Dental practice owners and tenants need to be aware of the duties imposed on them relating to any work done to, and the management of, asbestos in their dental practices as failure to comply can have serious consequences.
The Control of Asbestos Regulations 2012 (CAR 2012) become law April 6, 2012. The CAR 2012 consolidated and extended the existing duties set out in the Control of Asbestos Regulations 2006 (CAR) relating to work done involving asbestos.
Previously, work to properties which contain asbestos required the employer of the person doing the work to ensure that they have a suitable licence for the work where such work is categorised as high risk - generally work involving exposure to asbestos which is not sporadic or of low intensity, and which exceeds given controls (broadly the concentration of asbestos at 0.1 fibres per cubic metre in air averaged over four hours).
Usually where major work is proposed, asbestos specialist contractors are used who hold the appropriate licences to ensure that the relevant requirements are met.
No licence was necessary where general remedial work which was not high risk was undertaken. Non licensed work included non continuous activities involving materials which were in good condition involving sporadic and low intensity work.
Under the CAR, an employer was exempt from the following in relation to non licensed work:
giving prior notification of the proposed work to the relevant enforcing authority (usually the Health and Safety Executive);
procuring that the relevant employee has a medical examination by a suitable doctor before the work is carried out and at least every three years as long as the work with the asbestos continues;
maintaining a register of work containing details of the nature and duration of the work and an estimate of the exposure which has arisen for forty years following the end of the employee's exposure to asbestos.
The CAR 2012 have created three different categories of asbestos related work:
- Licensed work (high risk work as before);
- Non licensed work which is exempt from the requirements to notify and carry out medical examinations and keep a register of the work; and
- Non licensed work where these three requirements will now apply - Notifiable Non Licence Work (NNLW).
Only non-friable materials (materials where the fibres are bound so are less readily released into the air) may now be handled and where materials are removed this must be without any deterioration of non degraded materials.
Revised codes of practice will be issued to accompany the CAR 2012 which will clarify the extent of and scope of the duties.
Reminder
The CAR 2012 have also consolidated the existing duties on dentists to manage and identify asbestos within their properties by having a suitable risk assessment done. There is a presumption that any buildings constructed before 2000 are more likely to contain asbestos than properties constructed after that date.
The most common type of assessment is a management survey. This involves a non-invasive identification of materials and samples being taken and an analysis of the condition of those materials. A refurbishment and redevelopment survey is used where extensive works are proposed as it involves the destruction and inspection of all areas of the property with full access to identify and sample all asbestos containing materials.
Non compliance
If an assessment is required, it is common that the failure to have such a report in place will delay a disposal of a dental practice as a buyer will insist on seeing this before the purchase can proceed.
More seriously, failure to comply with the requirements of the CAR 2012 gives rise to criminal sanctions (including large fines) and potential civil liability from those who have been affected.
A key example of this was when Marks and Spencer Plc was fined £1m and ordered to pay £600k costs for breaches of health and safety legislation in the removal of asbestos from its Reading and Bournemouth stores in September 2011.
Dental practitioners need to ensure they are aware of and deal appropriately with the relevant duties imposed on them relating to the maintenance and management of asbestos to avoid incurring such sanctions. In view of the complexity of the regulations and the serious consequences of any breach, specialist advice should be sought.