In September, Members of the European Parliament (MEP) on the Employment and Social Affairs (EMPL) Committee adopted a Report, by 47 votes in favour, 0 against and 7 abstentions,[i] which called for the European Union (EU) to improve measures that protect workers from the risks related to occupational asbestos exposure.
Rapporteur for the Report, Nikolaj Villumsen, took to The Parliament Magazine last month to lobby fellow MEPs for support, ahead of a vote in the European Parliament.[ii]
In what was dubbed a ‘historic’ move, on 19 October 2021, the Report was backed by 675 votes to just 2 votes against and 23 abstentions.[iii]
It is now in the European Commission’s hands to legislate accordingly.
The Report made reference to scientific data compiled in an October 2020 edition of The Lancet, namely that the number of annual asbestos-related deaths in the EU-28 (including the UK) reached 90,730, in 2019. By 2030, 300,000 citizens are expected to die from mesothelioma in the EU, the vast majority of whom will have been exposed to asbestos at work.
Given the situation as it stands, the Report calls on the Commission to present a comprehensive ‘European Strategy for the Removal of All Asbestos’ (ESRAA), which will include:
- A European framework directive for the safe and orderly removal of all asbestos within clear and realistic timelines, in conjunction with the Commission’s ‘Renovation Wave for Europe’ (plans to refurbish 35 million buildings by 2030); ensuring the safe and documented disposal of asbestos waste using the best available techniques; introducing minimum standards for publicly accessible, digital, national asbestos registers (for workers, companies, owners, inhabitants, users, etc.) covering all public and privately owned buildings; and monitoring atmospheric background concentration levels of asbestos.
- A proposal to update Directive 2009/148/EC (on the protection of workers from the risks related to exposure to asbestos at work) through reflecting the latest scientific knowledge and technical developments, including an evaluation of different types of asbestos fibres and their adverse health effects; starting the consultation process for updating the list of fibrous silicates (already covers actinolite, anthophyllite, tremolite, grunerite) by assessing the inclusion of riebeckite, winchite, richterite, fluoro-edenite, and erionite; insisting that the safe removal and disposal of asbestos-containing parts and materials from buildings is a priority; stressing the importance of identifying, registering and regularly monitory asbestos-containing parts in buildings that cannot be moved in the short-term; advocating the use of Analytical Transmission Electron Microscopy (ATEM), which is more sensitive than optical microscopy and makes it possible to distinguish and count asbestos fibres; and proposing a reduced occupational exposure limit value (OELV), from 0.1 fibres/cm3 to 0.001 fibres/cm3 [8-hour time-weighted average (TWA)].
- A legislative proposal for (i) the recognition of occupational diseases, including all known asbestos related diseases (plus demand for better evaluation of the risks linked to non-occupational 2nd hand exposure and asbestos risks for which women are particularly vulnerable), with minimum standards for recognition procedures (reversing the burden of proof in certain circumstances), and (ii) minimum standards for the adequate compensation of victims of asbestos-related occupational diseases.
- A proposal to update Directive 2010/31/EU, with a view to introducing a requirement for the mandatory screening and ensuing removal of asbestos and other dangerous substances before any renovation works can start, to protect the health of construction workers.
- A legislative proposal for the mandatory screening of buildings before sale or rent and for the establishment of asbestos certificates for buildings constructed pre-2005, or before the year of an equivalent national asbestos ban (whichever the earlier).
It is worth mentioning that, whilst a reduced OELV for asbestos has been tabled, the Report emphasises its concern that the current scientific medical research offers ‘no threshold under which asbestos fibre air concentration is harmless’, meaning that personal protective measures should always be taken (specifically in response to individual risk assessments tailored to the dust-producing work processes planned). Such a conclusion was reached by the European Chemicals Agency (ECHA), in a Report, dated 1 February 2021, which presented that an asbestos air concentration of 0.001 fibres/cm3 carries an excess lifetime cancer risk of 1.2 cases per 100,000 exposed (for 8-hours-per-day, 5-days-per-week, for 40-years). Nevertheless, this is significantly less than the current OELV of 0.1 fibres/cm3 which carries a cancer risk of 125 cases per 100,000 exposed.
Incidentally, the Faculty of Asbestos Assessment and Management (FAAM) issued a Response to the ECHA Report, this April, noting ‘appreciable defects’ in the scientific method (e.g. the exclusion of relevant considerations, the omission of evidence, defects in the transparency of the evidence base, missing elements in the scientific evidence base, etc.) and recommending that the Report be subsequently reviewed to address its defects prior to any further decisions being made on its basis having detrimental implications, i.e. being subject to challenge, or failing to meet the objectives of the relevant EU Directive.
FAAM’s Panel took particular issue with the failure to determine whether different exposure limit values are required for different types of asbestos, as outlined by the Commission’s request to the ECHA. Use of a single exposure-risk relationship (ERR) may mean that, in relation to mesothelioma, the ERR is ‘too high for chrysotile and unduly low for crocidolite’.
Another limitation observed was that the Agency’s desire to set standards for measurement derived solely on the basis of epidemiological limits (which cannot be practicably measured) could have the effect of undermining rights conferred by the applicable Directive and imposes an ‘impossible obligation’ on Member States:
‘Although the Directive may set the OELV at a level where precautionary control measures may be appropriate to the epidemiological risk, this may result in a limit value for workers at which reliable measurement of actual exposure may not be routinely achievable’.
FAAM is a professional body, supported by the British Occupational Hygiene Society (BOHS), so it will be interesting to see how the UK Government reacts to the European Parliament’s resolution on Mr. Villumsen’s Report, as domestic pressure to commence asbestos removal programmes continues – read our analysis on the ResPublica Report (dated November 2019), here.
[i] ‘EU should step up protection of workers from asbestos’ (27 September 2021 European Interest) <https://www.europeaninterest.eu/article/eu-should-step-up-protection-of-workers-from-asbestos/> accessed 21 October 2021.
[ii] Nikolaj Villumsen, ‘MEPs must put the protection of Europe’s workers from asbestos at the top of the European Commission’s agenda, argues Nikolaj Villumsen’ (19 October 2021 The Parliament) <https://www.theparliamentmagazine.eu/news/article/taking-action-on-asbestos> accessed 21 October 2021.
[iii] Giedre Pseckyte, ‘MEPs unite to protect workers from toxic asbestos in ‘historic” vote’ (21 October 2021 Euractiv) <https://www.euractiv.com/section/health-consumers/news/meps-unite-to-protect-workers-from-toxic-asbestos-in-historic-vote/> accessed 21 October 2021.