16/08/2022
EXPLANATORY NOTICE – ASBESTOS IN PLACE ASSESSMENT AND ASBESTOS INVENTORY
As previously reported the Department of Employment and Labour on the 10th of November 2020 promulgated new Asbestos Abatement Regulations, 2020. Since the date of promulgation, a number of articles have been circulated by various groups or consultants informing employers that:
1. All Asbestos-containing material must be removed and be safely disposed of by no later than the 9th of May 2022; or
2. That all employers are required to by the 9th of May 2022 be in position of certain documents detailing any Asbestos-containing material present on their premises.
Unfortunately, most of the articles I’ve seen contained numerous factual inaccuracies. The purpose of this explanatory notice is to explain the legal requirements which will take effect on the 9th of May 2022, and to clarify any misconceptions other articles or publications may have created.
The first issue that should be dealt with is the question of “by what date MUST all Asbestos or Asbestos-containing material be removed?” The Asbestos Abatement Regulations, 2020 nor any other South African acts or regulations DO NOT contain a legal requirement which requires the removal and safe disposal of all Asbestos-containing material by a certain date. The new Asbestos Abatement Regulations, 2022 do contain numerous requirements which makes the maintenance of Asbestos-containing material difficult if not impossible. Above mentioned requirements do however not prevent employers from keeping Asbestos-containing material on the premises should the material be maintained and be found to be in a fair condition.
On the date of promulgation all but two of the legal requirements contained in the new Asbestos Abatement Regulations, 2020 came into effect. Regulation 27 of the Asbestos Abatement Regulations, 2020 states that the two regulations will only take effect 18 months after the date of promulgation. As the regulations were promulgated on the 10th of November 2020 these two regulations will take effect on the 9th of May 2022.
The one regulation that takes effect on this date applies to Asbestos warning labels and signs. The signs referred to in this regulation were available on the market from the date of promulgation and most employers and registered Asbestos contractors have started using these signs since the regulations were promulgated.
The second legal requirement and the one that caused most of the confusion, requires that all employers be in possession of a report detailing the identification of Asbestos in place for a wokplace which should have been conducted prior to the 9th of May 2022. This regulation requires that all employers conduct or contract the services of a competent person or company to conduct a full assessment of the property as to determine the presence of any Asbestos or Asbestos-containing material present on their premises or used in the construction of buildings or structures on the premises. Conducting the identification of Asbestos in place assessment will require that a person knowledgeable on Asbestos and Asbestos-containing material conduct an inspection of all buildings and structures as to identify any Asbestos or Asbestos-containing material present on site. Samples are to be taken of material presumed to contain Asbestos. Bulk samples collected are to be analysed as to determine the presence and type of Asbestos present in the sample as this information must be detailed in the reports to be drafted.
Based on the information gathered during the site assessment and the lab report of the bulk samples analysed the following reports or documents for which the contents are prescribed should be drafted:
1. Inventory of asbestos in place. The Inventory of Asbestos in place report should, to only list a few contain information on:
a. The types of Asbestos-containing material identified during the site inspection;
b. Location on site where Asbestos-containing material was found;
c. Quantity of Asbestos-containing material. The report should typically list all the types of Asbestos-containing material identified (Roof sheets, gutters, down pipes and others) and contain detail on the quantity of Asbestos-containing material to be expected for each of the types of Asbestos-containing material identified; and
d. The condition of the Asbestos-containing material identified and the extend of deterioration of the material identified should be detailed in the report.
2. Asbestos Risk Assessment - Based on the outcome of the inventory of Asbestos in place Assessment detailed above a risk assessment must be conducted for each of the Asbestos-containing material identified. The legislation is prescriptive on the factors to be considered when conducting the risk assessment. The outcome of the risk assessment conducted must be included in the Inventory of Asbestos in place resulting in the report in all likelihood containing a different risk rating for each of the types of Asbestos-containing material identified. The report could for instance state that the risk associated with the gutters installed on Building A is high whereas a low risk was assigned to the Asbestos-containing roof of the same building due to the fair condition of the roof;
3. Asbestos Management Plan - The Asbestos Management Plan could basically be regarded as an internal policy detailing a range of procedures to be complied with. The Asbestos Management Plan will typically contain procedures to be complied with in the event of:
a. An incident involving Asbestos-containing material occur. A typical example would be an incident where a roof sheet got damage. In such an event the Asbestos Management Plan should contain information on the procedure to be followed when reporting and repairing, or prior to, and during the replacement of the damaged roof sheet;
b. An emergency such as damage caused to an Asbestos-containing material due to strong winds. As mentioned above the document should prescribe the procedure to be followed when remedying the situation; and
c. Asbestos-containing material be repaired or be removed.
4. Asbestos phase out plan - As previously mentioned the legislation does not prescribe a date by which buildings must be Asbestos free. The Asbestos Abatement Regulations, 2020 however requires that all employers develop and implement an Asbestos phase out plan. Effectively this will mean that an employer will have to, based on the contents of the inventory of Asbestos in place and Asbestos risk assessment conducted, establish their own dates by when the Asbestos-containing material identified will be removed. The projected date of removal will mainly be determined by the outcome of the Asbestos risk assessment. The employer would for instance have no choice but to consider removing all Asbestos-containing material found to be in a poor condition and assigned a high-risk rating within a short period after receipt of the Inventory of Asbestos in place and risk assessment. All Asbestos-containing material found to be in a fair condition during above mentioned assessment could be scheduled for removal later. As no date for removal is prescribed by legislation, employers, can in the Asbestos phase out plan e.g. state that well maintained material will only be removed 10 years from the date on which the assessment was conducted.
For the Department of Employment and Labour this phrase out plan will in all probability be the most important document they will ask for during a site inspection. Should the employer have failed to remove Asbestos-containing material by the due date stated in the Asbestos phase out plan the Department of Employment and Labour could serve a notice compelling employers to remove the said Asbestos-containing material.
The contents of the above-mentioned documents are prescribed in detail in the Asbestos Abatement Regulations 3, 4, 5 and 6. Above-mentioned only contain some of the legal requirements and the full contents of above-mentioned regulation should be considered when conducting the required assessment or when drafting the prescribed reports and risk assessments.
Based on above-mentioned information the following questions may arise:
1. Who could conduct the required inventory of Asbestos in place assessment and draft documentation detailed above? - The Asbestos Abatement Regulations, 2020 prescribe that the required assessment must be conducted by a competent person who has sufficient knowledge, training and experience in the assessments to be conducted. Effectively this could mean that any person with such credentials could be utilized to conduct the required assessment.
The initial assessment will however only be as good as the knowledge of the assessor at the time of conducting the assessment. From experience we have found that unless properly trained it is highly likely that not all Asbestos or Asbestos-containing material will be identified should an expert in the field not be contracted for this service. Few people would for instance know that Asbestos was used in the manufacturing of vinyl floor tile, waterproofing material, fire doors, toilet cisterns to only mention a few. Should this be the case with the person contracted to conduct the assessment it is highly likely that many Asbestos-containing material may be overlooked.
The legislation requires that copies of the Inventory of Asbestos in place be made available to all contractors contracted to perform work on site. This provision will apply irrespective whether or not the contractor will perform Asbestos work or not. Should the Inventory of Asbestos in place be inaccurate in that certain Asbestos-containing material which work is to be performed on not being detailed in the report, the person who contracted the services of the contractor could be criminally charged for exposing the contractor’s staff to Asbestos.
The Asbestos Abatement Regulations, 2020 further states that should the initial assessment not have been conducted by an Approved Asbestos Inspection Authority the services of an Approved Asbestos Inspection Authority must be contracted to review all existing Asbestos related documents at least every six years. It is unlikely that any Approved Asbestos Inspection Authority will merely review existing documents drafted by someone else. For this reason, it may be advisable to contract the services of an Approved Asbestos Inspection Authority as to conduct the initial survey. This practice should ensure that all Asbestos or Asbestos-containing material present on site were identified during the initial assessment and the available inventory of Asbestos in place and Asbestos risk assessment will contain detail on all Asbestos or Asbestos-containing material present on site;
2. How often must the premises be re-assessed and all documents be reviewed? - The Asbestos Abatement Regulations, 2020 states that the inventory of Asbestos in place and Asbestos risk assessment must be reviewed every two years. As previously mentioned, the services of an Approved Asbestos Inspection Authority must be contracted every six years should the employer decide to conduct the initial assessment themselves.
In line with the Asbestos Abatement Regulations, 2020 the Asbestos Management Plan and Phase-Out Plan must be reviewed every eight years; and
3. Whose responsibility is it to conduct the required Asbestos assessments should the property be leased? – Unlike other legislation the Occupational Health and Safety Act, 1993 in most cases requires of users to ensure compliance with the provisions of the Occupational Health and Safety Act, 1993 and incorporated Regulations. The user is defined as the person who has the right and control over the use of the premises and who uses the premises for his own benefit. In the event of the property being leased the lessee will be regarded as being the user. In the case of the Asbestos Abatement Regulations, 2020 the regulations require that the employer be responsible for above mentioned assessment and reports. As the lessor could not be regarded as the employer for the staff employed on site the lessee will effectively be held responsible for compliance to above mentioned legal requirements.
Considering the knowledge needed to conduct a proper inventory of Asbestos in place and the detailed information required when drafting the inventory of Asbestos in place, Asbestos Management Plan and related documents it may be advisable to contract the services of a Department of Employment and Labour Approved Asbestos Inspection Authority for this purpose. Please feel free to contact the office of SafeNet Africa should you require the services of a Department of Employment and Labour Approved Asbestos Inspection Authority for the required inventory of Asbestos in place and the drafting of the legally prescribed documentation.
