exposure at source, including adequate ventilation systems and appropriate organisational measures; and
3. so far as is reasonably practicable, employers shall provide employees concerned with suitable respiratory protective equipment.

Change to method for fibre counting

AWPD requires that there is a change to the fibre-counting method used by laboratories to measure the level of asbestos fibres in the air. The new method required is that used by the World Health Organisation (WHO). There are 2 main differences:

1. Currently fibres are discounted if they are in contact with particles greater than 3 microns in width, but under the new method these fibres will not be discounted.
2. The current method does not allow discrimination of mineral fibre type; however the WHO method does allow discrimination to ensure that only asbestos fibres are counted.

In most cases the HSE envisage that these changes are likely to slightly increase the number of asbestos fibres given in any one sample, however if there are also other mineral fibres in the sample the number could be significantly reduced.

Training Requirements

The AWPD introduces a requirement that employers should provide appropriate training for all workers who are likely to be exposed to asbestos or who supervise such employees. This training must enable workers to get the necessary knowledge and skills on a specified range of issues. The specified issues in the new proposed Regulations include:

1. the properties of asbestos and its effects on health, including its interaction with smoking;
2. the types of products or materials likely to contain asbestos;
3. the operations which could result in asbestos exposure and the importance of preventive controls to minimise exposure;
4. safe work practices, control measures and protective equipment;
5. appropriate purpose, choice, limitations and proper use and maintenance of respiratory protective equipment;
6. emergency procedures;
7. hygiene requirements;
8. decontamination procedures;
9. waste handling procedures;
10. medical examination requirements; and
11. the control limit and the need for air monitoring.

The Approved Code of Practice states that there are three main types of training. Firstly 'asbestos awareness training', for persons who are liable to disturb asbestos while carrying out their normal everyday work e.g. electricians and plumbers. Secondly training for non-licensable asbestos work, this is for persons who undertake planned work with asbestos which is not licensable, such as a roofer removing a whole asbestos cement sheet in good condition. Thirdly training for licensable work with asbestos, this is for persons working with asbestos which is licensable such as removing asbestos insulation or insulating board. The Code of Practice provides further detail of what each type of training should cover.

Duty to Manage Asbestos in Non-Domestic Premises

The duties outlined in Regulation 4 of CAW and in the current Approved Code of Practice dealing with the management of asbestos in non-domestic premises remain unchanged. This means that the regime of assessing the presence of asbestos in non-domestic premises, recording the location and condition of asbestos, keeping the record up to date, assessing the risk of anyone being exposed to the asbestos and preparing a plan to manage that risk will continue to apply to dutyholders, namely those with repair or maintenance obligations.

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