Asbestos: The struggle continues

The Health and Safety Executive has recently emphasised in a guidance note the circumstances in which it is likely to take enforcement action against persons or organisations responsible for the condition of asbestos in non-domestic premises.

Duty holders are defined under the Control of Asbestos Regulations 2006 as those entities that have a significant contractual or tenancy obligation for the maintenance or condition of non-domestic premises or control over such premises, including access ways.

Duty holders must be clear on their responsibilities. If the HSE pursues enforcement proceedings relating to asbestos maintenance risk management, the duty holders could face an unlimited fine or two years’ imprisonment.

More than 2,000 deaths in 2005 were the result of asbestos-related cancer mesothelioma, and it is estimated that a similar number were caused by asbestos-related lung cancer.

The HSE estimates that mesothelioma deaths will peak at between current levels and 2,405 between 2011 and 2015.

As high-risk activities such as installing asbestos products have mostly ceased, maintenance now constitutes the biggest risk.

In accordance with the regulations, duty holders are obliged to take steps to survey, risk assess and manage the condition of their buildings. They must assess whether there is any asbestos in their premises and the likelihood of exposure or the release of fibres. They must also assess the risk to staff, contractors or anyone using their building. If asbestos is present, they must either remove it or manage it, depending on its condition and the risk to the building’s users.

The regulations place a duty on all others - including surveyors, architects and managing agents - to co-operate with the duty holders and pass on all relevant information.

In its guidance note, the HSE lists the following risk control factors to be taken into account when its inspectors visit sites:

• Have the survey results been addressed in an up-to-date management plan for asbestos-related materials?
• Are there systems in place to implement, monitor and review the management plan, including a responsible person to oversee materials management?
• Is maintenance work regulated in accordance with the asbestos regulations?
• Have employees, managers and contractors received training and been told about the presence of asbestos-containing materials?
• Is there a clear, documented strategy and procedure in place for the management of the asbestos risk?

The HSE’s enforcement guidance advisory note confirms that action should be considered when the following is found (listed in ascending order of seriousness):

• Standards are patchy and one or more shortcomings must be addressed by following HSE instructions - for instance, obtaining confirmation from the company that it has taken the steps needed.
• Standards are generally unsatisfactory - typically, at least one contravention exists that gives rise to a discernable risk.
• Standards are unacceptable, which means that an enforcement notice or prosecution by the HSE is likely.

The message to duty holders under the present regulations is clear.

They must take steps to assess and control the risk of asbestos in the non-domestic premises for which they are responsible, or risk incurring enforcement proceedings and heavy penalties, and the possibility of their staff and building users suffering asbestos-related cancer in later life.

During its audits, the HSE is finding that compliance with a duty to manage the asbestos risk, as set out in regulation four of the Control of Asbestos Regulations 2006, is patchy in a significant number of cases. Yet this duty has been in place since 2004 originally as part of the Control of Asbestos at Work Regulations 2002.

The HSE has found that a number of organisations do not have a full understanding of the requirements. Some have had asbestos surveys undertaken thinking that merely conducting the survey means they are complying with their duties.

Myles Levy is a solicitor with Howard Kennedy