Asbestos Regulations Impact on Construction UK

Construction legal adviceThe Impact On The Construction And Commercial Property Industry of the New Control of Asbestos at Work Regulations 2002

The New Asbestos at Work Regulations 2002

Regulations relating to the management of asbestos that impose a new requirement on employers, building owners, landlords and tenants take effect on 21st May 2004. All of these groups should now be considering the implications of these regulatory changes, identifying the presence of any asbestos-containing materials within their premises and formalising a strategy for managing the risk.

The purpose of this briefing is to give you further information on the impact of these regulations on the commercial property industry and some guidance on what you should be doing now to minimise your liability and ensure that you are aware of how to comply with the regulations.

Use of asbestos

The commercial use of asbestos began in the UK around the end of the 19th Century and increased gradually until World World II. Immediately thereafter, large quantities of asbestos were used, particularly for new "system-built" buildings in the 50's, 60's and early 70's. Since then the use of asbestos has been progressively banned and in 1999 the importation, supply and use of all forms of asbestos containing materials was prohibited.

What is asbestos

There are three main types of asbestos - chrysotile, amosite and crocidolite. They are usually white, brown and blue asbestos respectively. However they cannot be identified just by their colour and laboratory analysis is required to properly identify them.

Why is asbestos dangerous

Breathing in asbestos fibres can lead to developing one of three fatal diseases;

• Asbestosis - which is the scarring of the lung leading to shortness of breath;
• Lung cancer;
• Mesothelioma - which is a cancer of the lining of the lungs and stomach.

Asbestos related diseases are currently responsible for about 3000 deaths a year in Great Britain. These diseases can take from 15 to 20 years to develop, from first exposure, so one would not be aware of any sudden change in one's health after breathing in asbestos fibres.

The use of asbestos, once universal, has resulted in horrific, debilitating and ultimately deadly diseases. Asbestos is so dangerous because asbestos fibres enter the body through the nose and mouth; they cannot be absorbed through the skin. The body naturally gets rid of any asbestos fibres ingested with food and water and the body will get rid of most of the larger fibres but tiny fibres can pass into the lungs where they can stay for many years and cause disease. It is because fibres can remain in the lungs for so long that small but repeated exposures on different jobs over the years can lead to the development of an asbestos related disease.

Asbestos in Property

It is estimated that there are over 1.5 million premises in the UK that still contain asbestos. The Health and Safety Executive [HSE] claims that two thirds of landlords and property owners in the UK still fail to manage the risks. The new asbestos regulations are designed to ensure that the risks that asbestos pose are proactively managed. Generally speaking asbestos-containing materials in buildings pose no risk if they are in good condition and are left undisturbed, however asbestos needs to be controlled and contained properly and if those involved in the commercial property and construction industry do not take responsibility for this, liability can arise. Many of those suffering today from asbestos related diseases worked in the building and maintenance trade. They were exposed to asbestos fibres in their day to day work with asbestos materials and because work with asbestos was carried out near them.

Employer's contractors, safety representatives and building owners need to be aware of the problems caused by asbestos. A wide range of trades are affected and come across asbestos on a daily basis. A scientific study in 1995 identified the trades outlined below as the largest group of workers currently at risk from exposure to asbestos fibres.

Where is asbestos found in a building

Asbestos materials have been put to many uses over the past century. The most common uses were loose asbestos packing between floors and partition walls; sprayed asbestos and structural beams and girders, lagging pipework and boilers, calorifiers, heat exchangers; asbestos insulating board ceiling tiles and partition walls. It has been used to lag pipework and as a constituent part of other products such as floor and ceiling tiles. Despite the ban introduced in 1999 many millions of asbestos containing materials remain in both domestic and non domestic premises, posing a potential threat to everyone engaged in building and maintenance work and to other people using the premises at that time. Asbestos is still a hazard and if it is not controlled or contained properly, liability can arise.

Liability


The most common liability that a company faces in this context is a claim in negligence made by an employee or contractor suffering from an asbestos related illness. Although the manufacture and supply of asbestos products is now prohibited in the UK, workers in the building and maintenance trade remain at risk of avoidable exposure to asbestos containing materials during the course of their work. The cost of failure to comply with asbestos regulations can be high and not just in human terms. Developers, architects and contractors, as well as property owners and managers, face compensation bills, prosecution and adverse publicity. It can also affect the value of a building.

In the U.S., an estimated 80% of all companies are thought to be exposed to asbestos liabilities to some degree. U.K. companies had until recently seemed less vulnerable than their Atlantic cousins. This is largely due to the difficulties faced by Pursuers in mounting and proving cases in the U.K Courts and also because of the low levels of compensation typically awarded.

However a recent case in the House of Lords may change this.

Fairchild -v- Glenhaven Funeral Services Limited & Others [2002] UK HL 22 concerned the liability of employers for mesothelioma developed by an employee as a result of exposure to asbestos dust during the course of more than one employment. It was not medically possible to distinguish between the periods of exposure so each source of asbestos exposure was a possible causal candidate. The House of Lords held that if a breach of duty was shown but the employee could not provide the precise course of his illness it was common sense to treat the conduct of the different Employers as negligent and they were found to be jointly and severally liable.

This is of course a case involving civil liability but anyone who may have come across asbestos should also be aware that they face prosecution if it is not handled properly.

The extent of the duty in relation to the management of asbestos will be determined by the degree of control over matters concerning the fabric of the building and maintenance activities carried out there. The party responsible for maintenance will have to comply with the necessary regulations.

 

New Asbestos Regulations

Recent legislative changes have created increased responsibilities for employers, owners, occupiers and managers of non-domestic buildings.

Previously most legislation was targeted at those workers most likely to come into contact with asbestos but, as a combined result of EU legislation and an attempt by the Health and Safety Commission to give the law "more teeth", The Control of Asbestos at Work Regulations 2002 (SI) 2002(SI) 2002/2675 (with the exception of Regulations 4 and 20) came into force on 21st November last year.

These new regulations replace in their entirety the earlier Control of Asbestos at Work Regulation 1987, 1992 and 1998. They do retain the earlier provisions but include a number of changes and additions as follows:

Regulation 4 - the introduction of the new duty to manage asbestos in non-domestic premises

Regulation 6 - matters to be considered when carrying out an assessment of the risk of exposure to asbestos.

Regulation 14 - duty to prepare procedures, provide information and establish warning systems to deal with asbestos.

Regulation 18 - duty to carry out air-monitoring

Regulation 20 - anyone analysing material must be accredited with a recognised body

Regulation 21 - duty to maintain health and surveillance records.

The most significant element of the Control of Asbestos at Work (CAW) Regulation is Regulation 4 that requires to be complied with by 21st May 2004.

Regulation 4 introduces two fundamental concepts, namely:

(1) the new "duty to manage asbestos" in non-domestic premises, and
(2) the definition of a "duty holder".

Duty to manage asbestos

From 21st May 2004 the duty will apply to any person responsible for the repair, maintenance of the premises or, in the absence of any such person, the person in control of premises. This person will be required to:

• Take reasonable steps to determine the location and condition of materials likely to be asbestos-containing materials [ACMs].

• Keep an up to date written register of any ACMs and monitor their conditions.

• Assess the risk of anyone being exposed to fibre from ACMs.

• Prepare a plan setting out how the risks proposed by ACMs are to be managed.

• Put the plan into action, review and monitor it periodically.

• Provide information on the location and condition of any ACMs to anyone who is liable to work on or disturb them.

Central to the duty to manage asbestos in non-domestic premises is the requirement to complete a suitable and sufficient assessment. This will usually take the form of a survey carried out on behalf of the duty-holder. Although there is no definition of "suitable and sufficient", the ACOP for Regulation 4 does state that anyone carrying this out must be properly trained and are carrying out the survey in accordance with recommended guidance. It is possible to be accredited by an independent body to carry out asbestos surveys.

This regulation imposes a duty on property professionals to actively manage the asbestos in their building. Under the CAW Regulations, property owners and managers will be liable for identifying a lethal material and for taking steps to remove it where necessary. They will also need to be able to produce the necessary supporting documentation to show that they have carried out their duties much in the same way a Health & Safety Plan and File have to be kept.

Definition of a duty holder

The duty holder is widely defined within the regulations as

(a) "every person who has, by virtue of any contracts or tenancy, any obligation for the maintenance or repair of non-domestic premises or any means of access or egress therefrom or

(b) in relation to any part of non-domestic premises where there is no such contact or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access thereto or egress therefrom".

The ACOP tells us that the duties in regulation 4 will rest with the person in control of maintenance activities in the premises whether that be the occupier, landlord or agent. The extent of this duty will be determined by the degree of responsibility over matters concerning the fabric of the building and maintenance activities.

The wording is vague and probably intentionally so and has significant implications for the commercial property industry.

For the first time the duty holder and the professional advisers acting on their behalf will have a specific legal duty to take active steps to identify ACMs in their building.

The new regulations place an explicit duty for managing the risk from contaminated material squarely on the shoulder of anyone who has a legal responsibility for maintenance and repair of premises.

The problems for those responsible for a building, or a portfolio of buildings is to find out exactly where the asbestos is and what condition it is at. This is a problem if there are no records of the asbestos and can only be discovered by an intrusive survey.

The long lead in period from 2002 until May 2004 is to enable duty holders to begin assessing the risk from ACMs and put in place systems to manage those risks. The HSE has now produced approved codes of practice and guidance to help. Some of these are as follows:

• The Management of Asbestos in Non-Domestic Premises;Approved Code of Practice and Guidance.
• A Short Guide to Managing Asbestos in Premises.
• A Comprehensive Guide to Managing Asbestos.
• Work With Asbestos which does not normally require a licence (4th Edition); Approved Code of Practice and Guidance.
• Work with Asbestos Installation, Asbestos Coating and Asbestos Insulating Board.
• How does this affect the leaseholder.
• Surveying, sampling and assessment of asbestos-containing materials.
• Further details are available on the HSE website: www.hse.gov.uk.

Penalties for non-compliance

The HSE is responsible for the enforcement of the CAW Regulations in terms of their usual powers and procedures. The maximum penalties are an unlimited fine and/or up to two years' imprisonment. As with most other health and safety law offences, directors and officers of companies may be held liable for breaches if committed with their "consent, connivance or neglect".

Regulation 28 does provide the defence that, in any proceedings relating to a contravention of the Regulations, if the person charged proves that "he took all reasonable precautions and exercised all due diligence to avoid the commission of that offence." In order to be able to use this defence we would suggest that at the very least the recommendations in the ACOP should be carried out, namely appoint a suitable qualified and trained member of staff or separate organisation to carry out a survey and find the ACM's. A record should be kept and regularly updated of the position of the ACM's and where any are discovered or believed to present a risk, assessment needs to be carried out detailing how the ACM should be dealt with. The dutyholder should keep his employees informed and monitor the ACM's on a regular basis.

NB This briefing is for information purposes only. It is not intended to give detailed advice on particular situations and should not be acted upon.

 

The Asbestos Regulations Experts

As the European Courts tighten regulations and introduce new laws with increasing regularity, having the right construction advice from the outset is crucial.



Which trades can come across asbestos on a daily basis:

• demolition contractors
• roofing contractors
• construction contractors
• heating and ventilation engineers
• telecommunication engineers
• fire and burglar alarm installers
• general maintenance staff
• computer installers
• building surveyors
• electricians
• painters and decorators
• joiners
• plumbers
• gas fitters
• plasterers
• builders
• shop fitters

Quick Facts

"Since WW II the use of asbestos has been progressively banned and in 1999 the importation, supply and use of all forms of asbestos containing materials was prohibited."

"Asbestos related diseases are currently responsible for about 3000 deaths a year in Great Britain."

"Asbestos is still a hazard and if it is not controlled or contained properly, liability can arise."

"The party responsible for maintenance will have to comply with the necessary regulations."

"For the first time the duty holder and the professional advisers acting on their behalf will have a specific legal duty to
take active steps to identify ACMs in their building."

"maximum penalties are an unlimited fine and/or up to two years' imprisonment."


More Information:

Control of Asbestos at Work Regulations 2002