Since 1999 the use of all types of asbestos has been banned, but there is still a dangerous legacy of asbestos in older buildings. Complete removal is not a practical option so, in a bid to reduce the danger posed by this material, the government is introducing new regulations designed to manage what remains. In this Briefing, we look at what these regulations will require and how they will affect the construction industry
Boom time for surveyors?
When the regulations come into force there will almost certainly be a surge in demand for surveyors to carry out asbestos surveys. The availability of surveyors competent to carry out such work is likely to be stretched and so the fees they can charge may well increase.
But both surveyors and potential clients should be careful.
Because asbestos has been used in so many different applications, it can be difficult to spot.
Following a government audit in the USA, where similar regulations have been on the books for some time, it was discovered that in 80 per cent of buildings inspected following an asbestos survey, at least one asbestoscontaining material had been missed altogether.
An inaccurate survey could be more dangerous than no survey at all, as those carrying out works may take fewer precautions in areas incorrectly shown as clear.
Rules in writing
The new regulations' basic requirements are pretty clear. New duties will be imposed to:
Locate asbestos-containing materials and determine their condition.
Presume materials contain asbestos (and treat them accordingly) unless there is strong evidence to the contrary.
Create a written record of the location and condition of asbestos or presumed asbestos.
Plan how to manage the asbestos in the future.
Ensure that anyone who needs to know where the asbestos is, such as those carrying out building works, is given that information.
Whose duty is it?
The regulations were initiated as a health and safety at work measure, so the main duty of care will rest with employers. This is fine where one company owns and operates the whole of the building from which its business operates, but what will happen when an employer only occupies part of a building: how will the obligations be split between employer and landlord? The regulations are expected to deal with these questions by imposing new duties on anyone with existing obligations in relation to the maintenance or repair of a building, for example under a lease. The extent to which duties will shift from employer to landlord will depend on their relative responsibilities concerning the fabric of the building and the maintenance activities carried out there.
Tiny fibres pose a massive threat
Asbestos is a naturally occurring mineral.
Three basic types have been imported into the UK: Crocidolite (blue asbestos), Amosite (brown) and Chrysotile (white).
When processed, asbestos can produce millions of tiny fibres that can be inhaled deep into the lungs and penetrate the lung tissue. This is when catastrophic health problems arise. There are three main diseases associated with exposure to asbestos fibres:
asbestosis: scarring of the lung tissue.
lung cancer: people who have developed asbestosis are at a greater risk of developing bronchial cancer, although lung cancer associated with asbestos is not necessarily preceded by asbestosis.
mesothelioma: this form of cancer affects the linings of the chest and abdomen.
The period between exposure and symptoms can be between 15 and 60 years. This means it is difficult to track down a problem until it is too late and all the work done now to reduce exposure will not result in any noticeable decline in illness for decades.
Hiding in many places
Asbestos would be a great building product were it not for the huge health risks. It has a high resistance to heat and many chemicals. Before the health risks became apparent, asbestos was the material of choice for a number of jobs. Its use peaked in the UK from the 1960s until the mid1970s. Asbestos can be found in:
central heating insulation
gutters and rainwater downpipes
fireproof sprays on structural steel joists
Introducing the amended regulations
The new regulations will take the form of amendments to the Control of Asbestos at Work Regulations. The Health & Safety Executive began an extensive consultation procedure with unions, industry and professional bodies in 2000 which was completed in February 2002.
It is now expected that the minister will sign the new regulations into law towards the end of August 2002. There is likely to be an 18-month lead-in time with the regulations taking full effect from 2004.
The next round of changes will probably come from Europe. MEPs are calling for Europe-wide laws to force member states to draw up registers listing public buildings and industrial and commercial buildings and sites containing asbestos.
Facts and figures
Current annual death toll from asbestos-related diseases in the UK: 3,000 (and rising).
Percentage of people now dying from asbestosrelated diseases who worked in the building trades: 25 per cent (and rising).
Number of UK buildings containing asbestos: 4.4 million.
Tonnes of asbestos in UK buildings: 6 million.
Building trade is at greatest risk
When it is in good condition, asbestos poses no significant health risk. One bright statistician in America has calculated that a person sitting in a building with properly maintained asbestos is more likely to be struck by lightning than to contract an asbestos-related disease.
The danger comes when it is damaged - either through the normal bumps and scrapes sustained by any building over the years, or when it is cut, drilled or ripped out. If asbestos is disturbed it can release its tiny fibres into the air - and it is the airborne fibres that cause the problem.
Now that the asbestos industry itself has been shut down, those that are at greatest risk from exposure work in the maintenance and building trades: gas fitters, plumbers, electricians, cable installers. These people are the most likely to go into a building without sufficient information as to where asbestos might be and how to avoid it.
For further information
The Royal Institution of Chartered Surveyors has information about how to tackle asbestos. Visit www. rics. org
The National Society for Clean Air and Environmental Protection publishes leaflets on asbestos which can be viewed on the NSCA website: www. nsca. org. uk
The Health & Safety Executive will enforce the new regulations. It can also provide full details of these and existing regulations, as well as help and advice for those responsible for asbestos. Visit the HSE website at www. hse. gov. uk
Lewis Silkin: www. lewissilkin. com
About the author
Neil Toner is a property partner at Lewis Silkin, a London-based law practice with specialist lawyers in commercial property, construction, housing and project finance. Neil can be contacted by telephone on 020 7074 8000, by fax on 020 7832 1289 or by email at neil. toner@lewissilkin. com