OC 265/50 Version 5
Author Unit/Section: Asbestos Licensing Unit
Target Audience: HSE inspectors and Local Authority Enforcement Officers
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.
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 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.
The main changes and some explanatory comments are outlined below:
The ACoPs listed below came into effect on 13 November 2006 and further information is available on the Asbestos site.
’ 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).
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’.
| 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] |
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 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:
(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.
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
Regional activity
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:
Monitor the condition of ACMs on a regular basis to ensure that the plan is kept up to date
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:
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].
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
| 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) | |
|
* |
*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.
For work to be done without a licence the following conditions must apply:
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.
| 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), | |
|
* |
*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.
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:
Table 3 below outlines the key issues (in addition to those in Table 2) that may lead to enforcement action being considered.
| 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 | |
|
* |
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.
