Simplifying asbestos law — the new ACOP
In the Löfstedt Review of health and safety regulations, published in November 2011, it was recommended that the HSE review all its Approved Codes of Practice (ACOPs). This review was undertaken and, in relation to the Control of Asbestos Regulations 2012 (CAR), the HSE proposed combining the following publications into one document: The Management of Asbestos in Non-domestic Premises (L127) and Work with Materials Containing Asbestos (L143).
In September 2013, the HSE concluded its consultation exercise. The proposals to review and combine the two ACOPs had been published three months earlier. Most respondents agreed with the proposals and the HSE published Managing and Working with Asbestos (L143) on 20th December 2013. L127 was withdrawn when the revised edition of L143 was published.
Hence there is now only one ACOP that gives interpretation to the general aspects of CAR 2012. The Government had proposed that ACOPs should be limited to 32 pages, where possible. Given that it was proposed that two ACOPs be consolidated, it is no surprise that the published document is 116 pages.
The 2012 regulations have not changed. However, when the UK had to change the CAR 2006, most supporting documentation was not amended. The change was needed as the European Commission had stated that the UK had not fully implemented the Asbestos Worker’s Protection Directive. As a result, the CAR 2012 incorporated the new classification of work: “notifiable non-licensed work” (NNLW).
As this was the only major change, the HSE did not amend all its written materials. Guidance on NNLW was given on its website. The HSE took the review as an opportunity to amend the ACOP to reflect this change. It should be noted that guidance, such as the Analysts Guide and Asbestos Contractor’s Guide, is likely to be updated and published in 2014.
Clearly, by consolidating two existing ACOPs into one will mean changes. However, the HSE’s objective was to “make it clearer what the duty holder can do to comply with legal requirements”. Hence the key changes of substance are as follows.
- Material supporting regulations 2, 3, 9 and 22 have been revised to reflect recent changes to the law on NNLW and consequent arrangements for medical examinations for employees and record keeping.
- Material supporting regulation 10 has been simplified to help employers understand more clearly what they need to do in relation to providing information, instruction and training to employees.
- There are some minor changes to the Control of Asbestos Regulations since they were introduced in 2006.
The most significant issue surrounds the guidance for NNLW. This type of work requires medical examinations for the workers who undertake it, appropriate training and the maintenance of records. In responding to the consultation exercise some comments indicated this could increase operating costs. In the new ACOP, the HSE gives some examples of NNLW, separating these from non-licensed work. The section identifying typical examples of the three different types of asbestos work — licensed work that requires contractors to have a HSE Asbestos License; NNLW; and non-licensed work — have been simplified. Tables are used to list the type of work that is likely to fall within each classification.
The issue that is likely to cause most concern relates to the requirements linked to NNLW. It is required that employers keep records and have medical examinations of their workforce who may undertake NNLW. As regards record keeping, for NNLW the employer must keep a health record that includes:
- details of the employees carrying out the work in a register or record, indicating the nature and duration of the activity and the exposure to which they have been subjected
- maintaining a recording and planning system that records the date of the last examination and brings forward the next required medical examination date for each individual.
The health record must be kept for 40 years in a safe place. This requirement is separate from the medical examinations.
For NNLW, employers must ensure their employees are medically examined before or on 30th April 2015. From 1st May 2015 “anyone carrying out NNLW should have been medically examined under the regulations in the past three years”. While a number of the respondents (49%) to the consultation exercise wanted the transition period shortening, the HSE maintained the three-year period. Hence employers undertaking NNLW will need all their employees medically examined by the end of April 2015.
The HSE has amended the ACOP to allow GPs to undertake the medical examination. Once taken, those doing NNLW will need to repeat the examination every three years or sooner, if advised by the doctor. However, for those workers doing licensed work, the medical examination must be done by a HSE-appointed doctor and repeated every two years.
In relation to training, the ACOP spells out the areas needed to be covered in the related training for those undertaking NNLW.
Training for non-licensable work should include information on the following.
- The operations that could result in asbestos exposure and the importance of preventive controls to minimise exposure.
- How to make suitable and sufficient assessments of the risk of exposure to asbestos.
- The control limit and the purpose of air monitoring.
- Safe work practices, control measures and protective equipment. This should include an explanation of how the correct use and maintenance of control measures, protective equipment and work methods can reduce the risks from asbestos, limit exposure to workers and limit the spread of asbestos fibres outside the work area, including, where relevant, the maintenance of enclosures.
- Procedures for recording, reporting and correcting defects.
- The purpose, appropriate choice and correct selection from a range of suitable respiratory protective equipment (RPE), including any limitations.
- The correct use and, where relevant, cleaning, maintenance and safe storage of RPE and PPE, in accordance with the manufacturer’s instructions and information.
- The importance of achieving and maintaining a good seal between face and RPE, the relevance of pre-use tests and face fit tests (FFTs ), and the importance of being clean-shaven.
- Hygiene requirements.
- Requirements and procedures for medical examination, for NNLW.
- Decontamination procedures.
- Waste handling procedures.
- Emergency procedures, including how to deal with an emergency release.
- Which work requires notification as NNLW and which work requires an HSE licence.
- An introduction to the relevant regulations, ACOPs and guidance that apply to asbestos work and other regulations that deal with the carriage and disposal of asbestos.
- Personal sampling and leak and clearance sampling techniques, for analysts.
- Other work hazards, including working at height, electrical, slips, trips and falls, where this is applicable to the work being done.
The HSE indicates that a training needs analysis should be carried out for operatives. This should identify what employees already know and the above list can be used to identify which additional topics need to be covered, in addition to the topics identified for the asbestos awareness training. This additional training for NNLW should be “task-specific information, instruction and training”.
The new ACOP
The HSE states that the new ACOP should help employers, and other duty holders, meet their legal obligations. It is likely that when the HSE launches the next stage of its “Asbestos: Hidden Killer” initiative in the spring, it will be heavily promoting the new ACOP. Employers are well advised to check that their control of asbestos is up to date now.