The new asbestos regulations: risks and opportunities

United Kingdom

It is a remarkable fact that, more than 100 years after Victorian factory inspectors first warned of the hazards to human health of breathing in asbestos fibres, there are currently 3,000 deaths per year due to asbestos-related disease. That number is predicted to rise to 10,000 deaths per year by 2010. Asbestos-related disease is the single biggest workplace killer in the UK and 25% of those fatalities are (and will be) from those exposed during the course of their working lives in the construction and building maintenance sectors.

For more than 150 years, the use of asbestos was widespread, especially between the 1950s and 1980s when imports reached a peak of 150,000 tonnes per year. Building is by its nature a dusty and grimy activity. Damaged by drilling, cutting or sawing, or just through deterioration with age, tiny but deadly asbestos fibres can be released.

Current expert medical opinion is that the breathing in of just a single fibre may be enough to trigger the terminal cancer, mesothelioma. Progress of the disease is insidious in that the microscopic fibres which cause it go unnoticed in normal site conditions and the gestation period of the disease is anything between 10 and 60 years. Once contracted it is not exacerbated by further exposures to asbestos (unlike other asbestos-related diseases).

The new duty to manage (CAW Regulations 2002)

Since the 1970s a mass of legislation and regulations have been passed to deal with this hazard, making this area the second most-regulated business sector after the nuclear industry. Most notable are the CAW Regulations 1987  which were designed to prevent exposure to asbestos in the workplace, not only for the employer’s own workforce, but for other workers and members of the public. The 1987 Regulations were amended in 1992 and again in 1998, each time introducing stricter requirements. In the next month a junior minister is due to wield his pen and the regulations will be tightened again. (footnote 1)

The CAW Regulations 2002 have been developed by the Health and Safety Executive (“HSE) and will impose a new duty to manage asbestos. For the first time, employers will have a specific non-delegable legal duty to take active steps to identify asbestos containing materials (in the jargon, ACMs) in their buildings. Once identified (and laboratory testing will often be needed because ACMs are difficult to identify, even to the trained specialist) the condition of the materials must be assessed and an action plan drawn up and followed through, in order to minimise the risk of asbestos fibres being released and breathed in.

The identification exercise will be done either by engaging a specialist surveyor to take a sample of materials for analysis, or by using other strong evidence – proof of the age of the building, for example, and/or of the actual materials used in its construction/refurbishment – to show that the building is free of ACMs. This information must then be recorded in a form - the asbestos record - which ensures that it gets to all those who may be subject to a risk of exposure. That record must be maintained on site for the life of each building and must be available, for example, to any visiting contractor, utilities worker and the emergency services, whose routine tasks may put them at risk of disturbing ACMs.

If the ACMs are in good condition and are unlikely to be damaged or disturbed, they will pose no risk and may be left in place. In some instances they can be sealed, provided the seal is then checked periodically. In cases where ACMs are in poor condition and remedial steps are impractical - whether for cost or operational reasons – then removal and safe disposal will be necessary. Stringent conditions and procedures are laid down in an Approved Code of Practice to be published with the regulations. These must be followed at every stage of the process, for example: which individuals and organisations are accredited and licensed to conduct surveys; which contractors are able to remove materials; where ACMs may and may not be disposed of.

Implications - risks and rewards

Every business which owns, occupies or has responsibility for the maintenance of a non-domestic building – including all such publicly-owned buildings - will need to take active steps to comply with the new regulations. Here are some of the anticipated consequences for the construction sector:

Reduced risks/deaths for construction workers in the medium term

Properly applied and enforced, the new regulations will progressively reduce the risk of accidental exposures, which currently occur in the course of maintenance and refurbishment work, particularly in older buildings. Detailed measures are prescribed, such as: the existence, location and proposed treatment of ACMs must be included in pre-tender documentation; there must be proper signage on site for ACMs and isolation of areas where ACM removal work is taking place.

Many of these practices are already part of the CDM Regs 1994: the difference is that the new regulations provide powerful ‘teeth’ by setting down requirements in such detail that it will force Planning Supervisors and other responsible professionals to insist on compliance by clients and contractors or face exposure to criminal prosecution and/or civil claims.

Increased regulation

Sceptics will say that it will take more than another layer of red tape to change a culture within the industry which has tolerated widespread exposures to asbestos in previous years. However, there is clear determination within the HSE to enforce the new regulations effectively. The regulations will be phased-in over an 18-month period and enforcement action – leading to fines and/or periods of imprisonment for defaulters - will commence in Spring 2004.
Those organisations and individuals who expose others to asbestos hazards can expect little sympathy or leeway from the Courts or the media.

New business opportunities

A massive new market will be created by these regulations. The HSE estimates expenditure by employers of all types of £3.1 billion (£625 million per year) between now and 2007. That figure may prove to be an underestimate. There is a shortage of specialist surveyors and contractors licensed to deal with ACMs. The scale of the task to be completed by Spring 2004 (when enforcement begins) is such that those organisations with the right accreditation and qualified staff will be able to charge premium fees. The HSE expects 50 new purpose-built laboratories to be constructed to cater for the scale of sample-testing required. It is inevitable that ACM removal work will involve and be combined with other refurbishment programmes, which will add to the overall figure of £3.1 billion. In due course subsequent regulations are likely to extend to domestic housing, generating work that will go on for at least two decades.

Insurance costs will rise

Asbestos claims (mainly from North America) almost brought the UK insurance industry to its knees in the early 1990’s. Recent court cases and the new CAW Regs have again highlighted this issue for insurers (it had never gone away). Premiums for all relevant (EL/PL/PI) insurance are likely to rise substantially, particularly for those organisations which work routinely with ACMs. This is because claims arising from asbestos surveys and removal work will rise in coming years and, due to the nature of the work and the hazard, have a big price tag. For reputable specialists the cost of this cover will be bearable and will be passed on to the ultimate client. Others will leave the field, voluntarily or otherwise.

Conclusion

For those who develop asbestos-related diseases in the next decade exposure has already occurred and it is too late; the damage is done. Followed strictly, and properly enforced, the new regulations should prevent another generation of construction workers being exposed to this latent hazard in ageing buildings. In the meantime they will also provide a sustained source of work for those organisations with the right skills, robust health and safety systems and a good insurance broker.

 For further information please contact Simon Chandler at simon.chandler@cms-cmck.com or on +44 (0)117 9300200.


Footnotes

Footnote 1

At the time of writing the final draft of the new regulations is awaiting official approval of Ministers.  This is expected by October but further delays cannot be ruled out.