Asbestos: a new decree requiring the identification of asbestos prior to work
Asbestos has been the subject of controversy for the last 20 years, but we had to wait until 2017 for a decree making its identification prior to work obligatory. The purpose of this new legal framework is to reduce risks which in turn is likely to increase the loss ratio. Ahead of its entry into force, Laurent Spano, our loss adjuster specialising in real estate diagnostics, gives us his analysis of the various aspects of this regulation.
Asbestos: a constantly evolving legal framework
For 20 years, the French Construction Code and Labour Code have continued to evolve the legal framework to ensure the protection of people, workers and the environment. This material was heavily used in construction until 1997 when it was banned by law. Despite the fact that even low levels of exposure can cause serious respiratory diseases, many buildings still contain asbestos-containing elements such as tile glue, corrugated sheets, seals, etc.
With the introduction of new regulations, checks carried out during the asbestos assessment have become more and more extensive and the scope of the investigation areas has expanded. The Decree relating to the obligatory identification of asbestos prior to work, arising from the French Labour Law and appearing in the OJ on 10 May 2017, should have come into force on 1 October 2018. However, none of the expected orders have been published and we are still awaiting the implementing decrees.
Reduction of risks associated with asbestos removal operations thanks to the identification prior to work
This new obligation aims to provide a more precise definition of the identification prior to work mission and thus prevent the discovery of asbestos-containing materials (ACMs) during construction. This in turn should limit risks, whether these are financial (construction delays, unexpected additional work, immobilisation of resources) or health related (exposure of workers to dangerous fibres).
This measure will also allow companies carrying out the operations to assess the professional risks involved and adjust their individual and collective worker protection measures accordingly.
As such, this new obligation will make it possible to “standardise” ACM identification prior to work practices and take into account the specific challenges of each kind of project based on six defined areas.
In fact, the decree identifies six different areas to which the identification prior to work will apply and for which specific decrees will be issued in due course.
These areas are:
- Other assets such as land, works of art and traffic infrastructure;
- Industrial facilities such as equipment and structures involved in conducting an industrial production activity;
- Railway rolling stock and other rolling stock;
- Ships, boats and other floating apparatus;
These orders will define the methods of carrying out the identification mission and its technical specificities for each area, in accordance with its particularities.
The identification prior to work must be completed at the request of the developer or the owner in order to “search for the presence of asbestos prior to any operation where there is a risk of workers being exposed to asbestos” in according with the notice of the Decree.
The assessment of the notion of “risk”, for which the developer will be responsible, will therefore determine the implementation of the identification prior to work. For buildings, for example, the fact that a building was built before 24 December 1996, the publication date of Decree No. 96-1133 banning the use of asbestos, constitutes sufficient “risk” for the implementation of the identification prior to work.
Does the increase in checks mean an increase in loss experiences?
This new obligation will improve the reliability of pre-work searches for asbestos-containing materials and widen the field of intervention.
However, although the implementation of such an identification procedure aims to limit the risk of discovering ACMs during construction and therefore possible disputes, we could nevertheless see loss experiences increase. This is due, in part, to the increase in the number of properties on which identification prior to work operations must be conducted and therefore in the number of potential identification errors. It could also be the result of incorrect risk analyses completed by developers or owners who are not generally competent in matters concerning asbestos.
So, although the long-awaited identification prior to work will no doubt limit the risks encountered during work, there is no evidence to suggest that it will result in savings for insurance companies, but only time will tell!
Laurent SPANO, Construction Loss Adjuster