THE INDUSTRIAL TRIBUNALS

CASE REFS:   6540/09
6541/09

APPELLANTS:		Bridgeline Environmental Services Limited
				Bridge Line Demolition Limited

RESPONDENT:		Health and Safety Executive for Northern Ireland 

DECISION
The unanimous decision of the tribunal is that the Prohibition Notices issued on 24 July 2009 be affirmed without modification.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Dr C Ackah
			Mr J E Hughes

Appearances:
The appellants were represented by Mr O’Donoghue, Queen’s Counsel, and Mr Coll, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.
The respondent was represented by Mr Lyttle, Queen’s Counsel, and Mr McGleenan, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Issues

1.	The issues for the tribunal are:-

“Whether the Prohibition Notices served on the appellants by the respondent under the Health & Safety at Work (Northern Ireland) Order 1978 on 24 July 2009 should be cancelled or affirmed, and if the tribunal affirms the Prohibition Notices, whether it should do so in its original form or with such modifications as the tribunal may, in the circumstances, think fit.”

The facts

2.	The tribunal heard two appeals against Prohibition Notices served by the Health and Safety Executive (‘HSE’) under the Health & Safety at Work (Northern Ireland) Order 1978.  The appellants, Bridgeline Environmental Services Limited (‘BES’) and Bridgeline Demolition Limited (‘BDL’), are related companies.  The tribunal heard that they are owned and controlled by Mr Strawbridge and share a common workforce.  

3.	They were contracted to work on the Courtaulds site at Carrickfergus.  The site is owned by CDC (NI) Limited, a wholly owned subsidiary of PBN Holdings Limited.  The site is recognised to be heavily contaminated with asbestos containing materials (‘ACM’)

4.	Such materials require to be dealt with under a statutory regime to minimise risk to health and safety.  BES is a licensed asbestos removal contractor.  It is normal practice for a contractor to identify the likelihood and type of asbestos, prepare a plan of work detailing work methods and controls, the equipment to be used and emergency procedures.  This is called a method statement (‘MS’).  The MS is then sent to HSE at least 14 days in advance of the intended work.  The MS should be kept under review as work continues.  It is the contractor’s duty to review the MS as necessary and ensure it is effective.  

5.	In or about May 2009, Patrick Kearney, a director of PBN Holdings Limited, moved a large industrial boiler from the powerhouse building on the Courtaulds site to an open space in front of that building.  The boiler contained ACMs.  No MS was in place for the operation and HSE were not informed of the intention to remove the boiler.

6.	A meeting was subsequently held between PBN Holdings Limited, the appellants, the respondent and White Young Green Environmental (consultants retained by PBN Holdings Limited).  It was agreed that the MS be reviewed and amended and sent to HSE.  Mr Peter McCartney, an employee of PBN Holdings Limited, was to prepare a programme of works to be undertaken over the following months.

7.	A MS was agreed and work on the boiler proceeded.  Work was carried out by BES to the base plate of the boiler.  This work was carried out within an enclosure to prevent the escape of any asbestos fibres.  The work required a Clearance Certificate from the independent analyst retained on site, QC (NI) Limited.  The Clearance Certificate was finally obtained (after several attempts) on 10 July 2009.  The certificate included an assessment of the site for re-occupation.  The analyst commented:-

“There were several areas were [sic] inaccessible thermos insulation debris was present.  This will need to be removed under controlled conditions in line with a method statement.”

Mr Logan, who was the HSE inspector that issued the Prohibition Notices, was not aware of this statement when he issued the Prohibition Notices.

8.	Work then continued on the boiler after 10 July 2009 but without an enclosure.  Mr Spratt, an employee of the appellants, cut pipes from the boiler using hot burning gear.  This work commenced on 22 July 2009.  He did not consider there to be likelihood of ACM in the water pipes but he ‘kept an eye on everything’ whilst cutting the pipes.  

9.	On 23 July 2009, two HSE inspectors, Ken Logan and Rowland Jones, visited the site.  On arrival at the site, Mr Logan saw one of the appellants’ employees on top of the boiler using cutting gear.  There was no scaffolding in place nor edge protection for the worker.  The boiler height at which the employee was working was approximately 2.5 metres.  By the time the inspectors arrived at the boiler, the employee was off the top of the boiler.

10.	There was then a torrential and thunderous downpour.  The inspectors took shelter whilst the appellants’ employees temporarily left the site.  After the shower the inspectors looked at the area immediately surrounding the boiler.  They saw what they suspected to be ACMs.  As a result, they arranged for two other HSE officers to come to the site to take samples.  

11.	Samples were taken that afternoon from the area surrounding the boiler and also in the vicinity of the old powerhouse.  Mr Spratt, on behalf of the appellants, was given a choice from each of the samples.  Mr Logan asked Mr Spratt not to carry out any further work that day (it was now late afternoon) or to work on the boiler the next morning.  There were also NIE workmen on the site, some of them came across to see what was happening.  

12.	The following morning, 24 July 2009, the result of the first sample was made available to Mr Logan.  It contained ammosite asbestos – commonly known as brown asbestos.  Mr Logan and Mr Jones returned to the site around lunchtime and served Prohibition Notices on BES and BDL.  Mr Logan subsequently, that afternoon, served a Prohibition Notice on PBN Holdings Limited.  That Prohibition Notice was in exactly the same terms as the Notices served on the appellants.  However, the Prohibition Notice served on PBN Holdings Limited was not appealed and remains in force.  

13.	The Prohibition Notices prohibited the cutting up of the boiler.  It did not extend to other aspects of the site.  The Notices provided that the cutting up of the boiler involved, in Mr Logan’s opinion, a risk of serious personal injury because the appellants were working without adequate measures to prevent or reduce the spread of asbestos.  The Notices also stated that the work was in contravention of Regulation 16 of the Control of Asbestos Regulations (Northern Ireland) 2007 because reasonably practical steps had not been taken to prevent or reduce to the correct level the spread of asbestos.  The Notices prohibited the cutting of the boiler unless the said contraventions and matters had been remedied.  

14.	After the service of the Notices, PBN Holdings Limited caused a survey of this part of the site to be carried out by QC (NI) Limited.  This was an independent asbestos consultancy originally retained in relation to the site.  The tribunal heard evidence from Mr Ian Harper of that company.  

15.	QC (NI) Limited reported on 4 August 2009.  It found evidence of asbestos contamination in varying degrees over a defined area of 1,700 square metres in the vicinity of the boiler.  Mr Harper also informed the tribunal that it was common knowledge amongst those working with the boiler that it contained asbestos, but not the extent of that asbestos contamination.  Mr Harper told the tribunal that if a contractor is not sure of the extent or location of the asbestos, it should assume the presence of asbestos and therefore that any uncontrolled work could liberate asbestos.  The boiler had engrained asbestos on the surface metal.  Any removal using an abrasive technique required an enclosure.  The work on this boiler, in his opinion, required an intrusive survey (ie holes drilled into the structure) to ascertain the location of asbestos.  

16.	Whether or not there was asbestos in the water pipes cut without controlled conditions, the vibrations caused by the cutting operation could release asbestos in adjacent areas or in pipe work deeper within the structure and now made closer to exposure.  Mr Harper also confirmed that there were no ACMs around the boiler when the Clearance Certificate was granted on 10 July 2009.  

17.	Mr Logan explained that in issuing the Prohibition Notice he was concerned about the presence of loose asbestos around the boiler.  There was a concern of a risk of serious personal injury from exposure to asbestos fibres and the diseases which are associated with such exposure.  The Prohibition Notice had to have immediate effect as, in his opinion, any other cutting-up work could increase the exposure of asbestos.  The Prohibition Notice was served on both the appellant companies.  The MS mentions both companies and both companies were on site using the same employees.  Mr Logan considered that the danger to any one on the site was the same and they were equally exposed to the risk.  Mr Logan was also concerned about the presence of other parties not in the employment of the appellants on the site.  Work was being carried out to this boiler in uncontrolled conditions.  No enclosures had been erected and Mr Logan had observed men working without appropriate protective clothing.  If the Prohibition Notice had not been served and cutting up had continued, there were various people working in the area and tracking over an area which had exposed asbestos.  This could spread contamination and asbestos could in fact be removed from the site on clothing.  The Prohibition Notice only excluded the cutting up of the old boiler.  It did not prohibit other work on the site.  Mr Logan did not include any specific directions as to what was required to correct the contraventions.  He left the contractor a wide choice of remedy.

18.	The appellants presented their appeals against the Notices on 14 August 2009.  After liaising with the parties’ representatives for suitable dates, the matter was listed for hearing on 4 September 2009.  On that day the parties asked for time to deal with certain matters.  The tribunal was then told that five days would be required for the hearing of the matter but the parties would attempt to resolve issues between them.  The case was re-listed for hearing from 14 September 2009 at the request of the parties.

19.	On 14 September 2009 the parties again asked for further time to hold discussions.  The case subsequently commenced and the tribunal heard evidence from witnesses on behalf of appellants.  On 16 September 2009 the tribunal expressed its concern, based on the evidence it had heard, that the site remained in the same condition without remediation since 24 July 2009 and therefore constituted a hazard to health.  The parties asked for more time, and advised the tribunal that steps would now be taken to make sure that the site was rendered safe.  The parties sought, and were granted, an adjournment.

20.	The case was listed for mention on several subsequent occasions.  On 19 October 2009 the tribunal were assured by both parties that the vicinity of the boiler was now cleared of asbestos and was safe.  The parties were endeavouring to find a new MS acceptable to both and various experts had been retained.  Ultimately, their efforts proved futile and the case returned for completion on 4 and 5 February 2010, with legal submissions on 22 February 2010.  The tribunal facilitated the joint request of the parties for time, as it considered that in these complex circumstances the best chance of resolution and finding an acceptable manner of conducting work lay with the parties themselves.  

The law

21.	The relevant statutory provisions governing the issue of Prohibition Notices are set out in Articles 24 – 26 of the Health & Safety at Work (Northern Ireland) Order 1978 (as revised):-

“24 (1)	This Article applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.

(2)	If as regards any activities to which this Article applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice — 

(a)	stating that the inspector is of the said opinion;

(b)	specifying the matters which in his opinion give or, as the case may be, will give rise to the said risk;

(c)	where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, stating that he is of that opinion, and –

(i)	specifying the provision or provisions as to which he is of that opinion; and

(ii)	giving particulars of the reasons why he is of that opinion; and

(d)	directing that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of sub-paragraph (b) and any associated contravention of provisions so specified in pursuance of sub-paragraph (c) have been remedied. 

(3)	 A direction contained in a prohibition notice in pursuance of paragraph (2)( d) shall take effect — 

(a)	at the end of the period specified in the notice; or

(b)	if the notice so declares, immediately.

25 (1)	In this Article and Article 26 ‘a notice’ means an improvement notice or a prohibition notice.

(2)	A notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions — 

(a)	may be framed to any extent by reference to any approved code of practice; and

(b)	may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter.

(3)	Where any of the relevant statutory provisions applies to a building or any matter connected with a building and an inspector proposes to serve an improvement notice relating to a contravention of that provision in connection with that building or matter, the notice shall not direct any measures to be taken to remedy the contravention of that provision which are more onerous than those necessary to secure conformity with the requirements of any building regulations for the time being in force to which that building or matter would be required to conform if the relevant building were being newly erected unless the provision in question imposes specific requirements more onerous than the requirements of any such building regulations to which the building or matter would be required to conform as aforesaid.

(4)	In paragraph (3) “the relevant building”, in the case of a building, means that building, and, in the case of a matter connected with a building, means the building with which the matter is connected.

(5)	Before an inspector serves in connection with any premises used or about to be used as a place of work a notice requiring or likely to lead to the taking of measures affecting the means of escape in case of fire with which the premises are or ought to be provided, he shall consult [the Northern Ireland Fire and Rescue Service Board] .

(6)	Where a notice which is not to take immediate effect has been served — 

(a)	the notice may be withdrawn by an inspector at any time before the end of the period specified therein in pursuance of Article 23 or Article 24(3) as the case may be; and

(b)	the period so specified may be extended or further extended by an inspector at any time when an appeal against the notice is not pending.

26 (1)	A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an industrial tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

(2)	Where an appeal under this Article is brought against a notice within the period allowed under paragraph (1) then — 

(a)	in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;

(b)	in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).

(3)	One or more assessors may be appointed for the purposes of any proceedings brought before an industrial tribunal under this Article.”

22.	The High Court in England considered the correct approach to be adopted by the tribunal in deciding an appeal against a Prohibition Notice in the case of Chilcott  v  Thermal Transfer Ltd [2009] EWHC 2086.  Both Mr O’Donoghue and Mr McGleenan urged the tribunal to accept that court’s analysis.  At Paragraph 12 of his judgment, Charles J said:-

“What the court’s function is, is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was as at that particular date.  Did the relevant risk exist?  What would happen if it came to fruition?  Matters of that type, and in that context to determine, paying due regard to the views of the inspector, whether a Notice should have been served to promote the underlying purposes of the Act, and in particular Section 22.  The purpose of that, it seems to me, is moderately clear, namely, that a Notice should be served if the risk identified of serious personal injury warrants it.”

Mr McGleenan and Mr O’Donoghue agreed that the correct approach, as set out in Chilott, is for the tribunal to form its own view paying due regard to the inspector’s expertise.

23.	Charles J also advised the tribunal focus its decision-making process to the time when the Notice is served.  He said:-

“Returning to the section, that is Section 24 and the powers that it confers on the employment tribunal, to my mind it emphasises that the focus of attention on the appeal is to the situation on the ground when the Notice is actually served.  I take it from the point that it can either cancel or affirm the Notice, and it is only if it decides to affirm that it can then affirm it with modifications.  That seems to me to focus the analysis to the time when the Notice was actually served. 

Turning to Section 22 and the focus of the Notice itself, that to, necessarily to my mind, focuses a decision-making process to the moment at which the Notice is served.  In broad terms, the section is concerned with the identification, prevention and thus management of risk.  The risk being a risk of serious personal injury by reference to an activity then being carried on, or likely to be carried on by the relevant person or under the control of that person.  So, the focus is as to risk flowing from an activity then being carried out or likely to be carried on as at time X, namely, the time when the Notice is served.”

24.	The task of the tribunal therefore, as set out by Charles J, and as expressly agreed by the parties in this case, is for the tribunal to substitute its view for that of the inspector at the time the Notice was issued and to decide what the tribunal would have done at that point in time, paying due regard to the inspector’s expertise and not closing its eyes to matters which occurred after that time.

Tribunal’s conclusions

25.	Applying the legal test set out above, the tribunal makes the following determinations.

26.	There was clearly, at the very least, the risk of asbestos contamination contained in the boiler.  On 23 July 2009 when the inspectors visited the site, there were no controlled measures in place to contain the release of any such asbestos.  Mr Spratt told the tribunal that the pipes he was cutting were asbestos free and he was ‘keeping an eye out’ whilst cutting.  However, the independent analysts warned of further contamination and the need for controlled measures in their Clearance Certificate dated 10 July 2009 for earlier work on the boiler done within an enclosure.

27.	Mr Harper gave evidence, which the tribunal accepted, of the appropriate approach where the presence of asbestos was suspected but its precise location unknown.  He also referred to the dangers of releasing asbestos by vibrations from cutting apparently uncontaminated pipe work.

28.	The appellants gave evidence that there was no contamination around the boiler when they left the site on the afternoon of 23 July 2009.  There was a suggestion that the asbestos seen by Mr Logan and Mr Jones was not there when the appellants’ employees left the site during a thunderstorm but was present some 20 minutes later on their return.  The appellants’ witnesses could provide no explanation for how this could have occurred and suggested that someone might have put the asbestos there.  The tribunal considered this explanation of the presence of asbestos contaminated materials around the boiler as highly improbable.

29.	On the evidence of Mr Harper and the report completed by QC (NI) Limited the area around the boiler was clear of asbestos on 10 July 2009.  However, there was substantial contamination by 23 July 2009 over a wide area around the boiler.  

30.	There is a patent risk to health from exposure to asbestos fibres.  

31.	The Prohibition Notice was not issued until after first sample analysis had confirmed the presence of asbestos.

32.	The appellants’ employees on 23 July 2009 were working openly in an area contaminated by asbestos.  They were not wearing any appropriate protective clothing.  There were no other controlled measures in place.  Furthermore, there were NIE employees also on the site unaware of the exposed asbestos.  There was, in the tribunal’s opinion, a material risk of asbestos fibres being transported from the site on clothing and equipment.

33.	In their submissions, the appellants fairly comment that it has to be accepted that an inspector visiting the site could form the view reasonably that a cause of the presence of asbestos on the site could have been the cutting up of the boiler.  

34.	Mr O’Donoghue sought to argue that the content of the Notice was insufficient particularly as failure to comply with such a Notice is a criminal offence.  He said that what must be articulated precisely is what is required to be done in order to discharge the Notice.  The tribunal does not accept this analysis.    

In relation to the possibility of criminal proceedings, it is the tribunal’s view that the Prohibition Notice is sufficiently clear.  The appellant can be in no doubt that the action prohibited is the cutting of the boiler.  What the Notice does not do is set out a series of steps which will then allow that action to be taken.  That, in our view, is a matter for the appellant.  If they are satisfied, as licensed asbestos removal contractors on the one hand and demolition experts in the other, having due regard to their expertise, the relevant legislation and Codes of Practice, and the expert advice available to them, that their suggested remedial steps are appropriate and will withstand scrutiny, they should have no fear of criminal proceedings or the attitude of HSE.

The duty is on the contractor to set out the method of work, not the HSE.  That is clear from the legislative framework within which asbestos removal takes place.

35.	Mr O’Donoghue, in his submission, contended that the Prohibition Notices were not effective as they did not particularise the source of the risk or the steps required to discharge the Notices.  The tribunal does not accept this submission.  The Notice makes it clear that the work prohibited is the cutting up of the old boiler.  Whilst the HSE have the power under Article 25(2) to give directions as to the measures to be taken to remedy the contraventions, it is not required to do so.  The appellant, BES, are licensed asbestos contractors with considerable experience in the field.  The tribunal took into account the view of Mr Logan, that he did not seek to fetter the contractor’s ability to comply with the Prohibition Notice and left it for them to suggest appropriate ways to remedy the contraventions.  

36.	Mr O’Donoghue also alleged that the service of the Prohibition Notices was affected by bias on the part of Mr Logan.  The tribunal did not accept this analysis and considered that Mr Logan’s evidence was clear and cogent.  Conversely some of the evidence given on behalf of the appellants, in particular, for example how the asbestos found on 23 July 2009 came to be on the site, was less impressive.  In any event, the test for this tribunal is to decide what the tribunal would have done in accordance with the Chilcott test.  This is not therefore infected with any bias or baggage.  

37.	The appellants also argue that the disproportionate effect of the Prohibition Notice includes the financial hardships caused to them.  Whether or not this is relevant to the test the tribunal must apply, in the particular circumstances of this case it carries little weight.  The Prohibition Notices only relate to the work of cutting up the old boiler.  The area around the boiler is now free from contamination.  The remainder of the 200 acre site was accessible to the appellants.  In any event, an identical Prohibition Notice was served on PNB Holdings Limited prohibiting any work on the boiler.  That Prohibition Notice was not appealed and is still extant.  The appellants could not have continued work on this boiler even if their Prohibition Notices were modified or revoked.  

38.	Mr O’Donoghue argued that the service of the Prohibition Notice was premature.  The argument on prematurity of service was considered in Chilcott.  Charles J said:-

“The arguments that were put before the employment tribunal are to some extent reflected in their reasoning, and related to arguments based on prematurity.  A distinction in this context as to whether a Notice is premature or unnecessary, it seems to me, is a difficult one to make, and indeed an attempt to do so may well be unnecessary.  That flows from my earlier analysis of what the Section is directed to, which is to the identification of risk and whether or not that risk warrants the service of a Notice at a particular time.  There seems to me to be a danger that the arguments on prematurity focus on reasonableness of the decision-maker, namely the inspector, and thereby shift attention from the appeal test to the judicial review test, and that that has the potential for muddle.”

39.	The tribunal, based on the reasoning and determinations set out above, determine that had it faced the same situation as faced by Mr Logan on 23 and 24 July 2009, having due regard to Mr Logan’s expertise, and considering all the evidence, including that of Mr Harper and the Clearance Certificate Report not available to Mr Logan at that time, would have issued a Prohibition.  The Prohibition Notice would have been issued against BES as a licensed asbestos contractor and also BDL because of the overlap in the function and personnel of the two companies.  The Prohibition Notices were prohibiting a particular activity, namely the cutting of the boiler.  The tribunal is charged with identifying and dealing with the risk of serious personal injury and we would have issued Notices against both appellants.  The Prohibition Notice did not prevent BDL from conducting other work on the site.  We also took into account that at Paragraph 9 of their written submissions, both appellants accepted that there was no dispute the work was carried on or was likely to be carried on by the appellants.  

40.	The tribunal is concerned with an assessment of risk which, following Chilcott, is an assessment of risk as at the relevant date.  At Paragraph 21, Charles J says in considering the approach of the employment tribunal:-

“Rather, it seems to me, that they were not focusing, as in my judgment they should, on the point at which the Notice was served and determining whether they, if they had been in the position of the inspector, would have served that Notice.  Rather they were looking at the position with the benefit of hindsight, as that expression is commonly used, namely, he may well have been right, he may well have been wrong, but with the benefit of hindsight we can reach a different decision.  That was not the process which, in my judgment, they were charged with; their task was to decide what they would have done at that point in time.”

41.	The tribunal has already determined that it would have served a Prohibition Notice.  The tribunal has also determined that on 24 July 2009 the only modification which the tribunal might have considered was the need for the urgent remediation of the contaminated portion of the site which surrounded the boiler.  However, the tribunal took into account the views of Mr Logan, that a modification concerning a clean-up would not have been appropriate at the time the Prohibition Notice was served.  He based this view on the fact that the appellants apparently did not see this asbestos in the first place and that a survey would be required by an analyst to determine the extent of the contamination and the appropriate steps needed to clean the area.  His concern and priority on 24 July 2009 was to stop further work to avoid further contamination.  The responsibility was then on the contractor to provide the appropriate remedy.  In any event, the tribunal consider that any such modification is now otiose.  The site has now been cleaned and the tribunal has been assured by both parties that the site has been cleaned.  The tribunal therefore concluded there is no need for further modifications as the need for such modifications should be assessed at the time the Notice is served.

42.	In reaching its conclusion the tribunal was greatly disturbed by the lack of action on behalf of both parties to remedy the situation on the ground in July 2009.  From the evidence and submissions made to us, it is clear that the parties have a less than satisfactory working relationship.  The appellants made assertions of bias against HSE and wished to lead evidence of historical difficulties on this site.  The tribunal has focused on the test, as agreed by the parties – what would the tribunal have done on 23 and 24 July 2009 – but we feel we must comment on the subsequent actions of the parties.

43.	The essence of Health & Safety legislation concerns the reasonable and sensible management of risk.  This was lacking in this case.  The risk posed by the asbestos contamination of 1,700 square metres of this site should have been ameliorated much more quickly and not left to chance and the elements.  

44.	It seems extraordinary to us that having identified a risk of serious personal injury, and after sampling had shown a wide area of contamination, and further that third parties (NIE) were identified as having access to the site who had no knowledge or indeed expertise of the hazard identified, the HSE took absolutely no steps to minimise the risk until this tribunal expressed its disquiet and concern.  This led, belatedly, to a clean up of the area by the appellants to the satisfaction of HSE and the independent analyst.  

45.	The appellants share that responsibility.  They are licensed asbestos removal contractors.  If a suitable accommodation with HSE was possible after the tribunal intervention, it was equally possible before it.  Yet the evidence before us suggests that no approaches were made by the appellants to suggest appropriate remediation works.  

46.	We make no comment on the role of PNB Holdings Limited who also were aware of the situation, who commissioned the report demonstrating the extent of the contamination and who also had a Prohibition Notice served on them, which they accepted.  This Prohibition Notice is still operative thus preventing any work on the boiler in any event.  We heard no evidence as to what steps they may have proposed.  

47.	At one stage the parties appeared to have resolved matters.  Unfortunately this was not the case.  The tribunal is concerned that professional and expert parties, such as HSE and a licensed contractor cannot find an agreed or acceptable way forward after some six months of negotiations involving the assistance of experts drawn from outside this jurisdiction.  As we stated earlier, the basic function of Health & Safety rules and their implementation is to properly manage risk.  There has been a signal failure to do so in this case.  

Chairman:

Date and place of hearing:	4 September 2009,
		14 - 16 September 2009, 
		19 October 2009, 
		4 - 5 February 2010; and
		22 February 2010, Belfast

Date decision recorded in register and issued to parties: