EHJ May 2004, pages 160-161
With the duty to manage asbestos coming into force later this month, Anthony Burgess and James Baker-Smith ask whether EHPs are properly trained to deal with the challenges ahead

This month, the sleeping dog that is the legacy of our past usage of asbestos will wake. If we ignore this threat to the health and safety of workers, or fail to properly assess the risk it poses, we may find that it returns to bite us. 

On 21 May, the duty to manage asbestos comes into force. It is laid out in regulation 4 of the Control of Asbestos at Work Regulations 2002 (Cawr) and is likely to pose a major challenge to environmental health departments. EHPs are going to be called on to enforce the legislation as the majority of workplaces affected will be covered by local authorities. EHPs will find themselves having to advise duty holders, workers or people just working in buildings that may contain asbestos, along with having to help their local authority implement the legislation in council-owned buildings.

It is Regulation 4 - the duty to manage asbestos, which will be the focus of much of the enforcement, advisory and implementation activities.

Despite, or rather, perhaps, because of, the amount of material that has been published by the Health and Safety Executive and other sources, there is already considerable confusion about the requirement to manage asbestos. Duty holders are being given mixed messages, ranging from articles implying that unless asbestos is removed they could face a £20,000 fine or even imprisonment, to discussions in the press about the relative risks of chrysotile.

The fear of causing ill health, being sued or subjected to enforcement action is causing a knee-jerk reaction in some duty holders, resulting in hasty, and even dangerous responses to the problem. Similarly, there is widespread confusion about who can and cannot work with asbestos-containing materials, and which work is licensable under the Asbestos (Licensing) Regulations 1983 (as amended by the Asbestos (Licensing) (Amendment) Regulations 1998). Confusion and ignorance can be costly both in terms of the effects upon health and financially, through wasting money on inappropriate asbestos removal work. There are undoubtedly individuals and organisations that are exploiting this confusion.

The new regulations do not cover domestic accommodation, unless asbestos is present in the communal areas of rented accommodation. But there is increasing pressure for regulations to include social housing, rented accommodation and even owner-occupied homes. Some mortgage lenders are asking for an asbestos survey of a house before agreeing to lend money. This is one area where greater clarification is needed. Despite the honourable intentions of the latest revisions to Cawr, it still leaves thousands of contractors, who regularly decorate, repair, maintain or alter private houses, no more protected from exposure to asbestos containing materials than before. In other words, even with effective enforcement and implementation of the new legislation by local authorities and the HSE, a large number of workers and people living in premises will continue to breathe elevated levels of airborne asbestos fibres.

EHPs may find themselves having to provide clear guidance to duty holders and people concerned about the long-term ill-health effects of exposure to asbestos. However, actually deciding who is the duty holder may not be that easy in leased commercial premises because there are a myriad of commercial leases which allocate a variety of repair and maintenance responsibilities between the tenant and landlord. Indeed, many landlords of commercial premises are unaware of the general duties that they may have under health and safety law.

Undoubtedly EHPs will be at the forefront of bringing about a cultural change that will enable workers to do small-scale work that involves disturbing asbestos, while a building remains occupied. The HSE has produced guidance on how to take on such work while still protecting maintenance workers and the occupants of a building in its asbestos essentials task manual (HSG210). But most maintenance workers are not equipped or trained to work to the standards demanded by the HSE, or even appreciate the need for such precautions. How many occupants would happily remain in a building where painters are working to the standards demanded by HSG210 when painting asbestos boarding? It is a concern that the current effort being devoted to properly train and equip building and maintenance workers to undertake work that involves asbestos could be characterised as too little, too late. This situation is exacerbated when work involves disturbing a product such as artex, which often contains asbestos. Even relatively simple jobs such as cleaning light fittings are considered high risk and under certain circumstances have to be licensed under the Asbestos (Licensing) Regulations and HSG210. This means that only licensed asbestos removal contractors should be allowed to do such tasks.

The potential health benefits to be gained from the new asbestos regime may not be achieved if there are not enough properly trained and equipped building maintenance workers capable of dealing with disturbing asbestos.

As with many environmental health issues, strongly held views abound. Professionals may find themselves in the uncomfortable position of being piggy-in-the-middle between the "strip it out at all costs" lobby and the "what is all the fuss about?" brigade. The profession needs to ask itself, how well equipped are EHPs to enforce the revised legislation and provide advice, guidance and possibly arbitration? Asbestos management is an on-going regime that will require long-term involvement and commitment from environmental health departments. One area which needs to be addressed is what training EHPs need to enforce this legislation while carrying out routine health and safety inspections. Currently how many EHPs would know how to distinguish a good survey report from a bad one or assess the competency of a surveyor? EHPs will also need to be able to readily identify the duty holder and identify materials presumed to contain asbestos.

Training courses can be an opportunity to meet and exchange views with students from a variety of backgrounds such as chartered surveyors, demolition contractors, asbestos contractors, occupational hygienists and safety professionals. This eclectic mix allows students to learn from each other's experiences and provides a valuable insight into the prevailing attitudes about asbestos.

For instance, there is some anecdotal evidence that fly-tipping involving asbestos may be on the increase. There have been some recent instances where asbestos products have been fly-tipped in town centres resulting in major disruption. In most cases, the local authority has been expected to arrange for the safe disposal of the material and to make sure the area is decontaminated. Some local authorities looked to their EHPs to provide cost-effective solutions to the problems of asbestos fly-tipping.

How well EHPs cope with their on-going responsibilities to help prevent premature deaths arising from exposure to asbestos will depend upon their understanding of the complexities of asbestos management. Sadly some EHPs, by their own admission, find themselves being fobbed off by consultants and contractors, whose technical knowledge leaves them at best confused and lacking credibility and at worst unable to ensure effective control measures. All in all, the profession is going to have to be prepared if it hopes to be able to control the waking dog of asbestos.

Anthony Burgess MCIEH is managing director of Aleb Associates Ltd and is an assessor for the BOHS P.402 & P.405 asbestos modules

James Baker-Smith is managing director of DATAS

Associates Ltd and a training provider for BOHS P.402 & P.405 asbestos modules

For further information contact: DATAS Associates Ltd,

5 Queen Street Close, March PE15 8SP, telephone 01354 659061,

fax 01354 659091  e-mail james@datas.co.uk