The Control of Asbestos Regulations 2012

Made: 27th February 2012

Laid before Parliament: 5th March 2012

Coming into force: 6th April 2012

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 15(1), (2), (3), (4), (5), (6)(b), (9),18(2), 80(1) and 82(3) of, and paragraphs 1(1) to (4), 3(2), 4, 6, 8 to 11, 13(1) and (3), 14, 15(1), 16 and 20 of Schedule 3 to, the Health and Safety at Work etc. Act 1974 (“the 1974 Act”) and section 2(2) of the European Communities Act 1972 (“the 1972 Act”) .

In doing so the Secretary of State gives effect without modifications to proposals submitted to him by the Health and Safety Executive (“the Executive”) under section 11(3) of the 1974 Act after consulting in accordance with section 50(3) of that Act, and it appearing expedient to him after consulting such bodies as appear to him to be appropriate in accordance with section 80(4) of that Act.

The Secretary of State is a Minister designated for the purpose of section 2(2) of the 1972 Act in relation to the regulation and control of classification, packaging and labelling of dangerous substances and preparations , and persistent organic pollutants, dangerous substances, preparations and chemicals .

PART 1 — Preliminary

Citation and commencement

1

These Regulations may be cited as the Control of Asbestos Regulations 2012 and come into force on 6thApril 2012.

Interpretation

2

• (1) In these Regulations—

• “adequate” means adequate having regard only to the nature and degree of exposure to asbestos, and “adequately” must be construed accordingly;

• “appointed doctor” means a registered medical practitioner appointed for the time being in writing by the Executive for the purpose of these Regulations;

• “approved” means approved for the time being in writing by the Executive;

• “asbestos” means the following fibrous silicates—asbestos actinolite, CAS No 77536-66-4;asbestos grunerite (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; andasbestos tremolite, CAS No 77536-68-6,and reference to “CAS” followed by a numerical sequence are references to CAS Registry Numbers assigned to chemicals by the Chemical Abstracts Service, a division of the American Chemical Society;

• “asbestos cement” means a material which is predominantly a mixture of cement and chrysotile and which when in a dry state absorbs less than 30% water by weight;

• “asbestos coating” means a surface coating which contains asbestos for fire protection, heat insulation or sound insulation but does not include textured decorative coatings;

• “asbestos insulating board” (AIB) means any flat sheet, tile or building board consisting of a mixture of asbestos and other material except—asbestos cement; orany article of bitumen, plastic, resin or rubber which contains asbestos, and the thermal or acoustic properties of the article are incidental to its main purpose;

• “asbestos insulation” means any material containing asbestos which is used for thermal, acoustic or other insulation purposes (including fire protection) except—asbestos cement, asbestos coating or asbestos insulating board; orany article of bitumen, plastic, resin or rubber which contains asbestos and the thermal and acoustic properties of that article are incidental to its main purpose;

• “the control limit” means a concentration of asbestos in the atmosphere when measured in accordance with the 1997 WHO recommended method, or by a method giving equivalent results to that method approved by the Executive, of 0.1 fibres per cubic centimetre of air averaged over a continuous period of 4 hours;

• “control measure” means a measure taken to prevent or reduce exposure to asbestos (including the provision of systems of work and supervision, the cleaning of workplaces, premises, plant and equipment, and the provision and use of engineering controls and personal protective equipment);

• “emergency services” include—police, fire, rescue and ambulance services;Her Majesty's Coastguard;

• “employment medical adviser” means an employment medical adviser appointed under section 56 of the 1974 Act ;

• “enforcing authority” means the Executive, the Office for Nuclear Regulation, local authority or Office of Rail Regulation Office of Rail and Road determined in accordance with—section 18(1A) of the Health and Safety at Work etc. Act 1974;the provisions of the Health and Safety (Enforcing Authority) Regulations 1998; andthe provisions of the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006;

• “ISO 17020” means European Standard EN ISO/IEC 17020, “General criteria for the operation of various types of bodies performing inspection” as revised or reissued from time to time and accepted by the Comit Europen de Normalisation lectrotechnique (CEN/CENELEC) ;

• “ISO 17025” means European Standard EN ISO/IEC 17025, “General requirements for the competence of testing and calibration laboratories” as revised or reissued from time to time and accepted by the Comit Europen de Normalisation lectrotechnique (CEN/CENELEC) ;

• “licensable work with asbestos” is work—where the exposure to asbestos of employees is not sporadic and of low intensity; orin relation to which the risk assessment cannot clearly demonstrate that the control limit will not be exceeded; oron asbestos coating; oron asbestos insulating board or asbestos insulation for which the risk assessment—demonstrates that the work is not sporadic and of low intensity, orcannot clearly demonstrate that the control limit will not be exceeded, ordemonstrates that the work is not short duration work;

• “medical examination” includes any laboratory tests and X-rays that a relevant doctor may require;

• “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 that person's health, and any addition or accessory designed to meet that objective;

• “relevant doctor” means an appointed doctor or an employment medical adviser. In relation to work with asbestos which is not licensable work with asbestos and is not exempted by regulation 3(2) “relevant doctor” also includes an appropriate fully registered medical practitioner who holds a licence to practice;

• “relevant nuclear premises” means premises which are, or are on—a GB nuclear site (within the meaning given in section 68 of the Energy Act 2013),authorised defence site (within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998),a nuclear new build site (within the meaning given in regulation 2A of those Regulations);

• “risk assessment” means the assessment of risk required by regulation 6(1)(a);

• “textured decorative coatings” means decorative and textured finishes, such as paints and ceiling and wall plasters which are used to produce visual effects and which contain asbestos. These coatings are designed to be decorative and any thermal or acoustic properties are incidental to their purpose, and

• “the 1997 WHO recommended method” means the publication “Determination of airborne fibre concentrations. A recommended method, by phase-contrast optical microscopy (membrane filter method)”, WHO (World Health Organisation), Geneva 1997 .

• (2) A reference to work with asbestos in these Regulations includes—

• (a) work which consists of the removal, repair or disturbance of asbestos or materials containing asbestos;

• (b) work which is ancillary to such work; and

• (c) supervision of such work and such ancillary work.

• (3) For the purposes of these Regulations, work with asbestos is not “short duration work” if, in any seven day period—

• (a) that work, including any ancillary work liable to disturb asbestos, takes more than two hours; or

• (b) any person carries out that work for more than one hour.

• (4) For the purpose of these Regulations, no exposure to asbestos will be sporadic and of low intensity if the concentration of asbestos in the atmosphere, when measured in accordance with the 1997 WHO recommended method or by a method giving equivalent results to that method and approved by the Executive, exceeds or is liable to exceed the concentration approved in relation to a specified reference period for the purposes of this paragraph by the Executive.

• (5) For the purposes of these Regulations, except in accordance with regulation 11(3) and (5), in determining whether an employee is exposed to asbestos or whether the extent of such exposure exceeds the control limit, no account must be taken of respiratory protective equipment which, for the time being, is being worn by that employee.

• (6) In these Regulations the provisions of Appendix 7 to Annex XVII of the REACH Regulations , which determine the labelling requirements of articles containing asbestos, are reproduced in Schedule 2 (with minor changes reflecting the practical implementation of the requirements).

Application of these Regulations

3

• (1) These Regulations apply to a self-employed person as they apply to an employer and an employee and as if that self-employed person were both an employer and an employee.

• (2) Regulations 9 (notification of work with asbestos), 18(1)(a) (designated areas) and 22 (health records and medical surveillance) do not apply where—

• (a) the exposure to asbestos of employees is sporadic and of low intensity; and

• (b) it is clear from the risk assessment that the exposure to asbestos of any employee will not exceed the control limit; and

• (c) the work involves—

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

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

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

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

• (3) Where a duty is placed by these Regulations on an employer in respect of employees of that employer, the employer is, so far as is reasonably practicable, under a like duty in respect of any other person, whether at work or not, who may be affected by the work activity carried out by that employer except that the duties of the employer—

• (a) under regulation 10 (information, instruction and training) do not extend to persons who are not employees of that employer unless those persons are on the premises where the work is being carried out; and

• (b) under regulation 22 (health records and medical surveillance) do not extend to persons who are not employees of that employer.

• (4) Regulation 17 (cleanliness of premises and plant), to the extent that it requires an employer to ensure that premises are thoroughly cleaned, does not apply—

• (a) in England and Wales, to a fire and rescue authority within the meaning of section 1 of the Fire and Rescue Services Act 2004 or, in Scotland, to a relevant authority within the meaning of section 6 of the Fire (Scotland) Act 2005 the Scottish Fire and Rescue Service, in respect of premises attended by its employees for the purpose of fighting a fire or in an emergency; or

• (b) to the employer of persons who attend a ship in dock premises for the purpose of fighting a fire or in an emergency, in respect of any ship so attended,

and for the purposes of this paragraph “ship” includes all vessels and hovercraft which operate on water or land and water, and “dock premises” means a dock, wharf, quay, jetty or other place at which ships load or unload goods or embark or disembark passengers, together with neighbouring land or water which is used or occupied, or intended to be used or occupied, for those or incidental activities, and any part of a ship when used for those or incidental activities.

• (5) These Regulations shall not apply to the master or crew of a ship or to the employer of such persons in respect of the normal shipboard activities of a ship's crew which are carried out solely by the crew under the direction of the master, and for the purposes of this paragraph “ship” includes every description of vessel used in navigation, other than a ship forming part of Her Majesty's Navy.

PART 2 — General requirements

Duty to manage asbestos in non-domestic premises

4

• (1) In this regulation “the dutyholder” means—

• (a) every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises; or

• (b) in relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises,

and where there is more than one such dutyholder, the relative contribution to be made by each such person in complying with the requirements of this regulation will be determined by the nature and extent of the maintenance and repair obligation owed by that person.

• (2) Every person must cooperate with the dutyholder so far as is necessary to enable the dutyholder to comply with the duties set out under this regulation.

• (3) In order to manage the risk from asbestos in non-domestic premises, the dutyholder must ensure that a suitable and sufficient assessment is carried out as to whether asbestos is or is liable to be present in the premises.

• (4) In making the assessment—

• (a) such steps as are reasonable in the circumstances must be taken; and

• (b) the condition of any asbestos which is, or has been assumed to be, present in the premises must be considered.

• (5) Without prejudice to the generality of paragraph (4), the dutyholder must ensure that—

• (a) account is taken of building plans or other relevant information and of the age of the premises; and

• (b) an inspection is made of those parts of the premises which are reasonably accessible.

• (6) The dutyholder must ensure that the assessment is reviewed without delay if—

• (a) there is reason to suspect that the assessment is no longer valid; or

• (b) there has been a significant change in the premises to which the assessment relates.

• (7) The dutyholder must ensure that the conclusions of the assessment and every review are recorded.

• (8) Where the assessment shows that asbestos is or is liable to be present in any part of the premises, the dutyholder must ensure that—

• (a) a determination of the risk from that asbestos is made;

• (b) a written plan identifying those parts of the premises concerned is prepared; and

• (c) the measures which are to be taken for managing the risk are specified in the written plan.

• (9) The measures to be specified in the plan for managing the risk must include adequate measures for—

• (a) monitoring the condition of any asbestos or any substance containing or suspected of containing asbestos;

• (b) ensuring any asbestos or any such substance is properly maintained or where necessary safely removed; and

• (c) ensuring that information about the location and condition of any asbestos or any such substance is—

• (i) provided to every person liable to disturb it, and

• (ii) made available to the emergency services.

• (10) The dutyholder must ensure that—

• (a) the plan is reviewed and revised at regular intervals, and without delay if—

• (i) there is reason to suspect that the plan is no longer valid, or

• (ii) there has been a significant change in the premises to which the plan relates;

• (b) the measures specified in the plan are implemented; and

• (c) the measures taken to implement the plan are recorded.

• (11) In this regulation—

• (a) “the assessment” is a reference to the assessment required by paragraph (3);

• (b) “the plan” is a reference to the plan required by paragraph (8); and

• (c) “the premises” is a reference to the non-domestic premises referred to in paragraph (1).

Identification of the presence of asbestos

5

An employer must not undertake work in demolition, maintenance or any other work which exposes or is liable to expose employees of that employer to asbestos in respect of any premises unless either—

• (a) that employer has carried out a suitable and sufficient assessment as to whether asbestos, what type of asbestos, contained in what material and in what condition is present or is liable to be present in those premises; or

• (b) if there is doubt as to whether asbestos is present in those premises, that employer—

• (i) assumes that asbestos is present, and that it is not chrysotile alone, and

• (ii) observes the applicable provisions of these Regulations.

Assessment of work which exposes employees to asbestos

6

• (1) An employer must not carry out work which is liable to expose employees of that employer to asbestos unless that employer has—

• (a) made a suitable and sufficient assessment of the risk created by that exposure to the health of those employees and of the steps that need to be taken to meet the requirements of these Regulations;

• (b) recorded the significant findings of that risk assessment as soon as is practicable after the risk assessment is made; and

• (c) implemented the steps referred to in sub-paragraph (a).

• (2) Without prejudice to the generality of paragraph (1), the risk assessment must—

• (a) subject to regulation 5, identify the type of asbestos to which employees are liable to be exposed;

• (b) determine the nature and degree of exposure which may occur in the course of the work;

• (c) consider the effects of control measures which have been or will be taken in accordance with regulation 11;

• (d) consider the results of monitoring of exposure in accordance with regulation 19;