TUC response to consultation on new Asbestos Regulations
TUC response to CD205 - Proposals for revised Asbestos Regulations and an Approved Code of Practice.
The TUC wishes to respond to the consultation document on proposals for revised asbestos regulations and an approved code of practice. The TUC is the representative body for 70 trade unions who between them represent 6.7 million employees.
The TUC broadly welcomes some of the proposals contained within the consultation paper, in particular the combination of the current three regulations into one regulation, with a single ACoP, the single, lower, control limit, the new 'duty to identify', the tightening up of accreditation and the extension of licensing requirements to employers using their own staff in their own premises.
However we are disappointed that the HSC seem to have, by and large, simply taken the requirements of the European Directive and transcribed them, rather than taken to opportunity of making further improvements in worker protection and the regulatory regime.
In addition, the TUC is particularly concerned over the automatic adoption of sporadic and low intensity worker exposure and short term exposure limits, and the impact that will have on some sectors and activities, including work with textured coatings.
The attempt to remove such work from the licensing regime may be motivated by a desire to free up resources rather than to increase protection. Given the dangers from asbestos, the huge quantities still in place, and the number of people likely to be exposed, even at a 'sporadic' level or for a 'short term', any reduction in protection will lead to an even greater number of people developing mesothelioma. We believe therefore that this is a very shortsighted measure. In practice, the HSC appears to have taken those activities currently licensed, added textured coatings, and labelled them 'low intensity and sporadic'.
The HSC also seems to be erring in interpreting 'low intensity and sporadic' as meaning either one or the other. In fact an activity must be both low intensity and sporadic to qualify for exemption from the notifying and licensing requirements.
In respect of short term exposure, the TUC is concerned that the consultation proposes to move the current STEL from the regulations to the ACoP. This represents a lowering of standards. This is justified on the grounds that there is no requirement for a STEL in the European Regulations. However these are a minimum and must not be used to undermine or remove current protection.
We are also extremely concerned that those aspects of the European regulations relating to consultation have not been transposed into the draft UK regulations, nor is there sufficient emphasis given to consultation within the code of practice.
In respect of the specific questions, the TUC would wish to comment as follows.
Question 1
The TUC has long argued that there is no 'safe' or 'acceptable' level of exposure to asbestos and the ALARP principle should be applied. One of the main reasons for the new European Directive is the prevalence of exposure by maintenance and related workers. This is the group most likely to be undertaking activities exempted from licensing. Given the risk of a fatal disease, even at low exposure, the nature of the industry and the low levels of general enforcement outside of the licensing regime it would be irresponsible to exclude all that work considered sporadic and short term exposure.
In addition the HSE seems to have taken too broad a view of the term 'low intensity and sporadic'. To qualify for exemption an activity must be both low intensity and sporadic. Clearly some of the work outlined in the draft code of practice is not necessarily going to be 'sporadic', for instance removing textured coating during the refurbishment of a tower block, nor is work on asbestos cement going to be 'low intensity'. In addition short duration work involving picking up debris, may be sporadic, but is certainly not 'low intensity'.
The HSC should be committed to increasing protection, yet for some groups this proposal would decrease the level of protection they currently enjoy.
We believe that most of the activities outlined in paragraphs 37-44 do not qualify for exemption under the European Regulations and should remain licensed and notifiable. Where genuine sporadic and low level work is undertaken - there should still be requirements for PPE and dust suppression.
Question 2
In general the TUC would not support the removal of work on textured coatings from the licensing regime. The research which is quoted as justifying the removal was not done under practical conditions. The TUC does not accept that the levels of exposure demonstrated under controlled negative pressure conditions reflect the actual likely exposure levels which are encountered in the working environment, in particular where dry removal is attempted. Further research is currently underway and the TUC believes that it is inappropriate to make any decision to remove textured coatings until this can be considered.
While the risk from this activity is certainly lower than from many other asbestos related activities, it must be recognised that textured coating is to be found in millions of premises and some workers may spend considerable time on its removal when refurbishment of a housing estate is being undertaken. As such, exposure is not necessarily sporadic. While a figure of 2-5% asbestos is given for textured coatings, it should be remembered that this is by weight and the content by bulk is considerably higher. A medium sized room with artexed walls and ceiling can easily contain over a kilogram of asbestos
Although some processes with higher proportions of asbestos have been excluded from the current regime the exposure risks are not necessarily comparable and many groups have indicated that they would have wished to see these included in the regime anyway.
If work on textured coating were to be removed then a much greater level of control. protection and enforcement would be required to maintain the level of security which is given by the licensing regime.
Question 3
Broadly the TUC supports the proposals to align the new requirements for minimising exposure with the hierarchy of controls. This is generally understood by professionals and by safety representatives and would be welcomed.
Question 4
The TUC would strongly support the proposal to implement a single control measurement. We would also support using the WHO standard of measurement. However we oppose removing the STEL from the regulations.
Question 5
This proposal places a positive duty on employers to undertake an asbestos survey, identify asbestos and to presume that asbestos is present unless shown otherwise. This precautionary principle is welcomed by the TUC.
Question 6
The TUC agrees that there should be a requirement on all employers to seek evidence of competency prior to any work involving demolition or removal work, although we would ask whether this is wide enough to cover all work involving asbestos. Although the TUC accepts that the wording meets the requirements of the Directive, it would ask that consideration should be given to whether it is broad enough.
The TUC welcomes the proposed amendments to the plan of work.
Question 7
The approach to training mirrors that within the current regime and is broadly supported by the TUC. However, in addition the TUC would wish there to be a specific requirement to additionally train safety representatives in premises or sectors where there may be exposure to asbestos. At present this is only mentioned within the ACoP. This is particularly important because safety representatives may be required deal with issues relating to potential or actual exposure.
Question 8
The TUC supports this proposal.
Question 9
The TUC believes that the current three sets of regulations lead to confusion within the industry. It supports a single regulation, however it is concerned that it is proposed that some protections contained within the current regulations be reduced or moved to the ACoP.
Question 10
Again the TUC would support a single ACoP.
Question 11
The TUC would agree that a maximum time limit of three years is suitable for a licence, and it would support the comments that there needs to be a simple method of reviewing and removing licences within that period. We do not accept that revocation is only an option in 'the most serious cases'. Any licence holder should have their licence removed if they were to put the health of their staff, or others at risk. Given the killer nature of asbestos any breach of the licensing regime should be considered serious.
The TUC supports the removal of the exemption from licensing for employers using their own staff in their own premises for licensable work.
Question 12
The TUC would support this proposal.
Question 13
The TUC strongly welcomes the proposal to replace the two existing limits with a peak exposure limit, however we believe that this should be in the Regulations.
General
The TUC would also wish the regulations to put greater emphasis on the importance of general worker training and the importance of consultation.
The Asbestos Worker Protection Directive specifically refers to worker involvement, consultation, and information in the following places: Article 3 (4); Article 4 (3); Article 7 (3); Article 10 (3); Article 11 (2); Article 14 (1), (2)(a) and (2) (b); Article 15 (3) and (4); Article 16 (1). However these are not replicated within the draft UK regulations. There should be specific references in Regulations 6, 9, 10, 11, 19, 20 and 21, as well as greater emphasis in the ACOP and guidance.
The TUC sees these regulations as a significant step forward, but even so they will still lead to a considerable number of workers being put at risk. Although the licensing regime is not perfect, it does provide a level of protection that would otherwise be missing. We hope that the new regulations are underpinned by a strong enforcement regime.
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