Contents   Search publications                     Previous chapter   Next chapter

Asbestos and the Law

This deadly dust should never have been allowed into our workplaces and homes. Despite this, the current regulations for controlling asbestos related diseases would be essentially adequate if reinforced by robust enforcement. The enforcement would need to be backed by banning the importation and use of the remaining asbestos products allowed in construction. Additional legislation to this effect would be useful and would focus the minds of construction companies and their suppliers. Substitutes are readily available. Therefore, existing laws could ban the use of asbestos. Other areas of enforcement that particularly needs strict policing are asbestos removal, refurbishment, maintenance and demolition work.

Current UK legislation on asbestos

Since the 1980s the UK's official policy has been to:

• Prohibit the most hazardous forms and activities, namely the importation, supply and use of blue and brown (crocidolite and amosite) asbestos, asbestos spraying and the installation of asbestos insulation
• License most work with asbestos insulation or coatings
• Strictly control the remaining risks to anyone working with asbestos (and others affected by them)

Asbestos is affected by legislation that has been introduced under a number of different Acts of Parliament. These are:

The Asbestos (Licensing) Regulations 1983

The Control of Asbestos at Work Regulations 1987, amended 1992

The Control of Asbestos in the Air Regulations 1990

The Asbestos (Prohibitions) Regulations 1992

The Control of Pollution (Special Waste) Regulations 1980

The Collection and Disposal of Waste Regulations 1988

The Trade Effluents (Prescribed Processes and Substances) Regulations 1989

The Asbestos Products (Safety) Regulations 1985

The main ones of interest to safety representatives and anti-asbestos campaigners are described in more detail in the text. The information on the three main regulations comes from a very clear MSF Factsheet on Asbestos updated where necessary. Information provided by trade unions is easy to understand and generally provides an ideal a summary of the legal position.

The controls on work with asbestos are set out in three main pieces of legislation, the Asbestos (Licensing) Regulations 1983, the Control of Asbestos at Work Regulations 1987, amended 1992, and the Asbestos (Prohibitions) Regulations 1992.

Banning asbestos

From 1970 the asbestos industry maintained a voluntary ban on the import into the UK of raw blue asbestos. Then from 1980, they agreed to a similar ban on brown asbestos. The bans did not cover the import of products. The UK government finally imposed a legal ban on both blue and brown and any products containing them, in 1986. An attempt to introduce a phased ban on the use of asbestos in the European Community was narrowly defeated in March 1987.

The reasons the industry volunteered a ban on blue asbestos are not hard to identify. The evidence of the dangers of asbestos mounted as its use increased. Blaming blue asbestos was a tactically useful ploy. At the time of the ban, blue asbestos represented about 3% of total world production and it was mined only in South Africa, by Eternit and General Mining & Finance Corp, not by the UK-based Turner and Newall. Banning only blue made very little difference to the world trade in asbestos. Similarly brown asbestos was a much smaller proportion of world production, about 2% if that, at the time of the voluntary ban.

If in doubt do not work with asbestos

Tony O'Brien, National Secretary of the Construction Safety

Campaign, said at the launch of the HSE's asbestos awareness campaign, "Ordinary building workers have no protection at all and should not work with asbestos......When asbestos is found on a site its not a question of "get a mask" it should be "stop working and leave the site".....The law should be changed....It's time to put these rogue contractors in prison and out of business completely".

Dr Peter Graham of the HSE responded, "That's the reason we started this campaign. We need a high profile to contact and create awareness with these workers. The message is clear: if you find material you suspect to be, or to contain, asbestos, you should stop work immediately."

There are problems with this due to the hostile attitude of employers and the government itself to anything construed as industrial action. We have already described how a group of labourers at St John's Hospital in London got sacked for doing just this. The building workers were reinstated. The building workers union UCATT saw to this. They threatened the employer, BOMAC, with the Trade Union Reform and Employment Rights Act 1993. This protects workers against being victimised for health and safety. It is not as strong as it ought to be. It does not guarantee reinstatement. It does, however, allow the trade union or individual to go to an industrial tribunal and claim damages for unfair dismissal.

This protection applies to anyone raising health and safety issues and refusing to work because of immediate danger. It covers workers in schools, hospitals and all buildings who refuse to work when they discover damaged asbestos.

The Control Of Asbestos At Work Regulations (CAWR) 1987 amended by The Control Of Asbestos At Work (Amendment) Regulations 1992

These Regulations have general application and provide the statutory protection for everyone who may be exposed to asbestos from work activities. They cover any activity which may result in exposure to asbestos dust. They cover all types of asbestos and all mixtures. They lay down control limits and action levels.

They replace the Asbestos Regulations 1969 which set a standard of two fibres/ml of air for white asbestos. This legislation only applied to certain groups of workers in factories and power stations, and the level was supposed to be one at which "only" one in 100 workers would be at risk of asbestosis if exposed to this level of dust over 50 years.

Control limits

Control limits describe the upper level of dust allowed in the atmosphere, measured by an approved method described in HSE Guidance Note EH10.

The control limits depend on the type of asbestos, and set two levels depending on the time of exposure. They are not safe limits and the HSC does not say that they are. Exposure to all forms of asbestos should be reduced to the minimum reasonably practicable, that is, well below the control limits. They apply only to people working with asbestos, not to other employees or to members of the public. For these categories, exposure should be kept below the clearance limit of 0.01 respirable fibres/ml of air.

At this accepted clearance level for removal work, there are still 10,000 fibres per cubic metre in the air. A human requires one cubic metre of air to breathe per hour so there is still considerable risk. American research suggests that a person breathing this level of asbestos for ten years would stand a three in 1000 chance of developing an asbestos cancer.

Control Limits

For blue and brown asbestos

i) 0.2 fibres/ml of air averaged over any continuous period of 4 hours

ii) 0.6 fibres/ml of air averaged over any continuous period of 10 minutes

For white asbestos

i) 0.5 fibres/ml of air averaged over any continuous period of 4 hours

ii) 1.5 fibres/ml of air averaged over any continuous period of 10 minutes

Action levels

These apply to exposures over a 12 week period. Cumulative exposure is calculated by multiplying each airborne fibre level measurement by the time for which it lasts and adding the readings over the 12 week period

The action levels are:

For blue and brown asbestos

48 fibre-hours/ml of air

For white asbestos

96 fibre-hours/ml of air (originally 120 fibre-hours/ml of air)

Where both types of exposure are concerned, the action level is calculated on a proportionate basis. This is only when the types of exposure occur at different times. If both types of asbestos are present, the mixture must be treated as if it were all blue or brown

The clearance limit

0.01 respirable fibres/ml of air. This applies to other employees or to members of the public

Employers' duties

Before work begins employers must:

1 identify the type of asbestos. The employer should assume that it is not just white asbestos, they should provide for a worst case scenario (Regulation 4)

2 assess the likely exposure and set out steps to prevent or reduce this to the lowest level practicable. Assessments must be reviewed and/or revised regularly, particularly when there has been a significant change in the work (Regulation 5)

3 prepare a "plan of work" before asbestos removal from buildings, structures plant or installations (including ships) and keep it until the work is over. It must describe the location, nature, duration of the work, the handling methods, the protection and decontamination equipment for the asbestos workers and the protection equipment for any others affected. The client has responsibility under the Health and Safety at Work Act 1974 for ensuring that plans of work are sufficient and adequate to meet site specific requirements, and protect staff and public. For asbestos removal, responsibility is imposed jointly and severally on the contractor.

4 notify the enforcing authority 28 days before work begins if the action levels are likely to be exceeded, unless the employer is licensed under or exempt from the Asbestos (Licensing) Regulations 1983 (Regulation 6)

5 inform, instruct and train employees who may be exposed, of the risks and of the precautions (Regulation 7)

When work is being carried out employers must:

6 prevent exposure or reduce it to the lowest level reasonably practicable by control measures other than the use of respiratory protective equipment (Regulation 8)

7 substitution: the 1993 Amendment to the Control of Asbestos at Work Regulations requires exposure to asbestos to be prevented by substitution, whenever this is technically possible (Regulation 8)

8 provide respiratory protective equipment (RPE) where it is not reasonably practicable to reduce exposure to below the control limits. RPE must comply with the requirements of any relevant design or manufacturing legislation (Regulation 8)

9 use and maintain control measures in a clean and efficient state, in efficient working order and in good repair and ensure the regular examination and testing of exhaust ventilation equipment by a competent person (Regulations 9 and 10)

10 provide adequate and suitable protective clothing and arrange for its regular cleaning or its disposal as asbestos waste (Regulation 11)

13 designate areas as respirator zones where action levels or control limits are likely to be exceeded. These areas need notices, restricted access and clear instructions not to eat, drink, or smoke (Regulation 14)

14 monitor exposure of workers to asbestos and keep records (Regulation 15)

15 maintain health records and provide medical surveillance of any employee exposed to more than the action levels for 40 years (originally 30 years) (Regulation 16)

16 provide washing and changing facilities for any employee exposed to asbestos and separate storage facilities for personal clothing and protective clothing, including respiratory protective equipment (Regulation 17)

17 label properly raw asbestos or asbestos waste and ensure that it is stored or distributed in a suitable sealed container (Regulation 18)

The CAWR is supported by two Approved Codes of Practice (ACoPs) and by a number of HSE publications which give practical guidance on various aspects of work with asbestos.

The Asbestos (Prohibition) Regulations 1992

These replaced the Asbestos (Prohibition) Regulations 1985 though many of the previous prohibitions are re-enacted, expanded and consolidated. They prohibit the import, supply and use of amphibole asbestos, principally blue (crocidolite) and brown (amosite), and products containing them and the spraying of asbestos and installation of asbestos insulation. But products containing blue and brown asbestos in use before 1986 are not banned and similarly with the rarer amphiboles, products in use before 1993 are not banned.

The supply and use of any product containing white (chrysotile) asbestos is specified in the Schedule to the Regulations except when in use before 1993.

Banning asbestos products in construction

Asbestos cement products, roof sheets and pipes, and asbestos slates are still marketed in the UK and in other parts of the European Union. They should not be used in construction according to the HSE.

All types of asbestos are classified as carcinogens and the EC Carcinogens Directive is implemented in Britain by the CAWR. Regulation 8 states:

"Every employer shall prevent the exposure of his employees to asbestos;.....where employees may be exposed to asbestos in any product, prevention of such exposure, where it is practicable, by substituting for asbestos a substance which under the conditions of its use, does not create a risk to the health of his employees or creates a lesser risk than that created by asbestos.

Guidance on this is then given in the ACoP:

"Asbestos-containing products should only be used where using a less hazardous substitute is not reasonably practicable, eg where substitutes cannot meet a technical performance requirement of an application. It is also important when considering substitute materials for asbestos, to take into account all the potentially harmful properties of any proposed replacement, and to balance any new risks they might present against the possible benefits."

Further, the Construction (Design And Management) Regulations 1994 (CDM) will reinforce the message that from now on, only asbestos-free materials should be used

The asbestos (licensing) regulations 1983

These cover the most hazardous jobs such as asbestos stripping or removal. They require all employers or self-employed people carrying out work with asbestos insulation or asbestos coating to have a licence from the HSE and to comply with the terms of that licence. There are three exceptions to this requirement:

work of short duration: a total of two hours or less and no more than one hour in seven consecutive days for an individual person

work by an employer on their own premises with their own workers which has been notified to the HSE 28 days in advance

work which consists solely of air monitoring or collecting samples for identification

All work must be done in compliance with the Control of Asbestos at Work Regulations, and in accordance with the ACoP for work with asbestos insulation, coating and insulation board. The ACoP gives detailed guidance on assessment, control measures, personal protection, cleaning, monitoring, information, instruction and training, health records, and medical surveillance.

The revised insulation ACoP contains several important revisions which improve the minimum legal standard of asbestos removal techniques and practices. The more significant parts are:

a switch to "controlled-wetting" stripping techniques as a primary method for reducing dust concentrations inside enclosures

personal monitoring of removal operatives during work to determine routine exposure levels

differential pressure testing of enclosures is considered to be useful, not essential, in monitoring the effectiveness of containment structures and air extraction equipment

6-monthly testing of vacuum cleaning equipment

compliance with the Personal Protective Equipment (Safety) Regulations 1992

a recommendation that visual inspection of the site be conducted by an independent organisation that is without financial or other interest. Contractors are allowed to conduct their own visual inspections

laboratories used for sampling should be accredited by NAMAS, except when employers carry out such works on their own premises with their own staff

When the ACoP and the Regulations were updated there was a strong lobby, by some employers organisations and laboratories, arguing that the visual inspections of enclosures at the end of asbestos jobs, should be by an independent organisation. Bad practice at this stage is common. The opportunity to tighten up was ignored mainly because of the influence of Scottish Power and the Confederation of British Industry.

Currently asbestos contractors are only licensed not accredited or assessed on quality grounds. The more professional consultancies and laboratories can demonstrate and maintain an acceptable level of quality.

Plan of work

For those who have the condition imposed on their licenses enforcing authorities may demand a copy of the plan of work or method statement for evaluation during the statutory 28-day notification period. The HSE and local authorities are often unable to police these plans due to lack of staff. About 20% of contractors do not have this condition imposed on their "Class A" licences and are normally allowed to make a simple notification to be followed up with a method statement or specification. The TUC has suggested it should be the absolute responsibility of contractors to submit detailed plans of work in every case.

It is left to Area Principal Inspectors to prioritise work. Preventative inspections, in which category asbestos removal fits, has often taken a back seat, especially, for example in areas such as Inner London which has a high level of construction activity.

Regulation of subcontractors and the self-employed

A licensed contractor may only subcontract asbestos removal work to another licensed contractor or to a self-employed person who individually holds an asbestos-removal licence.

The main contractor must accept full responsibility for compliance with health and safety legislation in respect of any operative who works for him on licensable asbestos work, irrespective of whether the operative has a 714 or SE6O certificate.

Adrian Griffin, head of the HSE's Asbestos Licensing Unit, has admitted that relying on widespread use of subcontractors and self-employed "may have disadvantages in respect of health and safely standards", but says, "it is a commercial fact of life."

Other relevant legislation

The Health And Safety At Work Act 1974

The Health and Safety at Work Act 1974 makes it the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees.

There are five specific duties placed on the employer:

a) to provide and maintain plant and systems of work

b) to ensure safe use in the handling, storage and transport of articles or substances

c) to provide such information, instruction, training, and supervision as is required

d) to ensure a safe place of work free from risk to health

e) to provide adequate facilities for the welfare of employees. This duty is extended by the Act to third parties, i.e. tenants, visitors to council premises and other public property

The Management Of Health And Safety At Work Regulations 1992

Risk assessments are required by the Management of Health and Safety at Work Regulations 1992 and should include all asbestos in buildings.

The Construction (Design And Management) Regulations 1994

The Construction (Design and Management) Regulations 1994 require both clients and contractors to prepare a "health and safety plan." This must consider any asbestos present.

Union safety reps are entitled to see, by law, both the risk assessment and the health and safety plan. The real answer, though, is for new regulations that specifically require all building owners or long-term lease holders to identify, record, make good, label and manage the asbestos hazard in their buildings. In the US, this is already a requirement for many buildings (e.g. schools).

The asbestos police

HSE: The Health and Safety Executive (the factory inspectors) are responsible for licensing contractors, enforcing the Asbestos Regulations and for enforcement of the Health and Safety at Work Act 1974 in factories, construction sites and places of entertainment. They have powers to investigate, stop work taking place, prosecute offenders.

EHO: Environmental Health Officers, employees of the local councils, are responsible for enforcing the Health and Safety at Work Act in shops, offices, and communal homes. They have powers to control "nuisances" which are "prejudicial to health". These powers cover emissions of dust caused by any trade or business, and asbestos waste disposal. It is the duty of Environmental Health Departments to investigate complaints promptly.

HSE publications

The HSE provides a mass of free and priced information on the hazards of asbestos and mineral fibres. HSE Public Enquiry Point tel: 0114 289 2345

Approved Codes of Practice

The Control of Asbestos at Work (2nd edition): Control of Asbestos at Work Regulations 1987 (ISBN 0 7176 0450 0)

Work with Asbestos Insulation, Asbestos Coating and Asbestos Insulation Board (2nd Edition): Control of Asbestos at Work Regulations 1987 (ISBN 0 7176 0460 8)

HSE Guidance Notes

EH10 Asbestos - Exposure Limits and Measurement of Airborne Dust Concentrations (ISBN 0 11 885552) 2)

EH35 Probable asbestos dust concentrations at construction processes (ISBN 0 11 885421 6)

EH36 Work with asbestos cement (ISBN 0 11 885422 4)

EH37 Work with asbestos insulating board (ISBN 0 11 885423 2)

EH41 Respiratory Protective Equipment for use against asbestos (ISBN 0 11 8835122 2)

EH47 Provision, use and maintenance of hygiene facilities for work with asbestos insulation board (ISBN 0 11 885567 0)

EH50 Training operatives and supervisors for work with asbestos insulations and coatings (ISBN 0 11 885400 3)

EH51 Enclosures provided for work with asbestos insulations and coatings and insulating board (ISBN 0 11 885408 9)

EH52 Removal techniques and associated waste handling for asbestos insulations and coatings and insulating board (ISBN 0 11 885409 7)

MS13 Asbestos (ISBN 0 11 885402 X)

L11 A guide to the Asbestos (Licensing) Regulations 1983 (ISBN 0 11 885684 7)

HSE free leaflets:

Asbestos dust - the hidden killer! Are you at risk? Essential Advice for Building Maintenance, Repair and Refurbishment Workers, leaflet IND(G)187L

Asbestos alert for building maintenance, repair and refurbishment workers - pocket card IND(G)188P

Asbestos and you - revised leaflet IND(G)107(L) (rev) contains the Asbestos Code

Asbestos alert for garage workers, revised pocket card IND(S)13 (rev);

Asbestos in paper and board mills, revised leaflet IAC(L)12(rev);

Other agencies which help control asbestos

ARCA, asbestos removal contractors' association

This is the contractors' trade association. This organisation tries to maintain high standards of work and are keen to hear about bad practices. Out of the 768 asbestos removal companies licensed by the HSE only 85 contractors are ARCA members at the moment. ARCA also has a number of associate members who are involved in providing equipment, protective clothing, monitoring, and other related activities.

The training requirements, inspections, standards of record keeping, and quality of work standards are much more stringent than those required by the HSE's licensing scheme. In the last five years ARCA has expelled about half a dozen companies for falling to abide by its code of conduct.

ARCA companies recognise trade unions, usually GMB in England and Wales and TGWU in Scotland, and are generally relatively union friendly not least because the companies get a lot of business from other trade unionists demanding asbestos be dealt with properly. Ring and ask to speak to the trade union representative to check that they are happy with their working practices before agreeing to employ a particular contractor.

They regularly publish their list of members and this can be obtained from their offices at ARCA, Friars House, 6 Parkway, Chelmsford, Essex CM2 0NF; tel: 01245 259744, fax: 01245 490722.

UKAS, United Kingdom Accreditation Service, and NAMAS

UKAS gives accreditation to laboratories which analyse asbestos and other materials, under the National Accreditation of Measurement and Sampling (NAMAS) scheme. Accredited laboratories can display the NAMAS logo. All NAMAS accredited laboratories must belong to RICE (see below).

NAMAS originally assessed and accredited laboratories only for counting the number of fibres present on membrane filters and identifying the type of asbestos present in bulk samples. Since 1992 they also offer accreditation for air sampling to comply with HSE method MDHS 39/3, and bulk sampling. Make sure you know which accreditation the laboratory holds.

 There are currently over 100 laboratories accredited by NAMAS for asbestos evaluation, 12 of which are accredited for asbestos sampling. To obtain the list, telephone 0181 943 7135 and ask for publication D25. For more information on accreditation for asbestos testing and sampling, telephone 0181 943 6190.

RICE, Regulated Inter-Laboratory Counting Exchange

This is the HSE's quality control scheme administered by the Institute of Occupational Medicine. It is a national proficiency scheme for monitoring the ability of laboratories to count fibres accurately. Participation in RICE is a mandatory requirement for laboratories wishing to become accredited by NAMAS for asbestos fibre counting.

Sets of samples are sent to each laboratory four times per year and the analysts return their results to RICE. RICE categorises each laboratory into 1, 2 or 3 (where 3 is unacceptable). RICE can be contacted by telephoning 031 667 5131.

Guidance Note EH 10 advises that laboratories should participate in RICE. But this does not always happen. Always check.

Contents   Search publications   Previous chapter   Next chapter