The Control of Asbestos Regulations 2012 came into force on 6 April, and all previous regulations have been revoked.
This follows the European Commission's (EC) view that the UK had not fully implemented the EU directive on exposure to asbestos.
Whilst there are limited changes to the regulations in practice, it would be wrong to think that they can be ignored. They have received very little publicity.
The regulations introduce an important new obligation that requires notification of certain types of work with asbestos.
To date, work with asbestos has either been licensable or non-licensed work. The new regulations introduce a third category of notifiable non-licensed work (NNLW).
Whilst all non-licensed work needs to be carried out with appropriate controls in place, NNLW will place additional requirements on employers to:
- notify work with asbestos to the relevant enforcing authority
- ensure medical examinations are carried out
- maintain registers of work (health records)
It will be for the employer to determine in each case whether work is notifiable or not.
This will require consideration of the type of work being carried out, the type of material that will be worked on, and its condition.
The types of work can be categorised as:
- encapsulation or air monitoring and control
- collection and analysis of samples
The type of asbestos becomes important. You will need to decide whether or not it is friable and, for removal work, how firmly the asbestos is bonded in a matrix.
Finally, you must consider the material's condition. Has it been damaged or is it in poor condition? Will the materials matrix be destroyed when worked on?
It will be the responsibility of the person in charge of the job to assess the asbestos-containing materials (ACM) to be worked on, and decide if the work is NNLW or not. Whilst it will be a matter of judgement in each case, failure to notify is an offence.
The Health and Safety Executive website contains a useful decision flowchart to assist those with duties in deciding whether or notification is appropriate: http://www.hse.gov.uk/pubns/guidance/a0.pdf
So, most work with firmly bonded materials in good condition will not need to be notified. Short-duration maintenance work involving asbestos insulating board (AIB) which is in good condition will also not normally need to be notified.
However, NNLW will normally include short-duration maintenance and removal work with asbestos insulation, the removal of textured decorative coatings where the material is destroyed (for example by scraping it off), and short duration removal of AIB as part of refurbishment.
In view of the potential downside of failing to notify, we would suggest that, if there is any doubt with a border line operation, notification to the authorities is made as a precautionary measure. Notification can only be made via an online form that must be submitted before work begins.
Remember that if you maintain health records for workers, these must now be kept for a period of 40 years.