Asbestos legal framework and regulatory developments

Exposure to asbestos-containing materials (ACM) is related to the possibility of serious and irreversible diseases, being classified as a first category carcinogen (C1). As of today, an estimated 3000 asbestos-containing materials have been produced worldwide.

As indicated above, it is a dangerous agent present in different forms and in numerous work situations, which can cause very severe pathologies, such as lung cancer, asbestosis (pulmonary fibrosis) and malignant mesothelioma, as well as other types of cancers.

Not all asbestos is equally dangerous. As an inert mineral it is not harmful to health, but if it is handled it can release fibres into the environment which, when breathed, are deposited in the respiratory tract and can cause serious damage to health.

The different varieties of asbestos have different physical and mechanical properties, which means that they have different uses, and even the same property can be shared by two or more varieties of asbestos. These include thermal stability, low heat exchange capacity, high chemical resistance, high tensile strength and abrasion resistance, etc., which led to ACMs being used in large quantities to impart these properties to other materials.

As a result, ACMs can be found in acoustic panels, projection mouldings, blankets, household appliances, vinyl flooring slabs and even astronaut suits.

The French National Institute for Safety and Health at Work (INRS) groups asbestos-containing materials by their physical appearance into five main groups:

• Bulk asbestos
• Asbestos in sheets or plates
• Braided or woven asbestos
• Asbestos incorporated into cement products (fibre cement)
• Asbestos incorporated in different mortars (resins, bitumen)

A second classification, which is no less important, is that of friable asbestos - where particles can be released into the air when it disintegrates - and non-friable asbestos, which is less dangerous as this effect does not occur unless the material breaks.

Within the framework of the European Union, the first directive on the protection of workers against the risks related to exposure to asbestos at work was published in 1983, and was incorporated into the Spanish legal system the following year by means of the regulation on work with asbestos risks. This regulation introduced innovative precepts in Spain, such as training and information and risk assessment, which were unknown until then.

The total ban in Spain was implemented with the Order of 7 December 2001.

A second directive, 91/382/EEC, modifies more articles of the regulation and establishes complementary rules.

A third directive, 2003/18/EC, obliges to readapt the Spanish legislation.

Once Royal Decree 396/2006 of 31 March 2006 was published, establishing the minimum health and safety provisions applicable to work involving the risk of exposure to asbestos, all previous legislation was repealed in Spain.

In 2015, France reduced the environmental limit value VLA to 0.01 fibres/cm3 (Décret 2012-639 du 4 mai 2012), bringing it into line with other European countries, including electron microscopy techniques as an analytical technique for the detection of fine asbestos fibres. In Spain, the legal value is 0.1 fibres/cm3.

In this case, French regulations are structured around different objectives:

• Protection of the population (Public Health Code)
• Protection of workers (Labour Code)
• Protection of the environment.

In Latin America, the banning of asbestos-containing materials has been gradual depending on the country: Argentina in 2000, Chile in 2001 and Honduras in 2003.

An example of a regulation would be the one published in the Official Bulletin of the Government of the Argentine Republic, n.° 29.700 (31-07-2001): "Prohibit the production, importation, commercialisation and use of asbestos fibres of the chrysotile variety and products containing them, as from 1 January 2003. Resolution 823/2001 of 26 July 2001".

In the United States, the Environmental Protection Agency (EPA) is in charge of supervising the elimination of asbestos waste, with jurisdiction at the federal level, and non-compliance is considered a serious offence.

The EPA regulates asbestos in school buildings, public and commercial buildings, asbestos removals and certain products. The EPA and the Occupational Safety and Health Administration (OSHA) are also responsible for regulating environmental exposure and protecting workers from exposure.

Within the scope and scope of application of the aforementioned R.D., it is observed that, despite the existence and consideration of moderate or high risk of exposure to ACM in activities such as construction, demolition and maintenance works, their respective collective agreements do not include training or preventive measures to avoid or at least minimise the risks of exposure.

The expansion of the definitions indicated in the Royal Decree such as friable asbestos, work plan or other basic concepts are also considered necessary in order to make the general public aware of the applicable regulations, so that this document is understandable for all possible parties involved.

Applying the premise that "Ignorance of the law does not exempt from compliance", any community president or self-employed worker who carries out maintenance work on a fibre cement downpipe in any dwelling in Spain should be able to consult the applicable regulations easily and adequately in order to assess the legal requirements that apply to them.

There is also clear room for improvement in the correct Coordination of Business Activities, as exposure to asbestos is considered a serious or very serious risk, improving the duty of information and cooperation established in R.D. 171/2004 on the coordination of business activities. In this case, the aforementioned legal duty is applicable to self-employed workers, which would improve their level of protection against possible exposure.

Another issue of great importance is the absence of regulated training, beyond the minimum content established in Article 13 of the Royal Decree, determining the duration and content of training according to the different trades or jobs that can be carried out (maintenance, removal of materials, general training, etc.).

Likewise, beyond the determination of the Environmental Limit Value, set in Spain at 0.1 fibres/cm3, there are no provisions that determine a minimum number of samples to be taken for the evaluation of work areas and work stations, samples to be taken during the execution of asbestos removal work or samples to be taken for the determination of the decontamination index beyond the MTA/MA 051/A04 standard published by the INSHT.

On the other hand, the execution of works of greater technical complexity such as dynamic confinements or containment bubbles do not have established minimum legal requirements that determine the preventive measures to be adopted beyond those required by the technician assessing the Work Plan, and the existing criteria may differ depending on the province where the aforementioned document is approved. The high number of companies registered in the Register of Companies at Risk of Asbestos (commonly known as the RERA register), more than 3,000 in Spain compared to around 700 recognised in neighbouring countries such as France, is also considered peculiar.

In other European countries, this system is being replaced by accreditation by control bodies, such as Aenor, of this type of companies, which are therefore subject to more rigorous control due to the annual nature of the certification and the performance of annual audits.

Likewise, the bureaucracy required for the approval of the Work Plans prevents the removal of CSFs from being carried out effectively, unlike in other countries such as the Netherlands, where this procedure is only a communication to the competent labour authority.

Rubén Martínez Villamarín
Civil Engineer. Coordinator in the Occupational Risk Prevention Department of EUROCONTROL S.A.