Issue 30: Spring 1998
It will not have escaped our readers' attention that the acronym for the British Asbestos Newsletter is: BAN. Since the inception of this publication, it has become increasingly clear that a prohibition on the use and marketing of all forms of asbestos is essential. Steady progress towards a ban on chrysotile in the UK and Europe was being made until developments took an unexpected turn. The complexity of events and the serious implications for public health and safety have impelled us to take the unusual step of devoting an entire issue of the newsletter to a detailed analysis of this situation.
Asbestos Ban: Detour or Defeat?
Economic threats and political pressure have affected the momentum for an asbestos ban which had been building up in Britain and Europe over the last two years. Observers suspect that representatives of the Canadian government working closely with asbestos lobbyists were responsible for unexpected developments which occurred at the Health and Safety Commission (HSC) in London and at the European Commission (EC) in Brussels early this year. HSC predictions in 1997 that the EC "will bring forward proposals for harmonising a Europe-wide ban, based on scientific evidence about the relative risks from chrysotile asbestos and substitutes in the near future" have begun to look less certain.
Since it came to power last year, the Labour government has committed itself to an asbestos ban on several occasions. Government spokespersons have promised to: "deal effectively with the problems of asbestos," "support the EU activity to ban the supply of all asbestos" and "reduce the death toll from asbestos." In June, Junior Environment Minister Angela Eagle told the House of Commons that "a mechanism for introducing a domestic ban on the import, supply and use of asbestos" was being investigated by the HSC, an independent body charged with advising the government. On February 17, Eagle reiterated the government's intentions at a meeting of asbestos experts, union officials, health activists, MPs and interested parties in the House of Commons. In a televised interview on March 13, Eagle said that a European ban on white asbestos is: "a main priority of the British presidency of the European Union... I certainly hope that we will have got the ban in place by the end of the presidency (June, 1998)." On April 1, the Environment Minister wrote: "The Government has already announced its intention to ban white asbestos and maintains that there is a strong case for banning white asbestos...."
According to an official HSC publication, proposals for the prohibition of chrysotile were being worked on throughout 1997/98. At the beginning of March, copies of a Draft Consultative Document on Asbestos Regulations were distributed by the HSC to commissioners prior to a meeting in London on March 10. This paper called for a ban and questioned "the wisdom of continuing to use chrysotile (white) asbestos in Great Britain." It recalled "the tragic legacy left by the historical underestimate of the health risks from other forms of asbestos (which) reinforces the argument that a general prohibition on chrysotile is the only prudent way to ensure the number of potential victims in the long term future are reduced." Just days before the March 10 meeting, a revised draft was issued from which all mention of a ban had been deleted. Those who attended the meeting in London were stunned to hear the HSC spokesperson announce that a ban was not being recommended at this time. Where the HSC had been "confident that existing and emerging evidence on the relative risks from chrysotile asbestos and substitutes provide a sound scientific basis on which to justify wider prohibitions," it was now claiming that scientific evidence on substitutes was "insufficient to determine their relative safety."
What happened in such a short time to change the "independent advice" of the HSC? Labour MP Michael Clapham (Barnsley West and Penistone) believes that the "order to drop the import ban from the consultation documents will have come from on high in the Labour administration, and I suspect, it may well have come from No. 10." John Edmonds, General Secretary of the General and Municipal Boilermakers Union and President of the Trades Union Congress, protested that: "only government interference from the highest level can explain this HSC U-turn. God knows what caused this irresponsible change of mind." Edmonds suggested that "the real reason that the government has delayed the ban was to win the support of Canada, a big asbestos producer, in lifting the BSE export ban on British beef."
Suspicions of a trade-off involving Canadian asbestos and British beef are rife. On March 5 and 6, the Canadian Food Inspection Agency confiscated a range of British processed food products including Baxter's Highlander Broth, Atora (Beef Suet), Bisto Gravy Granules, Bovril, Heinz Baked Beans and Pork Sausage, Heinz Oxtail Soup, Spam, Vesta Chow Mein and twenty-seven other categories of food imports from two specialist retailers in Calgary. Canadian officials claimed that: "the products were imported without proper inspection certificates... (and are) not verified as meeting Canadian food safety standards." Many of these products are standard British fare and are considered 'delicacies' by British ex-pats in Canada. As it is likely that these goods have been sold in Canada for some considerable time, the obvious question is why did the Canadian authorities choose to seize these items less than a week before the HSC was due to its announce plans to ban chrysotile?
The HSC press release of March 11 justified the asbestos volte-face by referring to an EC report by the Scientific Committee on Toxicity, Ecotoxicity and the Environment (CSTEE). Surprisingly, Dr. W. J. Hunter, the EC official with overall responsibility for public health and safety at work, believed that this report should not be "interpreted as being a recommendation that white asbestos should not be banned." The CSTEE was set up in July, 1997 as an independent body under the auspices of Directorate-General (DG) XXIV; it was one of a number of consumer health protection committees which were established to provide "high quality scientific advice for the drafting and amendment of Community rules" after the BSE debacle. The remit for the CSTEE is to investigate "chemical, biochemical and biological compounds whose use may have harmful consequences for human health and the environment." Last Autumn, DGIII (industry) asked the committee's opinion on a paper it had commissioned previously entitled: Recent Assessments of the Hazards and Risks Posed by Asbestos and Substitute Fibres, and Recent Regulation of Fibres World-Wide by Environmental Resources Management (ERM; June, 1997). A working group of four CSTEE members, chaired by Professor Terracini, conducted a peer review of the ERM paper; the full opinion was issued on February 9 and can be accessed via the internet.
During its deliberations, the only documents the CSTEE working group consulted were a draft copy of an International Programme on Chemical Safety (IPCS) paper and a commentary on the ERM paper written in September, 1997 by Dr. Graham Gibbs (known to have strong links to the Canadian asbestos industry), Jacques Dunnigan, formerly the Director for Health and Environment at the Asbestos Institute in Quebec, and others. Where the ERM report found that: "exposure to commercially available chrysotile asbestos poses increased risks for asbestosis, lung cancer and mesothelioma in a dose dependent manner; no threshold of exposure has been identified below which chrysotile asbestos does not pose carcinogenic risks," the CSTEE opinion concluded that: "it is not possible to be certain whether or not there is a true threshold dose for lung carcinogenesis or mesothelioma. It may be appropriate in the absence of definitive information to assume that there is no safe dose of chrysotile." Where ERM concluded that "each of these types of fibre (substitute) is likely to pose less of a risk to human health than chrysotile," the CSTEE decided that it was unclear whether "specific substitute materials pose a substantially lower risk to human health... than the current use of chrysotile." Doubts have been raised about the naiveté of CSTEE members and the almost complete lack of asbestos expertise on the committee. The absence or inadequacy of vetting procedures for material submitted to the committee has also been criticized. In particular, giving credence to material volunteered by the governments of Canada and Quebec through the Canadian Embassy in Rome is viewed as questionable at best and suspect at worst. One EU source wryly commented that the CSTEE seemed more receptive to the Canadian critique of the ERM report than the ERM report itself because the former was structured as a scientific paper while the latter was written in a more narrative style. Yet another example of Canadian co-operation was a series of five articles on mesothelioma which was submitted to the Argentine journal: Salud Occupacional by The Asbestos Institute, a body set up to "maximise the use of existing resources in a concerted effort to defend and promote the safe use of asbestos on a global scale." The articles published last year espoused the relative safety of chrysotile; no evidence of peer review was provided.
The document which should have been pivotal in the deliberations of the CSTEE but seems to have been given short shrift was the report commissioned in 1996 by the United Nations Environment Programme, the World Health Organisation (WHO) and the International Labour Organisation within the framework of the IPCS entitled: Environmental Health Criteria Document on Chrysotile Asbestos. Fourteen international experts selected to work on the IPCS project convened in Geneva in July, 1996 to finalize the text; many of those in attendance had first-hand knowledge of asbestos issues including Professor John Dement (Vice-Chairperson), Professor Julian Peto, Professor Arthur Langer and Dr. Leslie Stayner. According to the WHO: "More than 140 IPCS contact points - collaborating centres, institutions and individuals both in developed and developing countries - were involved in the preparation of the evaluation of chrysotile, which was reviewed by 17 experts from 10 countries: Austria, Canada, China, Croatia, Finland, Germany, Italy, Japan, the United Kingdom and the United States of America." The 1998 draft of the conclusion section finds that: "Exposure to chrysotile asbestos poses increased risks for asbestosis, lung cancer and mesothelioma in a dose dependent manner. No threshold has been identified for carcinogenic risks. Where safer substitute materials are available for chrysotile, they should be considered for use. Some asbestos-containing products pose particular concern and chrysotile use in these circumstances is not recommended... Construction materials are of particular concern." Because of a backlog in the workload of the IPCS, this report has not yet been published; it is expected to be available in the Summer, 1998.
Despite the CSTEE's controversial findings, the EC department with responsibility for the marketing and use of asbestos (DGIII) continues to support "a Community wide ban on chrysotile asbestos with exemptions." It is hard to see how they can do otherwise as nine out of fifteen European Union (EU) member states currently operate national asbestos bans. The Council of Ministers in Belgium passed a law banning asbestos on January 30, 1998. The other eight EU nations with asbestos bans are: Austria, Denmark, Finland, France, Germany, Italy, the Netherlands and Sweden. Of the remaining six EU members Spain, Portugal and Greece are firmly opposed to a ban, Luxembourg has evinced support for a ban, Ireland has intimated that it might support a ban if transitional arrangements were acceptable and the UK has a fundamental commitment to an eventual ban. At the European Parliament on March 19 Mr. Reichenbach, the head of DGXXIV, confirmed that his directorate supported the implementation of an EU-wide ban as soon as possible; Reichenbach believes that the CSTEE opinion should not be allowed to impede progress. There are two processes by which an EU ban could be implemented: officials from member states could update current EU legislation on the marketing of chrysotile (Directive 91/659/EEC) on the basis of technical progress or a new Council Directive could be passed by Ministers. The first option is by far the more straight-forward and expeditious.
On March 3, the asbestos working group of DGIII met to discuss the implications of the CSTEE opinion. The group concluded that the report neither supported nor undermined a ban on chrysotile. At the end of the day, the working group decided that the CSTEE's advice constituted only one piece of information; other factors, including economic and political issues, also needed to be taken into account. It is perverse but plausible that one repercussion of not adopting an EU ban on chrysotile, could be the punishment of member states which refuse to import asbestos products for infringing free-trade regulations. Where the scientific questions are unresolved it is up to DGIII to decide the matter on the basis of all available information. Staff at DGIII have been liaising with French researchers and HSC personnel to gather additional information on substitutes to submit at the next CSTEE meeting on April 24. Should the information not be available by then, it will be held over until the next meeting which is on June 15.
Although proceedings have not yet been brought before the World Trade Organization (WTO) dispute settlement body, Canadian representatives are clearly agitated. Last Summer, the Canadians raised objections to the 1997 French ban on chrysotile at the WTO's Committee on Technical Barriers to Trade (TBT). The matter was still pending and further submissions were anticipated at the TBT meeting on March 27; however, events overtook these proceedings. According to a WTO source, the French ban was not even discussed at the three-hour TBT meeting in Geneva. Canada, supported by Brazil, raised a procedural question on the failure of the Belgian government to notify the WTO of recent measures limiting the marketing, manufacture and use of asbestos. A representative of the European Commission, who spoke on behalf of Belgium, confirmed that a royal decree on this subject had been adopted by the Belgian government on February 3; notification will be made to the WTO in due course at which time the subject will be open for discussion at the TBT.
It is not surprising that Brazil supported Canada's motion at the TBT; as well as being the world's fifth largest asbestos producer, Brazil is also one of its principal consumers. Most of Brazil's asbestos is mined by a consortium backed by the Swiss Eternit group and the French company Saint Gobain; asbestos is banned in both Switzerland and France. One suspects that the disparity of trading in a substance which is now illegal in France was not lost on a jury in Texas when it was deliberating a case brought against Carborundum, a wholly owned subsidiary of Saint Gobain. In February, the lawyer representing twenty-one steelworkers with asbestosis asked the jury to "send a message all the way to France and all the way to Brazil;" the jury responded by awarding the plaintiffs $115 million. A bill to ban the use of asbestos was rejected by the Brazilian Parliament in 1993. Subsequently, a substitute bill guaranteeing the continued use of asbestos was passed. In October, 1997 a new regulation was approved which permits increased chrysotile exploration in Brazil. The Brazilian Labour Ministry employs 628 inspectors to supervise 1,219,389 commercial operations; this corresponds to a quarter of the inspectors required to visit each site annually. Over recent years inspections of asbestos factories have uncovered conditions which were, according to one inspector, frankly "out of control." In March, officials from the Sao Paulo office of the Ministry of Labour conducted spot checks on three facilities belonging to the Tonolli aluminium company in the Paraiba Valley region. A number of irregularities were discovered which violated existing labor legislation and consumer rights; illegal, unlabelled asbestos-containing receptacles were being used for holding and transporting molten aluminium. The company received a warning but was not prosecuted. The concept of "controlled use" of asbestos in Brazil is in practice a nightmare; one suspects this is also the case elsewhere.
Yet the mining and processing of chrysotile does not seem to present a problem to the Canadian authorities. A brochure circulated in North America invited tourists to "experience an opportunity of a lifetime by taking a guided tour of an asbestos mine still in operation. Getting information on asbestos-made products... visiting extraction, packing and shipping sites are just a few things outlined for you during your visit." In early April, a group of UK journalists may have the good fortune to share these experiences; the Canadian High Commission has invited selected reporters from the national press and health and safety journals to Canada on an asbestos fact-finding mission. It is obvious that the sponsors of this trip hope the UK media will be as receptive to the 'party-line' on chrysotile as their French colleagues were; an earlier trip of French journalists resulted in a crop of pro-asbestos pieces in the French media. It seems ironic that at the same time as tourists and journalists are being invited to explore the asbestos industry, the Canadian Labour Congress is supporting a national Prevent Cancer Campaign aimed at reducing the high incidence of cancer among Canadians. In 1998, one in three Canadians will face a lifetime risk of contracting cancer; in the 1970's the figure was one in five, in the 1930's it was one in ten. Local union activists are being urged by the Canadian Autoworkers Union to identify and eliminate workplace hazards and to support community action in order to reduce the incidence of work and environmentally-related cancers.
In a unanimous decision in February, the Supreme Court of Canada overturned judgements of the Superior Court of Quebec and the Quebec Court of Appeal in the case of Succession Guillemette v. J.M. Asbestos. One of the crucial questions underlying Justice Foget's decision was who bears the consequences of unclear scientific evidence. The Supreme Court upheld the findings of a specialised tribunal which had originally awarded workers' compensation to the widow of an asbestos miner who died of lung cancer even though he had never been diagnosed with asbestosis. Although the epidemiological data were not conclusive, the tribunal had been satisfied that the evidence was sufficient; particularly given the fact that asbestosis, lung cancer and mesothelioma are listed as scheduled industrial asbestos-related diseases in Quebec. On February 23, 1998, the Supreme Court concurred. It seems that Canadian trade unions and the Canadian Supreme Court are on one side while the Bureau of Tourism and the governments of Canada and Quebec are on the other.
Events in April could influence the outcome of the UK and EU debates on chrysotile. On April 7, the EU Employment and Social Affairs Council will be meeting in Luxembourg to discuss draft council conclusions on the protection of workers against risks from the exposure to asbestos. A briefing document about this meeting notes that: "While the purpose of these conclusions is to address the matter of worker protection when handling or being exposed to asbestos, a great number of delegations felt that a reference should also be made to the need of banning the use of asbestos. As this was not accepted by all Member States (Council conclusions can only be adopted by unanimity), the delegations concerned will probably issue a statement spelling out their position." Germany and the Netherlands are expected to lead the pro-ban forces. On April 22, a report on The Dangers of Asbestos for Workers and the Environment by Tom Cox will be presented to a plenary session of The Council of Europe in Strasbourg. This report was approved last year by the Social, Health and Family Affairs Committee; it concludes that "Europe should make common cause in eliminating future asbestos use and (the Rapporteur) takes the view that legislative bans could be an effective solution to the asbestos problem." Delegates from the forty participating countries, including all the EU members and many East European countries, can accept, reject or adopt the report. Lobbying by the Canadians and Russians is expected to be intense. The adoption of a ban on chrysotile by the Council could be crucial in determining the future of chrysotile within Europe.
Compiled by Laurie Kazan-Allen