The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 2010

Made: 14th December 2010

Laid before Parliament: 17th December 2010

Coming into force: 10th January 2011

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and by section 85(1), (3), (5) and (7) and 86(1) of the Merchant Shipping Act 1995 .

The Secretary of State is a Minister designated for the purpose of section 2(2) of the European Communities Act 1972 in relation to measures relating to the safety of ships, and the health and safety of persons on them.

In accordance with section 86(4) of the Merchant Shipping Act 1995 the Secretary of State has consulted the persons referred to in that section.

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 2010 and they come into force on 10th January 2011.

Interpretation

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• (1) In these Regulations—

• “the 1997 WHO recommended method” means the method of determining airborne fibre concentrations recommended in the document “Determination of airborne fibre concentrations. A recommended method, by phase-contrast optical microscopy (membrane filter method)” published by the World Health Organization, Geneva, 1997 (ISBN 92 4 154496 1), or any other method giving equivalent results which is approved by the Maritime and Coastguard Agency or the Health and Safety Executive;

• “the Act” means the Merchant Shipping Act 1995;

• “the area of activity” means the area where activity likely to involve a risk of exposure to asbestos is carried out;

• “asbestos” means the following fibrous silicates, and any materials or products consisting of or containing these fibrous silicates— asbestos actinolite, CAS No 77536–66–4, asbestos gruenerite (amosite), CAS No 12172–73–5, asbestos anthophyllite, CAS No 77536–67–5, chrysotile, CAS No 12001-29-5 or CAS No 132207-32-0, crocidolite, CAS No 12001–28–4, and asbestos tremolite, CAS No 77536–68–6;

• “CAS No” means the number in the Registry of the Chemical Abstracts Service (CAS) ;

• “contract of employment” means a contract of employment, whether express or implied, and if express, whether oral or in writing;

• “demolition” means ship-breaking or ship-recycling;

• “employer” means a person by whom a worker is employed on a ship under a contract of employment;

• “General Duties Regulations” means the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 ;

• “Government ship” has the meaning given in section 308(4) of the Act;

• “health and safety” includes the occupational health and safety of persons whilst on board a ship and whilst boarding or leaving the ship;

• “health surveillance” means the assessment of the state of health of a individual worker related to exposure to asbestos, which is intended to prevent, and to provide early diagnosis of, any disorder linked with exposure to asbestos;

• “ISO 17020” and “ISO 17025” mean, respectively, European Standard EN ISO/IEC 17020, “General criteria for the operation of various types of bodies performing inspection” and European Standard EN ISO/IEC 17025, “General requirements for the competence of testing and calibration laboratories” issued by the Comité Européen de Normalisation Electrotechnique (CENELEC), or any version of those documents which the Secretary of State considers relevant from time to time and is specified in a Merchant Shipping Notice which contains a statement to that effect;

• “limit value” means an airborne concentration of asbestos of 0.1 fibres per cm³ as a four hour time-weighted average, averaged over a continuous period of 4 hours;

• “maintenance” includes the refitting or repair of a ship;

• “Merchant Shipping Notice” means a notice described as such and issued by the MCA;

• “personal protective equipment” means all equipment (including clothing) which is intended to be worn or held by a person at work and which protects that person against one or more risks to health, and any addition or accessory designed to meet that objective;

• “ship” includes hovercraft;

• “site clearance certificate for reoccupation” means a certificate issued to confirm that a ship or part of a ship where work with asbestos has been carried out has been thoroughly cleaned upon completion of that work;

• “surveyor of ships” has the meaning given by section 256(9) of the Act;

• “United Kingdom ship” means a ship which is—a United Kingdom ship within the meaning of section 85(2) of the Act, ora Government ship, ora hovercraft registered under the Hovercraft Act 1968 ; and

• “United Kingdom waters” means the sea or other waters within the seaward limits of the territorial sea of the United Kingdom.

• (2) Subject to paragraph (1) and regulation 3, words and expressions used in these Regulations have the same meaning as in Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks related to exposure to asbestos at work (second individual Directive within the meaning of Article 8 of Directive 80/1107/EEC) .

• (3) In the application of these Regulations to a hovercraft, a reference to the master of a ship includes a reference to the captain of that hovercraft.

Meaning of “worker”

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• (1) In these Regulations “worker” means any person employed under a contract of employment, including a trainee or apprentice, other than a person who is training in a vessel which is being used—

• (a) to provide instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour and to advance education in the art of seamanship, or

• (b) to provide instruction in navigation and seamanship for yachtsmen,

and which is operating under a relevant code.

• (2) In paragraph (1) “relevant code” means—

• (a) the Large Commercial Yacht Code as set out in Merchant Shipping Notice No. 1792(M), issued by the Maritime and Coastguard Agency, an executive agency of the Department for Transport,

• (b) the Code of Practice for the Safety of Small Commercial Sailing Vessels ,

• (c) the Code of Practice for the Safety of Small Commercial Motor Vessels , or

• (d) the Code of Practice for the Safety of Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point .

• (3) In paragraph (2) each reference to a Code includes a reference to any document containing an amendment or replacement of that Code which is considered by the Secretary of State to be relevant from time to time and is specified in a Merchant Shipping Notice which contains a statement to that effect.

Application

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• (1) Without prejudice to regulation 5 (general duties) of the General Duties Regulations, and subject to paragraphs (2) to (5), these Regulations apply in relation to activities in which workers on a United Kingdom ship are or may be exposed to asbestos during their work.

• (2) Where—

• (a) a ship is being used in the course of public service activities or activities for the purposes of the civil protection services, and

• (b) characteristics peculiar to those activities inevitably conflict with a provision of these Regulations,

that provision does not apply in relation to that ship to the extent of that conflict.

• (3) To the extent that a provision of these Regulations does not apply in relation to a ship because of paragraph (2) there is in relation to that ship a duty on the employer to ensure, so far as is reasonably practicable, the health and safety of workers who are or may be exposed to asbestos during their work.

• (4) These Regulations do not apply to activities of a worker which are covered by the Control of Asbestos Regulations 2012 or the Control of Asbestos Regulations (Northern Ireland) 2007 .

• (5) This regulation (other than paragraph (1)) and regulations 25 and 27 apply in relation to activities on ships other than United Kingdom ships, which are for the time being in United Kingdom waters, during which workers are or may be exposed to asbestos in the course of their work.

• (6) In paragraph (2)—

• (a) “civil protection services” includes the fire and rescue and ambulance services and search and rescue services provided by any other person, and

• (b) “public service activities” includes the activities of the armed forces, HM Coastguard, HM Revenue and Customs, immigration officers, police, prison officers and the security and intelligence services.

• (7) The General Duties Regulations continue to apply to activities to which these Regulations apply, without prejudice to any more stringent or specific provisions contained in these Regulations.

• (8) Regulations 6 and 17 and paragraphs (1) to (3) of regulation 18 do not apply where—

• (a) worker exposure to asbestos is sporadic and of low intensity,

• (b) it is clear from the results of the risk assessment required in accordance with Regulation 5 that the limit value will not be exceeded in the air of the area of activity, and

• (c) work involves—

• (i) short, non-continuous maintenance activities in which only non-friable materials are handled;

• (ii) removal without deterioration of non-degraded materials in which the asbestos fibres are firmly linked in a matrix;

• (iii) encapsulation or sealing of asbestos-containing materials which are in good condition; or

• (iv) air monitoring and control, and the collection of samples to ascertain whether a specific material contains asbestos.

• (9) For the purposes of paragraph (8)(a), exposure to asbestos will not be sporadic and of low intensity if the concentration of asbestos in the atmosphere when measured in accordance with the 1997 WHO recommended method exceeds or is liable to exceed 0.6 fibres per cm³ in the air measured over a ten minute period or if the limit value is, or is liable to be, exceeded.

PART 2 — DUTIES OF EMPLOYERS AND OTHERS

Assessment of risks

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In the case of any activity likely to involve a risk of exposure to asbestos, the employer must—

• (a) in carrying out the risk assessment required by regulation 7 (risk assessment) of the General Duties Regulations—

• (i) determine the nature, degree and duration of the workers' exposure in order to make it possible to assess any risk to the workers' health or safety and to lay down the measures to be taken,

• (ii) in assessing the risk of such exposure, take account of all routes of exposure, and

• (iii) give particular attention to any effects concerning the health and safety of workers at particular risk and take account of the desirability of not employing such workers in areas where they may come into contact with asbestos, and

• (b) review the assessment regularly and in any event where there is reason to believe that it is incorrect or when any change occurs in the conditions which may affect workers' exposure.

Notification of work relating to asbestos

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• (1) An employer whose workers are to undertake activities in which they are or may be exposed to asbestos must notify the Secretary of State in writing of the matters listed in paragraph (3)—

• (a) if reasonably practicable, not less than 14 days before the work commences,

• (b) otherwise, as soon as is reasonably practicable and in any event before the work commences.

• (2) An employer whose workers are to undertake or are undertaking activities in which they are, or are likely to be, exposed to asbestos must notify the Secretary of State in writing of the matters listed in paragraph (3) immediately on becoming aware that a change in working conditions is likely to result in a significant increase in exposure to asbestos.

• (3) The matters which must be notified under paragraphs (1) and (2) are—

• (a) the location of the area of activity,

• (b) the type and quantities of asbestos used or handled,

• (c) the activities and processes involved,

• (d) the number of workers involved,

• (e) the starting date and duration of the work,

• (f) measures taken to limit the exposure of workers to asbestos, and

• (g) if the work consists of demolition or the removal of asbestos from a ship—

• (i) evidence of the employer's ability in that field of work, and

• (ii) the plan of work drawn up in accordance with regulation 12.

• (4) The employer must give workers and their representatives access to any documents notified to the Secretary of State which concern their own undertaking or establishment.

Prohibition of certain activities relating to asbestos

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The employer must ensure, so far as is reasonably practicable, that workers do not undertake, and workers must not undertake, the following—

• (a) the application of asbestos by means of the spraying process,

• (b) working procedures that involve using low-density (less than 1 gram per cm³) insulating or soundproofing materials which contain asbestos, and

• (c) activities which expose workers to asbestos during—

• (i) the extraction of asbestos,

• (ii) the manufacture or processing of asbestos products, or

• (iii) the manufacture or processing of products containing intentionally added asbestos,

other than the treatment or disposal of products resulting from demolition or asbestos removal.

Prevention and reduction of exposure

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• (1) The employer must reduce to a minimum the exposure of workers to asbestos, and in any case must ensure that no worker is exposed to asbestos in excess of the limit value.

• (2) In order to achieve the requirements of paragraph (1), the employer must in particular—

• (a) limit to the lowest possible figure the number of workers exposed or likely to be exposed to asbestos, consistent with safe working,

• (b) design work processes so as not to produce asbestos fibres or, if that proves impossible, to avoid or minimise the release of asbestos fibres into the air,

• (c) ensure that all—

• (i) areas of activity, and

• (ii) equipment involved

are capable of being regularly and effectively cleaned and maintained and are so cleaned and maintained,

• (d) store and transport all asbestos in suitable sealed packing, and

• (e) collect and remove waste from the area of activity as soon as possible and store it in suitable sealed secure packing with labels indicating that it contains asbestos.

Measurement of air quality

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• (1) Having regard to the results of the initial assessment of risk in accordance with regulation 5, in order to ensure that the limit value is not exceeded, the employer must measure regularly the airborne concentration of asbestos fibres in the area of activity.

• (2) The employer must ensure that sampling carried out in accordance with paragraph (1)—

• (a) is representative of the exposure of the workers to asbestos,

• (b) is carried out after consultation with the workers or their representatives,

• (c) is carried out by suitably qualified personnel,

• (d) has a duration such that representative exposure can be established for a continuous four-hour reference period by means of measurements or time-weighted calculations, and

• (e) takes into consideration only fibres with—

• (i) a length of more than 5 micrometres;

• (ii) a breadth of less than 3 micrometres, and

• (iii) a length to breadth ratio greater than 3:1.

• (3) The employer must ensure that samples taken are analysed in laboratories equipped for fibre counting, which must be carried out wherever possible in accordance with the 1997 WHO recommended method.

Exposure to asbestos

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• (1) Where the limit value is exceeded the employer must—

• (a) identify the reasons for this and take appropriate measures to remedy the situation as soon as possible, and

• (b) prevent work from continuing in the affected area until adequate measures have been taken for the protection of the workers concerned.

• (2) In order to check the effectiveness of the measures mentioned in paragraph (1)(a), the employer must immediately carry out a further determination of the airborne concentration of asbestos fibres.

• (3) Where exposure cannot be reduced by other means and where compliance with the limit value makes necessary the wearing of individual protective breathing equipment, the employer—

• (a) may not require a worker to carry out work requiring the wearing of such equipment on a permanent basis; and

• (b) must keep work requiring the wearing of such equipment to the strict minimum necessary for each worker.

• (4) Where in the case of activities such as demolition, repair, maintenance and the removal of asbestos it is foreseeable that the limit value will be exceeded, despite the use of technical preventative measures for limiting the airborne concentration of asbestos fibres, the employer must determine the measures necessary to ensure protection of workers engaged in those activities, and in particular must—

• (a) issue suitable respiratory and other personal protective equipment to workers and ensure that it is worn,

• (b) put up warning signs indicating that it is foreseeable that the limit value will be exceeded, and

• (c) prevent asbestos from spreading outside the area of activity.

• (5) During periods of work which require the use of individual protective breathing equipment, the employer must, in consultation with the workers or their representatives, make provision for breaks appropriate to the physical and climatological conditions.

Maintenance and demolition of ships

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