Emergence of Asbestos-related Health Issues and Development of Regulatory Policy in the UK
Period 2 1974 to 1999): Establishing an Institutional Risk Framework for Asbestos
The Context – Institutionalization of Risk and the “Controlled Use” of Asbestos
In the 1970s, the unwillingness of the asbestos industry to regulate itself was recognized and the ineptitude of attempts to regulate and manage asbestos was accepted. Legislative acts and the bureaucratic arrangements that followed from them were intended to compensate for these failings. The management of health risks became much more strategic during this period. In general, they can be char- acterized as the institutionalization of risk assessment and calculation, a concurrent overload of policy innovations to deal with these risks, an expanded participation by various relevant actors in discussions of asbestos risk, increased media pressure and press exposure of the risks, and a certain amount of scientific controversy about the threat to public health (rather than simply to industry) posed by white (chrysotile) asbestos. All these factors together have led commentators to see this era in the history of asbestos as one of “controlled use” of the substance, particularly when juxtaposed with the free-for-all period that it followed.
The rationale behind this segmentation (i.e., 1974 to 1999) of the history of asbestos use and management is straightforward. In 1974, the Health and Safety at Work Act (HSWA) was passed. It created mechanisms whereby government institutions could monitor conditions in the workplace and protect workers who might be exposed to asbestos (Health and Safety Commission 2002, p. 4). The period ended in 1999, when the UK “Europeanized” its approach to asbestos risk manage- ment by implementing an EU ban on all remaining chrysotile (Bartrip 2004, p. 74).
The significant developments that took place during these 25 years have come to characterize the period. Many of these developments created legacies that can be seen in current approaches to asbestos risk management. It is necessary, therefore, to examine these developments in detail.
The Legislation – Health and Safety at Work Act (HSWA) – 1974
The laws concerning health and safety at work began to be reviewed as early as 1967. In 1970, a parliamentary committee was convened to review these specific statutory and voluntary arrangements (Simpson 1973, p. 192). The committee was headed by Lord Robens (who learnt his name to the committee – the Robens Committee) and it filed its report in 1972. One of the Committee’s conclusions was that “the most important single reason for accidents at work is apathy” (Robens Committee 1972, para. 13). In an attempt to respond to this apathy, as well as to a number of other problems raised in the Robens Report, the Health and Safety at Work Act (HSWA) was passed in 1974 (Health and Safety Executive 2004, p. 3).
Robens criticized the overly detailed and incomprehensible nature of existing work safety legislation, as well as the fragmentation of administrative jurisdiction.
This fragmentation ultimately led to “situations in which some establishments fell outside of all legislation, different parts of others fall under different Acts, and it is impossible for any single department to take decisive initiatives” (Robens Committee 1972, chap. 1). The HSWA basically embodied the recommendations of the Robens Report: “In place of existing detailed and prescriptive industry regulations, it created a flexible system whereby regulations express goals and principles, and are supported by codes of practice and guidance.” (Health and Safety Executive 2004, p. 3).
Given the particular history of how asbestos was “managed” in the early twentieth century, it is somewhat surprising to discover that the Robens Report and the HSWA operated on the premise that “those that create risk are best placed to manage it”
(Health and Safety Executive 2004, p. 3). The crucial difference between the indus- trial self-regulation of asbestos in the period from 1924 to 1974 and the HSWA proposition that “those that create risk are best placed to manage it” is that the HSWA provided for a state-run institutional apparatus to ensure that this “self-management”
actually took place. This institutional apparatus took the form of the Health and Safety Commission (HSC) and the Health and Safety Executive (HSE). Very much in line with Robens’ criticisms of the previous work safety apparatus, the goals of the HSWA – and its subsequent institutional manifestations – were (1) to centralize the responsi- bility for health and safety in the workplace in one legislative act and institution,
(2) to establish clear regulations and responsibilities that employers could follow, and (3) to set out general duties that were to apply across industries or sector-specific respon- sibilities to be stated in other regulations (Health and Safety Executive 2001, p. 7).
The Institution – Establishment of the HSC and HSE in 1974
The two new institutions established by the Health and Safety at Work Act (HSWA) of 1974 were the Health and Safety Commission (HSC) and the Health and Safety Executive (HSE). The HSC is responsible for making the “arrangements to secure the health, safety and welfare of people at work, and the public” (Health and Safety Commission 2002, p. 4). This means primarily that the HSC proposes laws and standards concerning health and safety at work, conducts research, and provides information and advice (particularly on occupational health matters) (Health and Safety Commission 2002, p. 4). The HSE, on the other hand, is responsible for upholding the laws, regulations, and standards that the HSC creates. Its staff is made up of inspectors, policy advisors, technologists, scientists, and medical experts.
These two bodies work closely together (Health and Safety Commission 2002, p. 4).
The main idea behind the HSWA, the HSC, and the HSE was “preventative enforcement,” which means that workers are protected better by dealing with a hazard before it causes a problem than by retrospectively punishing a company for violating the laws and standards (Health and Safety Executive 2004, p. 8). This goal was accomplished by issuing notices to employers who were operating risky work situations or were in direct violation of a standard. In 1976, the HSE sent out “7,334 notices and instituted 1,200 prosecutions. By 2002/03, the number of notices issued had risen to 13,263, while prosecutions were taken for 1,688 separate alleged offences” (Health and Safety Executive 2004, p. 8). These notices effectively alerted the employer that the company’s working conditions needed improvement.
The relatively slow growth from 1976 to 2003 in prosecutions compared to notices indicates that this approach was functioning as an institutional instruction to make changes rather than as a form of punishment. According to the HSC:
The philosophy underpinning the HSW Act is that prevention of harm is the primary aim and enforcement has never been regarded as the only or even the main way of securing compliance. Over the years, HSC has remained wedded to the principle of a discretionary approach to enforcement and to obtaining an appropriate balance between enforcement and advice. HSC’s current enforcement policy stresses that any action should be: proportionate to any risks to health and safety and to the seriousness of any breach; targeted primarily on those whose activities give rise to the most serious risks or where hazards are least well controlled; consistent; and transparent (Health and Safety Executive 2004, p. 8).
More details on the makeup and institutional structure of the HSC and HSE are provided in the later section, where the current strategic management and commu- nication framework for asbestos risk in the UK are outlined. What is important to note now is the timing and context for the establishment of these institutions, as well as their “preventative enforcement” approach and the role this approach sub- sequently played in asbestos regulations.
The 1976 Advisory Committee on Asbestos (the Simpson Committee)
The numerous health hazards associated with asbestos finally came to the forefront in a 1976 report by the parliamentary and health service to the Ombudsman, Sir Alan Marre.9 This report concerned the Cape’s Acre Mill asbestos factory in Hebden Bridge. Marre discovered that since the factory closed in 1970, more than 10% of the 2,000+ workers contracted devastating asbestosis. These numbers exceeded what the previous TLV and the previous understanding of exposure-risk (dose-response) relationships estimated (London Hazards Centre 1995, chap. 10).
The government ordered a major inquiry. It was led by Sir William (Bill) Simpson, chair of the Health and Safety Commission and an ex-trade unionist with a strong Labor Party affiliation (Tweedale 2001, pp. 244–251). The committee conducting the inquiry became known as the Advisory Committee on Asbestos (ACA), or simply the Simpson Committee. It reviewed not only the implications of Marre’s Ombudsman report but, more generally, the 1969 Asbestos Regulations (Greenberg 1997b; Greenberg 2004, p. 539). See Table 3.3 for a complete list of the ACA members, who were intended to represent a cross-section of interests and expertise within and surrounding the asbestos regulations.
Table 3.3 Members of the Advisory Committee on Asbestos (ACA), the Simpson Committee The following membership represents the balanced set of ‘interests’ deemed appropriate after the 1974 Health and Safety at Work Act (HSWA)
W. Simpson Chairman, Health and Safety Commission
Prof. E.D. Acheson Faculty of Medicine, Southampton University A.C. Blyghton Transport and General Workers Union The Hon P. Bradbury Confederation of British Industry
Dr. J.S. Gilson formerly Director of the MRC Pneumoconiosis Unit Mr. H.D.S. Hardie Director, Turner & Newall
Mr. W. Lewis Union of Construction, Allied Trades and Technicians Mr. W.D. Lomas National Union of Dyers, Bleachers and Textile Workers
Prof. A. Mair Dundee University
Dr. M. Molyneux Occupational Hygienist, Institute of Naval Medicine R.C.J. Stairmand Consultant Chemical Engineer and Physicist
Dr. J. Steel Occupational Hygienist, University of Newcastle upon Tyne Mr. F.C. Sugden Chief Environmental Health Officer, Middlesbrough Dr. Margaret Turner-Warwick Professor of Thoracic Medicine, University of London Mr. A.W. Ure Director, Trollope and Colls Ltd
Mrs. R. Waterhouse Consumer Association Source: Greenberg 2004, p. 539.
9 “We [the Ombudsman] provide a service to the public by undertaking independent investigations into complaints that government departments, a range of other public bodies in the UK, and the NHS in England, have not acted properly or fairly or have provided a poor service” (Parliamentary and Health Service Ombudsman 2007).
In 1977, public sessions were held during which evidence about the relative safety of asbestos was presented from all sides, with no cross-examination (Tweedale 2001, p. 244). In addition to the major industrial players, unions, public interest groups and activists who had lost family members to asbestos-related diseases (e.g., “Asbestos Action”, the Society for the Prevention of Asbestosis and Dust Disease, the British Society for Social Responsibility in Science, the Consumers’ Association, and the Royal Institution of Chartered Surveyors and Professor Julian Peto) were all heard (Greenberg 2004, p. 540).
The Simpson Report was published in 1979 (Simpson Committee 1979).
Although damning some types of asbestos, it basically concluded that a doctrine of controlled use was possible for white (chrysotile) asbestos (Tweedale & McCulloch 2004, p. 247). The Simpson Committee only had the power to make recommen- dations and not to pass regulations or laws. It nevertheless recommended that blue (crocidolite) asbestos, as well as the spraying of all asbestos for insulation, be banned. However, the industry had already essentially abandoned these by this stage of the game. In addition to recommending that those responsible for removing asbestos be licensed, the Simpson Report suggested that the TLV for white asbestos be changed from 2 fibers/cm3, as specified in the BOHS Asbestos Regulations of 1969, to 1 fiber/mL, with a target of 0.5 million fibers/m3 (0.5 fibers/mL) for
“brown” (amosite) asbestos (Gee & Greenberg 2001, pp. 56–57).10
The Other Players – The Rise of NGOs and the Role of the Media
The report of the Ombudsman in 1976 and the open consultation held by the ACA/
Simpson Committee in 1977 spurred into action groups that had not previously participated in the debate over the management of asbestos risk. Not only did the outrage that occurred at the time of the Hebden Bridge episode drive people to action, but this was a time when there were more avenues for people to be legitimately heard. The HSC was – from its inception – dedicated to consulting as
“widely as possible on all aspects of policy and regulation”11 (Health and Safety Executive 2004, p. 10).
A number of non-governmental organizations (NGOs) rose out of these tumultu- ous times. In 1975, immediately following the Acre Mill episode, a group of con- cerned citizens who had been affected by the Hebden Bridge formed the Asbestos Action Group. Part of this group’s success was its ability to unite politicians, doctors, lawyers, and former Cape employees to lobby the government and launch personal
10 Do we want to include a rather technical critique of the exposure data that were used in the follow-up report commissioned by the ACA/Simpson Committee on the varying dangers associated with different kinds of asbestos?
11 “This [commitment to consultation] led to the 1977 Safety Representatives and Safety Committees Regulations which established the system of safety representatives appointed by trade unions which has provided one of the cornerstones of health and safety consultation ever since”
(Health and Safety Executive 2001, p. 10).
injury lawsuits (Tweedale 2001, p. 240). A similar vocal public interest group that joined the discourse around this time was the Society for the Prevention of Asbestosis and Industrial Diseases (SPAID), which was organized in 1978 by Nancy Tait. After her husband died from indirect asbestos exposure at the Post Office where he worked, Tait launched a lobbying campaign to ban all forms of asbestos. She also argued that white (chrysotile) asbestos was indeed carcinogenic (Tait 1983; Tweedale & McCulloch 2004, p. 247). SPAID, which later became the Occupational and Environmental Disease Association, was becoming vocal in pub- lic consultations on asbestos, and it forced reviews when the compensations pro- vided by companies such as T&N were absurdly low (Tweedale 2001, p. 242).
Following the emergence of a number of public interest groups in the UK, international bodies began to get involved with asbestos research in the hope of influencing the regulations. In early 1970, the World Health Organization (WHO) launched the International Agency for Research on Cancer (IARC), which initiated research to explain the relationships between certain chemicals and cancer (Gee &
Greenberg 2001, p. 57; Tweedale & McCulloch 2004, p. 248). Some of the IARC’s early work involved the establishment of an Asbestos Working Group, which gave its first report in 1973 (Tweedale & McCulloch 2004, p. 248).
These early reports were not overly critical, but later in 1976 the Asbestos Working Group concluded “that all forms of asbestos caused lung cancer and mesothelioma and that it was impossible to designate a safe threshold” (Tweedale & McCulloch 2004, p. 248). It is important to note that the IARC and its Asbestos Working Group were nothing more than a research-based offshoot of the WHO. None of the groups’
findings on the risks of asbestos led to mandatory legislative or regulatory action. Even though their results were “findings with no teeth,” it is important to note that this was the time when international agencies began to take interest in the effects of asbestos on exposed populations and that the discourse about asbestos risk was no longer confined to Britain. These facts became much more evident when the European Commission and the EU ultimately forced the UK’s hand on asbestos in the late 1990s.12
Another key transformation of this period that affected the management of asbestos risk was the increasing role of the media in raising awareness and broadening the discourse. During earlier wars and post-war periods, asbestos had a relatively positive image, which was managed by the industry. Much of the information concerning asbestos was mediated by the ARC. As cases of asbestosis, lung cancer, and mesothelioma continued to emerge, and reports began to surface that contradicted the earlier industrial pronouncements of the safety of asbestos, the media began to pick up on these cases and report them.
There were a number of media “furors” in the mid-1970s. Many of these con- cerned the Ombudsman report and the Simpson Committee, but none of them had as
12 In this section on the “other players” we could also include a brief discussion of the fact that the British Occupational Health Society (BOHS) kept meeting until 1982 to analyze data and discuss asbestos TLV. That being said, the scope of their influence in terms of setting or suggesting asbestos thresholds was severely limited by the establishment of the Health and Safety at Work Act as well as the HSC and HSE. Such a discussion of their meetings until 1982 may not be warranted.
much impact as the 2-hour documentary, “Alice – A Fight for Life.” Aired in 1982 during prime-time on Yorkshire TV, the documentary traced the life of a 47-year-old mother named Alice Jefferson as she struggled with mesothelioma, which she had contracted after working only a few months at the Cape Mill in Hebden Bridge (Tweedale 2001, p. 251). It painted a broad picture of the mining, production, and administration of asbestos with the general goal of raising awareness of the associated health risks. Overall, it attacked the industry for denying the problem. For example, it showed officials of T&N testifying that there was no asbestosis in the waving shed at its largest factory, TBA. The documentary also criticized the government for its inefficiency in dealing with the hazard, including its delay in implementing the rec- ommendations of the Simpson Committee, as well as the deceptive statements of some medical professionals in defense of the industry (Tweedale 2001, p. 251). The documentary was so provocative and the accusations so hard-hitting that the directors and producers were summoned to appear before the House of Commons Employment Committee in 1983 to present evidence for the claims made in the documentary. The evidence was reviewed, but the makers of the documentary remained committed to their position and did not retract any of the evidence. The “Alice” documentary out- raged the public, and T&N’s stock price plummeted (Tweedale 2001, pp. 252–253).
Clearly the winds had shifted regarding the provision of information about asbestos and the concurrent discourse about its risks. The industry and the ARC no longer were a monopoly in this regard, and no longer did they have sole lobbying access to the regulators who were to set the ever-crucial fiber concentration limits.
New players were now involved in the asbestos debate, and information about the potential risks of asbestos was being communicated through new channels.
The Regulations – Hyper-Regulatory Innovation
The regulations, limits, and laws governing the management of asbestos proceeded at a snail’s pace throughout the 1930s, 1940s, 1950s, and 1960s. It is important to recall that there were only two regulations to speak of during this 40-year period:
the 1931 regulations and the 1969 regulations. Conversely, the 1980s and 1990s can be characterized as having a relatively large amount of regulatory hyperactivity around the issue of asbestos risk, which resulted in five new asbestos regulations in the 11-year period from 1983 to 1994 alone. Arguably, this regulatory vigor can be traced to the establishment of a specific institution (the HSC) responsible for health and safety at the workplace. There was increased pressure from the NGOs, public interest groups, and the media, and it became necessary for the UK to play a catch-up game to extract itself from the dreadful state of affairs resulting from the prior decades of uninhibited asbestos use.
With the HSC in place, and with the legislative authority and responsibility for passing relevant regulations for asbestos management clearly and solely in its grasp, the 1980s and 1990s saw a boom in regulations that steadily reduce the acceptable asbestos concentration levels. We will discuss the individual regulations only