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Getting Away With Murder

It was no less than the establishment journal The Economist that identified one surefire way to make our lives safer. In a 1982 editorial discussing the need for new asbestos laws it commented, "Say that, after the day on which any new legislation receives royal assent, you will send to jail any corporate executives and managers who continue to endanger their employees' lives - and do it."

The mass of legislation on asbestos, with the level of detail contained in Guidance Notes and other supplementary information, exists because asbestos is the most potent industrial killer ever. Certainly because of its universal usage, asbestos is responsible for more occupational cancers than any other substance. There is no safe level to which a person can be exposed without risk. This is official policy.

It would not be unreasonable, therefore, to expect the most rigorous enforcement of the legislation and penal sentences.

The reality is very different. A typical case is the £8,000 fine following the prosecution of Derek Evans, in the Wolverhampton Magistrates Court, for allowing 14 tonnes of asbestos to be removed without a licence, then shotblasting the remaining dust and leaving the asbestos in dustbins outside nearby housing.

Derek Evans knew what he was doing was illegal. On discovery of the asbestos sheets he contacted the HSE for advice. He was told the asbestos would have to be removed by a specialist firm as he would be unlikely to get a licence himself because of his lack of experience. He was quoted a price of £23,000 for removing the sheets safely. He decided instead to advertise the sheets free for collection and someone responded, removed the sheets, and now cannot be traced.

Evans pleaded guilty to two offences and said he had been very foolish. In reality he got off incredibly lightly. He should have paid £23,000 to have the asbestos removed properly, did not pay anything, put the public well and truly at risk, and was fined only £8,000 with £366 costs. He is £15,653 better off than if he had complied with the law.

Poor to the point of being pathetic

T.W.Ward Industrial Dismantling of Rochdale was fined £15,000 with £19,061 costs in 1994 and subsequently went into receivership for three offences. In a removal job at a large Birmingham store airborne asbestos outside the work area was measured at 400 times the permitted level. Control measures were described by the magistrate as poor to the point of being pathetic.

In January 1995 Rolls Royce Nuclear Engineering Services were fined £15,000 with £350 costs for contaminating a car park and transporting asbestos in a dangerous way.

Similar prosecutions or incidents include the Central Midlands Co-operative Supermarket in Sheldon. This was closed down in June 1993 because of the presence of friable asbestos. In Stoke-on-Trent an unlicensed building contractor was fined £1,000 for exposing demolition workers to levels of crocidolite and amosite up to 5,000 times the control limit. No respiratory equipment, personal protective equipment, decontamination facilities or other safety precautions were provided over several months.

In none of these cases does the penalty fit the crime.

Sometimes the guilty get away. Glanford council has still not been able to identify those responsible for dumping 1.5 tonnes of all three types of asbestos by the village pond in South Ferriby.

In an intensely competitive market, in recession, when the lowest price wins, law breaking is common.

Prosecutions for asbestos offences

According to the HSE, 85 licensed companies have been prosecuted from 1984 to 1994 for offences under the Asbestos (Licensing) Regulations 1983. There were 38 convictions in 1986/87 with total fines of £13,700. There were only three cases and convictions in 1992/93 with total fines of £2,000.

Most cases involve contractors operating without or outside the terms of a licence, followed by failure to carry out and record results of medical surveillance of employees working with asbestos.

Prosecutions of under the Control of Asbestos at Work Regulations 1987, peaked at 48 convictions during 1990/91 with total fines £28,000, then fell to a provisional figure of 23 cases in 1992/93 with total fines of £10,302.

In The Lancet, Peto expresses concern about the asbestos removal industry saying it "may well have increased the burden of future occupational disease", pointing out that the industry was "initially inadequately regulated".

We go much further than this. We can find little evidence of the asbestos stripping industry ever being regulated. There are good companies out there performing to high standards. The Peoples Asbestos Action Campaign, the Hazards Campaign, local authorities, DLOs, trade unions, and community groups have insisted on and enforced high standards. ARCA and the Thermal Insulation Contractors Association (TICA) are concerned that there be a level playing field and do not want to be undercut by cowboys.

Licence to kill?

There are currently 768 asbestos removal companies licensed to operate in Great Britain in 1987 there were 2,099. The HSE does not record comparable information for Northern Ireland.

It is difficult to get official information on the enforcement of the licensing legislation. The information in the Tables was obtained by Ian McCartney MP by asking parliamentary questions. It is not made public in HSE Annual Reports. Perhaps the reason for the secrecy is that these figures prove that on-site inspection and enforcement of the Regulations is minimal.

The information made available on visits to asbestos removal companies indicates that for much of the time they are not getting even one visit a year. There has recently been an increase in activity, but 805 visits in 1994 for about 768 licensed companies is hardly tough treatment. The fines are pathetic. The highest is £9,000. The average fines indicate that many fines are much lower and it is obviously not unusual for fines to be as low as £100 (Table 1). Although 85 licensed asbestos contractors have been successfully prosecuted and 204 have had an improvement notice or prohibition notice served upon them only 13 have ever lost their licence (Table 2).

Table 1 Inspections and prosecutions of asbestos removal contractors - 1983-1994

Year Visits In^a Pn^b Prosecutions Highest fine (£) Lowest fine (£) Average fine (£)

1984 3 1,500 200 733

1985 2,709 9 71 31 4,500 150 843

1986 1,654 5 40 13 3,750 100 800

1987 941 1 15 8 2,000 100 810

1988 533 1 11 6 1,500 100 583

1989 677 3 14 8 9,000 250 3,237

1990 401 2 12 3 2,000 650 1,117

1991 385 6 6 3,000 250 1,348

1992 373 1 13 1 150 150 150

1993 399 4 3,000 530 1,570

1994 805 2 8,000 150 4,075

^aIn = improvement notice ^bPN = prohibition notice

Visits: refers to the total number of visits to companies or contractors licensed under the Asbestos (Licensing) Regulations 1983. The Department of Employment does not make available figures on the number of asbestos removal companies inspected by the HSE, but it has supplied the number of visits. Some of these will be follow up visits.

Prosecutions of asbestos removal contractors: the Table gives offences under the Asbestos (Licensing) Regulations 1983, the Control of Asbestos at Work Regulations (CAWR) 1987 and the Asbestos Regulations 1969 which CAWR replaced. It also gives the numbers of Improvement Notices and Prohibition Notices. These are only given for very serious bad practice. An improvement notice requires standards to be improved by a certain time. A prohibition notice requires that work is stopped until improvements are made.

Table 2 volume of regulatory activity - 1983-1994

Year Prosecutions Improvement Licences

& prohibition revoked

notices

1983 0

1984 3 0

1985 31 80 1

1986 13 45 2

1987 8 16 2

1988 6 12 1

1989 8 17 4

1990 3 14 0

1991 6 6 0

1992 1 14 0

1993 4 0

1994 2 3

Controlling the cowboys

Alan Dalton of the TGWU has argued that a large part of the asbestos removal industry is out of control. At the Construction Safety Campaign AGM in March 1995, he said that "in the current climate in industry generally, and in the public sector, competitive tendering often means that the cheapest bid wins and that this means the cowboys get the work. With fines so low there is no incentive for the cowboys to clean up their act. Contractors must not be allowed to put in bids for work which do not allow for the true costs of removing asbestos safely."

The HSE say the vast majority of the industry, well over 95% of those in the asbestos removal trade, do follow regulations. Keith Morris, from the HSE's Field Operations Division, concedes that "there is a cowboy element" which "ruins the reputation of a responsible industry". Paul Redding, who covers health and safety issues for the Building Employers' Confederation (BEC) says, "small builders will be tempted" to ignore regulations, given the cost. Geoff Rose, company secretary to the Thermal Insulation Contractors' Association, and secretary to its Asbestos Control and Abatement Division (ACAD), has said that, "there are still a number of companies out there prepared to take these chances, and get caught, and not even all those who are licensed do it by the book (notably wet stripping)......We would like to see legislation tightened up."²

HSE resources cut

Licensing companies is of little value without adequate inspection and enforcement. From 1st April 1994 the HSE planned a 50% increase in the amount of time spent on the inspection of asbestos removal work, an area of risk which at last is recognised officially as a priority. Table 1 shows that the number of site visits did indeed double from 1993 to 1994, but it must be emphasised that this is from a very low base and one visit a year is not "rigorous enforcement."

However, instead of increasing the number of inspectors engaged in inspections, the HSE has had a massive reorganisation forced upon it, which means resources have been cut.

The public expenditure survey settlement of 1993 provided for 4,599 Health and Safety Commission staff in 1994-95, a drop of sixty-two on the previous year. The HSE completed five market tests of its operations since April 1992 and these resulted in the loss of 92 posts.

The HSE wound up its Mineral Fibres National Interest Group (NIG) at the end of March 1994. The work of the disbanded NIG will be divided among other branches of the HSE, with a large share likely to go to the Construction NIG, although it will not take on extra staff for the purpose. There is a fear that the work will become fragmented.

Reasons HSE refused or revoked an asbestos licence

• Not observing the conditions on the asbestos licence, and not giving correct notice of the method statement, equipment specification to the Local Area Office. Proceedings under Reg(3)(1) of the Asbestos (Licensing) Regulations
• Serious failures to achieve adequate standards of work resulting in a prohibition notice. Contravention of the conditions on the asbestos licence
• Conviction on four accounts of contravening Regulation 6(1) of the 1983 Regulations. Poor procedures were observed and failure to notify work carried out
• No written notification given to removal of asbestos. The employee was not medically examined and no record of medical examination could be produced. Inadequate control measures during removal, asbestos contamination at the end of work, poor training and instruction of the employee
• Failure to comply with the conditions of the licence. Failure to have workers medically examined. Failure to provide adequate decontamination facilities
• Notification of intention to carry out work on site was not given. Site material containing crocidolite and chrysotile was found after work had finished. The working area had not been enclosed sufficiently to prevent spread of waste material. Training and supervision of employees was insufficient
• A member of management had not attended a training course for work with asbestos insulation and coating and a procedure for asbestos removal had not been prepared
• Further knowledge required about asbestos insulation removal
• No knowledge of assessment of exposure, did not have a copy of the current ACoP or management guidance notes, method statements submitted insufficiently detailed. For one job visited, there was no decontamination unit on the site
• Breaking the law: actual prosecution and conviction for breaches of the Control of Asbestos at Work Regulations 1987 and the Health and Safety at Work Act 1974, meant the HSE decided it was "inappropriate" to renew the licence

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