Legislative and guidance proposals for the Control of Asbestos Regulations 2012

Background

Asbestos was used in many industries and buildings until it was banned in GB in 1999. When materials that contain asbestos are disturbed or damaged, fibres are released into the air. When these fibres are inhaled, they can cause serious diseases which cannot be cured. The most common diseases caused by asbestos are mesothelioma, asbestosis and asbestos-related lung cancer. These diseases can have a long latency period which means that past exposures can take many years to cause disease.

Asbestos is the greatest cause of work-related deaths in GB. Around 5,000 people die every year from asbestos-related diseases. However, while asbestos continues to be safely removed, it still remains in many buildings. This means people who work in older buildings could still be exposed to asbestos fibres today if asbestos containing materials are not managed effectively, potentially leading to damage or disturbance. Buildings constructed after 2000 are unlikely to contain asbestos.

The most recent released statistics on asbestos related ill health indicate that the stringent controls on work with asbestos introduced several decades ago, including the ‘duty to manage’ in CAR 2012 (explained below), are beginning to generate a decline in lung cancer and mesothelioma deaths in line with projections. However, there is no complacency as GB continues to have a significant asbestos legacy, due to the high volumes imported and used before the use of asbestos in GB was banned.

HSE, as GB’s workplace regulator, is actively tackling GB’s asbestos legacy in workplaces using a variety of interventions including: operating an asbestos license permissioning regime, inspection and enforcement of dutyholders arrangements for the management of asbestos, stakeholder engagement, communication campaigns and research activities. These interventions are designed to support dutyholders and stakeholders to safely manage asbestos, reducing the risk of exposure and supporting progress towards an asbestos-free built environment, building on the stringent controls for working with asbestos introduced several decades ago.

The Control of Asbestos Regulations 2012 (CAR 2012)

CAR 2012 forms the primary legal framework governing the management and control of asbestos to protect workers and others from exposure. The Regulations consolidate previous asbestos legislation that was introduced when existing legislation was amended in 2002 after the use of asbestos was banned in 1999. The framework has been subject to several iterations in response to changes in EU law (most recently 2012).

CAR 2012 applies in Great Britain (GB) (Northern Ireland and Gibraltar have separate equivalent legislation in place) and is enforced by the Health and Safety Executive, Local Authorities, the Office of Rail and Road and the Office for Nuclear Regulation, depending on the workplace.

CAR 2012 applies to all work involving asbestos and places specific duties on employers, dutyholders, contractors, and others who may control or undertake such work. The core principle of the Regulations is to prevent exposure to asbestos fibres and to ensure that, where exposure cannot be avoided, it is reduced to the lowest reasonably practicable level.

Key requirements include:

• Regulation 4 – Duty to Manage: Requires those responsible for non-domestic premises (dutyholders) to identify and manage asbestos-containing materials (ACMs) to prevent exposure
• Licensing of Asbestos Work: Certain high-risk work with asbestos must be carried out by a licensed contractor
• Notification and Medical Surveillance: Licensable and some types of non-licensable work (referred to as NNLW) with asbestos must be notified to the enforcing authority, and employees engaged in such work must undergo regular medical examinations
• Training: Employers must ensure that anyone liable to be exposed to asbestos receives suitable information, instruction, and training
• Site clearance process for licensable work: Employers and analytical organisations must conduct a four-stage clearance process to verify that areas are safe for reoccupation after asbestos removal

The dutyholder’s legal responsibilities cannot be delegated, but dutyholders can nominate others to do all or part of the work to assist in complying with the duties under CAR 2012 (e.g. an asbestos surveyor). Anyone or any organisation who is nominated to do some work as a result of this regulation must know what it is they have to do and be able to do it safely. They should be competent to do this work.

CAR 2012 has supporting guidance which includes an Approved Code of Practice: Managing and working with asbestos, the HSE asbestos website and various health and safety guidance series including HSG264 The survey guide and HSG 248 The analyst’s guide.

Work and Pensions Committee Inquiry – Asbestos Management

In April 2022, the Work and Pensions Committee (WPC) undertook an inquiry into HSE’s approach to asbestos management which made a total of 16 recommendations on the basis that implementing the recommendations would bring anticipated benefits such as improving health outcomes and industry standards. In July 2022, the Government at that time published its response, agreeing to take forward work on 13 of the 16 recommendations. Ten of the recommendations have been delivered by HSE through ongoing regulatory interventions, new communication campaigns and asbestos-related research.

The three WPC recommendations, relating to specific requirements of CAR 2012, which form the basis of the regulatory and non-regulatory proposals outlined in this consultation are:

1. For HSE to consider how it could consolidate, tighten, and simplify the current categorisation of asbestos works as part of its 2022 statutory review of the Control of Asbestos Regulations 2012. Its review should carefully assess the net behavioural impacts and costs of any changes
2. For HSE to make it mandatory for all people conducting asbestos surveys to be accredited by a recognised accreditation body
3. For HSE to assess the impact of making it a legal requirement for building owners or occupiers to commission accredited asbestos analysts to check asbestos work done on their premises and, by extension, making it illegal for asbestos removal contractors to do so

Evidence to support development of the policy proposals

Post Implementation Review of CAR 2012

The most recent Post Implementation Review (PIR) of CAR 2012, published in 2022 took into consideration the recommendations of the WPC inquiry and found overall consensus amongst dutyholders that the regulations remained necessary and are effective in keeping people safe. Evidence gathered for the PIR supported the WPC finding that there is some confusion amongst stakeholders, specifically in relation to the category of work with asbestos known as notifiable non-licensed work (NNLW).

HSE’s intelligence gathering and informal engagement

HSE had some evidence of the confusion around the categories of work with asbestos from the 2017 and 2022 PIRs and WPC inquiry, but very little evidence about the quality of asbestos surveys or problems encountered with independence for the four-stage clearance process. HSE therefore carried out an exercise to gather intelligence and information from key industry stakeholders to inform policy options.

The first part involved two strands of research looking at attitudes across industry towards asbestos surveying and the roles within the four-stage clearance process, and a small study of asbestos survey reports comparing reports by accredited and non-accredited surveying organisations. This generated useful insights to further develop proposals one and two.

The second part was informal engagement with stakeholders on a range of policy options for all three proposals. Stakeholders included a sample of dutyholders, health and safety consultants, asbestos training organisations, asbestos removal contractors, surveyors and analysts, professional bodies, trade associations, trade unions, other government bodies and devolved governments.

Development of policy proposals

The overall strategic policy objectives when considering potential changes to CAR 2012, associated guidance and interventions are to:

• Reduce ill health caused by exposure to asbestos by creating a pathway to safely remove asbestos from workplaces in GB
• Ensure the regulatory regime for managing the risk from exposure to asbestos is proportionate to the hazards generated
• Ensure the regulatory regime for managing the risk from exposure to asbestos is clear for dutyholders and other stakeholders

Having considered a range of policy options, HSE aims to address the three recommendations from the WPC with the following preferred proposals (detailed information on each proposal is provided in the relevant sections throughout the consultation):

Proposal 1 (Regulatory)

To amend CAR 2012 and associated guidance to ensure the independence and impartiality of roles in the four-stage clearance process to minimise the risk of exposure from asbestos to workers and building occupants after the removal of asbestos.

Proposal 2 (Non-regulatory)

To drive up the standard of asbestos surveys by improving guidance and using other interventions to ensure dutyholders understand the critical role of an asbestos survey in managing asbestos risks; and are equipped to commission a quality survey from a competent asbestos surveyor or organisation.

Proposal 3 (Non-regulatory)

To improve guidance and use other interventions to clarify the type of work that constitutes work with asbestos known as Notifiable Non-Licensed Work (NNLW)

HSE uses interventions to encourage and support dutyholders to comply with their legal responsibilities to protect people against risks to their health and safety. This includes communication campaigns, research, guidance, training, working with stakeholders, direct communications to dutyholders, inspection, enforcement and prosecution.

This consultative document describes how there are discrete parts of the regulatory framework that have been identified where further action may be needed to increase the effective implementation to reduce exposure from asbestos, the key aim of the regulatory framework. While these parts are discrete, there is a common theme of the competence of dutyholders to effectively manage asbestos in premises across the proposals.

Both the regulatory and non-regulatory proposals to resolve these parts of the regulatory framework are set out in detail, and you will be invited to respond to a number of questions for each proposal to support policy development and cost benefit assumptions.

This consultative document is relevant to all those involved in the asbestos system – this includes dutyholders, asbestos analysts, licenced asbestos removal contractors and asbestos surveyors. It is also relevant to those working in or connected to these areas such as facilities management or construction. However, the different proposals may be more relevant to certain roles than others.