Asbestos - the silent killer

Published:  15 November, 2007

Asbestos - the silent killer

 

Despite the well publicised health risks and the strong legislation covering removal and disposal of existing products, the problem of asbestos in the workplace has not gone away. Sue Burbeck, managing director of Adams Environmental, explains why works managers must not ignore asbestos risks.

 

 It is believed that between 4000 and 7000 asbestos related deaths will occur in the UK this year, and this figure is set to keep on rising until the year 2010, when it is expected to peak at around 10,000 deaths per year. These deaths are not only found in groups of people who historically worked directly with asbestos, but also currently active plant employees like electricians, plumbers, maintenance engineers, etc.

Recent legislation, underscored by long standing Health & Safety regulations, has been put into place to address this problem, and among other legal requirements has imposed a clear, immediate and very detailed duty of care on plant, site and works managers. This is designed not only to protect the workforce from the risk of exposure to asbestos containing materials, but also site visitors, contractors and where appropriate the general public.

The existing Control of Asbestos at Work Regulations 2002 have now been replaced by the Control of Asbestos Regulations 2006, which bring together three previous sets of regulations covering the prohibition of asbestos, the control of asbestos at work and licensing of asbestos remedial works. These and other regulations, like the Management of Health & Safety at Work Regulations 1999 and, where building work is likely, the Construction (Design & Management) Regulations 2007, together require that managers should take all practical steps to actively search out and identify asbestos related hazards.

Manager's responsibilities include checking whether asbestos risks lurk within their sites; and if found or suspected, that robust measures are in place to prevent the workforce, and others, from being exposed. This "Duty to Manage” asbestos is set out very clearly in Regulation 4 of the Control of Asbestos Regulations 2006, and requires the person who has this duty, i.e. generally the site manager or owner – known legally as the “duty-holder” to:

 

  • Take reasonable steps to find out if there are materials containing asbestos in non-domestic premises, and if so, its amount, where it is and what condition it is in;
  • Presume materials contain asbestos unless there is strong evidence that they do not;
  • Make, and keep up-to-date, a record of the location and condition of the asbestos containing materials – or materials which are presumed to contain asbestos;
  • Assess the risk of anyone being exposed to fibres from the materials identified;
  • Prepare a plan that sets out in detail how the risks from these materials will be managed;
  • Take the necessary steps to put the plan into action;
  • Periodically review and monitor the plan and the arrangements to act on it so that the plan remains relevant and up-to-date;
  • Provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.

 

There is also a legal requirement on anyone to co-operate as far as is necessary to allow the duty-holder to comply with the above requirements. Such co-operation may include getting copies of original and amended building specifications from external parties, assistance from engineers and maintenance staff to asbestos surveyors, and, dependent on tenancy contracts, even financial assistance from site landlords.

So who exactly is the “duty-holder” on an industrial site? According to HSE, in most cases it is the person or organisation that has clear and well-defined responsibility for the maintenance or repair of the premises through an explicit agreement such as a tenancy agreement or contract.

The extent of the duty will depend on the nature of that agreement. In a building occupied by one leaseholder, the agreement might be for either the owner or leaseholder to take on the full duty for the whole building; or it might be to share the duty. In a multi-occupied building, the agreement might be that the owner takes on the full duty for the whole building. Or it might be that the duty is shared – for example, the owner takes responsibility for the common parts while the leaseholders take responsibility for the parts they occupy.

In some cases, where it is unclear who has documented responsibility for the maintenance or repair of the premises, or where the premises are unoccupied, the duty is placed on whoever has control of the premises, or part of the premises. Often this will be the owner.

Clearly there is always an identifiable duty-holder, and with such unambiguous obligations, simply saying “I didn"t know we had any asbestos”’ will not be an acceptable excuse in court, and that premise has been proved already by recent cases.

In August this year for example, Wear Valley District Council was fined £18,000 at Darlington Magistrates Court after admitting six offences under the Control of Asbestos at Work Regulations 2002. It was also ordered to pay £7722 costs.

The investigation followed a complaint in January 2006 by a maintenance worker, who discovered that the plant room of the council-run leisure centre where he had worked for many years contained asbestos. He had apparently suffered no medical problems as a result, but had clearly been exposed to risk.

HM Inspector of Health and Safety, Richard Bishop, commenting on the case, said: "A survey had been carried out in 2001 which identified asbestos containing materials. This information was not acted upon and no-one who worked in the plant room was made aware. As a result, work that was liable to disturb the asbestos was done without the necessary precautions required by law to protect their health from exposure”.

In another recent case, a Peak District builder was fined a total of £7500 plus costs after pleading guilty to exposing his employees and the public to asbestos during minor demolition work in Buxton. He pleaded guilty to three charges after earlier pleading not guilty in the Magistrates' and Crown Courts.

The offences were committed in October 2004, when a concerned Buxton shopper alerted a council Environmental Health Officer about the way that the builder and an employee were using a crowbar to tear down fascia boarding during refurbishment work at a local library. Investigations confirmed the material to be asbestos insulation board containing amosite (brown) asbestos. The builder was fined £2500 for each offence and ordered to pay over £4500 costs at Derby Crown Court.

The message here is a clear one, both for on-going maintenance or where refurbishment is planned. If employees or visitors to a site make a complaint, or worse still contract medical conditions, any company or individual manager is wide open to legal action. Firms and individuals who have not undertaken adequate assessments to identify their potential asbestos issues risk heavy fines. It follows that a professionally implemented site survey is an obvious step to take, and one which will legally demonstrate that the required “Duty-of-Care” has been taken seriously.

 

 

For further information please visit: www.adamsenvironmental.co.uk

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