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New Control of Asbestos Regulations to be introduced

    • Food and drink - Health and safety

    30-04-2012

    Many food and drink companies own or lease buildings which may contain asbestos.  Anyone responsible for the maintenance or repair of such premises should be aware of the incoming changes to legislation.

    The Control of Asbestos Regulations 2012 came into force 6 April 2012.  The new Regulations revoke and re-enact the Control of Asbestos Regulations 2006 (“CAR 2006”), with some amendments.  The reason for the amendments is that the European Commission (“EC”) concluded that the UK had not fully implemented a Directive on the protection of workers from the risks of exposure to asbestos.

    The EC’s reasoned opinion concluded that CAR 2006 had not qualified certain exemptions for low risk work correctly, so that the exemptions were in fact wider than the Directive permitted.  The new Regulations will narrow the types of work to which the exemptions apply and therefore, after 6 April 2012, some employers carrying out certain types of low risk, short duration work will no longer be exempt from the requirements to:

    a) notify the work to the relevant enforcing authority;
    b) carry out medical examinations; and
    c) keep registers of work with asbestos.

    Under CAR 2006, there are two categories of work: licensed and non-licensed.  Non-licensed work is exempt from certain requirements, including notifying the enforcing authority responsible for the site.  However, under the new Regulations, a third category of work is being introduced which will be known as notifiable non-licensed work (“NNLW”).

    From 6 April 2012, work is non-notifiable if:

    a) the exposure of employees to asbestos is sporadic and of low intensity;

    b) it is clear from the risk assessment that the exposure of any employee to asbestos will not exceed the control limit; and

    c) the work involves—

    i. short, non-continuous maintenance activities in which only non-friable materials are handled,

    ii. removal without deterioration of non degraded materials in which the asbestos fibres are firmly linked in a matrix,

    iii. encapsulation or sealing of asbestos-containing materials which are in good condition, or

    iv. air monitoring and control, and the collection and analysis of samples to ascertain whether a specific material contains asbestos.

    The words in bold are the words which have been added after the EC found the current legislation to be lacking, narrowing the scope of work that can be done without notifying the enforcing authority.

    The new Regulations do not specify when the notification of NNLW must be made and the intention is that work can begin immediately after notification has taken place.  It is estimated that notification will take between 10 and 15 minutes, and that the record keeping required will take a similar length of time.  In the responses to HSE’s consultation, there was no consensus as to whether the additional costs would be passed on to clients: some respondents thought they would be but others thought the market was too competitive to allow the costs to be passed on.

    There will be a three year transition period before the requirement for NNLW workers to have medical examinations comes into force.  HSE consulted with a range of medical bodies about the proposed medical requirement and the advice was that because of the long delay between exposure to asbestos and disease onset, medical examinations are of little value.  Trade unions’ concerns will be addressed in the guidance accompanying the new Regulations which will state that medicals should take place in paid work time.

    It is not yet known what impact, if any, the new Regulations will have on the food and drink industry.  There are strong views that the new Regulations will cause confusion and in part because of this, there will be a high degree of non-compliance, primarily by smaller companies.  Several respondents to the consultation said that to ensure they met with their legal obligations, they used licensed contractors for non-licensed work anyway.  It seems likely that this practice will only increase.  HSE said they did not encourage using licensed contractors where it was completely disproportionate to the task in hand but the majority of respondents said that they thought licensed contractors would carry out the NNLW and thereby acquire a larger share of the asbestos removal market.

    There has been criticism that HSE could have used this opportunity to fully review CAR 2006, but HSE said that this was not possible, given the EC’s tight timetable.  The main duties arising from CAR 2006, for example, to train workers, to plan the work and to put in place suitable control measures remain unchanged.  Also, there have been no changes to the types of work for which licences are required or the requirements relating to licensed workers.

    So whilst the changes under the new Regulations are relatively limited and HSE is expecting there to be a degree of non-compliance, HSE still cites asbestos as being the single greatest cause of work-related deaths in the UK and enforcement activity remains high.  To avoid potential large fines and criminal convictions, employers should ensure that all work involving asbestos is done safely and in compliance with the law.

    For more information or advice please contact;

    Katharine Vickery
    Compliance and Enforcement Partner
    Tel: 0845 497 1771
    Intl: +44 121 232 1771
    katharinevickery@eversheds.com