The Minister of Employment, Thulas Nxesi, has published the Asbestos Abatement Regulations, 2020 (the new regulations) which repeal the Asbestos Regulations, 2001 (the old regulations).
The new regulations came into operation on the date of publication (i.e. 10 November 2020), except for regulations 3 and 20 which will come into operation 18 months after the date of publication.
The new regulations introduce several changes for employers whose employees may be exposed to asbestos dust during the course and scope of their employment.
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This includes new requirements on the handling and removal of asbestos in the workplace. We summarise the key provisions and how they impact on employers below:
The new regulations contain a new and improved list of definitions. The old definition of “asbestos work” has been expanded upon and it is now tiered into three types of asbestos work:
Type 1 asbestos work
- Entails the painting of asbestos cement products and/or the removal of less than 10 metres squared of asbestos cement products, gutters, piping, or insulation boards
- Does not require registration as a registered contractor with the Chief Inspector
Type 2 asbestos work
- Entails the repair of asbestos cement products in a manner that requires surface preparation and/or the removal of asbestos cement products or asbestos insulating board
- Requires registration as a type 2 registered asbestos contractor with the Chief Inspector
Type 3 asbestos work
- Entails the removal, repair, or encapsulation of any asbestos-containing material
- Requires registration as a type 3 registered asbestos contractor with the Chief Inspector
Alongside the expanded tiers of asbestos work, the new regulations have incorporated the United Nations Recommendations on the Transport of Dangerous Goods – Model Regulations, seemingly aligning the new regulations with internationally accepted standards.
New duties for employers: Inventory, risk assessment and management plan
Should asbestos be identified at the workplace, regulations 4 and 5 of the new regulations require the employer to employ a competent person to compile an asbestos inventory and risk assessment.
The employer must continue to employ a competent person to review/carry out the inventory and risk assessment at intervals of no more than 24 months.
Regulation 5(7) further requires that the inventory and risk assessment be reviewed by an approved inspection authority at intervals not exceeding six years.
Regulation 6 requires the employer to employ a competent person who must create a management plan that address several key issues including:
- the removal of asbestos
- the reduction of risk in cases of emergencies, repair work and removal work
- the phasing out of existing asbestos-containing materials
Extensive identification and notification requirements
Employers must take steps to identify all asbestos containing materials, as far as is reasonably practicable.
In identifying whether an item is an asbestos containing material, the employer is required to arrange a laboratory analysis of the material particularly where the employer is uncertain on whether the material does in fact contain asbestos.
Should the employer identify asbestos material and undertake to carry out asbestos work, or employ another person to carry out such work, the employer must give notice to the relevant Chief Director: Provincial Operations at the Department of Employment and Labour.
The time within which notice must be given to the Chief Director will be based on the tier of work that the asbestos work is categorised as Regulated asbestos area, signalling and signage.
Regulations 18 and 20 require employers to clearly identify, demarcate and regulate access to asbestos areas in the workplace.
Any person who accesses an asbestos area is required to wear the appropriate personal protective equipment / clothing.
Further to the clear identification of asbestos areas, asbestos waste must be clearly labelled and transported in accordance with the United Nations Recommendations on the Transport of Dangerous Goods – Model Regulations.
The perseverance of the old regulations
There are certain employer duties from the old regulations that live on in the new regulations although with some modifications. This includes the duty to:
- provide instruction, information and training to persons who have been or may be exposed to asbestos or asbestos dust
- control and guard against the exposure of persons to asbestos
- conduct air monitoring (the new regulations, however, do not require air monitoring for type 1 asbestos work)
- establish and maintain a system of medical surveillance
- dispose of asbestos in a manner contemplated in the regulations; and
- keep records (the new regulations requiring additional record keeping due to the imposition of new duties, like that of the asbestos inventory, on the employer)
Disposal of asbestos
Regulation 21 requires all employers and contractors employed by employers to dispose of asbestos waste to ensure that:
- all asbestos waste is placed in containers as to prevent exposure
- the removal of asbestos intended for removal is in fact removed
- all implements which encounter asbestos waste are decontaminated
- the asbestos waste is disposed of at sites specifically designed for this purpose in terms of the Environmental Conservation Act, 1989 and the National Environment Management: Waste Act, 2008
- all persons involved in the disposal wear the appropriate personal protective equipment; and
- drivers of vehicles containing asbestos waste are given written safety instructions
Asbestos clearance certificate
Regulation 22 requires the completion of an asbestos clearance certificate after undertaking type 2 or 3 asbestos work, whereby an approved inspection authority must, before issuing such a certificate:
- visually inspect the asbestos work area, conduct air sampling, and ensure all asbestos waste has been removed in accordance with regulation 21
Regulation 23 requires employers to keep records of all asbestos inventories, risk assessments, air monitoring results, medical surveillance reports, disposal certificates and clearance certificates.
All records, save for medical records, must be made available to the following persons:
- an inspector on inspection; and
- a relevant health and safety representative or health and safety committee for perusal
Medical records may only be made available to an occupational health practitioner.
All records must be kept for a minimum period of 50 years.
The old regulations were quite mild in approach regarding prohibiting the use of asbestos or asbestos related material.
The new regulations impose an exhaustive list of prohibitions and are drafted based on the substandard way some employers have dealt with asbestos in the past which has posed significant danger to the health of employees and others that may unwillingly encounter asbestos.
Some of the new prohibitions contained in the new regulations are prohibitions against:
- the sale, reuse, reinstallation or recycling of asbestos or asbestos containing material
- the cleaning or preparing of surfaces of asbestos cement materials
- the storage of asbestos containing material for longer than three months after the completion of asbestos removal work; and
- the vacuuming of asbestos dust using vacuum cleaning equipment other than vacuum cleaning equipment with a filtration efficiency of at least 99% for particles one micro-centimetre in size.
To read the new regulations, click here.
AUTHORS: Kate Collier, Partner, Shane Johnson, Professional Support Lawyer & Matthew Ilsley, Candidate Attorney from Webber Wentzel