Summary

This OC provides advice to inspectors on interpretation of the Control of Asbestos Regulations 2006 (CAR 2006) including enforcement benchmarks for licensed and non-licensed asbestos removal work and the management of asbestos in buildings. It includes information on inspection in the 2008/09 work year with a link to some model improvement and prohibition notices.

Introduction

On 13 November 2006 the following regulations were replaced with one single set of regulations: The Control of Asbestos Regulations 2006, together with two ACoPs, L143 ‘Work with asbestos containing materials’ and a revised version of L127 ‘Duty to manage asbestos in premises’:

• The Control of Asbestos at Work Regulations 2002
• The Asbestos (Licensing) Regulations 1983
• The Asbestos (Prohibitions) Regulations 1992

The changes were brought about by the need to simplify the regulations and to make them more risk-based in line with the amended European Asbestos Workers’ Protection Directive.

Summary of main changes to the regulations and associated ACOP

The main changes and some explanatory comments are outlined below:

• There is a new single Control Limit of 0.1f/cm3 (equivalent to 0.1 f/ml) for all types of asbestos. The Action Levels have been withdrawn. The Short Term Exposure Limit of 0.6f/cm3 over 10 minutes will be maintained, but it will be an ACoP standard instead of being in the regulations because there is no requirement for a STEL in the Directive.
• All work with asbestos now requires a licence, notification to the enforcing authority and medical surveillance for workers unless it is exempt under Regulation 3(2). Work will be exempt where worker exposure is sporadic and of low intensity’ and where it is foreseeable (i.e. in the risk assessment) that the Control Limit will not be exceeded and where the work involves one of four defined types of work as set out in Regulation 3(2)(c). This means that licensing is risk- based and not solely determined by the type of asbestos containing material. Examples of work that are exempt from licensing and other requirements are listed in paras 40-47 of the ACoP.
• In general, work with textured coatings (TCs) will no longer need to be carried out by a licensed contractor. Work by HSL has shown that exposure is minimal from TC work and that the risks from TCs are less than those from asbestos cement. Control of exposure and prevention of the spread of fibres is still essential, and the correct methods for removing TCs are listed in the ACoP, paragraphs 167-176.
• The World Health Organisation asbestos fibre counting method has replaced the European Reference method.
• The previous exemption from the need to hold a licence by employers using their own employees to do licensable work on their own premises has been withdrawn.
• Analyst organisations must have accreditation under ISO 17025 and 17020 in order to carry out four-stage clearances by 6 April 2007.
• Training requirements have been made more explicit in both the regulations and the ACoP. Asbestos training has been divided up into licensed, non-licensed and awareness training categories.
• The terms asbestos and asbestos cement are defined.  Asbestos is defined as any mixture of more than trace amounts (see HSG 248).  Asbestos cement is defined by a water absorption test.
• There is more emphasis on pre-cleaning and planning the job in order to take the clearance process into account.
• Supervisory and ancillary work are defined.
• Employees are entitled to a copy of their training certificate and to be given the results of their tests such as face-fit testing, air monitoring and medical examination.
• Where the removal of TCs is not reasonably practicable, demolition or major refurbishment can take place with them in situ.  Further detail can be found in an Asbestos Liaison Group memo on the subject.

ACoPs and guidance

Key publications

The ACoPs listed below came into effect on 13 November 2006 and further information is available on the Asbestos site.

• Asbestos: the licensed contractors’ guide, HSG247 - Comprehensive guidance for licensed contractors replaces the EH series 47, 50 and 51 and HSG 189(1) and HSG 288.
• ACoP L143 CAR 2006
• ACoP L127 revised to reflect 2006 regs, no other changes
• ‘Asbestos: the hidden killer’ Campaign Pack

Other relevant publications

• HSG 227 Guidance Booklet: ‘A Comprehensive Guide to Managing Asbestos’
• INDG 223. ‘A short guide to managing asbestos in premises' [182KB]
  Free Leaflet.
• ‘Manage Buildings? You must manage asbestos [342KB]’
  Free Leaflet. A jointly badged leaflet produced by HSE in conjunction with the Trades Union Congress, The Royal Institute of Chartered Surveyors, The Federation of Small Businesses, The Asbestos Testing and Consulting Division of ARCA and The British Institute of Facilities Managers. 
• MDHS 100: Surveying, sampling and assessment of asbestos containing materials (2001) - Priced Publication. ISBN 0 7176 2076 (currently being revised) 
• INDG 419: ‘Asbestos Kills: Protect Yourself! You are more at risk than you think [264KB]’
  a new leaflet for maintenance workers. 
• INDG 418: ‘Asbestos Kills: A Quick Guide to Protecting Yourself [256KB]’ – A new pocket card for maintenance workers.
• HSG 210 ‘Asbestos essentials Task Manual’
  Task Guidance Sheets for the Building maintenance and allied trades. Priced Publication
• Asbestos Essentials task sheets/Equipment and method sheets
  - free to download individual sheets.
• HSG 213 ‘Introduction to Asbestos Essentials: Comprehensive guidance on working with asbestos for the building maintenance and allied trades’
• Other useful information on asbestos and the ‘Duty to Manage’ Asbestos can be found on HSE’s asbestos website.

All ACoPs are considered to be ‘Defined’ standards and all HSG and INDG series publications are considered to be ‘Established’ standards for the purposes of Enforcement Management Model (EMM).

General application of EMM to asbestos

Exposure to asbestos can lead to a number of diseases: asbestosis or fibrosis (scarring) of the lungs; lung cancer and mesothelioma. These diseases are irreversible, disabling and generally eventually fatal. They are listed in Schedule 3 of RIDDOR and clearly come into the descriptor 'serious health effect'. This is comparable with the safety equivalent of ‘risk of serious personal injury’. Exposure to asbestos accounts for more occupationally related deaths than any other single cause. Likelihood of developing the disease is affected by several factors - the type of asbestos fibre; age when exposure starts; the quantity of fibres breathed in and the duration of exposure.

The risk matrix below sets out the 4 types of likelihood of exposure that lead to ‘serious health effect’.

Asbestos risk matrix

	Application / Interpretation	Likelihood
		Probable	Possible	Remote	Nil / Negligible
SERIOUS HEALTH EFFECT	Asbestosis Lung Cancer Mesothelioma	Highly likely that exposures which could result in most people being affected would occur	Exposure to multiples of the control limit.	Control limit [1] for amphibole forms. Control limit for chrysotile [2]	Benchmark [3]

Notes in risk matrix

1. Based on 5 years exposure (typical worker aged 30-35)
2. Risks from chrysotile exposure have been shown to be less than for amphibole forms but are still to be deemed remote at the control limit. This takes into account:
   • Compliance requires reduction of exposure so far as is reasonably practicable and below control limit.
   • HSE's position statement on asbestos that aims to promote awareness of the risks of casual exposure and to encourage the adoption of a more precautionary approach by industry
3. The Law requires the prevention of exposure to asbestos, but where it is not reasonably practicable to prevent exposure, exposure has to be reduced to the lowest level reasonably practicable by measures other than the use of RPE.  The employer must choose the most effective methods or combination of methods that minimise fibre release and thereby reduce exposure to below the control limit, then suitable RPE must be worn.  The RPE must reduce exposure as low as reasonably practicable below the control limit.

For most asbestos related work, the benchmark can be considered to result in a 'nil or negligible' residual risk.  This is based on all necessary control measures being in place and working (i.e. proper enclosure; correct equipment - cleaned and in good working order; most appropriate techniques e.g. well planned and executed wet removal; employees wearing suitable RPE which has been properly selected including face fitting; proper training and supervision etc). CAR 2006 requires prevention of exposure or reduction to the lowest level reasonably practicable to achieve the actual residual risk of ‘nil/negligible’. In practice, this means that the ‘risk gap’ will be either ‘substantial’ or ‘extreme’ when work is carried out at or above the relevant control limit. Table 5.1 of EMM suggests an initial enforcement expectation (IEE) of issuing an Improvement Notice for both ‘substantial’ and ‘extreme’ risk gaps, together with considering prosecution in the case of an ‘extreme’ gap. Whilst this approach guides inspectors to a firm enforcement line on asbestos, it should be remembered that some breaches remain administrative in nature (see EMM Table 5.2), such as the failure to have carried out an assessment; lack of records of RPE or equipment maintenance, and do not, in isolation, demonstrate a risk of ‘serious health effect’.

The following sections list the changes that affect the different aspects of asbestos inspection work. Each section provides specific enforcement indicators for that type of work to show what compliance should look like in practice.

The 3 categories of asbestos inspection

1  Management of asbestos premises

(a)  Duties under Reg 4(1)

The specific reg 4 duty (as opposed to the generality of the Health and Safety at Work Act) will require those who have responsibilities for maintenance activities in non-domestic premises to take all of the following actions to prevent fibre release and thereby prevent exposure:

• take reasonable steps to find asbestos in the premises and assess the condition of these materials;
• presume that materials do contain asbestos unless there is strong evidence that they do not;
• prepare a record of the location and condition of ACMs and assess the risk from them
• prepare and implement a plan to manage those risks;
• ensure that ACMs are managed in-situ by controlling maintenance work;
• prioritise work for those ACMs that require to be sealed, encapsulated or repaired;
• remove ACMs that cannot be managed in-situ, but only as a last resort;
• provide information on the location and condition of the material to anyone who is liable to disturb it;
• regularly review the condition of ACMs in order to ensure that the plan remains up to date.

(b)  Application

(i)  Non domestic premises

This term applies to commercial, industrial and public buildings as well as ‘common parts’ of domestic premises. The Royal Institution of Chartered Surveyors has drawn up a chart listing common types of domestic and non domestic premises. This chart is part of the Duty to Manage (DTM) Inspection Pack [166KB].

(ii)  Rented sector

Even though regulation 4 does not apply to the majority of domestic premises there is still some responsibility on the part of the landlord or managing agent to reduce exposure to asbestos. Other relevant parts of CAR, the Act and or the Management of Health and Safety at Work Regulations 1999 should be used to ensure that an asbestos inspection, including sampling, is commissioned by the person initiating the work, before building, refurbishment, maintenance or demolition work takes place.

(iii)  Owner-occupiers

Owner-occupiers may be responsible for the maintenance and or repair of the common parts of an otherwise domestic property e.g. roof space; landing; lobby etc. Our advice to these dutyholders should be to carry out a presumptive inspection themselves (if they feel competent to do so) and to document the location of presumed ACMs. This information should then be passed on to any contractors brought to work on the premises and given to any new tenants or owners.  Where damaged materials are found further work will be needed to test for the presence of ACMs and steps taken to prevent exposure where necessary.

(c) Inspection in current workyear

In workyear 2008/9 HSE senior management are advocating a more proactive approach to enforcement of CAR 2006 to build on previous duty to manage inspections and awareness raising work. Full details can be found in the following SIM 03/2008/07. Background information and guidance on preventive prosecutions is contained in the DTM Inspection Pack [166KB] See examples of model notices [728KB]

During February and March 2008, HSE together with key stakeholders will be running a campaign – ‘Asbestos – The Hidden Killer’ - to target building maintenance and repair workers who are still at risk from exposure to asbestos. The primary aim of the campaign is to raise awareness amongst these workers that they are more at risk than they think from asbestos. Additionally it aims to encourage them to find out more about asbestos and the precautions they should be taking.

The campaign uses the theme “You are more at risk than you think!” and includes a regional pilot in the North West (England) together with national coverage in the trade press and activity delivered through Trade Unions, Trade Associations and Suppliers.

The campaign is focused around National Action Mesothelioma Day (27 February 2008), although activity in the trade press, regional press and radio will run throughout February and March in order to attain maximum exposure.

The campaign comprises:

National activity

• articles in trade press magazines for tradesmen and those who influence tradesmen
• advertisements in trade press magazines for plumbers and electricians
• distribution of campaign material to tradesmen via stakeholders
• PR activity, including the use of case studies

Regional activity

• A media pilot in the North West (England) comprising radio advertisements, regional press advertisements, PR and the direct mailing of campaign packs to tradesmen via stakeholders
• PR activity, including the use of case studies

Enforcement action should always be taken in line with the HSC Enforcement Policy Statement to achieve compliance. The main purpose of DTM is to prevent exposure to asbestos caused by maintenance work and from damaged ACMs. Inspectors should therefore continue to ensure that workers are prevented from coming into contact with asbestos. This will require duty holders to take the following action:

• Ensure that a precautionary approach is taken towards maintenance operations.
• Carry out some form of inspection to check the condition of any asbestos containing materials (ACMs) and take remedial action by prioritising work for those ACMs that require to be sealed, encapsulated or repaired.
• Draw up and implement an asbestos management plan.

Monitor the condition of ACMs on a regular basis to ensure that the plan is kept up to date

(d)  Enforcement indicators

The scope of the general duties set out in regulation 4 mean that HSE risks getting drawn into areas where our involvement would be inappropriate. Priority should be given to the application of regulation 4 to occupied workplace buildings. The following types of premises should be seen as a low priority:

• Premises controlled by domestic tenants or owner occupiers who get together or act separately to have work done in the common parts of a domestic premises e.g. for the stairwell in a flatted tenement building. Enforcement of other parts of CAWR may be more effective in achieving safe working practices for contractors on site once it is brought to our attention that work is ongoing e.g. regs 10 and 6.
• Structures other than buildings; e.g. roads, bridges, street furniture.
• Unoccupied buildings, contaminated land and premises without buildings – A pre-tender health and safety plan (CDM reg 13) should address most contaminated land projects and the most hazardous forms of asbestos will usually be found within the fabric of a building.

When tracking back from a site inspection, inspectors should use all the key indicators of compliance with CAR 2006, known as Risk Control Indicators [166KB]. 

Risk Control Indicator (RCI) for Asbestos DtM

• have the survey results been addressed in an up to date management plan for ACMs?
• are there systems to implement, monitor and review the plan, including a responsible person to oversee ACM management?
• is maintenance work properly regulated?
• have employees/managers/contractors been trained (ACoP L143, Reg 10) and told about any ACMs present?

The RCI scoring system ranges from 1-6 with 1 being the highest score.  The scores are set out in the table below and also defined on the IRF1 form.  Enforcement action should be considered when scores of 4-6 are achieved

Risk Control Indicators – Assessment Scale: each risk control indicator should be assessed against the following 1-6 scale
1	2	3	4	5	6
High Standards with some aspects meeting best practice	Good standards meeting minimal legal requirements	One or more shortcomings are present.  As these shortcomings are not serious, they can be dealt with informally with oral advice.	Standards are patchy. It is necessary to address one or more shortcomings by giving formal instructions for remedial action to be taken.  Formal instructions may be implemented by, e.g. obtaining a verbal undertaking from the company to take specific action, sending a letter, or physical removal/disposal of items.	Standards are generally unsatisfactory. Typically, at least one contravention that gives rise to a discernible risk gap	Standards unacceptable. Unless application of the EMM identifies duty holder factors that provide strong mitigation, the issuing of a notice and/or prosecution is likely to be appropriate

Regulation 4 in isolation cannot deal with immediate risks from ACMs, such as persons found working in a contaminated area, and other parts of CAR will be needed instead (see Tables 2 and 3). Where such risks are brought to the attention of HSE, but there is no on-going undertaking, refer the matter as soon as possible to the Local Authority for potential action under legislation such as The Building Scotland Act 2003 (disrepair notices), The Housing Act 1985 or The Environmental Protection Act 1990.

A summarised enforcement guide for DTM and non-licensed work can be found in Table 1 below with more detailed guidance in ACoP L127 and HSG227

Table 1  -  Outline enforcement guidelines for DTM

Topic	Regulation(s)	Consider PN	Consider IN	Consider Prosecution
No/inadequate management plan	4(8) and 4(9)			*
No assessment or not suitable and sufficient	4(3)-(5)			*
No or inadequate inspection of premises	4(5)(b)			*
Failure to cooperate with dutyholder	4(2)			*
Failure to record assessment/plan	4(7)			*
Failure to update assessment	4(6)			*
Failure to review and or implement plan	4(10)			*
Failure to pass on info to workers, H&S reps, new tenants etc (i); emergency services (ii)	4(9)(c)(i) or (ii)			*
Persons managing ACMs or carrying out work not adequately trained [1]	10(1)(a) 10(1)(b)			*

Notes

*Denotes that in serious cases consideration should be given to prosecution for these failures when they form part of a series of failures.

1  Denotes that when finding administrative failures you will also need to make a judgment about whether exposure will exceed the STEL/Control Limit before issuing a PN, e.g. when smashing up asbestos cement sheets or pulling off a single AIB tile.

2  Non-licensed asbestos work:  enforcement indicators

For work to be done without a licence the following conditions must apply:

• It creates exposure that is sporadic and of low intensity and
• It is foreseeable that the Control Limit will not be exceeded and
• It is a work activity listed in Regulation 3(2)(c)

The main standards for non-licensed work can be found in ‘Asbestos Essentials’ (HSG210), INDG 189/2 and ACoP 143, paragraphs 164-177. A key change of the 2006 regulations is that employers working with Textured Coatings (TCs) will, under most circumstances, no longer require a licence. ACoP 143, paragraphs 167-177 set out the main controls to be used when removing TCs. In addition, TCs and other low risk materials (e.g. bitumen floor tiles) will generally not have to be removed prior to demolition or major refurbishment because it is not reasonably practicable to do so. Asbestos in these materials is firmly bonded within the matrix (such that fibre release is extremely limited during demolition and refurbishment) and removal would be time consuming and resource intensive.

Table 2 below outlines the key issues that may lead to enforcement action being considered.

Table 2 - outline enforcement guidelines for non-licensed asbestos works

Topic	Regulation(s)	Consider PN	Consider IN	Consider Prosecution
Maintenance work not controlled	6, 7, 11(1)(b), 12(1)
Damaged ACMs pose serious health risk	4(9)(b), 11(1)(b), 12(1), 16
Contamination already occurred	6, 7,11(1)(b), 12, 15(4), 16
Plan of work not followed/inadequate or non existent	7(4), 7(1)
No RPE face-fit test or record [#1]	13(2), 13(3)
RPE/PPE not suitable	11(5)
RPE/PPE not maintained	13(1)
No emergency procedures	15(1)
Controls (incl RPE/PPE) not in use or inadequate	11(1)(b), 12(1), 13(1), 14(1), 16
Failure to prevent spread of asbestos	16
No assessment or inadequate	6
Separate wash facilities needed	23
No regular air monitoring	19
No/inadequate cleaning procedures	16,17(1)(b)
Persons carrying out work not adequately trained (1)	10(1)(a),			*

Notes

*Denotes that in serious cases consideration should be given to prosecution for these failures when they form part of a series of failures.

1  Denotes that when finding administrative failures you will also need to make a judgement about whether exposure will exceed the STEL/Control Limit in before issuing a PN.

3  Licensed removal work: enforcement indicators

Most work with asbestos insulation, sprayed coatings (but not TCs) and AIB must be carried out by a licensed contractor.  However, there are exceptions fir asbestos insulation and AIB where the work is short duration. Details are set out in paragraphs 4042 of ACoP L143 and examples for AIB are provided in HSG 210, Asbestos Essentials. Work on other asbestos materials including asbestos cement is also exempt under Regulation 3(2)(c) and does therefore not require a licence.

Using the control methods and techniques specified in ACoP L143 paragraphs 15-160 and 178-189 in HSG247, it should be possible to reduce exposure to a level where there is ‘nil or negligible’ residual risk. The employer must first chose the most effective method or combination of methods that minimise fibre release and thereby reduce exposure to the lowest level that is reasonably practicable. The employer should ensure that effective control is sustained for the whole job by means of thorough preparation, planning and monitoring. Work should be stopped when an unforeseen increase in fibre release occurs, e.g. lagging becomes detached. The control measures should be reviewed and further action taken to reduce exposure. Any changes to the plan of work should be explained to the workers and put in writing.

Suitable RPE should be worn where exposure will not be reduced below the control limit by other measures. The RPE used must be reduce exposure as low as reasonably practicable below the control limit. A face-fit tested, well maintained and correctly worn respirator with a protection factor of 40 (such as a power-assisted full face-piece respirator with a P3 filter, or equivalent ‘hood’ or ‘blouse’) should be used for licensed work inside enclosures.

A combination of all the above practicable controls should achieve the EMM benchmark of ‘nil/negligible’ risk when fully operational and used correctly.

There may be some circumstances where a higher standard of RPE is necessary. These would include: use of wet-blasting techniques (e.g. grit blasting) to remove well-bonded residual asbestos or methods used to achieve a smooth finish on metal pipes etc. In such situations airline-fed RPE should be used. Workers will require specific training in the use and maintenance of such equipment.

During conventional work requiring a licence if any of the control elements were missing fibre concentrations would far exceed the control limits causing the actual risk to quickly rise to 'possible' (i.e. exposure to multiples of the control limit). Examples include:

• Dry stripping/using power tools
• Inadequate RPE - none worn, badly fitted, disposable masks instead of full face power respirators
• No face fit testing of RPE
• No enclosure or inadequate (leaking, no airlocks etc)
• Decontamination unit missing / not connected
• Inadequate plant e.g. no 'H' vacuum cleaners or LEV; no negative pressure unit
• Lack of water/power
• No/inadequate training

Table 3 below outlines the key issues (in addition to those in Table 2) that may lead to enforcement action being considered.

Table 3 - outline enforcement guidelines for licensed work

Topic	Regulation(s)	Consider PN	Consider IN	Consider Prosecution
Work by unlicensed contractor	8(1)	If poor standards found
Work not notified	9(1)
Not using effective controls e.g. not PAS60 Compliant	11(1)(b), 12, 16
DCU missing, inadequate or defective/decon not followed	23, 11(1)(b), 16
Inadequate clean up of work and transit areas [1.]	17(a), 17(b)
No medical examinations/health records	22(1), 22(2), 22(3)			*
Inadequate/no clearance procedures [~1]	17(b),
Training does not comply with ACoP/ HSG2471	10 (1)(a)			*
Persons not competent to work in enclosure	18(4)			*
Inadequate/defective RPE	11(2), 11(3), 11(4)			*
Inadequate maintenance of control measures	13			*

Notes

1 As well as finding administrative failures, you will need to make a judgement about whether exposure will exceed the STEL/Control Limit in order to issue a PN.

* Denotes that in serious cases consideration should be given to prosecution for these failures when they form part of a series of failures.