S.I. No. 34/1989:

EUROPEAN COMMUNITIES (PROTECTION OF WORKERS) (EXPOSURE TO ASBESTOS) REGULATIONS, 1989.

EUROPEAN COMMUNITIES (PROTECTION OF WORKERS) (EXPOSURE TO ASBESTOS) REGULATIONS, 1989.

ARRANGEMENT OF REGULATIONS

Regulation

1. Citation and commencement.

2. Interpretation.

3. Application.

4. Duty of employer to non-employee workers and of self-employed.

5. Action level.

6. Limit values.

7. Prohibition on sprayed asbestos.

8. General measures relating to exposure to asbestos.

9. Assessment of the risk of exposure to asbestos.

10. Measurement of asbestos in the air.

11. Notification where asbestos fibres in air in excess of action level.

12. Designated areas.

13. Steps to be taken if limit values exceeded.

14. Steps to be taken where foreseeable that limit values will be exceeded.

15. Plans for the removal of asbestos.

16. Asbestosis and Mesothelioma Register.

17. Occupational health register.

18. Information, instruction and training.

19. Cleaning of personal protective equipment and washing facilities, etc.

20. Safe areas for consumption of food and drink.

21. Appointed doctors.

22. Assessment of health of workers.

23. Medical records relating to assessments.

24. Review of assessment of health.

25. Disclosure of information contained in health assessments.

26. Inspectors.

27. Certificate of appointment as inspector.

28. General powers of inspectors.

29. Power of District Court to make orders as to dangerous conditions and practices.

30. Offences.

31. Liability of employers, etc.

32. Liability of directors and officers of bodies corporate.

33. Forgery, etc., of documents.

34. Personation, etc.

35. Obstruction, etc., of certain persons.

36. Penalties.

37. Prosecution of offences.

FIRST SCHEDULE

SECOND SCHEDULE

Annex 1 to Council Directive 8¾77/EEC

THIRD SCHEDULE

FOURTH SCHEDULE

FIFTH SCHEDULE

Information set out in an occupational health register under Regulation 17.

SIXTH SCHEDULE

Information to be included in individual medical records under Regulation 23.

S.I. No. 34 of 1989. :

EUROPEAN COMMUNITIES (PROTECTION OF WORKERS) (EXPOSURE TO ASBESTOS) REGULATIONS, 1989.

I, BERTIE AHERN, Minister for Labour, in exercise of the powers conferred on me by Section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 8¾77/EEC of 19 September, 1983¹, after consultation with workers' and employers' organisations as required by Article 6 of Council Directive 80/1107/EEC of 27 November, 1980² hereby make the following regulations:

¹O.J. No. L 263, 24th September, 1983, pp. 25 to 32.

²O.J. No. L 327, 3 December, 1980, pp. 8 to 13.

1. (1) These Regulations may be cited as the European Communities (Protection of Workers) (Exposure to Asbestos) Regulations, 1989.

(2) These Regulations shall come into operation on the 1st day of March, 1989.

2. (1) In these Regulations, except where the context otherwise requires:

"action level" shall be construed in accordance with Regulation 5;

"appointed doctor" means a registered medical practitioner to whom Regulation 21 applies;

"asbestos" means the fibrous silicates referred to in Article 2 of the Council Directive and which are set out in the First Schedule;

"the Directive" means Council Directive 8¾77/EEC of 19 September, 1983¹ (being the second individual Directive within the meaning of Article 8 of the Principal Directive);

1 O.J. No. L 327, 3 December, 1980, pp. 8 to 13.

"health assessment" has the meaning assigned to it by Regulation 22 (1);

"industrial medical adviser" means a registered medical practitioner who for the time being stands designated by the Minister under section 50 (1) of the Safety in Industry Act, 1980 , and is so referred to therein;

"inspector" means

(a) an industrial medical adviser, or

(b) any other person appointed by the Minister to be an inspector for the purposes of these Regulations in accordance with Regulation 26;

"limit values" shall be construed in accordance with Regulation 6;

"the Minister" means the Minister for Labour;

"occupational health register" has the meaning assigned to it by Regulation 17 (1);

"the Principal Directive" means Council Directive 80/1107/EEC of 27 November, 1980¹;

¹O.J. No. L 327, 3 December, 1980, pp. 8 to 13.

"registered medical practitioner" means a person whose name is entered in the General Register of Medical Practitioners established under the Medical Practitioners Act, 1978 ;

"the Regulations of 1975" means the Factories (Asbestos Processes) Regulations, 1975 ( S.I. No. 238 of 1975 );

"workers' representative" means a person whom the workers at or in any premises may, from time to time, select and appoint from among their number as one of their representatives for the purpose of these Regulations.

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(3) (a) A reference in these Regulations to a Regulation or a Schedule is to a Regulation of or a Schedule to these Regulations unless it is indicated that a reference to some other enactment is intended.

(b) A reference in these Regulations to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

3. (1) These Regulations shall, to the extent indicated, apply to every activity in which workers are or may be exposed in their place of work to dust arising from either or both asbestos and materials containing asbestos and, accordingly, no person shall be employed in such activity in contravention of these Regulations.

(2) Notwithstanding paragraph (1), these Regulations shall not apply to sea transport or air transport.

(3) Except where expressly provided for, these Regulations are in addition to and not in substitution for any other enactment.

4. Where duties, however expressed, are placed by these Regulations on an employer in respect of any of his employees at a workplace--

(a) he shall, as far as reasonably practicable, be under a like duty in respect of every other person at work at the workplace who is or may be exposed at that place to dust containing asbestos except that the duties under Regulations 22 to 25 shall not apply to persons who are not his employees,

(b) those duties shall also apply to every self-employed person (including a person in a partnership arrangement) as if he were both an employer and an employee.

5. The action level in respect of the concentration of asbestos fibres in the air at a place of work shall be reached when such concentration is, in the absence of any individual protective equipment and when measured or calculated in relation to an eight hour reference period (being a period when the workers concerned are, or would be, normally at the place of work), equal to or in excess of either or both--

(a) 0.25 fibre per cm³, and

(b) a cumulative dose of 15 fibre-days per cm³ over the period of three months.

6. The limit values for the concentration of asbestos fibres in the air at a place of work when measured or calculated by reference to an eight hour reference period (being a period when the workers concerned are, or would be, normally at the place of work) shall be--

(a) for asbestos, other than crocidolite, 1.0 fibres per cm³ of air,

(b) for crocidolite, 0.5 fibres per cm³ of air, and

(c) for mixtures of crocidolite and other asbestos, the limit values specified in paragraphs (a) and (b) taking into account the proportions of crocidolite and other asbestos types in the mixture.

7. A person shall not apply nor cause to be applied any asbestos to any surface by means of any spraying process.

8. (1) Subject to paragraph (3), where there is or is likely to be an exposure of workers at a place of work to dust arising from either or both asbestos and materials containing asbestos, then the employer concerned shall reduce such exposure to as low a level as is reasonably practicable by means other than the provision of respiratory protective equipment and in any case to a level below the appropriate limit value.

(2) For the purposes of paragraph (1) an employer concerned shall, where appropriate--

(a) limit the quantity of asbestos used to the minimum quantity which is reasonably practicable in the circumstances,

(b) limit, to the lowest possible number, the number of workers exposed or likely to be exposed to dust arising from either or both asbestos and materials containing asbestos,

(c) in addition to complying with Regulation 7 of the Regulations of 1975, ensure as far as is practicable that work processes are designed so as to avoid the release into the air of dust containing either or both asbestos and materials containing asbestos and, where that is not practicable, ensure that the dust be removed from the workplace as near as possible to the place where it enters the air at the workplace,

(d) in addition to complying with Part III of the Regulations of 1975, ensure that all buildings, plant and equipment involved in the processing or treatment of asbestos are capable of being regularly and effectively cleaned and maintained,

(e) ensure that asbestos used as a raw material is stored and transported in suitable sealed packing,

(f) in addition to complying with Part IV of the Regulations of 1975, ensure that all asbestos waste kept in sealed receptacles, and in situations where Regulation 17 of those Regulations does not apply, has indicated on it when being collected and removed from the place of work (other than in respect of mining activities carried on at that place) a label or labels clearly indicating that it contains asbestos.

(3) Nothing in paragraph (2) (f) shall be construed as restricting the European Communities (Toxic and Dangerous Waste) Regulations, 1982, ( S.I. No. 33 of 1982 ), in their application to the disposal of asbestos dust and fibres.

9. (1) An employer shall not permit a worker to carry out any activity which would expose or would be liable to expose the worker to dust arising from either or both asbestos and materials containing asbestos unless the employer has made an assessment of the risk of such exposure and the assessment determines the nature and degree to which the worker would be exposed or would be likely to be exposed to such risk.

(2) Notwithstanding paragraph (1), where an activity to which that paragraph relates is being carried out at, or is begun within the period of 28 days after, the commencement of these Regulations and will continue beyond that period, then it shall be sufficient for the employer to make an assessment of the exposure within that period where the assessment determines the nature and degree to which the worker is being or is likely to be exposed.

(3) Without prejudice to the generality of paragraphs (1) and (2), every assessment which so determines under either of those paragraphs shall--

(a) identify the type of asbestos concerned, and

(b) establish the steps to be taken to prevent or minimise the exposure.

(4) Where, at any time after an assessment is made under paragraph (1) or (2), there is--

(a) a change of a material nature in the activity to which the assessment relates, or

(b) reason to believe that the assessment is incorrect,

then, the employer shall make a revised assessment under this Regulation.

(5) Every assessment made for the purpose of this Regulation shall be recorded in a permanent form in accordance with Regulation 17 (1).

(6) An employer in preparing an assessment under this Regulation shall consult with the workers concerned or, where appropriate, with the workers' representative in respect of the assessment.

10. (1) Where any assessment under Regulation 9 determines that the amount of asbestos fibres in the air at a place of work is, in the absence of any individual protective equipment, equal to or greater than the action level, then measurement of asbestos in the air at the place of work shall be carried out in accordance with the method described in Annex I (which is set out in the Second Schedule) to the Council Directive or any other method giving equivalent results.

(2) For the purpose of measuring asbestos in the air, only fibres with a length of more than 5 micrometres and a length to breadth ratio greater than 3 to 1 shall be taken into consideration.

(3) The provisions of paragraph 4 and 5 (which relates to the frequency of measurements for asbestos in the air and to sampling on a group basis) and paragraph 6 (which relates to the duration of sampling) of Article 7 of the Directive (which are set out in the Third Schedule) shall apply in respect of samples of air taken for the purpose of this Regulation.

(4) The taking of samples of air for the purpose of paragraph (1) shall be carried out after the employer has consulted with the workers concerned or, where appropriate, with the workers' representative in respect of the sampling.

(5) Where the samples of air are to be taken for the purpose of paragraph (1), the employer concerned shall take all reasonable steps to ensure that--

(a) the samples are taken by persons who are suitably qualified to take such samples, and

(b) those samples are analysed by or under the direct control of persons who are qualified to analyse them and apply the necessary identification techniques and in a laboratory equipped to permit those samples to be so analysed and the necessary identification techniques to be so applied.

11. (1) An employer shall not carry on an activity which would expose or would be liable to expose a worker to a concentration of asbestos fibres in air in excess of the action level unless he has prepared a written notification comprising details of the matters specified in the Fourth Schedule and has submitted it to the Minister not less than 28 days before commencing the activity or before such shorter period as the Minister may agree to in writing.

(2) Notwithstanding paragraph (1), where an activity to which that paragraph relates is being carried out at, or is begun within the period of 28 days after, the commencement of these Regulations and will continue beyond that period, then it shall be sufficient for the employer to prepare a written notification which shall include particulars of the matters specified in the Fourth Schedule and to submit it to the Minister within that period.

(3) Where, at any time after a notification has been submitted to the Minister under paragraph (1) and (2) there is a change of a material nature in the carrying on of the activity to which the notification relates, the employer shall, in addition to and when submitting a new notification under this Regulation, advise the Minister in writing of the reasons for the new notification.

(4) An employer shall keep a copy of every notification submitted to the Minister under this Regulation and of every other document to which paragraph (3) relates and shall permit, at any reasonable time, access by--

(a) any worker to any such notification or other document which concerns that worker's place of work, and

(b) any workers' representative to any such notification or other document which concerns any place of work of workers who are represented by that workers' representative.

12. (1) Where workers are or may be exposed in the course of their work to dust arising from asbestos or materials containing asbestos which results or could result in a concentration of asbestos fibres at or above the action level, the following provisions shall apply--

(a) the employer concerned shall ensure that every area in which the action level is or may be reached or exceeded shall be clearly demarcated and indicated by warning signs,

(b) the employer concerned shall ensure that protective clothing shall be worn by workers who are in any area to which paragraph (a) relates,

(c) the employer concerned shall ensure that any area to which paragraph (a) relates is not accessible to workers other than those who, by reason of their work or duties, are required to enter such an area, and

(d) no worker shall smoke in any area to which paragraph (a) relates.

(2) No employer shall charge any worker with the cost of measures required to be taken by virtue of this Regulation.

13. (1) If at a place of work any limit value for asbestos is exceeded--

(a) the reasons for such limit value being exceeded shall be identified,

(b) appropriate steps shall be taken as soon as possible to remedy that situation, and

(c) work shall not be continued at the place of work until adequate steps have been taken to protect the workers concerned.

(2) Immediately upon completion of the steps taken for the purpose of paragraph (1) (b), a measurement of the asbestos in the air shall be carried out in accordance with Regulation 10.

(3) Where the steps taken to protect workers by virtue of paragraph (1) (c) involve the wearing of individual respiratory protective equipment by any of them, the work shall be so organised so as not to require any workers to wear such equipment permanently during that work.

14. (1) Where at any place of work it is foreseeable that, as a result of an activity, the concentration of asbestos in the air will be in excess of the limit values and in respect of which technical preventive measures to reduce such concentration to below that level, are not reasonably practicable, then the employer concerned shall, before the activity is carried out, determine and implement the measures which are necessary to ensure the protection of workers from such asbestos in the air and in particular--

(a) issue suitable respiratory and other personal protective equipment, as are appropriate in the circumstances, to any worker who would be affected by the activity,

(b) put up and maintain legible warning signs (in and near the areas hereinafter mentioned) indicating the areas where it is foreseeable that the relevant limit values for asbestos will be exceeded, and

(c) inform every worker of his obligations under paragraph (2).

(2) Any worker to whom paragraph (1) applies shall--

(a) make full and proper use of the respiratory and other personal protective equipment issued to him for the purposes of that paragraph and, where he discovers any defect in the equipment so issued, he shall forthwith report such defect to the employer concerned, and

(b) comply with any other relevant measure determined and implemented under subparagraph (c) of that paragraph.

(3) An employer to whom paragraph (1) relates shall, before carrying out the activity concerned, consult with the workers concerned or, where appropriate, with the workers' representative in respect of the measures to which that paragraph will relate.

15. (1) Where any demolition or other work involves removing either or both asbestos and products containing asbestos from any building, plant, installation, ship or other structure, whether or not such removal involves total demolition of the structure, such work shall not commence until a plan of work is drawn up which shall, subject to the other provisions of these Regulations--

(a) prescribe the measures necessary to ensure the safety and health of workers at the place where that work is to be carried out;

(b) provide, in so far as is reasonably practicable, for the removal of all asbestos and products containing asbestos before such demolition is started, and

(c) provide, where necessary for the purposes of paragraph (a), for personal protective equipment to be issued to the workers concerned.

(2) Every plan made in accordance with this Regulation shall be complied with.

16. (1) The Minister shall establish and cause to be maintained a register, to be known as "the Asbestosis and Mesothelioma Register", of diseases which have been notified to him in accordance with paragraph (2).

(2) Where a registered medical practitioner becomes aware of a case of a disease to which this Regulation relates, he shall send notification of that fact to the Minister and it shall be the duty of an industrial medical adviser to accept the notification on behalf of the Minister.

(3) This Regulation relates to Asbestosis and Mesothelioma.

17. (1) Where the action level is reached or exceeded or a health assessment has been made under Regulation 22, it shall be the duty of every employer to whom these Regulations relate to keep and thereafter to maintain a register to be known and in these Regulations referred to as the "occupational health register" which contains in respect of each worker who is or may be exposed in the course of his work to dust arising from asbestos or materials containing asbestos, the information referred to in the Fifth Schedule.

(2) An employer shall allow the appointed doctor concerned access to the occupational health register at any time.

(3) Upon reasonable notice being given, an employer shall allow any worker access to the entries in the occupational health register and which relate to such worker.

(4) Upon reasonable notice being given, an employer shall allow any worker and any workers' representative access to information in the occupational health register on all the workers concerned in such a manner so that the identity of any worker to whom any information relates is not disclosed and, where appropriate, the employer shall also provide such information in a collective form.

(5) (a) So much of the occupational health register as relates to a worker shall be kept and maintained by the employer for at least 30 years after the last entry relating to that worker.

(b) Where an employer ceases or is about to cease business and has a subsisting occupational health register to which paragraph (a) relates, the appropriate person shall--

(i) inform the Minister of that fact, and

(ii) deposit the register with such person as the Minister directs.

(c) Where the occupational health register is deposited with a person in accordance with a direction under subparagraph (b) (ii), that person shall be deemed to be the employer for the purposes of the other provisions of this paragraph.

(6) In this Regulation "appropriate person" means, in relation to the occupational health register and as the circumstances may require, the employer concerned or his personal representatives or, where the employer is a body corporate being wound up, the liquidator and, in any other case, the person who has possession of that register.

18. (1) (a) An employer shall ensure that adequate information, instruction and training in relation to asbestos is given to each of his workers who are, or are liable to be, exposed to dust arising from either or both asbestos and materials containing asbestos.

(b) The obligations imposed on an employer under subparagraph (a) are in addition to the provisions of Regulation 21 and 22 of the Regulations of 1975.

(2) Without prejudice to the generality of the obligation imposed on an employer under paragraph (1), the information, instruction and training shall include information, instruction or training, as appropriate in the circumstances, on--

(a) the potential risks to health from exposure to dust arising from asbestos or from materials containing asbestos,

(b) the existence and meaning of statutory limits in relation to asbestos,

(c) the need for atmospheric monitoring,

(d) hygiene requirements, including the need to refrain from smoking, eating or drinking where there is a risk of exposure to dust arising from asbestos or from materials containing asbestos, and

(e) special precautions to be taken to avoid or minimise risks associated with exposure to dust arising from asbestos or from materials containing asbestos, including the need to wear protective clothing and the need to use protective equipment.

(3) (a) In respect of the results of any measurement carried out for the purposes of Regulation 10 (1), the workers concerned or, where appropriate, the workers' representative shall have access to those results, the significance of which shall be explained.

(b) If the results of any measurement carried out for the purpose of Regulation 10 (1) show that the limit values are being or have been exceeded, at any place of work, the employer concerned shall inform the workers concerned and their workers' representative (if any) of that fact as soon as possible and the reason for it and those workers or, where appropriate, the workers' representative, shall be consulted by the employer about the steps to be taken to mitigate the situation or, where the necessary steps have already been taken in an emergency situation, shall be informed by the employer of the steps which have been so taken.

19. (1) In addition to complying with Regulations 8, 18 and 19 of the Regulations of 1975, every employer shall, where workers are liable to be exposed to a concentration of asbestos fibres in excess of the action level, take all reasonable steps to ensure that--

(a) workers are provided with appropriate working or protective clothing,

(b) where protective clothing is laundered in premises other than the place of work in accordance with Regulation 19 of the Regulations of 1975, it shall only be so laundered if the premises are specially equipped to launder such clothing,

(c) notwithstanding Regulation 14 of the Regulations of 1975, accommodation for clothing not worn during working hours is provided for the workers concerned and such accommodation shall be in a separate place from the place where the personal protective clothing and equipment is accommodated,

(d) protective equipment is stored in a predetermined place and is checked and examined after every use to ensure that it is maintained in a clean state and in efficient working order.

(2) In addition to providing sanitary conveniences and washing facilities in accordance with section 17 and section 53 (as construed by section 16 of the Safety in Industry Act, 1980 (No. 9 of 1980)) respectively, of the Factories Act, 1955 (No. 10 of 1955), an employer of whom paragraph (1) of this Regulation relates shall provide, in the case of washing facilities, showers which are capable of supplying warm water for the use of workers to whom the said paragraph (1) applies.

(3) No employer shall charge any workers with the cost of measures required to be taken by virtue of this Regulation, Regulations 8, 18 or 19 of the Regulations of 1975 or Section 53 (as construed as aforesaid) of the Factories Act, 1955 .

20. (1) Where workers are liable to be exposed to a concentration of asbestos fibres in excess of the action level their employer shall ensure that adequate facilities are provided for the consumption of food and drink by workers which shall be in an area set aside or arranged so as to prevent contamination from dust arising from either or both asbestos and materials containing asbestos.

(2) No employer shall charge any worker with the cost of measures required to be taken by virtue of this Regulation.

21. (1) The Minister, may from time to time, appoint any registered medical practitioner who has received, or will receive prior to acting as an appointed doctor, training on the effects that asbestos has on a human body, to be an appointed doctor for the purposes of these Regulations.

(2) Every industrial medical adviser shall be deemed to be an appointed doctor under paragraph (1) from the commencement of these Regulations or, where he is appointed as an industrial medical adviser after such commencement, upon being so appointed.

(3) The Minister may revoke an appointment under paragraph (1) by giving notice in writing for that purpose to the registered medical practitioner concerned.

(4) Where a person ceases to be a registered medical practitioner he shall also cease to be an appointed doctor.

(5) In this Regulation "the appointed doctor" means--

(a) where an appointed doctor is continuously employed in a whole time or part time capacity by an employer (including an employer who is a successor in title to another employer), such an appointed doctor for the time being,

(b) where an appointed doctor is for the time being employed from time to time by an employer for the purposes of these Regulations, such an appointed doctor, and

(c) in any other case, the last person who was an appointed doctor, in respect of the workers concerned, for so long as he continues to be an appointed doctor.

22. (1) Where the action level at a place of work is or is likely to be reached or exceeded, the employer concerned shall ensure that arrangements are made to enable any worker at such a place of work to avail, in accordance (as appropriate) with paragraph (a) or (b) and should that worker so decide, of an assessment of his state of health by an appointed doctor (in these Regulations referred to as a "health assessment") and the assessment shall be made--

(a) where the worker is first employed at a place of work, when the action level is or is likely to be reached or exceeded for the first time or when the worker is so employed, whichever event occurs last,

(b) where exposure or likely exposure (with or without interruption) of a worker at or above the action level continues over a period of time at the place of work, at least once in every period of 3 years or such shorter period as an industrial medical adviser may determine.

(2) Every employer to whom paragraph (1) applies shall--

(a) ensure that arrangements are made to enable an adequate and suitable health assessment by the appointed doctor of the health of every worker concerned,

(b) give sufficient notice of those arrangements to the workers concerned so as to enable them to comply with paragraph (3) (a), and

(c) provide such facilities to the appointed doctor so as to enable that doctor to become familiar with the exposure conditions for each worker at the relevant work place.

(3) Every worker at a work place who elects to avail of the health assessment referred to in paragraph (1) shall--

(a) indicate his intention to so avail at least two weeks before the proposed date of the medical examination or such shorter period as the employer may agree to,

(b) give such information to the appointed doctor concerned about his medical history as that doctor may require to enable an assessment to be made for the purposes of paragraph (4), and

(c) undergo such tests as the appointed doctor concerned considers necessary to enable an assessment to be made for the purposes of paragraph (4).

(4) A health assessment in respect of each worker shall be made by the appointed doctor concerned after medical interview and examination (which examination shall include specific examination of the chest) of, and such tests as he may require on, the worker have been carried out.

(5) After the making of a health assessment of a worker, the appointed doctor concerned shall--

(a) where appropriate, advise on or determine any individual protective or preventive measures to be taken which may include the withdrawal of the worker from all exposure to asbestos, and

(b) certify, by causing an entry to be made in the occupational health register, whether the worker is fit, unfit or fit with certain restrictions for exposure to a concentration of asbestos fibres in the air equal to or in excess of the action level.

23. (1) Individual medical records in respect of assessments by an appointed doctor of the health or workers shall be maintained by the appropriate appointed doctor and each individual medical record shall include the information set out in the Sixth Schedule.

(2) The medical records of each worker or copies thereof shall be maintained by the appropriate appointed doctor for 30 years after the last assessment recorded in those records for the purpose of these Regulations.

(3) When, for the purposes of this Regulation, it is necessary at any time to transfer existing medical records to a person who has become the appropriate appointed doctor they shall be transferred by the person who had been the last appropriate appointed doctor for those records or, where the circumstances require, by his personal representatives.

(4) In the case of any dispute or difficulty arising in respect of the manner in which medical records to which this Regulation relates are maintained or transferred, an industrial medical adviser shall decide thereon and his decision shall have effect accordingly.

24. (1) Where a worker or his employer is aggrieved by a determination made by an appointed doctor concerned under Regulation 22 (5) following an assessment, either may apply within 28 days of such determination to the Minister to have the assessment and determination reviewed.

(2) Where the Minister, on an application under paragraph (1), agrees to a review, the assessment and determination shall be reviewed by an industrial medical adviser.

(3) A review under this Regulation shall be in such form as the industrial medical adviser so reviewing considers appropriate in the circumstances.

25. (1) Under reasonable notice being given by a worker to the appointed doctor concerned, access shall be given to the worker to the information contained in that worker's medical record which is maintained for the purposes of these Regulations.

(2) Where a worker's health has, in accordance with these Regulations, been assessed at any time after the end of exposure to asbestos, the appointed doctor concerned shall give information and advice regarding that assessment to the worker.

(3) In this Regulation "worker" includes a former worker of the employer concerned.

26. (1) The Minister may appoint any of his officers to be inspectors for the purposes of these Regulations.

(2) Notice of an appointment under this Regulation shall be published in the Iris Oifigiúil.

27. Every inspector appointed under Regulation 26 shall be furnished with a certificate of his appointment and every industrial medical adviser shall be furnished with a certificate indicating that he is an inspector and, when visiting any place to which any of the provisions of these Regulations apply, shall if so required produce the appropriate certificate and suitable identification to the person responsible for, or to any other person holding a responsible position of management at, that place.

28. (1) An inspector shall, for the purpose of the execution of these Regulations, have power to do all or any of the following things, that is to say--

(a) enter, inspect, examine and search at all times any workplace and every part thereof, and to enter by day any place which he has reasonable cause to believe to be a workplace;

(b) take with him a member of the Garda Sióchána if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;

(c) subject to paragraph (2), require the production in a legible form of, and inspect and copy, any information kept, or capable of being reproduced, in a legible form which is required to be kept by virtue of the provisions of these Regulations;

(d) make such examination and inquiry as may be necessary to ascertain whether the provisions of these Regulations are being complied with;

(e) require any person whom he finds at a workplace to give such information as it is in his power to give as to who is the person in control of the workplace;

(f) examine, either alone or in the presence of any other person, as he thinks fit, with respect to matters under these Regulations, every person whom he finds at a workplace whom he has reasonable cause to believe to be or to have been within the preceding two months employed at the workplace and to require every such person to be so examined and to sign a declaration of the truth of the matters respecting which he is so examined;

(g) take a sample of the water, air or soil from any part of the workplace;

(h) as regards any article, substance or preparation he finds at a workplace, require the employer or any person he finds on the workplace or a person appearing to him to be in possession of the article, substance or preparation, to supply without payment, for test, examination or analysis, a sample thereof;

(i) take any measurement or photograph or make any tape, video, electrical or other recording which he considers necessary for the purpose of any examination under these Regulations;

(j) enter at all times and inspect any land or building (other than a dwelling-house occupied as a single dwelling) and to take a sample of the water, air or soil from any part of such land or building for the purpose of any examination under these Regulations; and

(k) exercise such other powers as may be necessary for carrying these Regulations into effect.

(2) Only an inspector who is also an industrial medical adviser shall be entitled to exercise the powers under paragraph (1) (c) in respect of the personal medical records of any worker or former worker which are being kept and maintained under these Regulations.

(3) No one shall be required by virtue of paragraph (1) (f) to answer any question or to give evidence tending to incriminate himself.

(4) Any person in control of a workplace or other place and his agents and servants shall furnish the means required by an inspector as necessary for any entry, inspection, examination, taking of samples or for the exercise of any other power under these Regulations.

29. If on complaint by the Minister, the District Court is satisfied in respect of workers at a workplace that either--

(a) any part of the ways, works, machinery or plant used at the workplace is in such condition or is so constructed or so placed that it cannot be used without risk of exposure of any of those workers to asbestos in excess of any limit value, or

(b) any process of work is carried on or anything is or has been done at the workplace in such manner as to cause, or be likely to cause, risk of exposure of any of those workers to asbestos in excess of any limit value,

the Court shall, as the case may require, by order--

(i) prohibit the use of that part of the ways, works, machinery or plant or, if it is capable of repair or alteration, prohibit its use until it is duly repaired or altered, or

(ii) require the employer concerned to take such steps as may be specified in the order for remedying the danger complained of.

30. A person who contravenes any of the preceding provisions of these Regulations shall be guilty of an offence.

31. (1) In the event of a contravention in or in connection with or in relation to a workplace of any provision of these Regulations, the employer shall (without prejudice to the liability of any other person) be guilty of an offence;

Provided that--

(a) the employer shall not be guilty of an offence by reason only of such contravention if he proves that he took all reasonable steps to prevent the contravention,

(b) this paragraph shall not be taken as affecting any liability of the employer in respect of the same matters by virtue of any other enactment.

32. Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of a director, manager, secretary or other officer of the body corporate, the director, manager, secretary or other officer or any person purporting to act in such capacity shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished accordingly.

33. A person who, in relation to any document provided for by virtue of these Regulations--

(a) forges or counterfeits any such documents,

(b) gives or signs a document knowing it to be false in any material particular,

(c) knowingly utters or uses a document so forged or counterfeited, or which is false as aforesaid,

(d) knowingly utters or uses as applying to any person a document which does not so apply,

(e) wilfully connives at any such forging, counterfeiting, giving, signing, uttering or using,

(f) wilfully makes a false entry in any such document which is so required to be kept, served or sent, or

(g) knowingly uses any such false entry,

shall be guilty of an offence.

34. A person who--

(a) personates any person named in any document required for the purposes of these Regulations,

(b) falsely pretends to be an inspector or an industrial medical adviser or an appointed doctor, or

(c) wilfully connives at any such personating or pretending,

shall be guilty of an offence.

35. A person who fails or refuses to comply with a request of, or to answer a question asked by, or who obstructs or interferes with--

(a) an inspector,

(b) an industrial medical adviser, or

(c) an appointed doctor,

in the course of exercising a power conferred by these Regulations shall be guilty of an offence.

36. (1) A person guilty of an offence under these Regulations shall, subject to paragraphs (2) and (3), be liable on summary conviction to a fine not exceeding £1,000.

(2) Where a person is convicted of an offence under these Regulations the Court may, in addition to or instead of imposing a fine, order him, within the time specified in the order, to take such steps as may be so specified for remedying the matters in respect of which the contravention occurred, and may, on application, enlarge the time so specified, and he shall not be liable under these Regulations in respect of the continuation of the contravention during the time so allowed, but if, after the expiration of that time, the order is not complied with, he shall be guilty of an offence under this paragraph on every day on which the contravention continues after the expiration of that time and shall be liable on summary conviction to a fine not exceeding £100 in respect of each such offence.

(3) Where a person is convicted of an offence under paragraph (1) by reason of his failure, neglect or refusal to comply with a requirement under these regulations and that requirement remains capable of being performed by him but remains unperformed after the date of the conviction, he shall, unless the provisions of paragraph (2) apply, be guilty of an offence under this paragraph on every day on which the requirement remains unperformed after the date of the original conviction and shall be liable on summary conviction to a fine not exceeding £100 in respect of each such offence.

37. (1) A prosecution for an offence under these Regulations may be brought by the Minister.

(2) notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this section may be instituted within 12 months from--

(a) in the case of an offence to which paragraph (1) of Regulation 36 relates, the latest day on which the offence was committed, and

(b) in the case of an offence to which paragraphs (2) or (3) of Regulation 36 relates, the day the offence was committed.

FIRST SCHEDULE

Regulation 2 (1)

Meaning of asbestos.

"Asbestos" means the following fibrous silicates:

--Actinolite, CAS No. 77536-66-4 (*) (¹),

--Asbestos grünerite (amosite), CAS No. 12172-73-5 (*) (¹⁾,

--Anthophyllite, CAS No. 77536-67-5 (*) (¹),

--Chrysotile, CAS No. 12001-29-5 (¹),

--Crocidolite, CAS No. 12001-28-4 (¹),

--Tremolite, CAS No. 77536-68-6 (*) (¹).

SECOND SCHEDULE

Regulation 10 (1)

Annex 1 to Council Directive 8¾77/EEC

Reference method referred to in Article 7 (1) for the measurement of asbestos in air at the place of work.

1. Samples shall be taken within the individual worker's breathing zone: i.e. within a hemisphere of 300mm radius extending in front of the face and measured from the mid-point of a line joining the ears.

2. Membrane filters (mixed esters of cellulose or cellulose nitrate) of pore size 0.8 to 1.2 micrometers with printed squares and a diameter of 25mm shall be used.

3. An open-faced filter holder fitted with a cylindrical cowl extending between 33 and 44mm in front of the filter exposing a circular area of at least 20mm in diameter shall be used. In use, the cowl shall point downwards.

4. A portable battery-operated pump carried on the worker's belt or in a pocket shall be used. The flow shall be smooth and the rate initially set at 1.0 litres per minute ±5%. The flow rate shall be maintained within ± 10% of the initial rate during the sampling period.

5. The sampling time shall be measured to within a tolerance of 2%.

6. The optimal fibre-loading on filters shall be within the range 100 to 400 fibres/mm².

7. In order of preference, the whole filter, or a section of the filter, shall be placed on a microscope slide, made transparent using the acetone-triacetin method, and covered with a glass coverslip.

8. A binocular microscope shall be used for counting and shall have the following features:

-- Koehler illumination,

-- its substage assembly shall incorporate an Abbe of achromatic phase-contrast condenser in a centering focusing mount. The phase-contrast centering adjustment shall be independent of the condenser centering mechanism,

-- a 40 times bar-focal positive phase-contrast achromatic objective with a numerical aperture of 0.65 to 0.70 and phase ring absorption within the range 65 to 85%,

-- 12.5 times compensating eyepieces; at least one eyepiece must permit the insertion of a graticule and be of the focusing type.

-- a Walton-Beckett circular eyepiece graticule with an apparent diameter in the object plane of 100 micrometres ±2 micrometres, when using the specified objective and eyepiece, checked against a stage micrometer.

9. The microscope shall be set up according to the manufacturer's instructions, and the detection limit checked using a 'phase-contrast test slide'. Up to code 5 of the AIA test slides or up to block 5 on the HSE/NPL mark 2 test slide must be visible when used in the way specified by the manufacturer. This procedure shall be carried out at the beginning of the day of use.

10. Samples shall be counted in accordance with the following rules:

-- a countable fibre is any fibre referred to in the second subparagraph of point 1 of Article 7 which does not touch a particle with a maximum diameter greater than three micrometers,

-- any countable fibre with both ends within the graticule area shall be counted as one fibre; any fibre with only one end within the area shall count as half,

-- graticule areas for counting shall be chosen at random within the exposed area of the filter,

-- an agglomerate of fibres which at one or more points on its length appears solid and undivided but at other points is divided into separate strands (a split fibre) is counted as a single fibre if it conforms with the description in the second subparagraph of point 1 of Article 7 and indent 1 of this paragraph, the diameter measured being that of the undivided part, not that of the split part,

-- in any other agglomerate of fibres in which individual fibres touch or cross each other (a bundle) the fibres shall be counted individually if they can be distinguished sufficiently to determine that they conform with the description in the second subparagraph of point 1 of Article 7 and indent 1 of this paragraph. If no individual fibres meeting the definition can be distinguished, the bundle is considered to be a countable fibre if, taken as a whole, it conforms with the description in the second subparagraph of point 1 of Article 7 and indent 1 of this paragraph,

-- if more than one-eighth of a graticule area is covered by an agglomerate of fibres and/or particles, the graticule area must be rejected and another counted,

-- 100 fibres shall be counted, which will enable a minimum of 20 graticule areas to be examined, or 100 graticule areas shall be examined.

11. The mean number of fibres per graticule is calculated by dividing the number of fibres counted by the number of graticule areas examined. The effect on the count of marks on the filter and contamination shall be kept below three fibres/100 graticule areas and shall be assessed using blank filters.

Concentration in air = (number per graticule area x exposed area of filter) / (graticule area x volume of air collected).

THIRD SCHEDULE

Regulation 10 (3)

Paragraphs 4, 5 and 6 of Article 7 of Council Directive 8¾77/EEC

4. The amount of asbestos in the air shall be measured as a general rule at least every three months and, in any case, whenever a technical change is introduced. The frequency of measurements may, however, be reduced in the circumstances specified in paragraph 5.

5. The frequency of measurements may be reduced to once a year where:

-- there is no substantial change in conditions at the place of work, and

-- the result of the two preceding measurements have not exceeded half the limit values fixed in Article 8¹.

¹See Regulation 6.

Where groups of workers are performing identical or similar tasks at the same place and are thus being exposed to the same health risk, sampling may be carried out on a group basis.

6. The duration of sampling must be such that representative exposure can be established for an eight-hour reference period (one shift) by means of measurements or time-weighted calculations. The duration of the various sampling processes shall be determined also on the basis of point 6 of Annex 1²

²See the Second Schedule.

FOURTH SCHEDULE

Regulation II (1) and II (2)

Particulars to be included in a notification under Regulation 11(1) and 11 (2).

1. Name of Employer.

2. Where an employer is a body corporate, the address and telephone number of its registered office.

3. The address and telephone number of the workplace concerned.

4. An estimate of the duration of the asbestos activities.

5. A brief description of--

( a ) the types and quantities of asbestos likely to be used or encountered.

( b ) the activities or processes involved, and

( c ) where applicable, the products manufactured.

6. In the case of work involving the removal, repair or encapsulation of lagging, insulation or other materials containing asbestos, the manner in which that work is to be done.

H16712.7

FIFTH SCHEDULE

Regulation 17

The information set out in an occupational health register shall include--

( a ) the name and registered business address of the employer and the address of the place of asbestos exposure;

( b ) a brief description of the work activity involving asbestos;

( c ) the name and address of each person to whom either or both air monitoring and a health assessment relates;

( d ) the dates and times of each assessment of the risk of exposure to asbestos and the name of the person who carried out such assessment;

( e ) details of the nature of each assessment of the risk of exposure to asbestos;

( f ) the dates of and results of examinations and tests on any respiratory protective equipment with sufficient information so as to enable the identification of any particular respiratory protective equipment;

( g ) the dates and results of air monitoring including details of--

(i) in the case of personal sampling, the name and job description of the persons being monitored,

(ii) in the case of static sampling, the location of static samplers,

(iii) the length of sampling times in each case, and

(iv) the results and the interpretation of the results of such sampling;

( h ) in the case of health assessment the information required by Regulation 22(5)(b);

( i ) the name of the appointed doctor making the health assessment, and the name and signature of the person duly making the entry in the register.

SIXTH SCHEDULE

Information to be included in individual medical records for the purpose of Regulation 23.

1. Name and personal address of worker concerned.

2. Name of employer concerned and the appropriate address or addresses.

3. Date of birth of worker.

4. Date of commencement of asbestos exposure (if known).

5. Medical history.

6. Occupational history.

7. The results of clinical examinations, X-rays and spirometery and the significance of results.

8. The results of asbestos sampling which relate to the worker's exposure.

9. Details of any action taken by the appointed doctor concerned following the results of a health assessment.

H16149.7

GIVEN under my Official Seal, this 21st day of February, 1989.

BERTIE AHERN,

Minister for Labour.

EXPLANATORY NOTE.

The purpose of these Regulations is to implement Council Directive 8¾77/EEC on the protection of workers from the risks related to exposure to asbestos at work.

The Regulations apply to all work which exposes persons to risk arising from the inhalation of asbestos.

The Regulations aim to protect the health of workers by reducing the level of exposure to asbestos fibres in the workplace, by setting exposure limits for asbestos dust concentrations and by the establishment of sampling and measuring methods.

The Regulations provide that workers have access to an assessment of their state of health, if they so wish. In addition, adequate information must be provided to workers and their representatives at the workplace in relation to the potential risks to health from exposure to asbestos and the precautions to be taken.