Health and Safety Executive publishes HSG 248: The Analysts’ Guide on asbestos

Background

HSG 248: the analyst’s guide for sampling analysis and clearance procedures is the comprehensive and authoritative guide for asbestos analysts in Great Britain. In this article, we set out the key changes under the guide and discuss the potential impact from both an occupational disease and regulatory perspective in terms of claims and prosecutions.

As a testament to the amount of new detail, the second edition is double the length of the original version. It aims to provide greater detail and information required by asbestos analysts and to implement the recommendations made by the HSE in its report on the asbestos analyst inspection programme which was completed in 2018. Specifically, it provides greater clarity on:

  • The four stage clearance procedure
  • Safety issues faced by analysts
  • Information and procedures to assess asbestos in soils
  • Testing procedures.

Key changes

The key changes to HSG 248 are highly technical and cover a wide range of the asbestos analyst’s work, the detail of which is outside the scope of this article.

The four stage clearance procedure is not new and includes the following stages before a Certificate of Re-Occupation can be issued:

Stage 1: Preliminary check of the site

Stage 2: Thorough visual inspection of the inside of the enclosure

Stage 3: Air monitoring

Stage 4: Final assessment and post enclosure area dismantling.  

The revised edition strengthens all parts of the procedure as follows:  

  • The use of the handover form.
  • The four stage clearance procedure will be failed where any additional cleaning of more than 10 minutes is required.
  • Analysts are required to take breaks during longer inspections.
  • Stricter decontamination procedures.
  • A reaffirmation of the ban on wearing domestic clothing under disposable overalls.
  • The use of colour photographic evidence to record all stages of the procedure.
  • A detailed record of the process is required on the Certificate of Re-Occupation.

Impact from an occupational disease perspective – evidence is key

The revisions to HSG 248 have been a long time in the making, with the HSE consulting widely before publishing the second edition. Is it therefore unsurprising that the key changes have been welcomed by many, including the British Occupational Hygiene Society, the Chartered Society for Worker Health Protection and the Faculty of Asbestos Assessment and Management.

The United Kingdom Accreditation Service (UKAS) is presently reviewing the changes on technical aspects of testing and UK laboratories are to declare they are compliant with the guidance by 1 December 2021, with the intention of UKAS recognising laboratories to HSG 248 second edition standard by 1 February 2022.

As ever with changes to guidance, there is the potential for the unwary to be caught out by changing requirements. The asbestos industry will have to make changes to their working practices in order to comply with the revised guidance. It is clear that the asbestos analyst is to have a greater role in the preliminary planning of asbestos removal works and the HSE will be working to the new guidance when inspecting works. 

In the claims arena, the impact of the new guidance will not be felt for some time given the latency periods of asbestos illnesses. However, the documents such as the handover record, photographic evidence throughout all four stages of the clearance procedure and evidence of the analyst’s involvement in the risk assessment, will be invaluable in future defences of liability claims. Therefore, it remains critical to retain all documents relating to the management of asbestos works in the event of future claims. 

Impact from a regulatory perspective – potential for prosecutions

Compliance with HSE Guidance has an important role in protecting organisations and individuals from investigations and resultant prosecutions by the HSE. The introduction of the Sentencing Guideline for Health and Safety Offences in February 2016, was a real game changer in terms of the sentences handed down by the courts, with offenders now at risk of a significant fine and custodial sentence (for individuals) in circumstances where they have created a risk of exposure to asbestos.

Failing to adhere to industry guidance, such as HSG 248, could well result in the offender’s culpability being regarded by a court as “very high” or “high.” The Sentencing Guideline follows a staged process that first considers the culpability of the offender. “Flagrantly disregarding” or “deliberate breaches” would render an offender’s culpability as “very high” and “failing to put in place measures that are recognised standards in the industry” could amount to “high” culpability.

Further, the Sentencing Guideline considers the level of harm risked as a consequence of breaching the law, and the likelihood of that harm occurring as a result of the breach. As the risks of exposure to asbestos are widely known as fatal or significantly reducing life expectancy, the level of the harm risked, together with the likelihood of that harm occurring, could well lead to an overall assessment of harm category 1 (the most serious harm category).  

The offender’s position can be further compounded if actual harm materialises and if more than one worker is exposed.

With reference to the Sentencing Guideline, the starting point for fines for companies failing to consider and implement asbestos guidance, including HSG 248, could be:

Turnover of company

Very high culpability and harm category 1

High culpability and harm category 1

Large (£50M+)

 

£4M

£2.4M

Medium (£10M-£50M)

£1.6M

£950K

Small (£2M-£10M)

£450K

£250K

Micro (< £2M)

£250K

£160K

In asbestos prosecutions against individuals, which are commonplace, a custodial sentence is a very realistic possibility with starting points of 18 months’ and 1 year’s custody for “very high” and “high” culpability offenders. In addition, an individual offender can also be fined and struck off as a director.