New regulations on the management of asbestos in the workplace...

New regulations on the management of asbestos in the workplace come into effect next May, but few companies are prepared, reports Adrian Leonard

Millions of buildings in the UK contain asbestos within the materials used to construct them. When disturbed or cut, these materials can release potentially fatal asbestos fibres. Asbestos-related deaths in the UK are expected to reach 10,000 per year by 2010, yet thousands of people continue to be exposed in the course of their work - especially individuals in building-related trades such as electricians, plumbers and carpenters. To deal with this potential threat, the Government has introduced new regulations to bring occupational exposure to a halt once and for all, with severe penalties for business that fail to comply.

All employers and owners of commercial properties and all other 'non-domestic' buildings (including public buildings) are affected. The Control of Asbestos at Work Regulations 2002 were passed in October 2002, and will come into effect in May 2004. They extend responsibility to control workplace exposure to asbestos from employers alone to employers and landlords. It is the first national rule that requires all asbestos in buildings in the UK to be identified and made safe. Even public-sector bodies could be open to criminal prosecution if they fail to comply. The UK government has forecast that the new regulations will save 4,700 lives, and cost industry between £1.5bn and £5.1bn over the next 50 years.

The regulations create a class of persons called 'dutyholders', including all people who 'have an obligation of any extent in relation to the maintenance or repair of non-domestic premises'. The UK Health & Safety Executive defines dutyholders thus:

  • Where there is a contract or tenancy, every person who has to any extent any control over the repair or maintenance of the relevant part of the premises or any access or egress from the premises; or
  • Where there is no contract or tenancy, every person who has control of the relevant part of the premises or access or egress from the premises.
  • The dutyholder therefore in a tenanted property will depend on the terms of the tenancy relating to repair and maintenance. In multi-tenanted properties it is likely that the landlord would be the dutyholder in respect of common parts and the tenant the dutyholder in respect of the individual units.
  • If a tenanted unit becomes void the landlord is likely to become responsible as dutyholder during the void period.

    Dutyholders must determine if asbestos exists on the premises in their care, assess it, create an asbestos register describing any occurrences of asbestos, and must presume asbestos exists in building materials that typically contain asbestos. Finally, any asbestos risk identified must be managed according to a written plan, and the plan and progress monitored and updated. However, despite the 18 month lead time, a survey by the insurer Zurich Risk Services published in April found that only 17% of UK dutyholders had an asbestos management plan in place.

    The regulations state that risk management should include monitoring the condition of any asbestos or any substance containing, or suspected of containing, it; ensuring any asbestos is properly maintained, or, where necessary, safely removed; and ensuring that information about the location and condition of any asbestos is provided to every person liable to disturb it, and made available to the emergency services.

    The regulations also place new duties on employers. They are required to prevent the exposure of employees to asbestos so far as is reasonably practicable, and, where it is not reasonably practicable, to reduce the exposure to the lowest level reasonably practicable by measures other than the use of respiratory protective equipment, and ensure that the number of employees who are exposed to asbestos is as low as is reasonably practicable.

    The rules require substitution of asbestos in manufacturing or installation if possible, and the use of respiratory equipment if other measures are insufficient to reduce exposure to minimums outlined. Detailed rules for the provision and cleaning of plant and protective equipment and clothing are included, alongside rules governing the measurement of air quality, among others. The regulations also include a general duty to prevent the spread of asbestos, and rules for labelling of asbestos-containing products. Non-compliance with any of the requirements is a criminal offence. Penalties range from a maximum fine of £5,000 in Magistrates' Court, or in the Crown Court an unlimited fine and the possibility of imprisonment.

    The rules do not require the removal of asbestos, but often removal may be the best course of risk management action. The removal of asbestos is a qualifying expenditure for the purposes of Contaminated Land Remediation Expenditure Tax Relief set out in the Finance Act 2001, allowing companies to claim a percentage of the cost of removing asbestos from a building. However, tax relief applies only in certain circumstances.

    According to the law firm CMS Cameron McKenna: 'Essentially it allows companies to treat 150% of qualifying capital expenditure as revenue expenditure in calculating profits. The three main criteria in order to claim the tax relief are as follows:

  • Land in the UK must be acquired by a company for the purposes of the trade carried on by the company
  • At the time of the acquisition all or part of the land must be in a 'contaminated state'
  • The company must incur capital expenditure, which amounts to 'qualifying land remediation expenditure'. 'Land' may in this context include buildings. Therefore, land may potentially be in a contaminated state by virtue of substances in the fabric of the buildings... The Inland Revenue has indicated that it does not consider that the mere presence of asbestos in buildings results in the possibility of harm being caused. The possibility of harm only arises if the asbestos is disturbed and becomes friable'.

    Daniel Chappell, a partner in CMS Cameron McKenna, said that the Revenue appeared to be taking the view that the possibility of harm existed not only where asbestos is in bad condition and requires work, but also where it must be disturbed or removed during building refurbishment or demolition.

    Adrian Leonard is author of the forthcoming report Asbestos: the relentless peril.

    Insurance broker Aon UK, in its Risk Alert 35, summarised the duties under the regulations as follows:

  • Take reasonable steps to determine the location and condition of any materials likely to contain asbestos
  • Presume materials contain asbestos unless there is strong evidence that they do not
  • Make and keep up to date a record of the location and condition of the asbestos containing materials or presumed asbestos containing materials in the premises
  • Assess the risk of anyone (employees, contractors and others) being exposed to fibres from these materials
  • Prepare a plan setting out how the risks from the materials are to be managed
  • Take the necessary steps to put the plan into action
  • Review and monitor the plan periodically
  • Provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.