The Control of Asbestos Regulations 2006
The Control of Asbestos at Work Regulations 2002 (below) have now been superseded by the Control of Asbestos Regulations 2006. These Regulations make some import ant changes to the CAWR2002, one of the most important being the detailing of asbestos management requirements. In doing so we now have a new Approved Code of Practice (ACoP L127) which specifically deals with regulation 4 of CAR2006; the legal duty to manage asbestos.
Regulation 4 now supplements the provisions outlined within each of the following:
- the Health and Safety at Work Act 1974;
- the Management of Health and Safety at Work Regulations 1999;
- the Workplace (Health, Safety and Welfare) Regulations 1992;
- the Construction (Design and Management) Regulations 1994; and
- the Defective Premises Act 1972;
As well as imposing a duty to manage asbestos in premises, the CAR require employers to:
- undertake risk assessments before commencing work which exposes, or is liable to expose, employees to asbestos;
- produce a plan of work detailing how the work is to be carried out; and
- either prevent exposure to asbestos or reduce it to as low a level as is reasonably practicable.
Under this regulation, a wide range of people potentially have obligations under this regulation, including employers, employees, owners, landlords, leaseholders, occupiers, and managing agents. The extent of their duty essentially being determined by the degree of responsibility over matters concerning the fabric of the building and maintenance activities carried out within.
In short, all asbestos containing materials (ACMs) within the building must be identified and assessed. This includes all fixed plant and machinery. All suspected ACMs must be treated as such until such time that it is shown otherwise. This may be either through laboratory analysis or written evidence of such. Once identified their condition must be assessed, whereupon the risk to personnel is determined. If the ACM is in good condition then it should be left in place and actively managed. If the ACM is in poor condition is must be repaired or removed. A plan must be produced and the risk must be managed continually.
One grey area that existed prior to these Regulations was the management of asbestos within blocks of flats (or similar). This has been clarified within CAR by stating that all communal areas will be regarded as being non-domestic areas, thereby falling within the constraints of the Regulations. It is also pointed out that the private areas of such buildings are regarded as being domestic areas, which do not fall within the constraints of the Regulations. However, it is pointed out that the provisions of the Defective Premises Act 1972 still remain in this instance, whereby landlords must take reasonable care to see that tenants (and other people) are safe from personal injury or disease caused by a defect in the state of the premises. Any premises in such a state to be prejudicial to health will constitute a statutory nuisance under section 79 of the Environmental protection Act 1990.
The Regulations also introduce a number of other changes to the system of controlling asbestos in the UK other than the introduction of ACoP 127. Amongst many, these include:
- amendments to the licensing of work with asbestos – such as the removal of the need to pre-notify the HSE for the removal of asbestos-based textured decorative coatings (although it is still stressed that their removal must be undertaken by someone appropriately trained to do so);
- the introduction of new standards for air testing and a requirement for asbestos air monitoring to be undertaken by accredited personnel only; and
- the introduction of a new system of health and medical surveillance.
The Control of Asbestos at Work Regulations 2002 (as amended)
In 2002, Regulation 4 was added to the Control of Asbestos at Work Regulations, under the Health and Safety at Work Act 1974. This new Regulation required duty holders to assess whether their premises contain asbestos-containing-materials, assess the risk from any such identified materials, and take subsequent action to manage this risk. This Regulation applies to all non-domestic commercial buildings regardless of their age. The only exception to this situation may be for premises in which there is a written guarantee stating that no asbestos materials were used during its construction, however it should be noted that asbestos containing materials can easily be brought into a building post-construction.
As primary regulators for this legislation, the Health and Safety Executive has published extensive guidance on this situation, and has emphasised the fact that this new Regulation must be adhered to by May 2004. In addition, it recognises that the simplest way forward may be to have the building surveyed, using professionally competent and accredited personnel, in order to ascertain the likelihood of asbestos-containing-materials being present. Asbestos materials continued to be used in some specified applications up until 1999, although the likelihood of these materials being present after 1992 is significantly low. The HSE emphasise the fact that failure to adhere to this new requirement is a failure in their legal duty of care, and can put employees, maintenance contractors, and other visitors at high risk.
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