Construction Hazardous Substances: Inspection and Enforcement Guidance
This document gives guidance to inspectors on applying the EMM to hazardous substances on construction sites.
This guidance has been produced to help inspectors reach proportionate enforcement decisions on a range of construction hazardous substances – cement, lead, solvents, isocyanates, harmful micro-organisms, carbon monoxide and diesel engine exhaust emissions. It complements the information on risk assessment and control for these substances found on the construction section of the HSE website.
The wide variety of substances and work conditions means it is not possible to provide for all eventualities. Inspectors should use this document and the information contained within Further References as an outline / set of principles when considering the level of enforcement action that is appropriate to the specific situation encountered.
Inspectors should assess the risks and apply the EMM by following the steps below:
Step 1: Determine risk
Inspectors should establish the nature of the hazardous substance(s) involved and the level of risk they present. This includes assessing the adequacy of the control measures in place against the 'standards' set out in the Construction Hazardous Substances section of the HSE website. Detailed information on the factors to consider is set out in Appendix 1.
Gathering and recording this information is important for supporting any subsequent action taken. Inspectors are not expected to take / request on-site exposure measurements as part of this process unless a Specialist Inspector considers this appropriate.
Step 2: Dealing with urgent matters: the risk of serious ill-health
Some situations can give rise to exposure levels that are sufficient to warrant immediate action to ensure the risk is prevented / effectively controlled (eg by issuing a PN). Inspectors should deal with these situations as a priority. Information on these situations is set out by substance in Appendix 2.
Step 3: Dealing with other matters through the EMM
Inspectors should determine the risk gap and IEE for all remaining situations using the Enforcement Management Model (EMM). Priority should be given to preventing the risk (ie control) over arrangements for checking or measuring the nature of a problem (ie health surveillance and monitoring). Give particular focus to those substances / situations where inadequate controls can result in an extreme or substantial risk gap under the EMM.
Information on applying the EMM to common hazardous substances is explained in Appendix 2. General IEE for management arrangements is contained in Appendix 3. Dutyholder and strategic factors should be applied as normal.
Step 4: Enforcement action
Where enforcement is appropriate, action should be focused on the dutyholder that 'creates and owns the risk'. In many instances, this may be the (sub) contractor carrying out the task in question. COSHH (Control of Substances Hazardous to Health Regulations 2002) is the primary legislation except for lead, which is covered by CLAW (Control of Lead at Work Regulations 2002). Inspectors should also be aware of the requirements of REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) where applicable – particularly concerning material safety data sheets (MSDSs) and the restrictions on dichloromethane (DCM) use within paint strippers.
There may be other circumstances where enforcement against a Principal Contractor (PC) is appropriate. In many instances, the PC's employees may not be directly carrying out the work in question. In these situations, COSHH and CLAW cannot be used to enforce against the PC. CDM (Construction (Design and Management) Regulations 2015) should be used instead with reference to HSW section 3. Further information on the approaches to take with different dutyholders is contained in Appendix 4.
Notices should be in accordance with the EMM, Enforcement Policy Statement and the information in this document. In some cases, both a PN and IN may be served to deal with the same set of circumstances – the former to stop an extreme risk of serious personal injury and the latter to secure longer-term compliance.
Inspectors are reminded that the Enforcement Policy Statement states that proactive prosecutions are appropriate in some circumstances without previous advice; including where a prosecution draws general attention to the need for compliance with the law, or a conviction may deter others from similar failures to comply with the law. This is most likely where well-established control strategies are completely inadequate and there has been a sustained / serious risk to health. Information on these situations is set out by substance in Appendix 2.
Note: Inspectors are advised to discuss any enforcement on health surveillance issues with an Occupational Health Inspector before taking action.
The construction industry has high levels of occupational ill-health. It is a priority issue for Construction Division. Exposure to hazardous substances contributes significantly to this. The HSE website outlines key points about ill-health issues in the construction industry and construction hazardous substances.
There are no special organisational requirements.
Inspectors should pay particular attention to:
Construction Sector: Health Risk Management Unit.