Issues relating to asbestos raised by a recent consistory court judgment

A petition seeking permission to sell an organ located in the tower of All Saints Findern raised the peripheral issue of the possible presence of asbestos in the instrument; the court noted that an asbestos survey for the building had indicated the possibility of asbestos within the organ itself. Confirmation of its presence would have an impact on the disposal of the instrument, for which a conditional petition was granted. 

Background

The legal position of PCCs regarding asbestos is reviewed in Guidance produced by the Peterborough DAC. This states:

“From 21st May 2004 each PCC has an additional responsibility. Under the Control of Asbestos at Work Regulations 2002 each PCC has a duty to manage asbestos in its buildings. This applies to all places of worship and church halls.

Since May 2004, the PCC has been in breach of the Regulations unless it has an assessment in hand that can be used as a sound basis for annual review and management in the future”.

The case in question, Re All Saints Findern [2018] ECC Der 1, is summarized on the Ecclesiastical Law Association website as:

“…The organ had not been used for many years, but had been installed shortly after the church had been built in the 19th century. However, the current petition was limited to the sale and removal of the organ. The Chancellor was satisfied in principal that the removal of the organ and installation of the kitchen and toilet facilities would benefit the church and the community, and he granted a faculty for the sale of the organ, provided that the sale would take place within two years, and provided also that the organ should remain as it is until the petitioners have permission from the Court to install the proposed kitchen and toilet facilities”.

A more extensive summary is included in Ecclesiastical court judgments – May. With regard to asbestos, the Chancellor noted [20] that a survey for the building presented to the court raised the possibility of the presence of asbestos within the organ.

Thus in addition to the general duty of the PCC to manage asbestos, now under r4 The Control of Asbestos Regulations 2012 SI 632, the possibility of there being asbestos within the organ had specific implications with regard to the costs involved in its disposal of the organ, since specialists would need to be involved in dismantling. The possible presence of asbestos “also re-enforces the need to keep the organ intact until it is finally to be disposed of”.

Noting the paucity of information on the topic, the Chancellor observed that advice from the IBO [Institute of British Organ Building] suggested that the purchaser is usually liable for the costs of removal, including any charges relating to the presence of asbestos. He commented: “I rather suspect that a purchaser in circumstances like these, is unwilling to pay very much, when they are shouldering the costs of removal and transportation, re-erection and installation”.

Asbestos in organs

Although information provided by dioceses and church-related organizations gives an outline of the potential hazards associated with asbestos in church buildings, organs &c, assessment of the risks in a particular situation is a matter for those skilled in its identification and removal. The IBO has produced the leaflet Dealing with asbestos gives advice for “organ building professionals” (note: the waste management legislation referred in this 2004 document has now been superceded). Of more assistance is the Church Health and Safety Toolkit produced by Ecclesiastical Insurance which indicates:

“some churches and church halls may contain asbestos, particularly if they were built or have been refurbished, altered or extended during the twentieth century. However, this would be before the year 2000, when it was made illegal to use it in construction or refurbishment. Even with new buildings though, caution is still required where these have been built on existing basements or linked to adjoining structures.

In churches, asbestos is typically found in heating systems, flooring or ceiling tiles, pipe organs, organ blower boxes, roofing materials and so on. More often than not, it may have been painted over or mixed with another material. Where asbestos is present, exposure can generally result when it is disturbed, damaged or is just in a poor condition. Therefore, those people who are most at risk are those carrying out maintenance and repair jobs”.

The Diocese of Chichester provides a comprehensive overview in Management of Asbestos (120929); the section relating to organs is reproduced below [emboldening in original]:

“Asbestos in organs

There are dangers of asbestos being present in pipes, particularly in the lining of the blower boxes of some instruments. If the asbestos remains intact and undamaged, expert opinion suggests that it may usually be best to leave it in situ. If however it starts to disintegrate then asbestos particles can be blown into the sound chests of the instrument, where they can escape through the pipework into the church building as the instrument is played, with the obvious health risk involved. It does not necessarily mean however that if such an event occurs, the organ has to be removed and destroyed.

It is possible for an organ to be dismantled in whole or in part, and removed under controlled conditions, decontaminated and cleaned and then returned to the church. There are examples in this in other dioceses where asbestos has been discovered and the organ blower and cabinet have been removed under controlled conditions but where the organ itself has been saved.

Safety is of course paramount. There may not however always be an immediate health danger provided the organ is not played after asbestos has been discovered. Air tests by a specialist will establish if there is an immediate health danger. The DAC is anxious to ensure that valuable instruments are not destroyed unnecessarily, whilst being careful to ensure essential health and safety measures are adopted. If an asbestos problem arises, please make contact immediately with the DAC Secretary who will put parishes in contact with the organ advisers and give help as necessary.

In addition, parishes should inform their inspecting architect whenever asbestos material is discovered anywhere in the church building.”

With regard to this last point, some inspecting architects may recommend specialist advice, as evidenced by the limited assistance given in a recent Quinquennial Inspection Reports viz., “[7.05]. …No signs of asbestos used in the building were detected during the survey. However, we recommend that a survey/report is commissioned from a specialist contractor/surveyor“.

In 2006, the HSE published Investigation Into Fibre Release From Church Organ Blower Boxes:

“[t]o examine an organ blower box lined with asbestos and to gain information regarding the use of asbestos in this type of product and the type of asbestos containing material used; To ascertain the level and type of asbestos fibre contamination in organ pipes following use of the above organ blower box for many years at St. Mary’s church in Hunton, Maidstone; To offer advice regarding the future use of the church organ and the risk of exposure of the general public to asbestos fibres”.

Despite the generality of the stated objectives, the investigation was necessarily restricted to specific non-operational issues, as the blower box had been removed by contractors before any sampling could be carried out in situ; the investigation was therefore limited to an analysis of the asbestos containing material inside the organ blower box and also various methods of sampling at the church. [Previous sampling had been carried out at the church following the request of the PCC, and although the reports were available most of the samples taken (swabs and air filter samples) had been disposed of]. The report includes a number of useful photographs of the blower box, and concludes:

“The organ blower box was lined with a very friable board-like material that contained amosite, chrysotile and crocidolite asbestos fibres. No air tests were carried out using the removed organ blower box, as the risk of exposure to asbestos fibres from the friable material was too high.

Air sampling would have ideally been carried out before the organ blower had been removed to ascertain the level of fibre release and exposure risk to the general public and those maintaining the organ. This would have included sampling whilst the organ was being played.

As the blower box had been removed and sent to HSL [HSE’s Health and Safety Laboratory, Buxton] for analysis this was not possible and so the only sampling that took place was in retrospect to conclude if any asbestos fibres were present in the residual dust in the organ pipes and the areas surrounding the organ.

The majority of the areas that were sampled were found to be free from asbestos although two of the areas that were sampled were found to contain small amounts of asbestos fibres identified as ‘trace’ amounts. [i.e. the floor area where the blower box was removed from and the inside of the wind trunk, Summary of Results, Section 3.1, para,1]. The asbestos fibres identified in these areas were amosite and/or chrysotile asbestos. The definition of ‘trace’ is less than 3 fibres or fibre bundles. The level of risk, from the information obtained from results of the testing carried out, is estimated as low”.

Comment

Petitions seeking the replacement of a pipe organ with an electronic instrument are not uncommon. Options for the disposal/retention/renovation of an unwanted instrument are dependent inter alia upon its condition, and include: relocation of the organ to another church or organization; sale of the more valuable parts; or leaving in situ. For each, the possible presence of asbestos requires certain precautions to be taken.

With regard to disposal, whether this is for money, or free of charge, HSE is clear that in either case, it is illegal to supply any article containing asbestos. Consequently there is always a cost penalty associated with the disposal of an organ containing asbestos, whether this is borne by the purchaser as anticipated in Re All Saints Findern, or by the PCC if the instrument is to be provided gratis to a third party.

Likewise, having identified the possible presence of asbestos, the temporary or permanent retention of the instrument is not a “no-cost” option as Regulation 4(8) of SI 2012/632 requires that:

“(8) Where the assessment shows that asbestos is or is liable to be present in any part of the premises, the duty holder must ensure that: (a) a determination of the risk from that asbestos is made; (b) a written plan identifying those parts of the premises concerned is prepared; and (c) the measures which are to be taken for managing the risk are specified in the written plan”.

In the instant case, the need for further assessment is made a fortiori through the identification within the judgment of the possibility of there being asbestos within the organ itself.

Footnote:

This post does not give legal or technical advice, or purport to do so, with regard to the identification and remediation of issues relating to asbestos; site-specific advice from experts in this area should be sought where potential problems have been identified. 

The Health and Safety Executive (HSE) is responsible for licensing contractors and has produced the 181-page Asbestos: The licensed contractors’ guide (2006).