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  • Writer's picturePaul Beaumont

Asbestos – The Duty to Manage, how it started and where we are!

It may come as a surprise to some, however in 2002, the United Kingdom saw the introduction of Regulation 4 in the Control of Asbestos at Work Regulations 2002, this regulation, titled the “Duty to Manage Asbestos in Non-Domestic properties”, was a national call for all persons in charge of non-domestic premises, the “Duty Holders” to identify and ‘manage’ their asbestos.

An unenviable task this was seen to be, given that there are over 1.9 million non-domestic properties in just England and Wales based on rateable buildings, more if you consider that a large number of these buildings are subdivided into multiple occupancy and use.

Asbestos, as required by the regulation must be ‘Managed’. The best way to manage asbestos is to know where it is. This could and often did require the commissioning of an asbestos survey. It must however be pointed out that an asbestos survey is not a legal requirement, nor is an asbestos survey the means to manage asbestos, it is a tool use to identify asbestos to allow for its management.

Some simple math’s here, assuming that to do a survey for asbestos on each of the 1.9 million properties takes one day, it would take 1000 trained asbestos surveyors just over 5 years to complete, if working 8 hours per day, 5 days per week. It is assumed that there around 5000 practicing and trained surveyors operating in the UK, if this was to be believed, it should only have taken around a year to do all the required surveys, but that’s if the surveyors were to be out every day of the week! Let’s not forget however that although Reg. 4 covers “non-domestic” premises, what of the areas of domestic properties, these are not included, but what of those areas that aren’t “domestic”, areas such as bin stores, corridors, reception areas, lift shafts, communal laundries, plant rooms, etc. and there’s the key word, communal. Even if a premises is “domestic”, the communal areas are not, so these require any asbestos within them to be managed.

Based on the massive requirement of Regulation 4, introduced on the 21st November 2002, compliance wasn’t enforced until the 21st May 2004, allowing a lead in period of some 18 months by which time the duty holder could become compliant.

This lead in period did however present a few issues that we still encounter today. Basically, those in charge of buildings didn’t see Regulation 4 as a priority, after all, if it were, surely it would have been enforceable on its day of its release.

This led to many buildings not having surveys, even more worrying, many buildings that had surveys had them but not of any level of quality. To exasperate the situation even further, the client or ‘Duty Holder’ was basically in the hands of the surveyor or surveying company. They didn’t fully understand what was required, what it would cost or indeed what would be involved, they were just under the belief that they needed a survey, after all, a survey is management isn’t it? NO! it isn’t.

So, what do we do?

To support the introduction of Regulation 4, there was a document describing how surveys should be carried out, what to look out for regarding materials which could contain asbestos and more importantly detailing the different types of survey, which, at the time could be undertaken. This document was titled, MDHS 100, its full title being, The Methods for Determining Hazardous Substances, 100, This was more a technical guide than an actual guidance document for the layman.

MDHS100 identified three levels of survey for asbestos, namely the Type 1, 2 and 3. Each were explained in some detail within MDHS100 and were even given sub-titles; the Type 3 being for Pre-demolition or Refurbishment, the Type 2 as a Management Survey and the Type 1 which was “presumptive” and was well, pretty much pointless.

Today, there are deemed to be only 2 types of survey, the numeric survey titles gone, no longer used in favour of the descriptive titles, those being the “Refurbishment & Demolition Survey” or “R&D Survey” and the “Asbestos Management Survey”, you will note there is no mention any more of the Type 1, more on this later.

R&D Survey, the former Type 3.

Now this is a little weird, as the R&D can be two separate types of survey, not forgetting, there are “only 2 types of survey”.

The Demolition level is a fully intrusive survey. All areas of the building [the demolition site] should be inspected, including but not limited to floor voids, wall cavities, ceiling voids and attics, service risers, plant rooms, basically every part of the ‘premises’ in preparation for demolition as the title would suggest.

Samples of materials would be taken and submitted for analysis for proof of the findings.

Where the “Refurbishment” level is undertaken, this could be localised to the planned works area, it needn’t be the full premises as is typically the position of the Demolition Survey. It could for example just be the roof area where the roof is to be replaced, or around windows for their future replacement, however it may not include a plant room as no refurbishment works are planned there.

Asbestos Management Survey is the second of the two types, or three types of surveys, the former Type 2, or “Sampling Survey”.

This level of survey is carried out where there would be no main disturbance of the building other than its on-going maintenance. It would take in similar areas to the afore mentioned R&D Survey but not to such an intrusive level. All asbestos should however have been located “so far as is reasonably practicable” to allow for the ‘Management’ of the asbestos as required by Regulation 4. Similarly, in this level of survey, samples of materials would be taken to prove or refute the presence of asbestos within these materials or where unsafe, or where agreed, presumptions and/or strong presumptions can be made.

The old, “Type 1 Survey” is where a great number of today’s problem stem from. A Type 1 Survey was basically of very little or even no use at all. The surveyor would attend a property and based on their experience, which at the time, and in most cases was very limited, would ‘Presume’ or in some cases ‘Strongly Presume’ asbestos to be present. Imagine, the surveyor attends the site, they look at the age of the building, i.e. pre-2000, they would Presume that all materials in that building were asbestos unless there was good evidence to say otherwise, such as a material being glass, metal or in some cases wood. It should however it be noted that where materials such as corrugated cement roofs, thermoplastic floor tiles, a Bakelite toilet cistern etc., again based on their age, then the Surveyor could “Strongly Presume” these to be asbestos. No sampling was undertaken for these surveys, and if it were, it was rare and often very sporadic.

Today, the Type 1 survey would be viewed as a “pre-survey” and used in the planning of the main survey. It would help with scheduling, sampling, planning, pricing, etc. however, based on experience, this is very rarely undertaken, i.e. The surveyor often turns up having never seen or assessed the premises and conducts the survey.

Where are we today?

As with all aspects of human life, there are those out there who would seek every opportunity to make money. Asbestos was one of those opportunities and especially with the introduction of Regulation 4. Then, as today, asbestos surveying was unregulated, yes, there were and still are recommendations for selecting ‘Competent Surveyors’ to carryout surveys, but then the question had to be asked, who was/is competent? Should we look at those who make money by removing asbestos? After all, what would they have to gain from telling a Duty Holder that they have asbestos materials in their building and that that material is in a poor condition and requires removal? I know, this sounds a little sceptical or even suspicious, and I’m sure this never happens but at the end of the day, who is truly competent to enter a building they have never been in before to find something that’s often hidden? Now don’t get me wrong, someone who removes asbestos for a living is probably In a good position to know where to find it, but has been seen in the press recently, some level of, shall we say, “inappropriate behaviour” does go on out there In the big world of contracting!

In the early 2000s, the UK needed asbestos surveyors to undertake this massive requirement for surveying, to this end, the British Occupational Hygiene Society (BOHS) introduced a training qualification, namely the BOHS P402 a very similar course was also introduced by the RSPH, the Level 3 Award in Asbestos Surveying, still both currently available.

There was also an attempt to introduce a registration scheme or two for asbestos surveyors, these were the “National Individual Asbestos Certification Scheme” (NIACS). In fact, a recent search of the interweb brings up no reference of this scheme, nor its replacement, the “Asbestos Building Inspectors Certification Scheme” (ABICS), but they both failed as although these were a recommended scheme to be part of, there was no requirement for surveyors to hold such memberships, so why have them! You can however select to use a UKAS (United Kingdom Accreditation Services) surveying company (IOS17020) or if you can find one, an asbestos surveyor, (ISO 17024).

I can’t speak of the RSPH surveying course having never sat or trained it, however the P402, is a well-structured and often well delivered course that is strictly controlled and administered by BOHS. When first introduced, it required the candidates to undergo a couple of days of training, then to pass a written, open book Exam followed by a short practical exam. It also required a further element in the form of survey submissions that were reviewed by BOHS before the life term qualification was bestowed upon the candidate. The examination process has now changed slightly, but the premise of the course is still the same.

Training companies caught on to this and delivery of the P402 started in earnest. Hundreds sat the course, many passed. These successful candidates became the surveyors of all things asbestos and in some cases the ‘go-to’ people for all things asbestos, all this after a three-day (ish) training course. There was, and still is no formal requirement for these trained surveyors to undergo the P402 as a refresher course, indeed I will say that many have never re-sat the course since its creation but Regulation 10 of the Control of Asbestos Regulations 2012 does require them to undertake an annual refresher course, as a minimum the “non-licensed works”, often referred to as Cat B training.

Things are get clearer… slightly.

Based on the evidence and the lack of knowledge or even interest shown by many Duty Holders, the need to become compliant by 2004, along with the lack of ‘Competent Surveyors’ and the low level of guidance for asbestos surveys, we basically introduced a false sense of compliance. Due to this, the Health and Safety Executive (HSE) had to step in, they saw the need for better control and more specifically, for better guidance. They needed to ensure that people knew what was required, what survey to commission, and who to select for the survey to be carried out. In January of 2010, we saw the introduction of the much awaited and more importantly, the much-needed HSG 264, the Survey Guide. To mis-quote a well-known paint brand, “it did what it said on the cover”. It was a guide to asbestos surveys. We saw with its introduction the title of surveys change, gone were the ‘Type #’ survey and in came the descriptive ‘Asbestos Management Survey’, and the ‘Refurbishment/Demolition Survey’, (see above). Basically, if you’re going to ‘Manage’ your asbestos, guess what survey you need, that’s right, an Asbestos Management Survey, if you plan to demolish a property or carry out refurbishment, again, have a guess! This re-titling removed doubt, it cleared up a problem we had been experiencing over the last few years. In addition, HSG264 also included clear information for the Duty Holder (check out the green boxes), such as what to look for in a surveyor, what insurance they should hold, what qualification they should have, how the survey would be carried out, how to prove to themselves that they do indeed have someone who is, for want of a better word, ‘Competent’.

Today we still see errors, after all we are only human, we still get wrongly identified and sometimes missed materials which do or don’t contain asbestos. There are still a few out there who see the asbestos industry as a cash cow, but in all honesty, these people are being pushed aside by ever vigilant and better trained Duty Holders and the more respectable surveying companies. People are much more in control of the purse strings, no longer is good money thrown after bad to deal with asbestos. Don’t get me wrong, there are still cases of misdoings but nowhere near what we had some 20 or more years ago.

The UK may be the biggest offender in the use and abuse of asbestos globally, but today we lead the way. Many countries look to us for advice. We may see the highest death rate from asbestos per capita but this is down to our historic misuse and uncontrolled use of asbestos. Regulation 4 does work; it won’t end our asbestos misery, but it is a main part of us getting there. If Regulation 4 is complied with, if we do Manage our asbestos, the day will come when we can proudly say, we are in control.

If you would like further information on Asbestos – Duty to Manage (DTM) or just on asbestos in general, contact us. We hold an open DTM course every month, approved by the IATP and in full compliance with Reg 4.

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