UK Asbestos Derogation? 

by Laurie Kazan-Allen



On August 27, 2013, a written answer was supplied by the European Commission to a question asked earlier in the summer by Stephen Hughes, the Member of the European Parliament for Durham & Blaydon, regarding a consultation by the UK Department for the Environment, Food and Rural Affairs (DEFRA) on asbestos. Mr Hughes asked the Commission to comment on proposals being considered by DEFRA to provide the Office of Rail Regulation (ORR) the power to grant exemptions from the EU regulation which restricts the sale of second-hand articles containing asbestos.

News of the ORR's request first surfaced in Minutes of a June 11, 2013 meeting in London which mentioned the DEFRA consultation on obtaining an exemption for the resale of asbestos-containing articles (e.g. rolling stock). When clarification was sought by Bill Lawrence about this issue, the July 10, 2013 reply he received from the ORR explained that:

“the European Regulation on the Registration, Evaluation, Authorisation and restriction of Chemicals (REACH) currently prohibits the 'placing on the market' of asbestos-containing articles which were first installed or put into service before 1 January 2005. The term 'placing on the market' means supplying or making available, whether in return for payment or free of charge, to a third party, and includes importation. At present the Office of Rail Regulation (ORR) has no powers to issue exemptions from this restriction. But we anticipate that the Department for Environment, Food and Rural Affairs (DEFRA) will shortly be consulting on a proposal to introduce ORR as an enforcing authority under the REACH enforcement arrangements, and this would include the power to issue exemptions. Unfortunately we do not have a firm date for this consultation.”1

It seems very strange that the ORR did not have “a firm date for this consultation” when it was due to start just a week after the email had been sent to Mr. Lawrence. DEFRA's consultation on Asbestos: Marketing and use of second hand articles took place between July 18 and August 15, 2013.2 From the documentation provided online, it is clear that this was a cost-cutting exercise; government estimates suggest the exemption will save Britain PLC 29 million.3

DEFRA's Impact Assessment explained that the introduction of REACH regulations had had “an unintended effect of increasing the scope of restrictions on the sale and use of second-hand articles containing asbestos. Under REACH these now had to be disposed of, or have the asbestos content removed, if placed on the market, creating potential health risks from disturbing otherwise safe asbestos as well as imposing unnecessary costs on business and others.” From a safety point of view, the REACH restrictions were spot on. If a country had banned asbestos, as the UK had appeared to have done, the resale or trade in asbestos was illegal – or so we thought.

DEFRA's objectives for requesting a change in policy were:

  • “to mitigate wide-ranging and costly implications that the restriction on placing on the market asbestos-containing articles could have for the UK, particularly in the transport, heritage and museum sectors;
  • to enable trade in asbestos-containing articles to take place subject to more proportionate controls, which would not be permitted without derogation.”

The Commission's August 27, 2103 clarification of the situation is as clear as mud. It is of interest to note, however, that even though Member States were required to communicate national measures intended to mitigate the impact of REACH regulations on second-hand markets to the Commission by June 1, 2011, the United Kingdom did not do so until November 8, 2011, five months after the deadline.

August 28, 2013


1 Email received by Bill Lawrence from Sharon Cottrell Office of Rail Regulation July 10, 2013.


3 DEFRA. Impact Assessment. March 22, 2012.



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