The HSE is seeking views on revising the Control of Asbestos Regulations to bring them into line with the parent European Directive.

The consultation follows the European Commission’s reasoned opinion earlier this year that the UK had under-implemented Article 3(3) of the Directive 2003/18/EC. The Article provides for the exemption of some types of lower-risk work with asbestos from three requirements of the Directive: notification of work; medical examinations; and record-keeping.

However, the EC decided that the omission in the Control of Asbestos Regulations 2006 of the terms ‘non-friable’ and ‘without deterioration of non-degraded material’ broadened the scope of the exemption, allowing more types of asbestos work to be exempt from the three requirements than was intended.

The HSE had taken the decision to omit the terms because it felt the lack of definition surrounding the terms might confuse duty-holders and make enforcement difficult. Instead, the Regulations introduced a short-term peak exposure limit of airborne fibre, which cannot be exceeded if the exemptions are to apply.

The nine-week consultation on revising the 2006 Regulations, which proposes revoking them entirely and issuing a single set of revised regulations, confirms the Government’s acceptance of the reasoned opinion and that UK legislation must be changed to include the two omitted terms.

By complying fully with the reasoned opinion, the UK will ensure that the revised regulations will narrow the types of work to which the exemptions apply. Consequently, employers carrying out some type of low-risk, short-duration maintenance and repair work on asbestos-containing materials will be newly required to:
• notify the work to the relevant enforcing authority;
• obtain medical examinations for workers; and
• maintain a register for each worker of the type and duration of work done with asbestos.

To comply with the reasoned opinion, but to avoid extending the requirement to hold a licence to carry out short-term, low-risk work, the exemption for licensing will be delinked from the other exemptions and a separate definition of the work for which a licence is required will be set.

This means that, in future, three categories of work will exist as opposed to two:

• licensed, to which all requirements apply;
• non-licensed, which is exempt, as now, from the requirements to notify, carry out medical examinations, and keep medical registers; and
• a new category called notifiable non-licensed work (NNLW) – for which the three requirements will apply.