Asbestos contamination & risk management

5 min read

Asbestos contamination is once again attracting media attention with discoveries of asbestos-contaminated mulch at multiple NSW sites.  It undoubtedly remains a contaminant of concern for regulators and one that should be front of mind in 2024.

Background

Despite asbestos being banned in Australia since 2003, its former widespread use means that it is still a substance of concern due to its hazardous properties.

Asbestos is subject to a particularly complex range of legal requirements that arise under both health and safety legislation and environmental legislation. These laws are different in each state and territory (though all jurisdictions with the exception of Victoria now have harmonised work health and safety legislation). As a very general “rule” asbestos in buildings (the fabric of buildings) is mainly regulated by safety laws whereas asbestos in soils and waste streams is regulated by environmental legislation. But there areas of areas of overlap (where both suites of legislation apply).  In addition, there are prohibitions around asbestos manufacture and import codified in Federal regulation.

This complexity of the legal framework and the many duties with respect to asbestos can give rise to lack of awareness of risks associated with asbestos, confusion around obligations – particularly legal obligations arising under environment and waste laws, high management and remediation costs in the event of discoveries and in the event of non-compliance, a risk of enforcement action by regulators or civil claims.

The section below provides a non-exhaustive list of suggested considerations for those involved in management. Given the complexity of this area of law, you should always seek independent legal or other consulting advice on your specific circumstances. The below “prompts” are intended to be starting point for discussion.

Risk management prompts

1)      Have you considered the potential for asbestos to be relevant to your business?

a.      Is there any risk associated with asbestos containing materials (ACM) in your supply chain? Whilst asbestos bans are in place, there have been cases of non-compliance associated with import rules and so it is important to understand the risk of inadvertent use of ACM in parts, equipment and building products and have undertaken due diligence in relation to supply chain;

b.      Is there any risk of asbestos in buildings owned, operated or used by your workers?

If you have identified asbestos or ACM at a building, then you will need to take action to implement the specific requirements of safety legislation to protect people. Asbestos Register(s) should be created (and updated as required) for use by everyone at a site;

c.    If you own or occupy land, is there is a potential for asbestos in soils? Has the site  had former buildings (e.g. buildings that have been demolished or renovated) or been subject to any historic or current waste or earthworks processes e.g. tipping, landfilling, import of soils or sediments (or mulch) from other sites. In my view, this is the biggest contemporary environmental law issue around asbestos.

2.      Do you understand the legal obligations that relate to your situation? These will fact-specific and location-specific. There may be obligations under:

a.      work health and safety laws; and/or

b.      environmental; and/or  

c.      waste laws.

3.      Have you implemented a management system to respond to the particular legal obligations and risks you have identified? 

For example, this might mean (depending on particular circumstances):

a.      including asbestos in risk registers (or aspects and impacts registers) and legal obligations registers

b.      documenting in procedures or policies how you will ensure compliance with obligations. If you don’t know how to comply, then engaging a suitably qualified consultant to develop controls with you is highly recommended. You may also wish to consider having policies legally reviewed as needed to ensure that what is written in the policy doesn’t result in inadvertent breaches of obligations

c.      training personnel (contractors and workers and management teams) as needed on obligations and the specifics of policies or procedures that exist)

d.     arranging for periodic site inspections and “audits” to check that personnel are actually following policies and procedures on the ground

e.     having specific policies or procedures that relate to discoveries of asbestos or incidents relating to asbestos, including notifications to the environment and/or safety regulator as required. By way of example, the presence of friable asbestos in or on soil on land is notifiable to EPA Victoria if a person is, or is likely to be, exposed to airborne asbestos by means of inhalation at fibre levels of above 0.01 fibres per millilitre;

f.       making provision for legal advice at suitable junctures in your policy documents to enable you to seek privileged advice as needed in the event of an incident;

g.     monitoring both changes at your sites and ensuring that system documentation is periodically reviewed to ensure it is up-to-date.

4.      Have you reflected on the broader legal, financial and reputational risk associated with asbestos management? This might involve looking beyond your specific site and operational compliance to undertaking due diligence on your supply chain and/or waste streams. The contractual arrangements you have with suppliers and contractors may have very important commercial clauses that relate to asbestos. Contractual obligations are an important source of legal obligations that carry significant ramifications if breached. Similarly, if you work with contractors at a site there will likely be significant additional legal complexity and potential liability arising from those arrangements (that may go beyond the risk of regulatory prosecution).

If you have any concerns about asbestos-contamination issues, please get in touch.

The legal stuff

This article is aimed to be high-level, practical and thought-provoking. It is not a detailed description of environmental law in Australia. You should always seek independent legal or other professional advice on specific cases and before acting or relying on any of the content. All the information in this article and on this website and any downloads are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice or establish a lawyer - client relationship. Whilst attempts have been made to ensure that the content is current, Gabrielle Guthrie and Guthrie Legal do not guarantee its currency. Copyright 2024

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