Emergence of Asbestos-related Health Issues and Development of Regulatory Policy in the UK
Period 3 1999 to 2007): The “Europeanization” of Asbestos Risk and the Current Management Framework for Asbestos Risk
Characteristics of Asbestos Risk Management in This Period
The past 5 to 10 years have seen the European Commission (EC) and European Union (EU) take an increasingly larger role in matters concerning risk regulation in general. This applies to asbestos, as well as BSE. In light of the expanding role of
supra-governmental bodies, domestic risk management has become, for individual European nations, more a matter of implementation. For the UK, this meant the development of regulations that meshed with the existing European framework.
In fact, as we shall see, after decades of a rather cavalier approach to asbestos management, the UK even went so far as to pre-empt some of the European legisla- tion and pass their own regulations, or they adopted the European regulations well before their implementation deadline.
The recent era of asbestos risk management can therefore be characterized not only by the increasing role of the EC/EU, but also by the continued employment of institutional measures to regulate asbestos at the domestic level. The HSC and the HSE continue to play a central role in asbestos risk management, with new policies passed as recently as November 2006, with enforcement beginning in April 2007. Similarly, the domestic regulatory focus shifted very much toward safety in the maintenance and removal of asbestos, as its production had more or less stopped.
The recent era of asbestos management in the UK can therefore be character- ized as demonstrating a clarification and solidification of institutional and regu- latory mechanisms to deal with the asbestos problem. However, this may not be entirely true for the communication of the risks. To be sure, asbestos has not
“fallen off the radar screen” – the risk issue per se is still regularly brought up in newspaper articles describing in detail the deaths caused by asbestos-related cancers (Pye 2007), fire fighters still receive treatment after asbestos exposure (Forster 2007), and the asbestos risks associated with ship dismantling are still reported (Churchard 2007). The terrible legacy of the early periods of asbestos management – or lack thereof – has etched itself into the minds of the British public, with the negative side-effects of exposure now being common knowl- edge. That being said, it is still difficult to characterize these recent approaches to risk communication approaches because (1) the risks are now well known, and (2) there seems to be a separation between the HSE’s provision of informa- tion about asbestos and its associated approach to risk-management regulation on the one hand, and the mere reporting of asbestos-related problems by the media on the other.
The following – and final – section on the strategic management and communi- cation of the risks related to asbestos consequently focuses on the institutional mechanisms now in place for dealing with these risks in the UK, and it provides the basis for drawing conclusions from this case study.
Relevant Actors in the Use and Management of Asbestos
As mentioned in the introductory section, the period from 1999 to the present has continued to be one in which the HSE and HSC have played a central role in the strategic management of asbestos. For example, in 1999 the EC/EU intro- duced a ban on chrysotile asbestos that started to be implemented in 2005.
A new actor in this recent period of the strategic management of asbestos in the UK has been the insurance industry. In the context of the current broad acceptance of a clear association between asbestos exposure and respiratory diseases such as mesothelioma, and the history of negligence on the part of the asbestos industry, the insurance companies have come to play a central role in negotiating risk relationships and compensation. Although the evolution of compensation levels for asbestos exposure are briefly covered below, it is important to note that between 2001 and 2004 two large insurance companies “went bust” in the UK,
“partly due to the escalating number of claims for asbestos-related diseases”
(Budgen 2004, p. S78).
The Institutional Framework for the Management of Asbestos Risk
Clearly, the British courts and the insurance industry are parts of the institutional framework responsible for dealing with the management of asbestos risks. These institutions are responsible for responding to the failures of risk management strategies, and are thus reactive in nature rather than policy and regulatory institutions that would hopefully be more proactive, preventative, and precautionary.
In the UK, there are currently three courses that can be followed for settling a compensation claim for asbestos exposure: “The first is state social security through a prescribed industrial disease system called ‘Industrial Injuries Disablement Benefit’
(IIDB). IIDB covers those suffering from asbestosis, mesothelioma, lung cancer (with pleural thickening, or asbestosis) and bilateral diffuse pleural thickening.
The second route is through the state no fault compensation scheme: under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, payments can be obtained if no relevant employer is still in operation (and provided disablement benefit has also been paid to the applicant in respect of the prescribed disease). The condition is that the applicant has not already brought any action, or compromised any claim, for damages in respect of the injury complained of. Thirdly, a civil claim can be made for damages. These can be pursued for all of the diseases referred to previously, plus symptom-free pleural plaques” (Budgen 2004, p. S78).
The more proactive institutions involved in the risk management of asbestos are the EC and the domestic HSC and HSE. It should be noted that the WHO has also been involved with risk management related to asbestos,14 but since the EC adopted its ban on the further use of asbestos in production processes, its role has been that of arbitrator (Greenberg 2004, p. 540).
Given that the HSC and HSE are the main institutions responsible for the strategic management – as well as, to a certain extent, the communication – of many risks,
14 An issue that will surely come up in the French case study of asbestos.
including asbestos, it is perhaps worthwhile to describe in detail its organizational structure and current mode of operation.
The HSC is responsible for health and safety regulations in Great Britain.
The HSE and local governments are the enforcement mechanisms that support the Commission. The HSC is lodged within the Department of Work and Pensions and reports to the Parliamentary Under Secretary for Work and Pensions.
The HSE and HSC try to base their operations on five principles, which then govern decision-making. The principles are (1) targeting of action: a focus on the most serious risks or where the need for greater control of hazards is greatest; (2) consistency: the adoption of similar approaches to similar circumstances to achieve similar ends; (3) proportionality: the requirement for actions that are commensurate with the risks; (4) transparency: openness to how decisions were arrived at and their implications; and (5) accountability: making clear who is accountable when things go wrong (Health and Safety Executive 2001, p. 19).
The literature published by the HSC and the HSE states – in keeping with the above mentioned principles – that these British risk-management institutions have followed six procedural stages: (1) deciding whether the issue is primarily one for HSC/HSE to handle, (2) defining and characterizing the issue, (3) examining the options available for addressing the issue, as well as their merits, (4) adopting a course of action for addressing the issue efficiently and in good time, informed by the findings of the second and third stages and with the expectation that as far as possible the actions will be supported by the stakeholders, (5) implementing the decisions, and (6) evaluating the effectiveness of the actions taken and revisiting the decisions and their implementation if necessary (Health and Safety Executive 2001, p. 21).
These stages do not apply universally to all risk-management decisions under- taken by the HSE and HSC. Because the system was built over time, because many of the regulations emanate from the EC/EU, and because some situations call for the circumvention of one or more of the steps, the six stages should be considered more as a sociologically “ideal type” of risk-management decision-making stages (Health and Safety Executive 2001, pp. 21–22).
In the document entitled “Reducing risks, protecting people: HSE’s decision- making process,” the HSE states a number of conventions that they follow when undertaking risk assessments. To be sure, these are some of the same conventions used in the HSE’s risk assessment decision-making process, but they are nevertheless listed as follows:
Actual and Hypothetical Persons This convention refers to the fact that when conducting a risk assessment exercise, real people need not be involved; rather, the assessment can be undertaken by a “hypothetical person […] as an individual who is in some fixed relation to the hazard.” This use of the hypothetical person is beneficial in the sense that the authorities do not need to wait for a hazard to take place and to affect people before they conduct a risk assessment; it allows the authorities to assess the risk for people in general rather for variations in individuals’ “physical make up, abilities, age, and the circumstances giving rise to their exposure” (we should note that a number of hypothetical persons are normally incorporated in the risk assessment to represent a particular at-risk population). It thus avoids the difficulty of
having to “extract and distil useful information from all the individual assessments”
(Health and Safety Executive 2001, p. 53).
Standards The results of assessments done in relation to hypothetical persons are also used for the adoption of standards. Standards can be regarded as generic control measures that must be applied to eliminate or reduce the risks for a particu- lar hazard. The scope of the standard is set by specifying the circumstances in which the hazards give rise to the risk. One feature of using standards is that once adopted they may be regarded as applying to the hazard rather than to the risk in the sense that they are applied to control risks whatever the circumstances, for example, however short the actual exposure to the hazard (Health and Safety Executive 2001, pp. 55–56).
Procedure for Handling Uncertainty This is perhaps the most interesting of the three conventions and is illustrated in Fig. 3.3, which is reconstructed from the HSE document (Health and Safety Executive 2001).
In this figure, the vertical axis corresponds to the relative certainty that a risky event will actually take place, whereas the horizontal axis corresponds to the relative certainty about the outcome of that risky event. In the case of asbestos, a conventional risk assessment can be reliably applied because it is well known that the handling and maintenance of asbestos is bound to take place, as the mineral is present in our walls, floors, and ships. A conventional risk assessment for asbestos is also feasible, because the consequences of asbestos exposure are now well known: death by mesothelioma or asbestosis. For the HSE, uncertainty is handled at the bottom of the vertical axis – where likelihood of the risky event is increasingly unknown – by assuming “that the event will be real- ized by focusing solely on the consequences” whereas the far right of the hori- zontal axis – when the outcome of a risky event is increasingly unknown – “putative
consequences increasingly uncertain
likelihood increasingly uncertain
conventional risk assessment
emphasis on consequences, e.g., if serious / irreversible or need to address societal concerns
rely on past experience
consider putative consequences and scenarios towards ignorance
Fig. 3.3 Procedures for tackling uncertainty when assessing risks
consequences are deliberately assigned to the hazard” (Health and Safety Executive 2001, p. 56).
Policies, Regulations, and/or Legislative Acts Based on the Institutional Frameworks
Given that the EU and EC, as well as the HSC and HSE, are now the main institu- tions responsible for the strategic management of asbestos risks, it is worthwhile to briefly outline some of their primary policy contributions to resolving the asbestos problem.
In July 1999, the EC announced an EU ban on the use of all remaining chrysotile by January 1, 2005. This ban does not mean that all chrysotile should be removed and disposed of, but rather that it should no longer be used in any production processes. An important rider was attached to the ban, stipulating that exemptions could be applied for if no substitute substance could be identified and there would be no health or environmental damage. The UK implemented the ban in October of 1999, 3 months later – and 5 years ahead of schedule. Bartrip notes that other EU countries beat the deadline and/or introduced their own domestic bans (Bartrip 2004, pp. 74–75).
The most recent piece of domestic legislation to be introduced in the UK was the Control of Asbestos Regulations that was issued on November 13, 2006, and came into force in April 2007. This 2006 regulation brought together and replaced three existing pieces of legislation: the Control of Asbestos at Work Regulations of 2002;
the Asbestos (Licensing) Regulations of 1983, as amended; and the Asbestos (Prohibitions) Regulations of 1992 (Prohibitions Regulations), as amended.
“The Regulations prohibit the importation, supply and use of all forms of asbestos.
They continue the ban introduced for blue and brown asbestos in 1985 and for white asbestos in 1999. They also continue the ban on the second-hand use of asbestos products such as asbestos cement sheets and asbestos boards and tiles; including panels which have been covered with paint or textured plaster containing asbestos”
(Health and Safety Executive 2009). Again, these regulations apply solely to future (new) use of asbestos. Existing asbestos materials that are maintained in good condition can be left as they are, as long as they are monitored and they are not tampered with or removed without protection (Health and Safety Executive 2009).
Successes and Failures of Those Frameworks and Resultant Policies
It is, for a number of reasons, difficult to appraise the above-mentioned risk- management strategies regarding asbestos because (1) they are relatively recent, and (2) the damage has already been done.
Because most of the “risky” asbestos exposure took place in earlier eras, the UK will soon enter a stage in which it can truly assess the significance and magnitude of the risk-management policy failures of these earlier periods. In 1995 the well-known Professor Julian Peto, who holds the Cancer Research UK Chair of Epidemiology, predicted that male deaths from mesothelioma in Britain will peak at between 2,700 and 3,300 per year around the year 2020, as illustrated in Fig. 3.4 (Peto et al. 1995, p. 537).
Bartrip cites De Vos (1995) and Webb (1995) in predicting more startling figures, as high as 10,000 per year for British males by 2020 (Bartrip 2004, p. 75). As a result of these late-onset side-effects from earlier exposure, the current risk-management strategies adopted during this most recent era may be inadequate. Further, because exceptions are allowed under both European and UK domestic bans only if alternative sources are absent and the health and environment damage can be contained, there will no longer be serious question about whether we have really “seen the last” of the asbestos issue. One remains hopeful that the legislation and regulations in place to deal with current and future problems related to asbestos maintenance and removal will protect the workers in question; however, because it takes so long for asbestos-related diseases to develop and kill their victims, by the time such a judgement is made it may be too late. This is the lesson that history has taught us in this case.
Fig. 3.4 Predicted mesothelioma death in British men and UK asbestos imports (adopted with revisions from Peto et al., 1995)
3500 3000 2500 2000 200
150
100
1900 1920 1940 1960 1980 2000 2020 2040 year
Annual UK asbestos imports (1000 tons)
1500 1000
500 0
Annual number of male mesothelioma deaths
50
0
All men (assuming risk to men born after 1953 is 50% of 1943-48 birth cohort Men born
before 1953
Improvements and Reforms of Possible Policy Failures
The recent era of risk management and communication with regard to asbestos has borne witness to a certain crystallization of the institutional mechanisms responsible for the strategic handling of the now well-known hazard, which has meant clear roles and responsibilities for both the HSC/HSE and the EC/EU.
We have already remarked that shifting asbestos risk-management from the private industrial sector and institutionalizing it within the state apparatus represents a major step forward. Similarly, successes and failures of management and commu- nication in this 1999–2007 era are difficult to assess at this juncture because the mechanisms are relatively new and the UK is just beginning to feel the brunt of the failures of previous eras.
With that said, additional remarks can be made about a number of significant characteristics of this era of risk communication and the management of asbestos.
First, in Table 3.4 we compare the major areas of policy that the Health and Safety Commission has identified since its inception in 1974/6 to the more recent priorities it identified in 2003/4.
An examination of Table 3.4 shows a clear shift in priorities of the main risk- management agency in the UK. This shift in priorities arguably signals a movement away from law enforcement and/or the regulation of dangerous products such as asbestos, towards securing and enforcing the safety of all work environments.
Does this change signal an “end” to the asbestos threat? Does it mean that British risk managers are “getting soft” on hazardous materials such as asbestos? Although the HSE readily admits that “the mid-1990s saw some decline in enforcement activity while the focus shifted to addressing some of the organizational and management deficiencies underlying poor health and safety” and that “there has been a move back towards enforcement in recent years … in particular … enforcement powers to target high-risk areas” (Health and Safety Executive 2004, p. 9), a broader – and perhaps more historical – explanation can aid our understanding of this transition.
The time for regulation of hazardous products and heavy chemicals such as lead, vinyl chloride, and asbestos has passed. Either there were no UK regulators as such
Table 3.4 Priority areas targeted by the Health and Safety Commission Major areas of policy work listed in first annual
report 1974–1976
Priority programmes listed in 2003/2004 annual report
Vinyl chloride code of practice Falls from height
Lead code of practice Workplace transport
Dust Musculoskeletal disorders
Asbestos Work-related stress
Fire precautions Agriculture
Tanker marker scheme Construction
Safeguarding of machinery Health services
Flixborough report Slips and trips
Major hazards branch Government ‘setting an example’
Source: Health and Safety Executive 2004.
when regulation was needed or they simply missed the boat. The entire nation has paid for this tardy ineptitude.
Further, the climate of the risk world has changed. It would appear that the days have passed in which the mining and handling of hazardous chemicals and compounds presents serious uncertainty for regulators. Dealing with asbestos is a dangerous activity, and the certainty of health damages following asbestos exposure has been well known for a long time. However, this fact has been denied or debated for political and economic reasons:
Those unfamiliar with the history of asbestos may wonder why over 40 years have been spent in such intensive research on a mineral that already had a disastrous record by the 1960s. It is explicable only in terms of the actions of asbestos mining and manufacturing interests, which in the mid 1960s set out to prove that chrysotile did not cause mesothelioma, thereby turning this cancer into a problem of fibre type. (Tweedale & McCulloch 2004, pp. 257–258).
Although asbestos has certainly not left public consciousness or entirely disappeared from the HSE and HSC agenda, there is little doubt that attention is now focusing on areas in which there is high uncertainty about the probability of a risky event taking place. As the HSE itself explains:
It is also worth noting that though more information frequently leads to a decrease in uncertainty, it does not necessarily change the probability of an event. For example, though frequent inspections of a critical component may reduce the uncertainty regarding the probability of the component failing within a period of time, the inspections do not reduce the probability of the component failing unless action is taken to remedy the situation (Health and Safety Executive 2001, p. 56).
Consequently, the regulatory environment in the UK appears to be concentrating on developing an understanding of the large and complex systems that can poten- tially account for new risks, such as biohazards and infectious diseases. Given the speed at which these risks can spread as biological agents, and the opaque network of actors involved with, for example, the agriculture and farming industries, new approaches to the strategic management and communication of risk must be developed in Britain.