In this article, Nigel Bryson reports on some recent developments being reviewed that reflect on current asbestos issues, and highlights that attention must continue to be focused on asbestos controls.
By the beginning of 2014, the Health and Safety Executive (HSE) should have published the new Approved Code of Practice (ACOP) that will replace:
L143: Work with Materials Containing Asbestos
L127: The Management of Asbestos in Non-domestic Premises
A new set of regulations was enacted in 2012. In Brussels, the European Parliament agreed a report that proposed a significant increase in controls over asbestos. While this was the first step in a process that could take years, it could lead to more changes in the law regarding asbestos.
These changes are occurring today as asbestos is the most studied cause of work-related deaths ― the hazards have been known for more than 100 years. Yet many people see it as a historical problem that has nothing to do with them. A key problem in maintaining a “proactive” approach to asbestos is the time it requires, not only to do what may need to be done over a period of weeks or a year, but over decades.
According to HSE statistics, the number of men dying from mesothelioma should peak in the year 2016, with an estimated 2038 deaths. Estimates for women were not given, but in 2010, the total number of people dying from mesothelioma was 2347.
In 2010, there were 412 deaths where asbestosis was likely to have contributed to the person’s death: in 169 deaths, asbestosis was recorded as the specific underlying cause. What is of concern here is that 725 new cases of asbestosis were diagnosed in 2011. The HSE points out that new cases of asbestosis identified in the Industrial Injuries Disablement statistics have “increased more rapidly than asbestosis deaths in recent years”.
Asbestosis is a lung disease caused by the build-up of a significant amount of asbestos fibres that damage the tissue. It is associated with exposure to significant quantities of asbestos fibre. That such cases are still increasing in numbers indicates that control measures in the 1970s were failing to protect people from even the most excessive amounts of asbestos fibres. Lung cancer and mesothelioma can be triggered by small concentrations of asbestos fibre, but a “safe limit” has proved impossible to identify.
The HSE anticipates that, between 2007 and 2050, around 61,000 men will die from mesothelioma. It employs a ratio of 1:1 for lung cancer to mesothelioma deaths. Hence, when lung cancers are included during the 43-year period, it is estimated that 122,000 men will die from asbestos-related diseases, not including asbestosis deaths.
With millions of tonnes of asbestos still in buildings in use today, the issue will require significant attention for decades.
Despite all the information available about preventing asbestos exposure, mistakes keep being made. In July 2013, a Nottinghamshire property developer, James Roger Carlton, was given an eight-month suspended prison sentence and ordered to pay fines and costs of £100,000. This was for ignoring the presence of asbestos insulation boards in a former school. The HSE came across the work during one of its “intensive inspections” in March 2012. Initially, the inspector thought the building may contain asbestos materials and gave advice on how to identify and remove any found.
Eight days later a complaint was made that asbestos was not being removed properly. The inspector found rubble containing asbestos and issued a Prohibition Notice. Mr Carlton was advised to have a survey carried out, and to use a licensed asbestos contractor to remove the asbestos materials. However, he did not do so and, after two further Prohibition Notices, he was prosecuted. It is worth noting that the jail sentence was given because of the breach of the Prohibition Notices.
In June 2013, a Scottish health board was fined after workers had been potentially exposed to asbestos fibres at the Royal Hospital for Sick Children. In this case, a survey carried out in 2009 had identified asbestos materials in a boiler room; they were in good condition and presented a low risk. It was recommended that the asbestos materials should be labelled and their condition monitored. However, a survey carried out in 2011 found that some of the materials were in poor condition and now presented a high risk. It was recommended that the materials be removed and environmental cleaning of the area be undertaken.
An investigation by the HSE found that the health board had taken no action since the 2009 survey to monitor the asbestos materials within the plant room. The asbestos materials had not been labelled and no monitoring had been undertaken. Employees and contractors regularly had access to the plant and could have been exposed to asbestos fibres. Greater Glasgow & Clyde NHS was fined £6000 for failing to maintain its plan in accordance with Regulation 4 (10) of the Control of Asbestos Regulation 2006.
What is unusual about these cases is how the prosecution came about. In the first instance, it was an inspector who identified a potential problem and informed the developer what to do. This was ignored, and when the inspector came back, he issued a Prohibition Notice. In following this up, he found that the Notice had been breached and then issued another Prohibition Notice. When this was breached, the work stopped until remedial action was taken. Over a period of seven months, the developer had ample opportunity to do the job properly, yet consistently failed to do so.
A key part of the regulations covers the need to have a plan to manage asbestos materials if they are not removed, and to monitor asbestos materials. In the Royal Hospital for Sick Children in Scotland, the asbestos materials in the boiler room had been identified and recommendations had been made. Not only were the recommendations ignored, but the condition of the materials was not monitored. As a result, the materials deteriorated from low risk to high risk within two years and this was not identified. Having established the location of the asbestos materials, the health board then failed to implement a proper plan and monitor their condition.
When the prosecutions for 2013 are considered, most come from refurbishment work or demolition. What the two cases ― and others ― highlight is the basic failures that are taking place today. We do not know whether the exposures that are likely to have occurred are sufficient to cause asbestos-related diseases in the future.
If asbestos is in a building, it may need to be managed over many years. Businesses reorganise, managers move on, buildings may have their functions changed, work may be “outsourced”, meaning more people from outside the building need to use it, equipment may need to be changed, and areas refurbished as a result. There are all sorts of reasons why asbestos materials may need to be disturbed or deteriorate.
In May 2013, the University of Hertfordshire announced that it had developed an on-site asbestos detector based on magnetic and laser technology. The university believes that within 18 months it can have units for sale. It is claimed this would be a “portable, real-time airborne asbestos detector to provide a low-cost warning device to tradespeople”. If so, it means that those who actually work in a building can see for themselves where asbestos is present. It may even offer a tool to challenge poor management standards.
Until then, managers must continue to develop and implement effective planning, monitoring and action programmes to prevent exposure, until all the asbestos in the building is gone. With the HSE planning to continue its “Hidden Killer” campaign, asbestos will continue to have a high profile.