Our responsibilities and HSE's responsibilities for enforcing asbestos laws and what those laws require.
We are responsible for enforcing health and safety legislation for the operating railway by the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006. This includes all the provisions of The Control of Asbestos Regulations 2012 (CAR) except for licensed work with asbestos.
HSE enforcement responsibility for licensed work with asbestos
The Health and Safety Executive (HSE) has retained responsibility for enforcement in respect of work with asbestos carried out under a licence, as well as the licensing process itself. Work with asbestos is one of the areas covered in the Memorandum of Understanding (MoU) between HSE and ORR, which provides for joint cooperation and technical support.
ORR enforcement responsibility for unlicensed work with asbestos
We have responsibility for enforcement in respect of unlicensed work with asbestos. This work should only involve the occasional exposure of employees to asbestos at a low level; this means that the risk assessment should show that exposure will not exceed the control limit. The work must be:
- short, non-continuous maintenance work;
- removal of materials in which the asbestos fibres are firmly enclosed in a matrix, for example asbestos cement;
- sealing of asbestos-containing materials which are in good condition; or
- collection and analysis of samples to ascertain whether a specific material contains asbestos.
HSE has produced detailed guidance on safely undertaking unlicensed work with asbestos called asbestos essentials. This guidance also identifies work with asbestos that requires a licence.
The 2012 CAR Regulations introduce new requirements for unlicensed work. From 6 April 2012 some types of this work needs to be notified to the relevant enforcing authority and a brief written record need to be kept, where control limits are likely to be exceeded. Details of the notification process and which work is covered can be found on HSE's website.
ORR's enforcement responsibility for the duty to manage asbestos
In all cases, dutyholders who have control of the maintenance or repair of premises, have a duty to manage asbestos in non-domestic premises so that it does not expose workers to asbestos and the risk of ill health. More information on the duty and its requirements can be found on the HSE website.
'Premises' has a wide definition and includes all parts of the railway and any buildings therein. It also includes all trains and carriages. In many cases Network Rail will be the dutyholder but there will be cases either contractually or through a lease where the responsibility will pass partly or solely to those occupying or operating from a premise. In complex cases legal advice may be needed to determine responsibilities.
Arranging an asbestos survey
If you are not certain where asbestos is in your premises, you may wish to arrange for an asbestos survey to identify materials that contain it. HSE's website has information on selecting a competent surveyor. An accredited surveyor provides assurance of their competence and a list of surveyors can be found on the United Kingdom Accreditation Service website.
ORR's enforcement responsibility for placing on the market articles containing asbestos
We are an enforcing authority for restrictions on the placing on the market of articles containing asbestos under the REACH regime. REACH is a European Regulation on the Registration, Evaluation, Authorisation and restriction of Chemicals. More information on REACH can be found on the HSE website. We also have the authority to issue asbestos exemption certificates. We do not enforce other aspects of REACH.
We have authorised a general exemption for the placing on the market of railway vehicles and components of railway vehicles, which contain asbestos, and which were in service or installed before 1 January 2005. The exemption allows the controlled sale, lease or loan of second-hand railway vehicles and components which contain asbestos. Anyone wishing to operate under this exemption must be able to demonstrate that they have met the detailed conditions set out in the exemption. The exemption covers all railway systems for which we are normally the enforcing authority e.g. rail vehicles on the mainline, London Underground, light rail systems, tramways, Heritage Railway systems and some people-movers. Non-moving exhibits in museums are not within our remit and enquiries should be directed to HSE.
The first general exemption came into effect on 17 February 2014 and was replaced by the current, second, general exemption on 5 December 2018. This followed a stakeholder survey, details of which can be found in this Findings and Conclusions Report. The second exemption retains all the conditions of the previous exemption unchanged. The current exemption will expire on 31 December 2023, although it may be altered or withdrawn at any time during that period. ORR will continue to monitor compliance with the exemption.
For information on our enforcement powers and on the conditions in the exemption please see our guidance document.