Explanatory Memorandum to COM(2001)417 - Amendment of Council Directive 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at work

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dossier COM(2001)417 - Amendment of Council Directive 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at ...
source COM(2001)417 EN
date 20-07-2001
1. INTRODUCTION

Asbestos is a particularly dangerous substance which can cause serious illnesses among those exposed to it (pulmonary and pleural fibrosis, cancer of the lungs, pleura and peritoneum). It is still present in various forms in a wide variety of working environments. In 1983, when asbestos was much more commonly used, the Council responded to a Commission proposal by adopting Directive 83/477/EEC i on the protection of workers from the risks related to exposure to asbestos at work, subsequently updated and amended by Directives 91/382/EEC i and 98/24/EC i.

2.

a) General background


- In September 1996, the Commission, having analysed how Directive 83/477/EEC was being put into practice in the Member States of the European Union, and in consultation with the Member States, adopted a communication on this subject i.

The Commission found that the measures provided for under existing Community legislation still had a useful role to play within the overall context of protecting the health of workers exposed to asbestos; even Council Directive 90/394/EEC on the protection of workers from the risks related to exposure to carcinogens at work, which in certain cases provides for stricter protective measures, was in some respects a useful adjunct to the Directive on asbestos. The Commission therefore considered that Directive 83/477/EEC would only have to be completely revised in the event of a radical change in policy on the marketing of products containing asbestos - in other words, only if it had been decided at Community level to extend the ban on its use. In that case, the Directive could focus on the specific and limited situation in which workers were still likely to be exposed to asbestos.

- In 1997, the Council took formal note of the Commission's communication referred above, and in 1998 set out its conclusions on this subject i.

Without prejudice to further measures which might be taken on the marketing and use of chrysotile asbestos and which would need to be taken into account, the Council invited the Commission to submit proposals for amending Directive 83/477/EEC, considering in particular the merits of:

- refocusing protective measures on those who are now most at risk;

- ensuring that risk assessment provisions reflect the different risks arising from work where exposure to asbestos is an intrinsic or incidental feature;

- emphasising that the prevention or minimisation of exposure can be ensured by a range of measures;

- revising the exposure limits and reviewing the method for assessing asbestos fibres in air

- In 1997, the Economic and Social Committee decided to draw up an opinion on asbestos.

Following on from the preparatory work by the Section for Employment, Social Affairs and Citizenship, the Committee adopted an opinion i in March 1999 which set out a whole series of proposals for action by the European Union.

Even though the main aim of this opinion was to support the introduction of a total ban on the first use of all types of asbestos, the Committee emphasised, in line with the Council's conclusions, that it was concerned about the occupational groups currently most at risk of exposure.

According to the Committee, persons engaged in repair, maintenance, refurbishment, demolition and removal work are often exposed by chance to materials containing asbestos in a less than perfect state.

The Committee therefore called on the Commission to review the legislation on the protection of workers and take new measures for reducing the risks to exposed workers; these proposals should include, among other things, tighter limit values for exposure and more intensive training measures.

- In April 1999, in the context of an exchange of views with the rapporteur of the Economic and Social Committee and the relevant departments at the Commission, the Committee for Employment and Social Affairs of the European Parliament i supported the Economic and Social Committee's approach while suggesting a more in-depth debate on this issue in the future.

- In July 1999, after years of discussion, the Commission adopted Commission Directive 1999/77/EC i adapting to technical progress for the sixth time Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (asbestos).

This Council directive as amended by the aforementioned Commission Directive 1999/77/EC prohibits, as from 1 January 2005, the placing on the market and use of chrysotile (the type of asbestos which had not yet been banned) and of products to which chrysotile has been deliberately added, with a single derogation (diaphragms used for electrolysis), this derogation to be reviewed by the Commission before 1 January 2008.

It should also be pointed out that in the period from 27 August 1999 (the entry into force of the Commission's Directive 1999/77/EC) until 31 December 2004 , the Member States may no longer authorise new applications for chrysotile asbestos within their territory.

3.

b) Reason for Community action


Council Directive 83/477/EEC was a very important starting point in the process of harmonising standards for the protection of workers exposed to asbestos. Nevertheless, despite that Directive and others subsequently adopted in the field of the environment and the single market, asbestos still poses a real problem in the workplace.

Even if more stringent preventive measures will not be able to prevent the emergence of a large number of asbestos-related illnesses over the next few years, as a result of the high levels of exposure between 1945 and 1980, a tightening of the existing rules would definitely be a positive step forward.

With the Community-wide prohibition of first use of asbestos now also applying to chrysotile, which had been the only type of asbestos not subject to the ban, it is clear that preventive measures need to be focused on situations in which exposure may actually occur - even if the ban will not become fully applicable until the beginning of 2005.

Demolition, maintenance, repair, electrical and plumbing work in buildings may lead to workers being unexpectedly exposed to asbestos, and it is for this reason that similar protective measures throughout the Member States are essential.

An updating of Directive 83/477/EEC in order to meet these needs, which the various Community institutions would incidentally also like to see, would enable preventive measures and action to protect workers to be brought into line with scientific knowledge and technological progress.

This step would necessarily have to be backed up by other measures aimed in particular at providing information on safer alternatives and any risks inherent in their use.

This exercise will also be of considerable importance in anticipation of the accession of new Member States, given that in a number of applicant countries the effects of asbestos on workers' health are still considerable. An updating of the Directive will make it easier to draw up new measures in this field and will make for a more effective prevention policy.

4.

c) Subsidiarity


The proposal has no bearing on the principle of subsidiarity, as only Community action can guarantee, in all the Member States, a minimum level of protection for workers against the risks associated with exposure to asbestos. Such action will also make it possible to avoid any distortion of competition by preventing non-uniform application of minimum standards on protection for workers in individual Member States.

In addition, this proposal will introduce more flexibility into trans-frontier employment, as workers will be sure of enjoying at least the minimum level of protection for their health and safety in all the Member States. Employers will also have the certainty that production costs will not be unduly subject to distortion because of differences in the level of protection for health and safety at work.

5.

d) Proportionality


The proposal is also in conformity with the principle of proportionality; the amended health and safety provisions meet the requirements for acceptable minimum standards without imposing an unnecessary burden on employers. They also avoid constraints which would hold back the creation and development of small and medium-sized enterprises.

6.

2. Main specific aspects of the proposal for amending Directive 83/477/EEC


a) Scope

With the adoption of Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work i, which covers all sectors of activity, both private and public, there is a clear need to align all legislative texts in the health and safety at work sector on the same principles. For this reason, sea and air transport should no longer be excluded from the scope of the Directive, in order to ensure that all workers have the same level of protection.

7.

b) Definition of the various types of fibrous silicates


In order to ensure clarity in the definition of the fibres, they have been redefined either in mineralogical terms or with regard to their Chemical Abstract Service (CAS) number.

8.

c) Simplification of the provisions in the event of limited exposure


In the original Directive, in order to minimise provisions which were more bureaucratic in nature (Articles 4 and 16) or had greater economic impact (Articles 7, 13, 14 i and 15) in cases where workers' exposure to asbestos was significantly below the exposure limit value, there was the option of establishing an action level at a significantly lower level (i.e. ΒΌ of the limit value for fibres other than crocidolite); the same approach was taken with the first amendment to the Directive, 91/382/EEC.

Using the low limit value proposed in the current text, a hypothetical action level would be such as to make it difficult to measure using the proposed sampling and reading method.

It is therefore proposed to replace the action level in the original Directive with particular work situations which suggest that exposure of workers is insignificant in respect to the exposure limit value proposed.

9.

d) Measuring asbestos content in air


In the light of progress in monitoring the concentration of fibres in the atmosphere at the workplace and of the scope for improving the comparability of measurements, the current text proposes that preference be given to the method of determining airborne fibre concentrations recommended by the World Health Organisation i.

This method illustrates, among other things, the advantages of using phase-contrast optical microscopy and taking into account the characteristics of the fibres under consideration.

There are also proposals for the objective conditions which do not require monitoring of airborne fibre concentrations, in order to avoid placing unnecessary burdens on employers.

The concerned Article includes in a simplified way the relevant provisions of the Annex I to the original Directive, which is no more proposed.

10.

e) Exposure limit values for workers


Although scientific data have shown that the fibrogenic and carcinogenic properties of asbestos vary according to the type of fibre, this proposal lays down a single exposure limit value for workers, instead of the two in the original Directive. There are two factors behind the reason for this decision: firstly, the fact that amphiboles were withdrawn from the European market some years ago and workers are therefore likely to be exposed almost exclusively to chrysotile (with rare exceptions linked to existing large-diameter fibre cement tubes); secondly, the method for measuring fibre concentrations in air proposed in the current text makes it difficult to measure concentrations below the 0.1 fibres per cm3 which would be required for amphiboles, which are recognised as posing a greater risk to human health. The proposed limit is significantly lower than the previous ones (0.6 fibres per cm3 for chrysotile and 0.3 fibres per cm3 for other forms of asbestos).

11.

f) Determining the presence of asbestos in buildings


Since nowadays demolition and maintenance activities appear to be the greatest source of exposure to asbestos for workers, particularly in so far as the presence of asbestos or of materials containing it is frequently unsuspected, the current proposal obliges the employer to determine the presence of asbestos-containing materials before beginning any demolition or maintenance work. In order to do this they should obtain the cooperation of the owner of the real estate and of the tenants.

12.

g) Company responsibility


It is recognised that removal of asbestos is one of the operations posing the greatest risk to workers' health; undamaged asbestos should therefore not be removed, as this operation may be more hazardous than leaving the asbestos in place. The operation of removal must take into account also the necessity not to spread asbestos outside the premises/sites of action; this aspect is covered by industrial hygiene good practices and consequently under by Article 137 i of the Treaty.

If the asbestos is nevertheless removed, it is essential that the operation be carried out in as safe a manner as possible, and that the companies called upon to operate in this field have the appropriate skills and equipment. This proposal obliges companies to provide proof thereof, which may include certification at national level.

13.

h) Training of workers


Training of workers has always been considered a pillar of health and safety at work policy, as underlined by all the relevant Community Directives.

Bearing in mind the specific nature and the level of risk linked to exposure to asbestos, this proposal sets out a (not necessarily exhaustive) series of points which must be included in training for workers prior to exposing them to the risk of inhaling asbestos dust.

14.

i) Keeping of registers and medical records


The framework Directive required the employer or, in the event of their ceasing activity, the competent authority to retain registers of exposure and individual medical records for a period of 30 years.

Bearing in mind the long latency period for cancer caused by asbestos, and the need to ensure consistency with other Community legislation concerning the prevention of occupational cancer, and in particular Council Directive 90/394/EEC i, this proposal extends to 40 years the period during which the above-mentioned documents are to be retained.

15.

j) Practical recommendations for health examination of workers


Health monitoring of workers exposed to asbestos has given rise to many debates in national and international bodies during the last ten years. The main element of discussion has been its usefulness in the prevention and early diagnosis of disease, particularly cancer, caused by exposure to asbestos.

Nevertheless, despite its limitations, the contribution made by health monitoring to the prevention of diseases caused by asbestos should not be underestimated. For this reason, the annex to the Directive 83/477/EEC, containing practical recommendations for monitoring, has been amended in this proposal in order to bring it more into line with current diagnostic guidelines.

Contents

1.

Consultations



In accordance with the provisions of Article 137 i of the Treaty on European Union, the Economic and Social Committee and the Committee of the Regions must be consulted.