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Asbestos removal and CDM – the elephant in the room

Written by Nick Garland on 16/03/2015
 

Many in our industry mistakenly believe that the the Construction (Design and Management) Regulations do not apply to asbestos removal projects. Contradictorily, it is also often believed they only kick in when the notifiable triggers are exceeded. With CDM 2015 just round the corner, the following piece is a summary of the changes and how they pertain to the asbestos removal industry.

CDM either applies or it doesn’t. The extra duties imposed by notification, are just that – extra duties, for when the project is officially large. So the first question to answer is – do the new regulations apply to asbestos removal projects or not?

Regulation 2 states that:

“construction work” … includes:

(a) … de-commissioning, demolition or dismantling of a structure;

(d) the removal of a structure, or of any product or waste resulting from demolition or dismantling of a structure…’

These two clauses (incidentally also there in 2007), make it clear that asbestos removal projects are indeed covered and the duties it specifies flow from there.

CDM 2015 makes some sweeping changes, one role disappears, another arrives, client duties are expanded and some duties are taken on-board whether you like it or not.

There are five defined roles:

  1. The Client
  2. Principal Designer (replaces the old CDM Coordinator)
  3. Designer
  4. Principal Contractor
  5. Contractor

The main changes surround the Client and the new Principal Designer role. However, despite remaining largely unchanged the Designer might have the biggest impact on asbestos projects.

Client

CDM 2015 takes implied responsibilities from the 2007 regs and adds liability significant phrases such as ‘must’ and ‘ensure’. The main changes are as follows:

  • Ensure sufficient time for the project
  • Ensure that a Construction Phase Plan and H&S File are created
  • Provide pre-construction information to every Designer and Contractor
  • Ensure arrangements for managing a project are in place and are maintained
  • Ensure the project is completed (so far as reasonably practicable) without risk to any person affected by the project
  • ‘Reasonable steps’ are taken to ensure that the Principal Contractor and Principal Designer fulfil their duties
  • If the Client does not feel competent – they must obtain competent advice
  • Where there is more than one contractor, the Client must appoint a Principal Designer and Principal Contractor (in writing) – or assume all of those duties as well!

With the exception of domestic clients**, the regs therefore no longer make the allowance that Clients don’t know what to do and now insist that they must, or employ competent advice so that they can.

** Note the duties of domestic clients are assumed by the Principal Contractor or in the case of very small jobs, the single Contractor.

Designers

Whilst this is not a new role and the duties are not tremendously different from before, it is worth understanding who a designer is and what duties they are committing to when they take it on. The regs tell us a Designer is an organisation or individual who

prepare or modify a design for a construction project (including the design of temporary works)

It goes on to say this includes, writing specifications, project management, drawings and anyone that design and modify work are included. It is therefore clear that the familiar role asbestos consultancies take on – is unarguably that of a designer.

The following key duty is therefore assumed by anyone in the role:

Must identify foreseeable risks to health and safety and apply the principles of prevention (avoid, reduce or where you can’t, control)

… identify foreseeable risks… this is where the problem comes in, whilst a good analytical consultant fully understands the issues presented by an asbestos job, our industry is often guilty of being blinkered to the host of other hazards that surround it. Therefore when specifying a removal technique, the Designer must consider if that manual handling issue can be tackled in any other way? Do the operatives really need to be exposed to vibration and noise to remove the last minuscule traces of asbestos (blasting techniques)? Does the average Asbestos Consultant have sufficiently broad H&S knowledge to identify all ‘foreseeable risks’ or the understanding of them to apply the principles of prevention? My guess is that most don’t even know what they are.

As an aside – an interesting sentence in the ACoP states that statutory bodies (e.g. the HSE?) who stipulate design changes outside of strict legal requirements, take on Designer duties.

The Principals (Designers and Contractors)

Any project that involves more than one contractor e.g. LARC, Scaffolder, Electrician (for isolations) etc… must have both a Principal Contractor (PC) and a Principal Designer (PD). If the Client fails to appoint them, they assume the duties.

The two main changes for the PC is that the notification bar is higher. A project now needs to be notified if > 500 person days or if >30 working days AND >20 workers at any one time. The HSE believe this will halve the number of projects to be notified. However a Construction Phase Plan is now needed on ALL projects, not just notified ones. The significance of this on asbestos projects where the LARC is the PC or sole Contractor is that they must produce a Construction Phase Plan (CPP) as well as their method statement. For the small removal project most of the detail required in a CPP is already present in a good quality method Statement. But in any case the HSE are planning on providing a template.

Whilst the PC is largely unchanged, the PD is the new role on the block, replaces the old CDM Coordinator, takes on all of those duties and more. The duties are:

  • Coordinating the Pre-Construction phase
  • Identify and remove / control foreseeable risks
  • Ensuring co-ordination and co-operation of all team members
  • Assist the Client with Pre-Construction Information
  • Assist the PC in preparing the Construction Phase Plan (now needed on ALL projects)
  • Prepare the Health & Safety File

Remember, unlike the Designer where your can sleepwalk into the role, you can’t accidentally become a Principal Designer. Both a PC and a PD must be appointed in writing.

The role is essentially an organisational one, plus:

  • Identifying project risks – perhaps with a full team meeting discussing the project and thrashing out what hazards are to be expected – agreeing how they would be mitigated and assigning responsibility
  • Identifying residual risk (for the H&S File) – this will flow from the initial meetings, hazards identified that remain after the job is finished.

From experience I have found that next to nuclear, asbestos is by far the most complex hazard facing construction projects. It is therefore less of a challenge for a specialist in asbestos to up-skill in general H&S, than a generalist trying to master asbestos. In this, help and advice is available – the old CDM Coordinators are busily rebranding themselves as advisors to Designers. The asbestos consultant is therefore ideally placed to own this role. Rather than something to avoid, with the right skill set and advice this is genuine project management, which can be charged for appropriately.

In summary, it is not just the Contractor that should be concerned over high temperatures in a boiler house, or the introduction of unnecessary noise and vibration hazards (blasting techniques). We all need to become more educated and aware of areas outside our specialisms. Asbestos Consultants need to recognise the fact that they are Designers and the responsibilities that come with the role.

With Clients, the Designers have a duty that a project is completed without risk to those affected. They are mandated to get actively involved. Rather than just make design requirement, they must look at all of the implications. As this is the most liability significant duty and is automatically assumed by most consultants, the short hop to Principal Designer no longer seems onerous. But ignoring the issue will leave you badly exposed to regulatory and legal action.

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