Terence Wright Asbestos
IndependEnt Asbestos Surveyors
This document provides a summary of the Control of Asbestos at Work Regulations 2006 which superseded the CAWR 2004. It contains an Approved Code of Practice (ACOP), which gives advice on the preferred means of compliance with the regulation. It is meant as an executive summary and by no means exhaustive. Fuller details are available in the HSE document “Regulation 4 of the Control of Asbestos Regulations 2006” or from www.hse.gov.uk
This advice has special legal status - if you are prosecuted for a breach of health and safety law and it is proved that you did not follow the relevant provisions of an ACOP, you will need to show that you have complied with the law in some other way or a court will find you at fault.
Duties of owners, occupiers, managing agents and others
The duties in regulation 4 rest with the person in control of maintenance activities in the non-domestic premises, whether that is the occupier or landlord, sub-lessor or managing agent. Where no such obligation exists, e.g. where there is no tenancy agreement or contract, or where the premises are unoccupied, then regulation 4(1((b) places the duty on the person in control of the premises to comply with this regulation.
The extent of this duty will therefore in most cases be determined by the degree of responsibility over matters concerning the fabric of the building and maintenance activities carried out there. An Owner may rent or lease out workplace premises under agreements where the tenants are responsible for all alterations, maintenance and repairs in the premises. If the premises are non domestic and the owner is responsible for maintenance and repairs and controls access by maintenance workers into the building, the owner must carry out the work required by regulation 4 themselves. In that situation, the owner’s obligations will extend to:
Carrying out an assessment as to whether asbestos is present and determining its condition;
Recording the results of that assessment and ensuring they are passed on to the occupier of the premises;
Collaborating with the occupier and others in the preparation and implementation of the management plan to control the risk from the ACM; and
Ensuring that anyone potentially at risk receives information on the location and condition of the material, so far as it is within their control.
Where sole responsibility rests with the owner, for example in common parts of a multi-occupied buildings, or where there is no tenancy agreement or contract, e.g. the premises are unoccupied or occupied solely by the owner, they would have the duty for complying with regulation 4 for those premises or parts of premises.
What has to be done and how
There are five stages to this, detailed in Parts A to E
A Delegating the task
Although the ACOP refers to the duty holder, someone else can be nominated to do all or part of the work – but note that the legal responsibility cannot be delegated. Anyone who is asked to do some work as a result of this regulation must know what it is they have to do and be able to do it safely. They should have suitable competence and training for this work. Employees and safety representatives must be consulted in good time about the appointment of any competent person.
If the duty holder decides to appoint a separate organisation or person to carry out some or all of this work, they should assess whether the individual or organisation concerned;
Have adequate training and experience in such work;
Can demonstrate independence, impartiality and integrity;
Have an adequate quality management system in place
Are carrying out any survey in accordance with the recommended guidance, MDHS 100 surveying, sampling and assessment of asbestos containing materials.
B Finding ACMs and assessing their condition
To comply with this part of the duty, an assessment will have to be made as to whether or not there is or may be any asbestos anywhere in the premises and its condition checked. Warehouse, yards, sheds, outbuildings, under-floor service ducts, corridors, vertical risers, external runs of pipes and bridges should all be included - in fact any part of the premises where asbestos might have been used. Fixed plant and machinery, like printing machines and parts of process plant and also mobile units which are on the premises all of the time, must be included, but not those which only come onto the premises from time to time, such as heavy trucks which might have asbestos brake lining. (The Road Vehicles (Brake Linings Safety) Regulations 1999 (as amended) apply to those.
Everything that can reasonably be done must be done to decide whether there is (or may be) asbestos in the premises, and if there is some (or may be some), to find out where it is or likely to be. The condition of the material must also be checked.
As much information as practicable will need to be found out about the buildings and plant in the premises. The regulation requires that all documentary information that can be obtained about the premises is gone through systematically and then a thorough inspection of the premises themselves is carried out, both inside and outside. When this has been done, anyone who may be able to provide more information should be consulted- including architects, building surveyors, building contractors, safety representatives and members of staff who are familiar with the premises. Any information that has been provided must be checked for accuracy.
During the inspection of the premises, if any material is found that looks as though it might contain asbestos, it should be presumed that it does, unless there is already strong evidence that it does not. (Examples of the sort of evidence might be; the result of a sample having been tested; information from the manufacturer; or information collected during the documentary search.) Enough information about any material that is thought might contain any asbestos should be noted on a record or drawing to enable another person to identify it. The record or drawing will need to include where it is located, the extent of ACMs, what condition it is in and what form it is in (e.g. product type - tiles, cement sheets), and what it looks like (e.g. if it is painted, what colour). This information will help you assess the risks from the material.
You will need to record on the drawing any area not accessed or inspected and it must be assumes to contain asbestos unless you have strong evidence that it does not.
If the inspection provides strong evidence to believe that there is no asbestos in the premises, nothing else needs to be done about this regulation, except to note the work already done, in case an inspector needs to see it. But the assessment must be reviewed if any new information is received that leads to the suspicion that there may, after all, be some asbestos on the premises.
C Assessing the risk
As part of the assessment of the risk of anyone being exposed to asbestos from any ACM identified, the information on the drawing or record of location of the materials and their condition, which was made as part of the inspection, should be used. Then, it must be decided what is going to be done to make sure that the identified risks from the material are managed to prevent people from being exposed to asbestos, so far as is reasonably practicable.
Consider how likely it is that each area of ACM will be disturbed or damaged by maintenance, repair or refurbishment and other activities
Condition of Materials
Material in good condition
If the materials are in good condition and are unlikely to be damaged or disturbed, then it is better to leave them in place and to introduce a system of management.
Material in poor condition
ACMs in poor condition must be repaired or removed. Poor condition means that the material’s exposed surface is in a state where there are substantial areas of visibly loose fibres that may be released by very slight disturbance or any material which has suffered significant damage or deterioration. (Example of potential disturbance would be someone using high-speed power tools close by or the vibration of nearby plant or another form of contact with the material.
D Managing the risk and preparing a plan
Managing the risk means making sure that as far as reasonably practicable no one can come to any harm from asbestos on the premises.
Decisions about what to do to manage the risk from each area of ACM in the premises must be recorded and the records/drawings kept fully up to date. For example, if a decision has been made to remove ACMs, once this has been done, it should be reflected in the drawing/records. Access to a copy of the up-to-date drawings/records should be available on site for the entire life of the premises as far as is reasonably practicable (or if the premises are vacant, at the duty holder’s nearest occupied premises). The arrangements made to check that the plans are carried out must also be recorded. Safety representatives have a right to copies of any documentation that must be kept by statutory requirements. Copies of the plan should therefore be made available to them. Everyone who needs to know what has been decided must get to know about it and they must be made aware about where the plan is kept. This will include: telling the workforce, particularly maintenance workers; telling safety representatives; or preparing packs of information for visiting contractors liable to be at risk.
If having gone through all the earlier steps in this document it has been decided or discovered that some ACMs in the premises can safely be left in place, arrangements will now need to be made so that information about the location and condition of the ACMs is given to anyone who might disturb them – either accidentally of during the course of their work.
The arrangement should be written down or recorded in some retrievable and easy to understand way. They should take account of the possibility that the main contact or nominated person may not be there all the time.
The Management Regulations require that suitable labelling/signs are put in place if there are no other appropriate preventive or protective measures. Labelling should conform to the Health and Safety (Safety Signs and Signals) Regulations 1996.
Tell employees what the arrangements are, and provide copies for employee representatives and trade union safety representatives. Remember that his information must be available for all of the premises, so if there are separate site managers/building managers responsible for different premises they must each make the information available to those in their different premises.
No-one must work on any ACMs unless the requirements of the Asbestos Regulations are complied with.
A ‘once and for all’ solution could be considered and competent specialist called on to survey all accessible parts of the premises, analyses any suspect materials and identify the location of any that contain asbestos as set out in MDHS100 on type 2 and 3
Information on the location and condition of any known, or presumed, ACMs must be made available to the emergency services. The fire services I particular need to be made aware that ACMs are in the premises so that they can take the appropriate precautions in an emergency.
E Monitoring arrangements
Lastly, there should be periodic checks to make sure that the arrangements are working and that people are fully aware of what they should be doing to comply with the duty to manage.