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Regulating a miracle substance : the politics of asbestos in Canada and the United States Hein, Gregory Allan 1990

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REGULATING A M I R A C L E SUBSTANCE: T H E POLITICS OF ASBESTOS IN CANADA AND T H E UNITED STATES  By Gregory Allan Hein B.A.H., Queen's University, 1989  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS  in THE FACULTY OF GRADUATE STUDIES (Department of Political Science) We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA August ©  1990  Gregory Allan Hein, 1990  In presenting this thesis in partial fulfilment  of the requirements for an advanced  degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department  or  by his or  her  representatives.  It  is understood that  copying or  publication of this thesis for financial gain shall not be allowed without my written permission.  Department The University of British Columbia Vancouver, Canada  DE-6 (2/88)  ii  Abstract While asbestos has been called a 'miracle substance' because of its unique properties, asbestos has also caused cancer in those exposed to its indestructible fibres. This mix of benefits and costs has made the regulation of asbestos particularly difficult for policymakers; in both countries, regulation has been characterized by exceptional measures. In Canada, regulating asbestos has led to innumerable government studies, including the Ontario Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos (1984). The Commission's Report was unique in its extensive scope and detail. Its three volume report included a detailed treatment of asbestos-related diseases, quantitative risk estimates, and assessments of current regulations. The regulatory history of asbestos in the US was also somewhat exceptional. It involved a protracted battle between the Environmental Protection Agency and the Office of Management and Budget. Out of this battle came a House Subcommittee investigation into OMB interference in EPA rulemaking (1985). The comprehensiveness of the Royal Commission's Report is highly significant given that detailed scientific explanations of policy, and the criteria used to balance costs and benefits are usually not explicitly revealed by Canadian regulators. In this sense, the somewhat anomalous nature of the Commission's Report offers an especially detailed view of regulating hazardous substances in Canada. Like the Royal Commission Report, the House investigation provides an extraordinarily detailed look at the politics of regulating a hazardous substance. Out of these involved deliberations, though, emerge very different policies on asbestos. While the US has implemented a three-stage ban, Canadian regulators view asbestos primarily as an occupational problem. The workplace standards of the US, Ontario and Quebec differ, with the US being more stringent. The contributions of this paper stem from its balanced consideration of scientific and political determinants and its comparative nature. This balanced consideration illustrates the double impact of science. While science can set the boundaries of a policy debate, uncertain areas of scientific evidence are usually politicized by competing interests. Thus, the less science is certain, the more politics matters. Within the boundaries set by science, various political forces have an impact on the policy process. Policies are shown to emerge from very different interrelationships between state structures and societal actors, influenced by varying degrees of economic dependence on asbestos. Group theory alone fails to explain the divergent policy outcomes; so do neo-Marxist and institutionalist approaches. Thus, this study demonstrates the superiority of integrative approaches, as opposed to those which emphasize one causal variable at the expense of others.  iii  Table of Contents Abstract  ii  Table of Contents  iii  List of Tables  iv  Acknowledgements  v  Chapter 1  1  Theoretical Overview Introduction Explanatory Approaches Explanatory Propositions Structure  Chapter 2  The Regulatory Frameworks Overview of the Decisions Current Regulations Conclusions  Chapter 3  Reconstructing  the Decisions  Risk Assessment Benefits Balancing Costs and Benefits Conclusions  Chapter 4  Chapter 5  Interest Representation: Groups and Procedures  14 18 22 26 27 29 36 37 39 41  Interest Groups Procedures Canada US Conclusions  41 45 45 50 54  Explaining the Outcomes  55  Science and its Politicization The Pluralist Approach Rational Choice Theory The Structural Marxist Approach Institutionalism Combining Institutionist and Structural Marxist Explanations Synthesizing the Explanations Conclusions  Appendix A  1 2 12 13  Chronology of Asbestos Decisions  55 59 60 60 66 69 69 71  72  iv  List of Tables  Table I  Current Standards  26  Table n  Risk Estimates  35  V  Acknowledgements  I am doublely indebted to George Hoberg. His work on comparative regulation provided me with the conceptual tools to understand the science and politics of asbestos regulation, while his attentive supervision pointed me in therightdirection when I strayed. I must also acknowledge the help of Alan Cairns and Kathryn Harrison. Their insightful comments on various drafts of this paper were invaluable.  1  Chapter 1: Theoretical Overview  Introduction The ancient Romans believed that asbestos was "magical,"^ while some Canadians have referred to it as a "miracle" substance,^ and "white gold."^ So valuable is asbestos in the use of some products, that manufacturers have viewed it as irreplaceable; they have argued that supposed substitutes are less reliable and often much more costly/* Asbestos minerals take the form of extremely thin and flexible fibres, which at the same time have great thermal stability and tensile strength.-' Along with being incombustible, asbestos fibres are virtually immune to corrosion and decay under most conditions of temperature and moisture. These unique properties make asbestos an attractive substance in the making of many industrial products. Some of these include: asbestos-cement for building products and drainage pipes, fire-resistant insulation, and brake linings. Asbestos, however, also poses some serious health risks.** The properties that make asbestos a useful industrial product also make it a dangerous health risk. The innumerable fibres that make up its structure are so small that they are easily suspended in the ambient air;  Toronto Star. 16 May 1987.1(A). 2 Allan Bass, "On the Road Pushing a Miracle Called Asbestos," Toronto Star. 19 October 1985, 4(B). Barbara Robson, "Rehabilitating the Lethal Image of Asbestos," Globe & Mail. 16 May 1987, 1(D). 4 Robert Hanley, "Asbestos Expert Asks Labour to Press for Research," New York Times, 5 March 1989, 40. ^ Jack Zussman, "The Mineralogy of Asbestos," Asbestos, Leslie Michaels and Seymour Chissick, eds, (Toronto: John Wiley & Sons, 1979), 1:45. ^ There are several types of asbestos: amosite, tremolite, anthophylite, actinolite, crocidolite, and chrysotile. Crocidolite or blue asbestos is argued by many to be the most hazardous. Almost all of asbestos in Canada is chrysotile. 1  3  2  when inhaled these fibres by-pass the protective hairs and mucus of the nasal passage and throat. Once they are inside the body they remain as indestructible as they were outside. Epidemiological studies link asbestos to asbestosis, mesothelioma, and lung cancer. This mix of industrial benefits and health costs makes the regulation of asbestos a particularly difficult task for policymakers. Although the regulation of hazardous substances in both countries relies on scientific knowledge, the asbestos policies of the United States and Canada are very different.  While  the US has implemented a three-stage ban, the Canadian government espouses a philosophy of "controlled use,"^ seeing asbestos primarily as an occupational hazard. Unlike the US, occupational health and safety is a provincial responsibility in Canada. The two most significant workplace standards are Quebec's and Ontario's; while Quebec is the leading producer of asbestos, Ontario is a leading manufacturer of asbestos-containing products. Workplace standards in the US, Ontario, and Quebec differ, with the US being more stringent. In trying to explain these differences, five explanatory approaches will be considered, each with distinctly different views of the distribution of power and of the determinants of policy outcomes: a technocratic approach, pluralist theory, rational choice theory, neo-Marxism, and institutionalism. The scholarly literature on comparative occupational and environmental regulation, which combines elements of the five, will also be examined. Out of this consideration emerges a series of propositions, which roughly fall into four categories: science, interest group politics, economic dependence, and institutional arrangements.  Explanatory Approaches The technocratic approach is unique among the four in placing importance on forces external to the political process. Instead, it emphasizes the similarity of problems faced by all industrialized societies, and the similarity of their responses. All industrialized countries, for  Marcel Masse, Press Conference on Asbestos, Sept. 12,1989, #113.  3  example, must deal with the regulation of hazardous substances. Convergence is also 8  encouraged by the responses to these broad forces. Increasingly, the problems facing policymakers are highly technical. This leads to greater use of the expert in policymaking. It is the character of this expertise which contributes to convergence. "Science," Brickman et al write, "is perhaps the most universalistic force in modern society, governed by strongly consensual norms and methodologies that transcend geography and culture."^ Thus underlying agreement between scientists on causal relationships may encourage policy convergence between countries. Agreement between scientists can also be more explicit. For instance, in work on international collaboration, Peter Haas develops the concept of an "epistemic community," defined as "a knowledge based transnational network of specialists whose members [share] beliefs in cause and effect relations, truth tests, and underlying principled v a l u e s . T h e s e communities influence public policy by defining the range of alternatives. The scientists of the epistemic community "bound the decision space in which policies [are] considered."H The technocratic approach, then, views science as the primary determinant of policy, regardless of political or cultural particularities that countries may have. However, others point out that this impact of science must be qualified.^ The extent that science can encourage policy convergence is directly related to the certainty of scientific evidence, and the level of controversy over regulation. Unfortunately, the extent of scientific uncertainty is daunting from a regulatory perspective. Like the criminal justice system, the principle of limiting false positives underlies much experimental science.^ This has an 8 Some have used this approach to predict convergence of policy outcomes. See Clark Kerr, The Future of Industrial Societies: Convergence or Continuing Diversity. (Cambridge: Harvard University Press, 1983). 9 Ronald Brickman, Sheila Jasanoff, and Thomas Ilgen, Controlling Chemicals, (Ithaca: Cornell University Press, 1985), 129. 10 Peter Haas, "Ecological Epistemic Communities," Paper presented at the Conference on Knowledge, Interests and International Policy Coordination, Wellesley College, Feb. 1990, 1. Ibid, p. 58. 12 Sheila Jasonoff, Risk Management and Political Culture. (New York: Russell Sage Foundation, 1986). 1 A false positive is an indication that a stated hypothesis is true when it is not. 1 1  3  4  extraordinary impact on the regulation of hazardous substances. As Schrecker writes, "tests of the toxic effects of a particular chemical are not considered to substantiate the hypothesis that the chemical causes a particular effect in test animals unless the results can be stated with a high degree of statistical confidence (usually 95%)."^ Uncertainty also pervades epidemiological studies. Difficulties arise in applying scientific control techniques outside the laboratory to mobile human populations. Problems may also stem from having to consider the latency periods of many diseases, and the limitations of existing exposure data. This uncertainty in the risk assessment stage has serious implications for the treatment of issues in the risk management stage. Issues that arise in the regulation of hazardous substances are often neither wholly scientific nor wholly political. As Weinberg writes in his "Science and Trans-Science," questions "may arise in or around science, and can be stated in the language of science, [but] they are unanswerable by science—that is, they transcend science."^ So, although science does have some universalistic qualities, areas of uncertainty tend to be politicized in the risk management phase of policymaking. An approach that emphasizes this universalistic character must be qualified: the more science is certain, the less politics will matter. In addition, the more science is certain, the less cross-national policies will tend to diverge. In the pluralist perspective the state is not seen as an independent actor or force. Public policy is viewed as a rough amalgamation of group interests. Various organized interests compete amongst each other and lobby policymakers for desired policies. Over time some groups will be successful in seeing their policies adopted, but there is no systematic bias in power over policymaking.^ Business interests, for example, will not always win in policy  14 Ted Schrecker, Political Economy of Environmental Hazards. (Ottawa: Law Reform Commission of Canada, 1984), 26. 15 Alvin Weinberg, "Science and Trans-Science," Minerva. 10 (1972): 209. 16 This relationship is explored in George Hoberg, "Risk, Science and Politics: Alachlor Regulation in Canada and the US," Canadian lournal of Political Science. 23 (June 1990): 257-77. 1^ The classic pluralist works are Arthur Bentley, The Process of Government. (Chicago: University of Chicago Press, 1908), and David Truman, The Governmental Process. (New York: Knopf, 1951). For a history of pluralist ideas see David Garson, Group Theories of Politics. (Beverly Hills: Sage Publications,  5  confrontations with labour or environmental groups. This approach allows for cross-national 18  policy divergence resulting from varying balances of power among organized interests. Like the pluralist approach, policy is viewed by rational choice theory as a result of competition among organized interests, but this approach looks inside the group in attempts to explain individual behaviour. This approach emphasizes the difficulties of organizing effective political action in policy areas where benefits are diffuse. When benefits are diffuse, groups will have difficulty in trying to reconcile the varying interests of their members. In these groups, negative and positive incentives will have to be used in order to maintain an adequate level of cohesion. 19 i contrast, groups which have very specific interests will not n  have to overcome many organizational weaknesses. To the extent policymaking is influenced by organized groups, it is biased in favour of concentrated interests. This approach recognizes that business interests are comparatively concentrated, while consumer and environmental interests, for instance, are relatively diffuse. So, business interests will tend to win in policy disputes. This perspective, however, does not explicitly argue that business interests are privileged, as does the Neo-Marxist perspective. In terms of comparative application, this approach would tend to predict convergence because the distribution of costs and benefits is a function of the particular policy area in question^  0  In contrast to both the pluralist and rational choice approaches, the neo-Marxist views politics as class struggle. This approach emphasizes the systematic biases of the policymaking process. A distinction must be made, though, between two strands of this approach: instrumental Marxism and structural Marxism. The former emphasizes the common class  1978). For a more recent example of the pluralist approach see David Vogel, "Political Science and the Study of Corporate Power: A Dissent from the New Conventional Wisdom," British lournal of Political Science. 17 (1987): 385-408, and his "The Power of Business in America: A Reappraisal," British lournal of Political Science. 13 (1983): 19-43. Vogel questions those, like Lindblom, who assert that business has a privileged position. Instead he argues that a new methodology is not needed for measuring the political power of business (17:408). 1 8  19 Mancur Olson, The Logic of Collective Action. (Cambridge: Harvard University Press, 1965). James Q. Wilson, The Politics of Regulation. (New York: Basic Books, 1980).  2 0  6  background of capitalists and government officials/ The latter emphasizes that 1  policymakers must serve the interests of capitalists in order to maintain adequate levels of investment to stay in power.  22  This latter strand is useful in showing that even left-leaning  governments are restricted from implementing reform policies of their choice. A neo-Marxist approach tends to predict convergence, in that almost all policy outcomes will favour business interests, whether in the short or long term. In terms of comparative application, this view leaves some room for policy divergence among capitalist nations, depending on the relative strengths of labour and business in particular countries. This divergence, however, is well within the limits imposed by the capitalist world economy. While the pluralist approach allows for divergence among countries, the neo-Marxist and rational choice theories predict convergence. These three approaches, however, are similar in looking to society for explanations of public policy: the pluralist approach looks to organized interests, the rational choice approach to individuals within groups, and the neo-Marxists to the interests of capitalists. Unlike the other perspectives, the fourth approach is preoccupied with the institutional structures of the state, and the preferences and actions of state officials.  23  This approach  emphasizes the "moulding" effects of institutions, and that governments are not simply "mirrors" of societies/'* Although the other perspectives may consider some structures of the state as important, this view "insists upon a more autonomous role for political institutions" (emphasis added). ^ Some institutionalists make a distinction between macro and meso levels 2  of state structures. Coleman & Skogstad, for example, argue that in order to adequately explain  ^ Nicos Poulantzas, Political Power and Social Classes. (London: New Left Books, 1973). Fred Block, 'The Ruling Class Does Not Rule," Socialist Revolution. 7 (1977): 6-28, and Claus Offe, Contradictions of the Welfare State. (Cambridge: MIT Press, 1984) and C. Offe, Disorganized Capitalism. (Cambridge: MIT Press, 1985); from a somewhat different perspective Charles Lindblom, Politics and Markets. (New York: Basic Books, 1977). This paper will emphasize structural Marxist approaches. This paper will not deal with the latter strand because of research constraints. ^ Alan Cairns, 'The Governments and Societies of Canadian Federalism," Canadian lournal of Political Science. 10 (December 1977): 695-725. 25 James March & Johan Olson, 'The New Institutionalism," American Political Science Review. 78 (1984): 738. 2  2 2  2 3  2  7  public policy, the state must be disaggregated/" They write that broad "macro-level theories of the state do not account for the rich variety of state-society relations being uncovered at the meso or sectoral levels of analysis." ^ Assertions of autonomy or embeddedness at the macro 2  level must be qualified by sectoral studies. In terms of comparative application, these institutionalist approaches predict cross-national divergence to the extent that structures diverge.  It should also be acknowledged that there is a certain degree of overlap between these approaches. Some 'ex-pluralists,' most notably Charles Lindblom, have moved closer to a view that emphasizes the structural constraints erected by capitalism, and the privileged position of business/ Lindblom argues that "pluralism at most operates only in an imprisoned zone of 8  policymaking." ^ This privileged position argument is also espoused by some institutionalists, 2  for example William Coleman. In his Business and Politics he writes that "there is a systematic bias in the Canadian system, which consistently gives the business community a better hearing and considers its demands and proposals more seriously when policies are being designed."^ Some neo-Marxists are also interested in explaining policy outcomes by combining this privileged position argument with rational choice theory. Most notable is Claus Offe's work on the asymmetry of labour and business organizations. Like rational choice theorists, Offe and Wiesenthal examine the collective action of business and labour interests.-^ Unlike rational choice theorists, they argue that there are inherent differences between labour and business ^ Policy Communities and Public Policy in Canada: A Structural Approach, William Coleman and Grace Skogstad, eds, (Mississauga: Copp, Clark, Pitman, 1990), Ch. 1. Ibid, 15. See his Politics and Markets. "The Market as Prison," lournal of Politics. XLIV (1982): 331. 30 William Coleman, Business and Politics: A Study of Collective Action. (Kingston: McGill-Queen's University Press, 1988). While recognizing that business may be a privileged interest, Coleman also argues that business does not always win in policy disputes with its adversaries. 2  2 7  2 8  2 9  31 Claus Offe and Helmut Wiesenthal, 'The Two Logics of Collective Action," Political Power and Social Theory. 1(1980): 67-115.  8  collective action. While capital can make use of three forms of collective action in order to defend its interests, the firm, informal cooperation, and the business association, labour usually only makes use of the association. Moreover, labour has a much more difficult time maintaining the organizational cohesion of its associations. Offe and Wiesenthal argue that "unions are faced with the task of organizing the entire spectrum of needs that people have when they are employed as wage workers," for example meeting both health and economic needs.^ This 2  asymmetry becomes more meaningful when considered in relation to institutional structures, like federalism. Organized interests tend to be fragmented by federalism, however, the significance of this fragmentation is very different for business and labour interests. While labour's only mode of collective action is weakened by fragmentation, business interests can still rely on lobbying by individual firms and informal cooperation with policymakers.-^ It is also important to note that the institutionalists do not reject combining state-centered studies with society-centered. Instead, the focus of study is on the reciprocal causality of the political process: the state influences society, and society influences the state. In her "Bringing the State Back In," Theda Skocpol argues that "studies of the state alone are not to be substituted for concerns with classes or groups; nor are purely state-deterministic arguments to be fashioned in the place of society-centered explanations."-^ Lastly, it should be noted that some rational choice theorists also consider the impact of institutional rules on group behaviour. Most notable is the work of Terry Moe.-^ In his "The Politics of Bureaucratic Structures" he looks at the interaction between groups and state  Ibid, p. 75. See Leo Panitch's discussion of the impact of federal structures and the asymmetry of association in his "Corporatism in Canada?" Richard Schultz, ed, The Canadian Political Process, (Toronto: Holt, Rinehart and Winston, 1979). ^ Theda Skocpol in Peter Evans et al, Bringing the State Back In, (Cambridge: Cambridge University Press, 1985), 20. This combining of state and society-centered approaches is used convincingly in Peter Hall, Governing the Economy: The Politics of States Intervention in Britain and France, (Cambridge: Polity Press, 1986). For Canadian considerations of state-society relations see Alan Cairns, "The Embedded State," Keith Banting, ed, State and Society: Canada in Comparative Perspective, (Toronto: University of Toronto Press, 1986), and Coleman & Skogstad, Policy Communities and Public Policy In Canada.  3 2  3 3  3  3  ^ The Organization of Interests, (Chicago: Chicago University Press, 1980).  9  structures, and how the former try to change the latter to suit their interests.36 He argues that when structural issues are at stake, organized interests are usually the only source of political pressure. So, although this study will consider the four approaches as distinct, it also acknowledges substantial areas of overlap.  The relevant literature^ on comparative occupational and environmental regulation combines these five approaches in varying ways. The limitations of the literature in relation to the case of asbestos will become apparent. Only one deals with Canada, and only one deals directly with a case of divergent processes coupled with divergent outcomes. In addition, all but two deal with science in more than a peripheral way.^ Regardless of their limitations, 8  these six works are heuristically valuable in explaining the case of asbestos. Kelman's Regulating America, Regulating Sweden compares five cases of health and safety standard setting. This work considers divergent processes and convergent outcomes. In trying to explain the latter, Kelman emphasizes the impact of professional ideology. He argues that both American and Swedish bureaucratic officials tend to hold pro-protection values, "arising out of the ideology of the safety and health profession and out of the mission of the organizations they work for."39 Coupled with this is his assertion that interest groups have relatively little impact on agency decisions.^ Badaracco's Loading the Dice looks at the regulation of vinyl chloride in the US, Great Britain, West Germany, France, and Japan. Like Kelman, this study deals with divergent  36 Terry Moe, 'The Politics of Bureaucratic Structures," John Chubb and Paul Peterson, eds, Can Government Govern?. (Washington: Brookings Institute, 1989). Also comparative, but less useful in understanding the regulation of asbestos are Lennart Lundqvist, The Hare and the Tortoise: Clean Air Policies in the US and Sweden. (Ann Arbor: University of Michigan Press, 1980) which considers the relationship between divergent processes and the pace of regulation, and Graham Wilson, The Politics of Safety and Health in the US and Britain. (Toronto: Oxford University Press, 1985) which argues that Britain's corporatist regulatory system is more effective at resolving workplace issues than the adversarial US system. 38 Brickman et al, Controlling Chemicals, and Jasanoff, Risk Management. 3 Steven Kelman, Regulating America. Regulating Sweden: A Comparative Study of Occupational Safety and Health. (Cambridge: MIT Press, 1981), 82. 4^ Kelman, Regulating America, Regulating Sweden. 106-07. 3 7  9  10  processes and convergent outcomes. Badaracco divides these countries into two distinct groups, adversarial and cooperative. His study helps to show the uniqueness of the adversarial US system, which he connects to the structure of power. The fragmentation of power in the American system promotes adversarial decision-making processes, while the centralization of power in other systems creates incentives and opportunities for cooperation.41 Badaracco's dissertation upon, which Loading the Dice is based, also discusses the role of "technical parameters" in trying to explain convergence of outcomes.^ While the upper bound of the 2  parameters is set by knowledge about the hazard, the lower is set by factors of technological feasibility and cost. The different policymaking processes determine where a country set its own standards within the technical parameters.^ Brickman et al's Controlling Chemicals looks at four areas of chemical regulation in the US, Great Britain, West Germany, and France. As with Kelman and Badaracco, this study deals with divergent processes and convergent outcomes. Like the latter, Brickman et al group the countries into two categories, the US adversarial system and the cooperative systems of Europe and Britain. They point out seven differences between the two. Regulatory decisions in the US are supported by more rigorous scientific and economic documentation, and the US has been more concerned with developing generic approaches to rule-making, while the European systems rely more on case-by-case decisions. The US system also allows for more formalized participation to a broader range of interests, legislative oversight is more persistent and demanding than in Europe, the judiciary plays a much more active role in the US, and the US system relies much more on legal coercion in enforcing regulations.^ Brickman et al also explain these divergent processes by emphasizing the different  41 Joseph Badaracco, Loading the Dice: A Five Country Study of Vinyl Chloride Regulation. (Cambridge: Harvard Business School Press, 1985), Ch. 7. 42 See his "A Study of Adversarial and Cooperative Relations Between Business and Government in Four Countries," (Cambridge: Ph.D. diss., Harvard Business School, 1981). 43 This approach has been developed in more detail by George Hoberg 'Technology, Political Structure, and Social Regulation, Comparative Politics. 18 (1986): 357-76, and "Risk, Science and Politics: Alachlor Regulation in Canada and the U.S." 44 Brickman et al, Controlling Chemicals. 40-51.  11  configurations of regulatory power in the two systems. Fragmentation of power in the US system creates intense competition between political actors, which is ordered by highly formal and legalistic procedural requirements. In stark contrast, the concentration of power in the European systems encourages much more informal consultation patterns/*-' Lastly, Controlling Chemicals offers four explanations for the convergence of outcomes. Like Haas, they point out the impact of international cooperation in science, which produces common knowledge. This is reinforced by international organizations, like the EC, which perform standard setting activities. In addition, the international market for chemicals provides an economic incentive to have common regulations. They also argue that both 40  systems foster caution. The European systems are cautious in part because of their stable civil services, while a maze of procedural requirements and fragmented authority foster caution in the American system.  47  Although not explicitly comparative, Noble's Liberalism At Work has implications for comparative study. Out of the six works, his is the only neo-Marxist, arguing that the state is constrained by its dependence on the process of capitalist investment/* All governments—even 8  those that are sympathetic to labour—must maintain "business confidence.'"*^ By looking at the development of the US's Occupational Safety and Health Agency and possible alternatives, Noble tries to show the limits of 'liberal' reform in the US, and the limitations of systems based on cooperative or corporatist arrangements. In contrast to the first four, Jasonoff s Risk Management and Political Culture deals with a case of divergent processes and divergent policy outcomes, and with Canadian regulation. It is also somewhat unique in its emphasis on the impact of political culture. By examining the cancer policies (with special attention to formaldehyde standards) of the US, Canada, Britain,  4 5  4 6  4 7  4 8  4 9  Ibid, 303-07. Ibid, 302-03. Ibid, 303. Charles Noble, Liberalism at Work, (Philadelphia: Temple University Press, 1986), 7-8. Ibid.  12  France, and West Germany, she tries to show that the patterns of interaction between the public and policy experts reflect "fundamental values of a country's political culture."^ For example, the procedures for public participation offered in each system are influenced by cultural factors.^! Unlike Badaracco and Brickman et al, Vogel in his National Styles of Regulation emphasizes the differences between Britain and the rest of Europe. He argues that there are at least three broad national patterns of regulation: the British, the continental, and the American. Concerned more with explaining divergent regulatory styles than policy outcomes, he shows that the British style is distinctive in resting on a business community prepared to defer to public authority, public confidence in government officials, and a public that is not unduly suspicious of the power of business. More specifically, Vogel shows that US agencies have been able to mount aggressive challenges against corporate prerogatives in part because of the vulnerability of the US regulatory officials to nonindustry pressures. In contrast, regulatory authorities in Britain are in a weaker bargaining position vis-a-vis industry because they are relatively isolated from nonindustry pressures.-'  2  Explanatory Propositions Out of a consideration of both the explanatory approaches and the relevant literature on comparative regulation comes a series of propositions, which can be roughly grouped into four categories: (I) science, (II) interest group politics, (III) economic dependence, and (IV) institutional structures.  I (a). The potential unifying role of science is undermined in the case of asbestos because of the extent of scientific uncertainty surrounding the health effects of asbestos. II (a). US asbestos regulation is more stringent because US environmental and labour groups 50 Risk Management, vi. Ibid, 79. ^ David Vogel, National Styles of Regulation: Environmental Policy in Great Britain and the US. (Ithaca: Cornell University Press, 1986). 5 1  2  13 are stronger in relation to business than is the case in Canada. II (b). US asbestos standards are more stringent because American labour and environmental groups overcame the organizational difficulties facing them more successfully than their Canadian counterparts. III (a). Canadian asbestos standards are weaker because the asbestos industry is more important to the Canadian economy than it is in the US. Likewise, Quebec standards have been historically more lenient than Ontario's because the asbestos industry is more important to Quebec's economy. IV(a). Exposure standards in the US are more stringent than Canadian standards because of formalized provisions for the participation of affected interests in the US; labour and environmental interests can make use of notice and comment provisions, the right to petition for agency action, and to petition for judicial review. In contrast, provisions for participation in the Canadian jurisdictions are comparatively weak, to varying degrees. IV(b). Occupational exposure standards in the US are more stringent because of the impact of federalism in Canada. While labour interests are fragmented by the federal structure, business interests are fragmented much less. Moreover, business interests are also represented through individual firm lobbying and informal cooperation with policymakers. This fragmentation weakens labour's only mode of collective bargaining, the association. IV(c). The formalized provisions for the participation of affected interests in the US helped to cross-cut business's privileged position. Although business interests may have more resources to informally lobby elected officials, labour, environmental and business interests have equal access to formalized procedures for participation.  Structure The regulatory frameworks of the three jurisdictions are detailed in Chapter 2, accompanied by an overview of the decisions. After a brief introduction on the health hazards of asbestos, Chapter 3 outlines the areas of scientific dispute in the risk assessment stage, with particular attention paid to the assumptions made by the various 'sides.' This chapter also details the balancing of costs and benefits undertaken by policymakers in the risk management stage. The fourth Chapter considers interest representation. The organized interests involved in both occupational and environmental regulation are outlined, along with the various procedural opportunities to participate in the process. In Chapter 5, the policy outcomes are explained. Finally, the various explanations are synthesized, with the strengths and weaknesses of each being highlighted.  14  Chapter 2: The Regulatory Frameworks  The US and Canadian regulatory systems are very different. While the US system is highly legalistic and places a great burden on agency administrators to meet specific criteria in setting standards, the Canadian systems are based on ministerial discretion complemented by varying levels of consultation with affected interests.^ Although somewhat distinctive in terms of consultation, the Canadian systems are similar in terms of the technical considerations they require. In both the provincial and federal systems, requirements are vague in comparison to those in the US. At the heart of the Ontario system is the minister. The minister's discretion includes the power to set up and appoint members of key decision-making bodies. For example, the minister appoints the members of the Advisory Council on Occupational Health and Safety, and this 2  Council may make rules and pass resolutions governing its procedure "only with the approval of the Minister."^ The functions of this body are exclusively to recommend and advise. The 4  minister "may" also appoint Advisory Committees to assist or advise on any matter arising under the Occupational Health and Safety Act (OH&S Act).^ Although responsibilities are somewhat devolved through the use of these bodies, the power to make final decisions clearly remains with the minister.  See Carolyn Tuohy, "Regulation and Scientific Complexity," Osgoode Hall Law lournal. 20,3 (1982): 59596. OH&SA, sec. 10(6). Ibid. Ibid. Sec. 11(1). 1  2  3  4  5  15  At the administrative center of Quebec's workplace system is the Commission de la sante et de la securite du travail (CSST). This Commission is composed of members from labour, industry, the scientific community, and government. It has the power to identify contaminents or dangerous substances and determine permissible exposure levels. Although the use of the 0  CSST makes the Quebec occupational system more decentralized than Ontario's, the Commission's draft regulations must still be "submitted to the Government for approval," and the government can adopt regulations that the Commission has not. Thus, the Quebec system 7  differs from the Ontario system in the extent of devolution to affected interests. This minister-centered characterization is also reflected in Canadian regulation of nonoccupational exposure to asbestos. Amendment to the Hazardous Products Act's list of hazardous substances (Part I of Schedule I) may be made on the recommendation of the Minister of National Health and Welfare. In addition, a report by the Board of Review, a body established by the Minister, may be kept from the public if the Minister deems this would better serve the "public interest." Although asbestos is not on the Canadian Environmental 8  Protection Act's (CEPA) priority list, it is worthwhile noting that CEPA is also characterized 9  by this ministerial discretion. Section 12 of this Act states that the Priority Substances List shall be compiled and amended by the Minister, and the list "shall specify substances in respect of which the Ministers are satisfied priority should be given in assessing whether they are toxic or capable of becoming toxic."!^ This discretionary character has great implications for standard-setting. Tuohy has observed that "rule-making authority regarding occupational health hazards rests with federal and provincial ministries and cabinets, and few procedural requirements are imposed by  Occupational Health and Safety Act (OH&S Act), sec. 223(3). Sec. 224,225. HP A, sec. 9(5). Asbestos is not on CEPA's list because it is already considered a toxic substance and is regulated under the Clean Air Act. Still, the adequacy of current regulations is under review. Canada Gazette, Part 1,11 February 1989, 543-45. See the 'Current Regulations' section of this chapter. 6  7  8  9  1 0  CEPA, sec. 12(1).  16  enabling statutes."  11  Schrecker notes that with respect to environmental regulation, "rarely, if  ever, does legislation specify in any detail the criteria which are to govern the development of regulations, nor does it set out timetables for achieving particular sets of objectives."* An 2  examination of the relevant legislation for asbestos supports this. The Ontario OH&S Act does list some technical considerations. Section 8 requires the Director, Minister, or person so appointed to consider such factors as the extent of exposure, the availability of substitute processes or substances, and data regarding the health effects of processes or agents.^ This section, however, does not suggest that some of the considerations are more important than the others. In addition, there are no requirements that force policymakers to meet certain timetables.*  4  Quebec's OH&S Act is similarly vague. Chapter XII of the Act sets out the  powers of the CSST, such as those empowering it to "identify" hazardous substances and "determine" exposure levels. However, the Act does not specify how the Commission should make their decisions or establish a timetable for it to follow.* ^ Unlike the Canadian system, with its broad discretion and vague mandates, the US system is highly legalistic and places more of a burden on agency administrators to meet specific criteria in setting standards. This is reflected in both the Occupational Safety and Health Act (OSH Act) and the Toxic Substances Control Act (TSC Act). Most important are requirements for the interpretation of scientific evidence. For instance, section 6(b)(5) of the OSH Act states that "no employee will suffer material impairment of health," and that the development of standards "shall be based on research, demonstrations, experiments, . . the latest scientific data in the field [and] the feasibility of standards."*  0  ** Tuohy, "Regulation and Scientific Complexity," 598. Also, see Richard Brown, "Canadian Occupational Health and Safety Legislation," Osgoode Hall Law Review. 20,1 (1982): 90-118. 1 Schrecker, Political Economy of Environmental Hazards. 10. Sec. 20(8). * In Bruce Doern et al, Living With Contradictions. (Toronto: Ontario Ministry of the Attorney General, 1982) they report that the regulation of asbestos in Ontario did not involve any elaborate or formal written cost-benefit assessments. See page 3.33. 1 See Chapter XII of the Act. 29 USC 651 (1971); 51 FR 22615 (June 1986). 2  1 3  4  5  1 6  17  These requirements must be viewed in the context of Supreme Court decisions. In 1980, industry challenged OSHA's 1 ppm benzene standard, arguing that the agency had failed to determine the dose-relationship between benzene and leukaemia. The Court found that OSHA had to show it was "more likely than not" that exposure at currently allowable limits constituted a "significant risk," and it argued that section 3(8) of the act required standards to be "reasonably necessary or appropriate."  17  This case also established that the agency did not  have to "support its findings . . with anything approaching scientific certainty."* Also of 8  importance is the cotton dust ruling in 1981. In this case, the textile industry challenged OSHA's rule, arguing that it had failed to perform a cost-benefit analysis. The Court, however, forbade the use of formal cost-benefit analysis. *^ Thus, OSHA regulators are forced by the courts to follow comparatively specific requirements. First, although OSHA does not have to undertake formal cost-benefit assessments, its standards must be economically and technologically feasible. Second, although OSHA does not have to support its rules with scientific certainty, it must demonstrate significant risk. Nonoccupational exposure to asbestos in the US is regulated under the Toxic Substances Control Act. The most significant provisions of this Act are sections 6 and 9. The former authorizes EPA to impose certain regulatory requirements on activities involving a chemical substance or mixture "if EPA finds that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance.. presents or will present an unreasonable risk of injury to human health or the environment." ^ 2  Also significant is section 9(a), which requires EPA to review other federal authorities not administered by EPA to determine whether action under those authorities may prevent or  See John Mendeloff, The Dilemma of Toxic Substances Regulation. (Cambridge: MIT Press, 1988), 7-8, and C. Noble, Liberalism At Work, 169-70. 838 Federal Reporter, 2d Series, 1264 (1988). American Textile Mfrs. Institute v. Donovan. 452 US 490 (1981). 54 FR 29460 (July 1989). Unlike the OSH Act, EPA's rules under the TSC Act must not necessarily be economically and technologically feasible. 1 7  1 8  1 9  2 0  18  sufficiently reduce health risks. * 2  These sections were used by EPA in its successful attempts at regulating asbestos under the TSC Act. EPA had to demonstrate that the Occupational Safety and Health Agency and the Consumer Products Safety Commission (CPSC) could not reduce sufficiently the risks of cancer faced by workers, consumers and the general public. In demonstrating its claims EPA cited quantitative risk estimates done by its own scientists, OSHA, CPSC, and the National Research Council.  22  The regulatory frameworks in the US and Canada are thus fundamentally different. In Canada, requirements are vague, and policymakers are granted a significant degree of discretion. In the US, discretion is limited by the greater specificity of requirements, plus the careful review of the courts.  Overview of the Decisions ^ 2  The narrative of asbestos did not begin with one particular event.  24  Instead, awareness of  the possible health hazards of asbestos grew from the first reports by Dr. Irving Selikoff of the Mount Sinai School of Medicine in the mid-1960s. -' His work came to the attention of both 2  Americans and Canadians. Most notably in 1974-75, the Quebec labour union Confederation des syndicats nationaux presented the findings of a study it commissioned Selikoff to undertake.  * Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, US House of Representatives, Report on a Case Study on OMB Interference in Agency Rulemaking: EPA Asbestos Regulations. 1985,17. This section was used by the Office of Management and Budget-and indirectly the Canadian government—in an attempt to subvert EPA's proposed ban. OMB argued that EPA would have to refer the asbestos risk to OSHA and CPSC. Subcommittee Report. 14-15. The appendix to this chapter provides a detailed chronology of the asbestos decisions. Although unrelated to health and safety issues, the history of asbestos in Quebec began with a famous strike in the late 1940s. This strike "was a major historical point at which both a more secularized and militant Quebec labour movement emerged." See Bruce Doern, Regulatory Processes and lurisdictional Issues in the Regulation of Hazardous Products in Canada. (Ottawa: Science Council of Canada, 1977), 105. This strike also marked the beginning of Jean Marchand and Pierre Trudeau's political careers. See Pierre E. Trudeau, ed, The Asbestos Strike. (Toronto: James, Lewis, and Samuel, 1974). 2  2 2  2 3  2 4  25 Report of the Royal Commission on Matters of Health and Safety Arising From the Use of Asbestos in Ontario, (Toronto: Ministry of the Attorney General, 1984), 1:115. The Commission's report will subsequently be cited as Royal Commission on Asbestos.  19  The study was commissioned in order to refute earlier epidemiological studies done at McGill University which concluded that workers in the chrysotile mining industry had a lower mortality than the population of Quebec of the same age. ° In contrast, the Selikoff study 2  showed strong links between asbestos and lung cancer among Quebec asbestos workers, and showed that asbestos had effects on the general population. This growing concern led to 27  Quebec's Beaudry Commission, which in 1977 recommended that the permissible level should be lowered to 2 fibres per cubic centimetre (f/cc). Although concerns over the effects of asbestos were increasing, so too were concerns that stringent exposure standards would debilitate the profitable asbestos industry. A 1978 report prepared for the Quebec Minister of Natural Resources concluded that stricter safety measures to protect the health of asbestos workers could jeopardize the Quebec government's chances of increasing profits, and that the government should work "to re-establish and protect as much as possible the reputation of asbestos." The government opted for the less stringent standard of 5 28  f/cc, disregarding the findings of its Beaudry Commission  2 9  In 1978, the Parti Quebecois  government passed legislation enabling it to takeover the giant Asbestos Corp. controlled by General Dynamics.30 The Asbestos Corp. mines were reported to be, at once, some of the most productive and hazardous.^* Concern over the effects of asbestos intensified with the discovery of conditions at the Johns-Manville plant, at Scarborough Ontario. The Ontario Royal Commission on Asbestos, which was established in 1981 and reported its recommendations in 1984, concluded that "the disease experience of the workforce at this plant is in line with the worst asbestos-related health experiences in the world."-* In 1982—two years before the Royal Commission would 2  ^ Doern, Regulatory Processes. 108. Doern also reports that this McGill study was cited by the Asbestos Mining Association as late as 1976 in a pamphlet entitled 'Asbestos and Your Health.' Doern, Regulatory Processes. 108. Dennis Trudeau, Montreal Star. 31 March 1978,8(A). Doern, Regulatory Processes, 109. This 5 f/cc standards was to be adopted in 1978. Graham Fraser, Maclean's, 12 June 1978, 48-51. Montreal Star. 27 October 1977,12(A). Royal Commission on Asbestos, 1:123.  2  2 7  2 8  2 9  3 0  3 1  3 2  20  report its findings—the Ontario government lowered its allowable standard from 2 f/cc to its present regulation.33 Labour Minister Robert Elgie was reportedly so concerned with the hazards of asbestos that he did not want to wait until the Commission made its recommendations. The exposure limits established in 1982 later received qualified support 34  from the Royal Commission. However, the Commission also called for a ban on the mining and manufacturing of crocidolite asbestos. -* Although this ban was proposed by the Ontario 3  government three years after the Commission made its recommendations, it has yet to be adopted .  3 o  While the late seventies to mid-eighties saw much interest in the health effects of  asbestos, an overview of studies since then suggests that Canadian governments have been more concerned with espousing the safe use of asbestos. The impetus for more stringent regulations in the US also came from the work of Dr. Selikoff, and from the work of journalists like Paul Brodeur who in the late 1960s and early 1970s published a series of articles in the New Yorker on asbestosis at a Pittsburg-Corning plant in Texas. OSHA's 12 f/cc limit in 1971 was lowered to 5 f/cc in 1972, and to 2 f/cc in 1976. In 37  terms of nonoccupational regulation, asbestos was one of the first substances investigated by EPA's Office of Pesticides and Toxic Substances. EPA issued a notice detailing its intentions to regulate asbestos under the Toxic Substances Control Act, in 1979.  38  The battle between the  agencies, industry, labour, and environmental groups intensified in the eighties. At the urging of labour interests, OSHA adopted an emergency standard of 0.5 f/cc in 1983, but it was immediately struck down by the US Court of Appeals. ^ The same year EPA announced its 3  proposed ban on asbestos. At this point the American and Canadian regulatory narratives began to mesh. In December Canadian Employment & Health Guide. #21. Charlotte Montgomery, "Ontario to Regulate Asbestos Before Commission Issues Study," Globe & Mail. 10 Tuly 1981.5. 35 Royal Commission on Asbestos. 2: 426-44. Ontario Gazette. 4 lulv 1987.3180-3210. Brodeur's articles were published as Expendable Americans. (New York: Viking, 1973). 44 FR 60061 (1979). Ibid, 12-2-83,1288. The Asbestos Information Association v. OSHA. R. Donovan. (Nov. 1983). 3 4  3 6  3 7  3 8  3 9  21  of 1983, Canadian Federal Mines Minister Jean Chretien announced that EPA had "gone too far," and that EPA's stance was "inconsistent with the international approach to asbestos." ^ 4  In 1985, a House Subcommittee found that the Office of Management and Budget (OMB) "unlawfully pressured EPA into halting plans to regulate asbestos," and that J. Barnes EPA Deputy Administrator compromised EPA's integrity by caving into OMB pressure. * 4  In 1986, the battle continued with OSHA implementing a workplace standard of 0.2 f/cc~ labour criticized the standard for being too lenient, while industry argued it was too stringent.  More importantly, the Canadian and American stories became even more  42  intertwined. Asbestos workers marched on the US embassy in Ottawa to protest EPA's proposed ban in March of 1986, while in May of 1986, top OMB officials were criticized by the House 43  subcommittee for "conspiring" with Canadian officials about proposed asbestos regulations. Deputy Director of the Office of Information and Regulatory Affairs at OMB Robert Beddel was alleged to have advised Canadian officials "how to focus their criticisms of the [proposed EPA] rule."  44  The story of asbestos also began to take on an international character in June of  1986, when the International Labour Conference's Committee on Asbestos called for a ban on crocidilite, but agreed that other types of asbestos can be safe if used under properly controlled conditions. ^ From this point on, the ILO policy would be used by Canadian governments in 4  their defence of asbestos. In June of 1989, EPA promulgated its three-stage ban, and in August the Asbestos Information Association (AIA), representing industry interests in both countries, filed a petition asking the US Court of Appeals to review and overturn EPA's rule. AIA argued that EPA's  Ibid, 12-9-83,1306. * Chemical Regulation Reporter. 10-4-85, 723-24. US, Congress, Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, Report on a Case Study on OMB Interference in Agency [EPA1 Rulemaking, (Washington: Government Printing Office, 1985). This will subsequently be cited as Subcommittee Report. Ibid, 6-20-86,341-42. Montreal Gazette, 6 March 1986, 3(C). Chemical Regulation Reporter, 5-16-86,176. ^ ILO, International Labour Conference. 72nd Session: Record of Proceedings. (Geneva: ILO, 1987). 4 0  4  4 2  4 3  4 4  4  22  disease projections were based on workers who had "suffered very high exposures many years ago." *' At a press conference in September of 1989, Marcel Masse called EPA's ban "rash, 4  arbitrary, and irresponsible."  47  Lastly, in January of 1990—after roughly eight years of  espousing a 'philosophy of safe use'-Quebec made their asbestos standards more stringent, now distinguishing between types of asbestos. ** 4  Current Regulations Presently, the workplace standards of the three jurisdictions differ in some significant ways, those most notable are the differences between the provinces and the US. Under OSHA's asbestos rule, the employer must ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.2 f/cc based on an 8 hour time-weighted average. The standard applies to all industries covered by the OSH Act. ^ No distinction is made between types of asbestos 4  (i.e., between crocidolite, tremolite, amosite, actinolite, or chrysotile asbestos), and no short term exposure limit is established.^ In contrast, the Ontario limits pertain to different types of asbestos, some less stringent than the American limit, and some matching it. Section 4 of the Designated Substance Regulation states that "every employer shall take all necessary measures and procedures by means of engineering controls, work practices and facilities to ensure that the time-weighted average exposure [based on an 8-hour work day] of a worker to airborne asbestos is reduced to the lowest practical level and in any case shall not exceed 0.5 f/cc in the case of amosite, 0.2 f/cc in the case of crocidolite, and 1.0 f/cc for all other types of asbestos." In addition, both short term and long term limits are established, and maximum permissible levels at 2.5,1.0,  Chemical Regulation Reporter. 8-25-89, 676. Conference Statement. 89/113. Quebec Gazette. 122(5): 339-41. 51 FR 22612 (June 1986). 50 OSHA argues that "there is little biological evidence in the record that supports a dose rate response model utilizing peak or ceiling exposures on which to base any specific ceiling limit." 51 FR 22683 (June 1986). 4 6  4 7  4 8  4 9  23  and 5.0 f/cc, respectively. Recent changes to the Quebec Regulation Respecting the Quality of the Work Environment make the two provincial policies much more similar.51 Now Quebec also distinguishes between types of asbestos, with the permissible level of chrysotile, tremolite, anthophylite, and actinolite at 1.0 f/cc, while the limit for crocidolite and amosite is 0.2 f/cc, based on an 8-hour work day.  52  In addition, maximum limits for each type are established at 5 for all but  crocidolite and amosite which are set at 1 f/cc respectively.^ Like Ontario, Quebec establishes 3  both short and long term limits of exposure.'' The recent Quebec regulations also contain a 4  clause stating that the use of crocidolite or amosite or a product containing either of those materials is prohibited, "except where their replacement is not reasonable or practicable."^^ No mention, though, is made of what constitutes "reasonable" or "practicable," or who will determine the criteria. As noted, the Ontario Regulation has no such clause.-'  0  There is some similarity in terms of policies towards personal protective gear. The 0.2 f/cc American standard is partly based on the use of respirators. Where it is not feasible for an employer to meet the limit through engineering controls, it must resort to supplementary respirator use. OSHA has developed highly detailed regulations for the use of respirators.  - Until January of 1990, the Quebec standards listed asbestos as a percentage of "dust" and used a different unit of measurement (milligram/cubic metre) in one part of the statute; when converted, the standard for all types of asbestos was roughly 5 f/cc. The same unit of measurement as the US and Ontario (f/cc) was used in another part of the regulation, stating that the concentration of asbestos must never exceed 5 f/cc. The significant differences between Ontario and Quebec standards before January of 1990 encourages one to ask what the Canadian and Quebec governments meant when they espoused a 'philosophy of controlled use.' 31  Almost all of asbestos mined in Quebec is chrysotile. Quebec Gazette. 122(5): 339-341. It seems notable that prior to 1990 the Quebec standards did not make any distinctions between types of asbestos, yet the Quebec government vehemently criticized the EPA and OSHA for failing to do so. See Canadian Employment Safety & Health Guide (CES&HG). # 69. Ibid. Regulation Respecting the Quality of the Work Environment, sec. 5. 56 Ontario Gazette, 4 July 1987, 3180-3210. Provincial regulation also differs in that Ontario has a separate regulation for construction projects and repair operations (O. Reg. 654/85), which stipulates that no person shall install by spraying materials more than 1% asbestos by dry weight that can become friable. There is no comparable provision under the Quebec OH&S Act. 5 2  5 3  5 4  5 5  24  Those using respirators, for example, must not have any facial hair or scars.-* The Ontario 7  Regulation also requires the use of respirators, though under different conditions depending on the type of asbestos.^ The Quebec regulations for respirators simply ask employers to refer to 8  standards set by the National Institute of Safety and Health of the United States (NIOSH).  59  All of the jurisdictions also have related provisions, like those for protective clothing, and oU  the communication of hazards to workers. * In all cases, though, the US provisions are more 0  comprehensive. In terms of nonoccupational standards, there are significant differences between the US and Canada. Under the TSC Act,° EPA has implemented a three-stage ban that requires the 2  use of certain asbestos-containing products (such as asbestos-cement, friction products, and paper products) be prohibited after 1990,1993, and 1996.° Although comprehensive in scope, there 3  are some exceptions to this ban. About 6% of domestic asbestos use will not be affected, like high-grade electrical paper, and missile liners, because they "do not have a reasonable substitute or do not pose a substantial risk to public health."  04  It is also interesting to note that  the mining of asbestos (which only occurs in California and Vermont) is not covered by the rule "because it constitutes a small percent of asbestos risk in the US."°-* Asbestos is not included in the Canadian Environmental Protection Act's (CEPA) Priority  51 FR 22757-60 (June 1986). Also, see G. Noonan, et al, Guide to Respiratory Protection for the Asbestos Abatement Industry, (Morgantown: OSHA, 1986). For example, if the concentration of crocidolite asbestos is greater than 10 f/cc a positive-pressure supplied air respirator with full face piece is required, whereas exposure to chrysotile asbestos at the same concentration only requires workers to wear a reusable or replaceable filter-type air purifying dust respirator or single-use dust respirator. See the Regulation's Code for Respiratory Equipment for Asbestos. 59 Regulation Respecting the Quality of the Work Environment, sec. 8. It is interesting to note that the Quebec standards rely on the expertise of NIOSH for respirator guidelines, but reject NIOSH's recommendation of a 0.1 f/cc exposure limit for asbestos. Que., sec. 78-79; Ont., sec. 7(2); US, 51 FR 22720-22 (June 1986). Que., sec. 77(1); Ont., sec. 12; US, 51 FR 22698 (June 1986). 62 The EPA made use of the TSCA because of the limitations with regulation under the OSH Act, CSP Act, Clean Air Act, and the Safe Drinking Water Act; see 54 FR 29502-04 (July 1989). Ibid. Ibid. Chemical Regulation Reporter. 7-7-89, 443. 5 7  5 8  6 0  6 1  6 3  6 4  6 5  25  List because it is already regulated under the Clean Air Act (CAA) and the Hazardous Products Act.66 Under the CAA, the Asbestos Mining and Milling National Emission Standards Regulations states that as of December 31,1978, "the concentration of asbestos fibres contained in gases emitted into the ambient air at a mine or mill from crushing, drying or milling operations, or from dryrock storage, shall not exceed 2 f/cc."*' The most notable aspect of this 7  Regulation is what it leaves out: these standards only apply to mining or milling, and not to processing. The Hazardous Products Act stipulates that all products containing more that 0.1 08  % of asbestos (by weight) are subject to certain restrictions involving the advertising, sale, or importations of products.  09  Section 4 of the Act states that "no person shall advertise, sell or  import a prohibited product." In addition, manufacturers must meet specific provisions, such 70  as those pertaining to standardized labeling. * 7  These Canadian regulations are limited in  comparison to the US's ban, revealing that Canadian governments view asbestos almost exclusively as an occupational problem.  66 Although the Clean Air Act was repealed by CEPA, this regulation, among others, remains in force. Sec. 4(1). 6 Ibid. There is also a nonoccupational regulation pertaining to asbestos in Quebec. Under the Environmental Quality Act, section 69 of the Quality of Atmosphere Regulation essentially restates the 2 f/cc standard established under the Clean Air Act. See Canadian Environmental Law. 5: 945-3. It is also worth noting that the Ambient Air Quality Criteria Regulation, under Ontario's Environmental Protection Act does not list asbestos as one of the regulated substances, however, the Ontario MOE has a 24-hour ambient air quality "objective" of 0.04 f/cc for asbestos. See the Royal Commission on Asbestos. 2:674. 6 7  8  69 See the Act's Ingredient Disclosure List, #137. ^ Royal Commission on Asbestos, 2:643. 1 Sec. 14. Some prohibitions have been imposed, for example, asbestos-containing educational products for use by children where they are made in such a way that asbestos may become separated from the products. This Act might be used to prohibit the advertising, selling, or importing of, say, friction products containing asbestos; so it could have important implications for nonoccupational exposure. As of yet, though, there have been no moves to use this Act to comprehensively restrict the selling, etc. of asbestos. 7  7  26  Table I Current Standards  workplace (f/cc):  Ontario  Quebec  US  1.0,0.5,0.2  1.0,0.2  0.2  Canada environmental:  limited regulation under the Clean Air Act and the Haz. Prod. Act  US three-stage ban  Conclusion The procedural frameworks of the various regulatory systems are very different.  While  the Canadian regulatory system provides comparatively vague mandates and broad discretion, the US system is highly legalistic and places more of a burden on agency administrators to meet specific criteria in setting standards. The policies that emerge from these frameworks also differ. While the US has implemented a ban on the use of asbestos, Canadian policymakers view asbestos primarily as an occupational problem. The workplace standards of the three differ with the US's being more stringent than the two provinces'.  27  Chapter 3: Reconstructing the Decisions  Perhaps the most infamous of diseases caused by the inhalation of asbestos fibres is asbestosis. Inside the lungs scar tissue builds up around each fibre, and increasingly the scar tissue takes the place of the air-sac walls. The most prominent symptom is breathlessness, and a characteristic physical sign is the presence of crackling noises in the lung.* Asbestosis appreciably reduces the life expectancy of those that have it and there are no effective treatments. ^ Inhalation of asbestos fibres can also cause mesothelioma, which is a malignant growth or cancer affecting the lining membrane of the lung surface or inner chest wall, or a similar membrane lining some abdominal organs.^ Those with mesothelioma are usually insulators, those who work in asbestos plants, or in shipyards. However, cases of mesothelioma can occur among persons living in the same household as an asbestos worker, and among persons living in the neighbourhoods of asbestos mining or manufacturing activities.'* Like asbestosis, there is no effective treatment for mesothelioma. More controversial is the relationship between asbestos exposure and lung cancer. This is especially the case if those that are exposed are also smokers. Still, it is now generally recognized that asbestos on its own in the absence of smoking is capable of inducing lung cancer, and that the tumour may develop where there is no co-existing asbestosis. 5 Thus, epidemiological studies link asbestos exposure to asbestosis, mesothelioma, and lung cancer. As 1 Royal Commission on Asbestos, 1: 94. Ibid. 3 William Buchanan, "Asbestos-Related Diseases," Michaels and Chissick, eds, Asbestos, 1: 400. 4 Royal Commission on Asbestos, 1: 98. Ibid, 100-01. 2  5  <  28 the next section will illustrate, however, there are disputes over the science of asbestos exposure. While US agencies undertook numerous estimates of risk, Canadian risk assessment was 0  predominantly undertaken by one study, the Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario/ The Commission was set up in 1980, and chaired by J. Stefan Dupre, a University of Toronto political scientist. Its official mandate included the identification of all relevant data related to asbestos diseases, a review of the present basis for Workmen's Compensation Board Awards, and the making of recommendations in both occupational and environmental arenas. In formulating its recommendations, the Commission granted legal status to 20 parties, heard the testimony of 53 expert witnesses, 8  9  received 88 written and roughly 70 oral submissions,^ and undertook 10 research studies (some of which are subsequently cited in this paper). The Commission reported its findings in three volumes, totaling over 900 pages. This comprehensiveness is highly significant given the nature of Canadian regulatory systems. Detailed scientific explanations of policy and the criteria used to balance costs and benefits are usually not explicitly revealed by Canadian regulators. This is partly reflective of the vague, informal character of regulatory systems. In this sense, the somewhat anomalous nature of the Dupre Commission offers an especially detailed view of regulating hazardous substances in Canada. Before examining the areas of dispute, it is crucial to note the tone or character that pervades the assessments of both the American agencies and this Dupre Commission. The tone of the American agencies is epitomized by two key passages. In the preamble to OSHA's 1986 See the 54 FR 29466 (July 1989) for a list of the supporting studies. Although there have been numerous studies on asbestos, few have undertaken quantitative risk estimates. Among the 20 was the Asbestos Information Association and the Ontario Federation of Labour. The 53 included Dr. Jacques Dunnigan of the Quebec Mining Association and Dr. Bailus Walker formally of OSHA. 10 For example, submissions were received from the Canadian Environmental Law Association, and Johns-Manville Canada Inc. 6  7  8  9  29 standard, the Secretary of Labor emphasizes that "OSHA is aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure."^ In a letter to Chairman of the House Energy and Commerce Committee John Dingell, former EPA Administrator Ruckelshaus writes that "asbestos is a demonstrated human carcinogen [and] asbestos-induced disease has been extremely well documented and conclusions are unambiguous."^ in stark contrast, there is the tone of the Canadian case as argued in the oft cited Dupre Commission.^ The Commission reports that "current understanding of the biological mechanisms which induce asbestosrelated cancer or indeed asbestosis is limited [and] much remains in the realm of speculation and hypothesis."*'* This relative uncertainty pervades the Commission's considerations.  Risk Assessment American and Canadian regulators agreed on the presence and absence of thresholds.^ For asbestosis, EPA argued that "it is not clear whether an exposure threshold exists for asbestosis . . . however, there is no available evidence that disabling asbestosis is caused by nonoccupational exposure or relatively low levels of occupational exposure."^ For this reason, quantitative risk assessments for asbestosis were not performed for the final rule, but were for mesothelioma and lung cancer.^ For these assessments, the no-threshold linear model was 838 Federal Reporter, 2d Series. 1262. 12 Report on a Case Study on OMB Interference in Agency Rulemaking. 15. 13 The federal, Ontario, and Quebec governments, often through the jointly funded Asbestos Institute, cite this study in justifying their 'controlled-use' approach; for example, see the Montreal Gazette, 7 October 1986,5(B). It is interesting to note, however, that a report prepared for the federal government on the occupational exposure of asbestos implicitly challenges several key findings of the Dupre Commission. See the Report of the Committee of Experts Advising the Department of National Health and Welfare Concerning the Scientific Basis for Occupational Standards for Asbestos. (Ottawa: Health and Welfare Canada, 1984). 1 1  1^ Royal Commission on Asbestos, 1:134. 1^ In general, some may argue that there is a threshold level for substances, below which there is no health effect. In contrast, others may support the 'linear hypothesis' that the more or less direct relationship between dose and disease observed at high exposure levels occurs at low levels as well. See Schrecker, The Political Economy of Environmental Hazards. 30. 54 FR 29470 (July 1989). 1^ Risk assessment is also undertaken for gastrointestinal cancer, but is less central than assessments for lung cancer and mesothelioma; see 54 FR 29469-70 (July 1989). 1 6  30  used, EPA arguing that no-threshold models "have widespread support," and "given the lack 18  of complete understanding of the mechanisms by which asbestos induces cancer, and the goal of protecting human health, EPA believed that the choice of low-dose linearity was most prudent."*  9  Like OSHA and EPA, the Dupre Commission supported the hypothesis that a threshold exists for asbestosis, arguing that the manifestation of asbestosis requires the inhalation of a considerable amount of asbestos over time. ^ For mesothelioma, the Commission found that 2  existing evidence suggested that no threshold exists for this disease. The Commission also argued that "there [was] no direct evidence of the existence or absence of a threshold for lung cancer," but for regulatory purposes they believed it "prudent" to assume that any dose may induce lung cancer. * Thus, US and Canadian risk assessments agreed on the presence and 2  absence of thresholds. However, there was disagreement over drawing distinctions between types of asbestos. The differences between types of asbestos arise in part because the toxicity of fibres depends on their dimensions, and at a given optical count of fibres longer than 5 microns, amosite and crocidolite dust clouds contain a higher proportion of long, thin fibres that are most dangerous, than does a chrysotile cloud.  22  The Commission concluded that historical exposures to amosite  and crocidolite were associated with higher disease rates than exposure to chrysotile and that chrysotile creates less dust in general.  23  Directly related to this is the Commission's emphasis on making distinctions between industrial processes. Just as chrysotile creates less hazardous dust than other types of asbestos because of its fibre dimensions, some processes are more hazardous because of the dust they create. The processes themselves have an impact on fibre dimension. The Commission found, Ibid. 54 FR 29472 ^ Royal Commission on Asbestos. 1: 276. Ibid, 283. Ibid. Ibid, 2:408.  1 8  1 9  2  2 1  2 2  2 3  31 for example, that textile processes tend to split chrysotile fibres, "thus increasing the absolute number of fibres and making each thinner in diameter."^ In contrast, chrysotile fibres in the 4  making of friction products are ground together causing them to break horizontally, thereby making them shorter and less hazardous than long, thin fibres. ^ In justifying this 2  methodological distinction, the Commission argued that "the separation of processes is not only plausible, it is compelling because of epidemiological studies" which have very different findings . . . "it is extremely unlikely that such differences are the result of errors of methodology in the studies or chance variations in lung cancer mortality. In contrast, OSHA and EPA avoided drawing distinctions between types. Both agencies had been criticized by the Asbestos Information Association and OMB for not fully investigating the claim that chrysotile is less harmful than crocidolite. These agencies, however, contended that this problem was avoided by basing risk assessments on the hazards of chrysotile, thereby assuring that cancer risks would not be overstated.^ In EPA's final rule, Canadian criticisms were specifically addressed. In assessing the 'asbestos-types' view, EPA found evidence supporting this position to be "inconclusive and inconsistent" with regard to lung cancer, and found that "definitive conclusions concerning the relative potency of various types in inducing mesothelioma cannot be made on the basis of available epidemiological information." ** in view of this uncertainty, EPA believed that it was "prudent and in the 2  public interest to consider all types as having comparable carcinogenic potency in its quantitative assessment of mesothelioma risk." ^ EPA argued that although animal studies 2  have provided an indication of the qualitative relationship between fibre dimension and carcinogenic potency, studies performed to date "have not established fibre dimensional  Ibid, 1: 265. 25 Royal Commission on Asbestos. 1: 265. Ibid, 2: 411. Subcommittee Report. 23-24. 28 54 FR 29470 Qu\y 1989); no mention is made of asbestosis in this section of the rule. 29 Ibid. 2 4  2 6  2 7  32 thresholds for potency.  In terms of drawing distinctions between industrial processes, EPA  argued that the evidence supporting this view is unconvincing, and that its use of a "geometric mean unit risk derived from 11 studies that cover all industrial processes (with the exception of mining and milling)" provides a dose-response relationship that is "reasonable." * Thus, 3  Canadian risk assessments viewed chrysotile asbestos as less toxic than other types, and some processes less hazardous than others, while US assessments rejected these distinctions. The differing views toward the health effects of asbestos substitutes were also related to fibre dimension. The Dupre Commission was sceptical of the safety of substitutes. To the extent that substitutes are long and thin in dimension, their use may also pose a health risk.  It  32  conceded that substitutes may not be as hazardous as asbestos has proven to be, but "the evidence does not rule out the likelihood that some of these materials will ultimately be determined to cause cancer or respiratory disease if substantial quantities are inhaled; there are few cases where a substitute is available that has been proved safe."  33  It is also worth  noting the extent of the federal government's assessment of asbestos substitutes. An unpublished report entitled Asbestos Regulation and Substitution in Brake Linings, found that "none of the substitutes found has all the required characteristics" of asbestos, and that substitutes for disk pads and drum brakes are more costly and compromise performance. The 34  six page report did not consider in any detail the supposed health effects of asbestos or possible substitutes. ^ 3  In contrast, studies by the Office of Toxic Substances and the National Research Council (NRC) used by OSHA show that the health risks posed by asbestos substitutes would generally Ibid. Ibid, 29471. Royal Commission on Asbestos. 1: 269. Ibid, 2:359. Asbestos Regulation and Substitution in Brake Linings, (Ottawa: Environment Canada, 1988), 5-6. This report represents the only recorded study by Environment Canada on the health effects of asbestos substitutes. It is also interesting to note that the Royal Commission on the Economic Union and Development Prospects for Canada. (Ottawa: Supply and Services, 1985), suggests that where safe substitutes are found, they should be used. This Commission uses the example of asbestos and its substitutes. See 2: 721. 3 0  3 1  3 2  3 3  3 4  3 5  33  be lower than the risks from exposure to asbestos,^ and that suitable substitutes are generally available for asbestos containing products.*^ For example, a 1984 NRC study found that the risks of developing lung cancer or mesothelioma as a result of the exposure to non-asbestos materials, like mineral wool and ceramic fibres, were usually much lower than those for chrysotile.38 These differing views on toxicity issues had a profound impact on the quantitative assessments of both 'sides.' The Commission's risk assessments, of course, distinguished between both fibre type and industrial process.39 For the mining of chrysotile, short-term, normal exposure was estimated to yield a risk of 0.1 to 0.2 deaths per 1,000 workers, while a long-term, high exposure yielded a risk of 0.4 to 0.9 deaths per 1,000 workers.40 For the manufacturing of products containing chrysotile, "where the chrysotile is quickly encapsulated" as in friction products, the Commission estimated the risk faced by the short-term, normally exposed worker to be 0.2 deaths per 1,000, and the risk to the long-term, highly exposed worker to be about 1.1 per 1,000. 1 In contrast, OSHA's risk estimates did not make these distinctions. The Agency's 4  estimates were done for varying time periods and levels of exposure. First, there were a series of estimates at the pre-1986 control limit of 2 f/cc. OSHA estimated that over a 45 year period of exposure at 2 f/cc 64 deaths would occur in 1,000. At the same level over a 20 year period 44 42  cancer-related deaths out of 1,000 would occur, and at the same level over a one year period 3  36 Subcommittee Report. 24. Ibid, 16. 38 Asbestiform Fibres: Nonoccupational Health Risks. (Washington: NAC Press, 1984). 15. Also, see 54 FR 29483 (July 1989). Canadian and US risk assessments also disagree over the reliability of respirators. While the two provinces are satisfied with their partial reliance on them, OSHA argues that they are not a "comprehensive and reliable method of employee protection." Sub-committee Report. 83. 39 Risk projections were determined by analyzing 7 major studies of asbestos workers for which there are "reasonable" data on the fibre levels to which workers are exposed." This analysis is undertaken by Robert Daniels & Robin Roberts; the studies are by Corbett McDonald et al, Philip Enterline et al., Julian Peto et al., John Dement et al., Geoffrey Berry et al., Murray Finkelstein, and Irving Selikoff et al. For more details see 2: 397-408 of the Commission's Report. 3 7  40 Royal Commission on Asbestos. 2: 409. Short-term, normal exposure is based on a 10 year average duration at 0.5 f/cc, while long-term, high exposure is based on a 25 year duration of exposure at 1.0 f/cc. Ibid, 429. 51 FR 22646-47 (June 1986). 4 1  4 2  34 deaths would occur in l,000.  4d  Risk estimates were also done for the proposed level of 0.2 f/cc.  At this level over a 45 year period 6.7 deaths per 1,000 would result, and over a 20 year period 4.5 deaths would occur  4 4  Lastly, studies done for OSHA showed that even if the standard was  lowered to 0.1 f/cc there would be 3 excess deaths per 1000 workers after a 45 year working exposure. ^ 4  Environmental risk assessments also differed, but this was more a function of exposure than toxicity. US risk assessments emphasized the multiple exposure to fibres throughout the 'lifecycle' of asbestos. In its 1989 rule, EPA argued that "the ability of asbestos to persist and to spread in the environment makes it a hazard to millions of people who may not have any direct occupational or consumer contact with asbestos products." This concern for the 'life-cycle' of 40  asbestos was reflected in quantitative risk estimates done by EPA. First, there were those exposed to asbestos fibres living near plants, construction sites or other occupational sources of fibres.  47  EPA estimated that 122 million fall into this exposure category and incur a lifetime  risk of 1 in 1,000 to 1 in 10,000 depending on baghouse (i.e., filtering) efficiency.  48  EPA also  estimated that at least 40 million consumers faced a potential hazard as they install, use, repair, and dispose of asbestos-containing products, and that both consumers and members of the general population frequently incur individual lifetime risks of 1 in 1,000,000 or greater of developing cancer from these exposures. EPA also argued that significant exposures took 49  place that cannot be quantified.^  0  In stark contrast, the Commission concluded that "asbestos fibre concentrations in the ambient air are extremely low" and present "a clearly insignificant health risk . . . we see no Ibid. 54 FR 22647. Subcommittee Report, 15, 53. 54 FR 29477 (July 1989). While making distinctions between rural and urban areas, studies cited by the Dupre Commission do not seem to measure fibre levels near occupational sources. See pages 662-66 of the Commission's Report. 54 FR 29477-79 (July 1989). 54 FR 29472 (July 1989). 54 FR 29480.  4 3  4 4  4 5  4 6  4 7  4 8  4 9  5 0  35 reason to worry about the health effects of the prevalent levels of asbestos fibres in the outdoor air."51 This assertion was made after a consideration of several studies measuring fibre levels throughout Ontario.-' Although these studies made distinctions between rural and urban 2  exposure, they did not measure levels specifically near occupational sources—a key part of EPA's assessment. Moreover, the Commission did not undertake quantitative risk estimates as it did for workplace hazards. Risk assessments in the two countries differ significantly. Differences in workplace risk estimates were mostly driven by toxicity issues based on fibre dimension, asbestos type, and industrial process, whereas differences in environmental assessments were driven more by views toward exposure. While US risk assessment emphasized the cumulative effect of multiple exposures during the 'life-cycle' of asbestos, Canadian assessments viewed environmental exposure levels as insignificant. As Table II clearly illustrates, US assessments estimated much higher risks from workplace and environmental exposures to asbestos. Table II Risk Estimates United States  workplace risks: environmental risks: near occ. sources to consumers  4.5 in 1,000  1 in 1,000 to 1 in 10,000 1 in 1,000,000  Canada^  3  1.1 in 1,000  no risk estimate^  4  no risk estimate  3* Royal Commission on Asbestos, 2:666. Three of the most significant studies examined were Ontario, Ministry of the Environment, Air Resources Branch, "Asbestos as a Hazardous Containment," # ARB-TDA-20-76, (Toronto: MOE, 1976), Ontario, Ministry of the Environment, Ministry of Labour, and Toronto Transit Commission, The Report of the Working Group on the Air Quality in the Toronto Subway System, (Toronto: MOE, 1980), and Eric Chatfield, Measurement of Asbestos Fibre Concentrations in Ambient Atmospheres. (Toronto: Royal Commission on Asbestos, 1983). 5 2  These 'Canadian' estimates are taken from the Royal Commission on Asbestos. As stated, the Commission's assessments make distinctions between types and processes. The workplace assessment in this case is for chrysotile asbestos-general manufacturing workers. Although the Royal Commission on Asbestos undertook studies to measure environmental exposure to asbestos, no quantitative risk assessments were done.  5 3  5 4  36  Benefits Along with estimates of risk, policymakers also had to consider the economic benefits derived from asbestos. At the time when existing regulations were being adopted, economic dependence on asbestos was varied. After the Soviet Union, Canada was the second largest producer of asbestos in the world, almost all of which was chrysotile asbestos.^^ More important, 90% of Canada's asbestos came from Quebec, and mining was concentrated in a few areas, like Thetford-Mines, where it had a significant impact on the local economy.56 Ninetyfive percent of Canadian asbestos was exported, the US making up 40% of this export market. Canada supplied 99% of total US imports of asbestos in the late seventies, but this has declined significantly in the last ten years. Revenue from exported asbestos in 1980 was $642 million.^? It is also significant to note that the Quebec government owned part of the asbestos industry, which historically had been controlled by American multinationals. Most notable is the government's protracted takeover in the late 1970s and early 1980s of Asbestos Corp., previously owned by General Dynamics. In 1977, Asbestos Corp. declared assets of $229 million.58 In contrast, Ontario and the US were not significant producers of asbestos, but were manufacturers of products containing asbestos. Two points were of importance with respect to the manufacturing of asbestos products. First, although Ontario was the most significant manufacturer of all the provinces, most of the companies were American owned, and historically have focused on supplying the American market. Second, there was the growing use of asbestos substitutes for many of the products manufactured in Ontario and the US.  • British Geographical Survey. World Mineral Statistics. (Nottingham: National Environment Research Council, 1988), 26. 56 Roma Dauphin, "Asbestos," Natural Resources in US-Canada Relations. C. Beigie and A. Hero, eds. (Boulder: Westview Press, 1980), 244. 57 Royal Commission on Asbestos. 1: 88. 58 Graham Fraser, Maclean's. 12 June 1978, 48-51. The Quebec government owns 56.4 % of the Asbestos Corporation. 5i>  37 Although some argued that many of these substitutes were not as effective as asbestos,^ and others had expressed concern over the possible health effects of these substitutes,^ their use had become increasingly popular—especially in the US with business having been warned of a ban on asbestos since the early eighties. Companies manufacturing these substitutes were concentrated in the US and, to a lesser extent, Ontario. For example, asbestos-free fireproofing materials were manufactured by Spraycraft Corp. in Brooklyn, and Cafco Products in Mississauga. ^ Many of those companies 0  that once manufactured asbestos products now manufacture asbestos-free products. Although the EPA estimated producer costs at about $210 million from the loss of equipment used to produce asbestos products, it also argued that "much of the equipment [could] be converted for use in making other products."** The most notable example of this conversion is Johns-Manville 2  Corp., once the largest manufacturing company of asbestos products, and target of thousands of lawsuits in the US and Canada.^ The growing use of these substitutes had implications for economic dependence on asbestos. Both Ontario and the US were becoming less dependent upon the manufacturing of asbestos products, especially the latter in light of EPA's three-stage ban on asbestos announced in 1989. Ontario manufacturers had to move towards the use of substitutes only in relation to their focus on the US market; asbestos products were still manufactured in Ontario for some European and Pacific Rim countries, and for the Canadian market.  Balancing Costs and Benefits After estimating the health risks and economic benefits, policymakers were faced with having to balance the two. This balancing of costs and benefits by the Dupre Commission and  59 For example, the Asbestos Institute, A Scientific Update on Asbestos and Health. (Montreal: Asbestos Institute, 1988). 60 Royal Commission on Asbestos. 2: 355-59. 61 Doern et al. Living with Contradictions. 4.7. 62 Chemical Regulation Reporter. 1-24-86. 63 Stuart Diamond, "Searching for Substitutes: Industry Offering Choices," New York Times. 24 January 1986,12(1).  38  the US agencies was significantly different. The Dupre Commission stated: "desirable though it may be in principle, the idea of totally eliminating risk is not attainable in the real world . . we do not believe that absolute freedom from risk is an appropriate criterion for asbestos fibre control.  Mo4  The Commission was also clear on what the implications of arguing such a case  were. As stated earlier, they agreed that no thresholds exist for lung cancer and mesothelioma; this meant that excess deaths due to cancer would not be eliminated so long as exposure to asbestos fibres was not eliminated. ^ 0  Instead, the Commission used the concept of "relative risk."  00  In determining the  acceptability of risk, they compared the risks caused by exposure to asbestos to other risks faced by workers. For example, with respect to general chryotile manufacturing processes (e.g., friction products), they estimated that the mortality risk faced by the short-term, normally exposed worker was 0.2 deaths per 1,000, while the risk to the long term, highly exposed worker was about 1.1 per 1,000 exposed workers. This was compared to risks from accidental 07  deaths in manufacturing of 0.8 to 1.9 deaths per 1,000 workers.  08  On the "relative risks" in this  case the Commissioners stated: "we find that this health risk falls well within the range of occupational health risks that have been found acceptable by society."  09  It is worthwhile  noting, though, that in comparing the risks from asbestos exposure with other occupational risks, the Commission did not seem concerned with Canada's overall record. Out of eight industrialized countries including the US and France, Canada has had the highest work injury rate and the highest fatality rate.  70  Thus, the Commission rejected the notion that risks can  be eliminated. Instead they opted for this "relative risk" approach, which compared various 6  Royal Commission on Asbestos. 2: 422. Ibid. Ibid, 424. ^ As noted previously, all assessments are done in terms of industrial processes, due to the varying levels of asbestos fibres in the atmosphere. 68 Royal Commission on Asbestos. 2: 429-30. Ibid, 430. ^ Caroline Digby and Craig Riddell, "Occupational Health and Safety in Canada," C. Riddell, ed, Canadian Labour Relations, (Toronto: University of Toronto Press, 1986), 287-88. This work is one of the Royal Commission on Economic Union's monographs. These statistics are for the years 1976-81. 4  6 5  6 6  7  6 9  7  39  'socially acceptable' risks faced by workers. In contrast, the regulation of asbestos by the American agencies showed a different balancing of costs and benefits. In fact, the 'taking over' of the regulation of asbestos by EPA (from OSHA and CPSC) was done to avoid an explicit consideration of costs. EPA argued that "since workplace standards must necessarily be economically and technologically feasible for employers to implement, OSHA may be faced with the dilemma of finding that setting a safe standard is not practical." ^ In addition to a desire to protect the regulation of asbestos from 7  these feasibility requirements, EPA sought to eliminate remaining areas of 'unacceptable risk.' According to studies by OSHA, at an exposure level of 0.1 f/cc, three excess cancer deaths per 1,000 workers would occur after a 45 year working exposure/ This excess and the "life-cycle" 2  of asbestos (i.e., multiple exposure pathways) was considered by EPA to be an "unreasonable risk" to workers and the general public. ^ 7  EPA's decision was also affected by the view that benefits derived from asbestos were marginal and declining. EPA's Regulatory Impact Assessment found that the societal benefit or "essentiality" of asbestos had declined, most of the costs would be short-term and spread over a large population, the development of substitutes indicated that the rule will not lead to a dramatic increase in consumer prices or decreased availability, and the costs were offset by the rule's benefits (i.e., the avoidance of cancer cases, lost productivity, etc.)/'*  Conclusion There were significant differences between Canada and the US in both the risk assessment and risk management stages. Although there was agreement over the absence and presence of thresholds, there was disagreement over drawing distinctions between types and processes based on fibre dimension. Thus differences in workplace assessments were based mostly on 7  1 Subcommittee Report. 18. Ibid, 53. Ibid, 17. 54 FR 29487 (July 1989).  7 2  7 3  7 4  40 views toward toxicity.  These differences result in the US estimating higher workplace risks.  Differences in environmental risk estimates were driven more by views toward exposure. While the US assessments emphasized the 'life-cycle' of asbestos, Canadian assessments viewed environmental exposure as insignificant. These differences resulted, once again, in the US estimating higher environmental risks. In addition, there were varying degrees of economic dependence on asbestos, with the US increasingly less dependent, and Quebec the most dependent. The balancing of these costs and benefits was also very different. While the Commission opted for a "relative risk" approach, which compared various 'socially acceptable' risks faced by workers, EPA placed more importance on avoiding a consideration of economic and technological feasibility, and eliminating 'unreasonable' risks.  41  Chapter 4: Interest Representation: Groups and Procedures  Interest Groups Roughly 19% of the US workforce is unionized, with 14,400,000 belonging to the American Federation of Labour-Congress of Industrial Organizations (AFL-CIO).* The AFL-CIO is a loose federation with no power to instruct its constituent units. Many of these affiliates argue over whether authority lies at the national level or with the local unions. Trade unions do not have a central status in American politics and society; they exist in a society that stresses individual liberty and private enterprise much more than collective or class rights. In terms of lobbying activities, the AFL-CIO makes extensive use of its right to petition for action and review. For example, it petitions for agency action in 1971, and for judicial review of OSHA's 1986 standard. Roughly 35.1% of the Canadian workforce is unionized. This movement is fragmented by 2  federalism, international unions, and ideological differences. As in the US, organized labour suffers from comparatively low credibility and legitimacy. The major centre of power is the 3  Canadian Labour Congress, with a membership of 2,200,000. Like the AFL-CIO, the CLC is 4  comparatively decentralized, playing mainly a coordinating role. The affiliated units have considerable autonomy; the CLC is often unable to speak on behalf of its members. In addition, more than 50% of the CLC's members belong to international unions."* At the national level, 1  Trade Unions of the World: 1989-90. (Chicago: Longman International Reference, 1989), 404-08.  2  Ibid, 68-69.  3  Ibid, 318. Also, see Doern's Regulatory Processes. 60 on the "fragile position of labour." Ibid, 68. Pierre Fournier, "Consensus Building in Canada," Keith Banting, ed, The State and Economic Interests.  4  5  42  there is also the Canadian Federation of Labour, with its 225,000 membership.^ Founded in 1982, the CFL is more "conservative" than the C L C .  7  Provincial autonomy is heightened in the case of Quebec. Although affiliated with the CLC, the Federation des Travailleurs du Quebec (FTQ/QFL)8 retains a considerable degree of independence. The next largest federation is the Confederation des syndicats nationaux (CSN). The FTQ and CSN together represent about 80% of organized workers.^ The unions most involved in the regulation of asbestos are the CSD (La Centrale des syndicats democratiques), CSN (La Confederation des syndicats nationaux), Metallos (Les Metallurgistes unis d' Amerique), and TUA-FTQ (Le Syndicat des travailleurs unis de l'automobile, de l'aeronautique et des instruments aratoires d' Amerique in Quebec, and in Ontario the United Steel Workers.* ^ 1  In terms of lobbying, the positions of labour are mixed. This is shown by briefly looking at the CLC's 1986 national convention. During the convention delegates pass "a resolution favouring a ban on the mining and use of asbestos."** While most members argue that asbestos is "an inherently unsafe product,"* members of the QFL flatly disagree, arguing that asbestos can be 2  used safely.*^ These rifts are glossed over by the adoption of the CLC's old "no exposure" to carcinogens guideline. The vague nature of this guideline allows great flexibility—as a Globe & Mail headline reads, it allows "both sides to claim victory in debate on asbestos."*  4  Among US environmental groups, the Natural Resources Defence Council and the Environmental Defence Fund are the most active in the case of asbestos. NRDC has a membership of 95,000 and a budget of $11,700,000.*^ Its purpose is to "increase public (Toronto: University of Toronto Press, 1985), 322. Trade Unions of the World. 69. Fournier, "Consensus Building," 322. Also referred to as the Quebec Federation of Labour. ^ C. Tuohy, "The Occupational Health Arena," W. Coleman and G. Skogstad, Policy Communities and Public Policy, 240. *0 Doem, Regulatory Processes, 104. ** John Deverell, "Asbestos Issue Sparks Labour Walkout," Toronto Star. 1 May 1986,10(A). Ibid. Ibid. "Both Sides Claim Victory in Asbestos Debate," G&M. 2 May 1986, 9(A). *5 D. Burek et al, Encyclopedia of Associations: National Organizations of the U.S.. (Detroit: Gale 6  7  8  1 2  1 3  1 4  43  understanding of the means by which law may be used to protect resources" by engaging in litigation "that may set widely applicable precedents or preserve natural resources."*^ Unlike some groups in Canada and the US, NRDC is scientifically competent. The Council seeks to demonstrate the strength of its positions "through technical mastery."*  7  The most notable  NRDC lobbying effort is its petitioning of EPA to act in 1984, arguing that asbestos poses significant environmental hazards.*** Also significant in this case is the influence of the Environmental Defence Fund. EDF has a 75,000 membership and a budget of 7,963,000 in 1989.*9 Like NRDC, EDF is scientifically competent, making its criticisms of agency and industry arguments more effective. EDF supports EPA's ban, and vehemently criticizes Canadian governments and industry interests for trying to discredit EPA's scientific studies on asbestos. ^ 2  There is much less interest in the environmental regulation of asbestos in Canada. * 2  Pollution Probe, Greenpeace, and Friends of the Earth do not have active asbestos campaigns, nor any detailed 'policies' on asbestos. Only the Canadian Environmental Law Association is 22  interested in asbestos—and only in a limited way. '' CELA's objectives are to provide legal 2  assistance to those unable to afford representation, to improve public participation mechanisms, and to reform the law in order to ensure a healthy environment. '* CELA's 2  government subsidized budget is approximately $420,000. Although the most active 25  environmental group, CELA's lobbying efforts are scant. In 1981, the Association argues before  Research Group, 1990), 1: 657. These figures are for 1989. Ibid. * H. Ingram & D. Mann in Lester, "Interest Groups and Environmental Policy," Environmental Politics and Policy. (Durham: Duke U. Press, 1989), 143. Chemical Regulation Reporter. 9-14-84, 604. *9 Encyclopedia of Associations: National Organizations of America. 1990. Ellen Silbergeld and Robert Percival (EDF reps.), Toronto Star. 13 March 1987, 17(A). * In his Regulatory Processes. Doern rates the degree of public interest group involvement in the regulation of asbestos as "low" (154). Determined through phone interviews on 2 August 1990. CELA is actually a misnomer; the Association is predominantly an Ontario public interest group. CELA: 1989 Annual Report. (Toronto: CELA, 1990), 1. Ibid. 1 6  7  1 8  2 0  2  2 2  2 3  2 4  2 5  44  the Dupre Commission that there is no safe limit for asbestos, and that the occupational level should be lowered to 0.1 f/cc, a limit recommended by the US's NIOSH as the lowest technically possible standard. More directly connected to environmental regulation are 20  letter-writing efforts in the mid-eighties criticizing the federal government's attempts to discredit EPA's asbestos ban.  27  Other than these limited examples, CELA is not actively  lobbying the Ontario or federal governments for more stringent environmental regulations. In stark contrast to the fragmented structure of labour in the US and Canada, industry interests for both American and Canadian companies are represented by the Asbestos Information Association of North America. It has 45 members including producers and manufacturers, and a reported budget of $300,000. Its objectives are, at once, to "increase 28  public knowledge of the unique benefits and importance of asbestos products," and to "assist in the solution of problems arising from the health effects of asbestos." The AIA/NA makes 29  extensive use of its right to petition for judicial review in the US. Industry interests in Canada are also indirectly represented by the Asbestos Institute, based in Montreal. The Institute is established in 1984, and is funded by the federal and Quebec governments, and the asbestos industry. Its main objectives are to "promote" the safe use of asbestos, and to support research "aimed at improving the qualities of existing asbestos products."  30  Linked to this Institute is the Asbestos International Association. * Its purpose is 3  also to promote the safe use of asbestos. In terms of lobbying efforts, the Asbestos Information Association, along with the Asbestos Institute, petitions the courts to review both OSHA's 1986 standard, and EPA's final ban.  2 f i  32  Asbestos interests in Canada are also represented by the  C. Montgomery, "Ontario to Regulate Asbestos Before Commission Issues Study," G&M. 10 July 1981,  5. Phone Interview with CELA Librarian, 2 August 1990. Encyclopaedia of Associations: National Organizations of America, 273. This figure is for 1989. Ibid. 30 The Asbestos Institute: For the Safe Use of Asbestos, (Montreal: Asbestos Institute, 1990). 31 The International Association operates a data bank through the Institute. See K. Gruber et al, The Encyclopedia of Associations: International Organizations, (Detroit: Gale Research Company, 1986), 53. 3 The Asbestos Institute (Conference Statement). 2 7  2 8  2 9  2  45  Quebec Asbestos Mining Association and the Mining Association of Canada.  Although more of the workforce is unionized in Canada than in the US, labour interests are more fragmented. Labour interests in both countries also suffer from low credibility. While two of the strongest environmental groups in the US, EDF and NRDC, lobby for more stringent standards, only CELA does so in Canada. Whereas the two US groups are well funded and scientifically sophisticated, CELA does not place a high priority on asbestos for any prolonged period of time, and has much less financial and human resources. In stark contrast, industry interests are united by the Asbestos Information Association/NA, and are supported by mining associations, the Asbestos Institute, and the Asbestos International Association.  Procedures These interest groups operate in very different systems. The US regulatory system is highly legalistic, with the relationships between interests and regulators being structured through the use of notice and comment provisions, and the right to petition relevant agencies.  33  The Canadian systems grant more discretion to policymakers. Although organized interests are consulted in the Ontario system, the minister's discretion is not threatened. In the Quebec workplace system, responsibilities are more devolved, with labour and industry having equal representation on several tripartite bodies. The federal regulatory system is more like Ontario's; the ministers discretion is complemented by ad hoc consultation with 'multiple stakeholders.'  Canada The Ontario system combines ministerial discretion and some consultation with affected interests. The minister, through the Lieutenant Governor in Council, appoints the members of  David McCaffrey, OSHA and the Politics of Health Regulation. (New York: Plenum, 1983), 71.  46  the Advisory Council on Occupational Health and Safety.'  34  Labour, management and  technical professionals are represented on this Council, which may make rules and pass resolutions governing its procedure "only with the approval of the Minister." -* The functions 3  of this body are exclusively to recommend and advise. " The Minister "may" also appoint 3  Advisory Committees to assist or advise on any matter arising under the Occupational Health and Safety Act.  37  Provisions for consultation with affected interests complement this  ministerial discretion. An important part of the Ontario system are provisions for notice and comment. Section 22 of the Ontario OH&S Act requires the Minister to publish a notice in the Gazette announcing intentions to regulate a substance, and a notice at least 60 days before the regulations is approved. No mention in either case is made of how these comments will be formally considered. The consultative process also includes some aspects not formally acknowledged in the OHS Act. The comments of labour and industry are informally sought at several points during the policymaking process. For example, during the preliminary stage of assembling relevant information, both industry and labour are consulted. In addition, after proposed regulations 38  are drafted, meetings are held at which time any interested party can express their opinions. Although affected interests are offered more opportunities to participate than is formally acknowledged, the openness of the process is still comparatively weak. The Manager of the Ministry's OH&S Program Development Unit reports that the ministry is obliged to listen and respond to the arguments espoused by various interests, yet the process "[leaves] the ministry free to gather its own evidence and to base its decision on considerations not advanced by any party."  39  Sec. 10. Ibid. Ibid. Sec. 11. John R. Wilson, "Regulation of Occupational Exposure to Toxic Substances in Ontario: The Designated Substances Program," (MA Thesis, University of Toronto, 1985). John R. Wilson, "Development of Designated Substances Regulations by the Ontario Ministry of Labour," (Toronto: Min. of Labour, 1988). 3 4  3 5  3 6  3 7  3 8  3 9  47  This discretion has allowed ministers to act decisively, as Labour Minister Robert Elgie did in 1982, by adopting new asbestos standards two years before the Dupre Commission made its recommendations. However, it has also permitted ministers to avoid adopting needed changes. Although one of the Dupre Commissions key recommendations called for a ban on the mining and manufacturing of crocidolite asbestos, Labour Ministers R. Ramsay, W. Wrye, G. Sorbara, and G. Phillips have used their discretion not to implement this ban.  This particular  balance of ministerial discretion and provisions for participation has had a notable impact on the legitimacy of the Ontario Ministry of Labour's process. The Ontario Federation of Labour (OFL) has criticized the process for being closed and secretive. OFL's frustration led to a boycott of the process in 1984; organized labour was convinced "that their participation had virtually no impact." ^ More generally, this frustration has led to proposals calling for the 4  adoption of a process based on bipartite bargaining between industry and labour, with government assistance. This proposal has been accepted by the Ministry of Labour, but as of yet has not been implemented. * It is worth noting that while labour supported these proposed 4  changes, some industry groups, like the Canadian Chemical Producers' Association, have favoured "maintaining the traditional decision making power of government."  42  Like Ontario, the Quebec occupational system has provisions for notice and comment. Section 22 of the Quebec OH&S Act states that the Commission shall publish draft 4  regulations in the Gazette 60 days before submitting it to the minister for approval. However, this provision is less important in Quebec because its regulatory system is based on a much different balance of ministerial discretion and consultation with interests. Affected interests have much more access to the policymaking process through several tripartite bodies. For instance, there is the Research Institute (IRSST), which is funded by grants from the  J. Wilson, "Regulation of Occupational Exposure," 89. * In Nov. of 1987 the Minister of Labour appointed an equal number of labour and employer representatives to the Joint Steering Committee on Hazardous Substances in the Workplace. See J. Wilson, "Development of Designated Substances Regulations," 216. Ibid, 214.  w  4  4 2  48  Commission de la sante et de la securite du travail (CSST).'" The composition of the Institute is significant. It is made up of equal numbers of management and labour representatives, and five scientific representatives from academe and industry. Tuohy reports that a number of the Institute's projects have "drawn praise from both labour and management sides."  44  More important is the Commission de la sante et de la securite du travail, which may make regulations classifying, identifying, and determining the permissible levels for hazardous substances. ^ The composition of the CSST is of great significance. Its governing board is made 4  up of equal numbers of labour and management representatives appointed by government in consultation with major employer and labour federations, and is chaired by a full-time government official. The Commission is assisted in performing its duties by joint sector-based 40  associations.  47  This system can be viewed as more legitimate because key interests are integrated into the decision-making process. Still, Tuohy shows that the first eight years of the CSST is characterized by political contention and instability, and that the resulting impact of these tripartite arrangements is mixed. Using permissible exposure levels as indicators of protectiveness, "Quebec appears to lag behind the leaders . . such as Sweden, West Germany, and the United States."  48  The case of asbestos reinforces this finding. Quebec's standards for  asbestos are less stringent than Ontario's until January 1990, and are still less stringent than the US's. Instead of a concern for assessing permissible exposure levels, the CSST is preoccupied with worker compensation matters.  49  Both Ontario and Quebec also make use of joint health and safety committees in the workplace. In both, these committees establish training and information programmes, Tuohy, "The Occupational Health Arena: Quebec," 254. As citation indicates, the characterization of Quebec's workplace procedures for participation comes from Tuohy's helpful article. Ibid, 254. Sec. 223(3). ^ Tuohy,'The Occupational Health Arena," 241. Sections 98-103. Tuohy, "Occupational Health Arena," 258. Ibid, 259. 4 3  4 4  4 5  4  4 7  4 8  4 9  49  participate in the identification and assessment of risks, and receive suggestions and complaints from the workers.^ Evidence of their effectiveness is mixed, with their capacity to influence tending to be weak. A past Canadian Director of the Oil, Chemical and Atomic Workers states: the negotiating committee very often think they [have] done a tremendous job by establishing a health and safety committee jointly with management and then forget to negotiate their rights; [moreover,] the health and safety committees very often do not have the back-up information and expertise from their union to help them do an effective job."51  Writing on this problem more generally, Reschenthaler states that "with the exception of Saskatchewan, worksite committees and the right to refuse to work in hazardous circumstances do not serve important roles . . introduction of these rights involves significantly altering the structure of power relationships at work."^ Although these committees tend to be somewhat 2  more effective in unionized plants, only about one-third of workers in Canada are unionized. There seems to be a correlation between the strength of the labour/left and the usefulness of this kind of joint committee. Their power to influence policy, then, is limited to making recommendations. Nonoccupational regulation in Canada is also characterized by ministerial discretion, with some provisions for consultation. The Hazardous Products Act says that the Minister "may" consult with the government of each province, and with worker and employer organizations "as the Minister deems appropriate."^ CEPA has similar provisions. For instance, in establishing the priority list the Minister "may" consult provinces, groups, and persons it deems appropriate.^ In practice, the federal government makes use of 4  "multistakeholder initiatives."^ These initiatives involve a series of consultations with the  Ont, sec. 8; Que., sec. 78. 51 Morely Gunderson & Katherine Swinton, Collective Bargaining and Asbestos Dangers at the Workplace. (Toronto: Ontario Ministry of the Attorney General, 1981), 5.3. 52 G. Reschenthaler, Occupational Health and Safety in Canada: The Economic and Three Cases. (Montreal: Institute for Research on Public Policy, 1979), 141. 53 Sec. 17(4). Sec. 12(3). 55 Glen Toner, "Whence and Whither: ENGO's Business and the Environment," (Unpublished paper). 5 0  5 4  50  multiple interests concerned with the regulation of an environmental problem. At once, their inclusive character legitimizes the regulatory process, and makes it more problematic. No multistakeholder initiative is used by the federal government for the regulation of asbestos. Instead of undertaking one of these initiatives, the federal government made use of ad hoc committees. Most notable was a 1986 Asbestos Advisory Committee established at the discretion of Minister of Energy, Mines and Resources Marcel Masse. Its purpose was to "evaluate initiatives to revitalize the industry and proposed plans to carry them out."-' This 0  Committee was "composed of representatives of the Asbestos Institute, producers and unions."  57  Although it is suggested that this "national initiative" to promote asbestos came out of tripartite cooperation, it is not mentioned by Masse that most of CLC's members outside of Quebec argued that asbestos is dangerous at any level of exposure.^ This use of ad hoc 8  committees was consistent with the pattern of state-society relations in the Ontario workplace arena. Although affected interests were consulted, it was at the discretion of the minister.  United States In contrast to the Canadian system, the American system offers affected interests formal procedures to influence agency action. Groups or persons may make use of notice and comment procedures, citizen petitions, and citizen suits. The OSH Act has no specific petition provisions. Instead, the Administrative Procedures Act (APA) is the guiding statute, with section 553(e) giving a general right of petition to "an interested person."^ Also of significance is section 706 9  of the APA, which describes the scope of judicial review and gives the courts the authority to "compel agency action unlawfully withheld or unreasonably delayed." It also states that "any  CES&HG. # 73. Ibid. Lome Slotnick, "Asbestos Debate Divides CLC Members," Globe & Mail. 1 May 1986, 3(A). As mentioned in the 'Interest Group' section of this paper, while Quebec labour groups support the governments 'safe use' philosophy, the CLC argues that asbestos is dangerous at any level of exposure. See Richard Stewart, "The Reformation of Administrative Law," Harvard Law Review. 88(1975): 16671813.  5 6  5 7  5  8  5 9  51  person suffering legal wrong because of agency action, or adversely affected by such action .. shall be entitled to judicial review thereof."^ In addition, the APA specifies that notices of proposed rule making must be published, and the agency must give "interested persons an opportunity to participate in rule making" through written comments, and that comments must be formally considered by the agency.61 In contrast to the OSH Act, the Toxic Substance Control Act has specific provisions for public petitions and require agency action within a specified time.^ If the petition is denied, "the Administrator shall publish in the Federal Register the 2  . . reasons for such denial," or if within 90 days the petition is neither granted nor denied, the petitioner may commence a civil action.^ The TSC Act also provides provisions for "any person" to file a petition for judicial review with the US Court of Appeals.**  4  These formal procedures have had a great impact on the character and dynamics of asbestos regulation. The AFL-CIO initiated the process in 1971 by petitioning OSHA to lower the permissible standard to 2 f/cc.^5 This led to the adoption of a 5 f /cc standard in 1972; this rule also provided for a reduction to 2 f/cc in 1976. In 1975, OSHA proposed a new rule of 0.5 f/cc, but it was never adopted. In 1983, labour petitioned OSHA to adopt a standard of 0.1 f/cc, instead, a 0.5 f/cc emergency standard was adopted. Industry petitioned for judicial review of this standard, arguing that the action is based on "the unfounded conclusion that a health emergency exists under the 2 fibre standard."^ The Supreme Court agreed and barred OSHA from lowering the standard. In 1986, OSHA adopted a standard of 0.2 f/cc, which led to both labour and industry petitions for judicial review. In 1988, a DC Court decision upheld almost all of OSHA's 1986 asbestos standard, including the 0.2 f/cc limit.  67  The dynamics of environmental regulation were also greatly affected by these procedures. 6 0  6 1  6 2  6 3  6 4  6 5  6 6  6 7  See Stewart, "The Reformation." McCaffrey. OSHA and the Politics of Health Regulation. 71. Section, 21. Sec., 21 (3), (4A). Section, 19; s. 20 is can also be used to force agency action. McCaffrey. OSHA and the Politics of Health Regulation. 81. Chemical Regulation Reporter. 11-11-83, 1230. Building and Construction Trades Dept. v. Brock. 838 Federal Reporter. 2d Series. 1258-1280.  52  The Natural Resources Defence Council made use of its right to petition in September of 1984, asking the EPA to ban asbestos in new and replacement brake products under section 6 of the TSC Act.** The Council argued that friction causes fibres to be released into the brake drum and 8  environment, "exposing not only brake workers but also the general public to a serious health threat." °  The right to petition for review was used by the Asbestos Information Association  9  of North America in asking the Court of Appeals for the Fourth District to review and overturn the EPA's rule banning the future manufacture and use of asbestos products/ The Association 0  argued that the final rule was an "unfounded, politically convenient attack on an industry that greatly benefits the American public." * 7  The impact of these procedures is also revealed by looking more closely at this highly legalistic process. A reading of OSHA's final rule on asbestos shows the comprehensive and formal character of the agency's response to comments made by interested parties. An interesting example is OSHA's response to a comment made by Dr. Jacques Dunnigan, the present Director of the Health and Environment Division of the Montreal-based Asbestos Institute. Dunnigan argues that the surface chemistry of the fibre must be considered when determining carcinogenic potential, and that if asbestos is chemically treated its toxicity will significantly decrease. Dunnigan's proposal and the studies he cites in his comment are reviewed, and 72  responded to by agency officials. It is recorded that "based on these considerations, OSHA has decided that it is prudent from a public health viewpoint to continue to include chemically treated asbestos in the Agency's definition."  7  3  A look at the court challenges to OSHA's 1986 standard reveals the extent and nature of the court's involvement. The DC Circuit Court outlines and responds to AIA/NA's challenges to OSHA's 1986 standard. For example, the court responds to AIA's claim that because smoking Ibid, 9-14-84, 604. 69 Ibid. 6 8  7 0  7 1  7 2  7 3  Chemical Regulation Reporter. 8-25-89,675. Chemical Regulation Reporter. 8-25-89.675. 51 FR 22629 (June 1986). Ibid, 22630.  53 and asbestos have synergistic effects, OSHA's reliance on studies that included a high proportion of smokers lead it to overestimate the risks posed by asbestos/ AIA also claims 4  that "OSHA repeatedly resolved hotly disputed scientific issues in favour of higher potency estimates." -' The court also responds to union (AFL-CIO) claims that a 0.1 f/cc level is 7  achievable in operations affecting over 97% of the workers exposed to asbestos in general industry, and therefore OSHA's decision not to adopt 0.1 f/cc is "unsupportable." ** 7  In the preamble to their decision, it is recognized that "when called upon to review technical determinations on matters to which agency lays claim to special expertise, courts are at their most deferential."  77  Still, when compared to the Canadian standard-setting process,  the extent of judicial scrutiny is extraordinary. In Canada, policymakers rarely explain their analysis of scientific issues in any detail, and are not required to do so. ** In sharp contrast, the 7  judges presiding over this case write that their review will require OSHA to "identify relevant factual evidence, to explain the logic and the policies underlying any legislative choice, to state candidly any assumptions on which it relies, and to present its reasons for rejecting significant contrary evidence and argument." ^ For instance, OSHA's ban on the spraying of 7  asbestos products is found to be unsupportable. The court argues that AIA points to the process of encapsulating spray-on asbestos products, which ensures that fibres are not released on application. OSHA, however, "says nothing to refute these claims [thus] the ban cannot stand."80 This judicial assessment of petitioner's arguments and of agency rules stands in stark contrast to the Canadian systems. Lastly, a look at the OMB-EPA dispute also reveals some interesting aspects of participation in the US system. One of the main concerns of the Subcommittee is to point out the 7 4  7 5  7 6  7 7  7 8  838 Federal Reporter. 2d Series. 1265. Building and Construction Trades Dept. v. Brock (1988). Ibid, 1266. Ibid, 1272. 838 Federal Reporter. 2d Series. 1259. Jasonoff, Risk Management, 80.  ^ 838 Federal Reporter, 2d Series, 1264. Here they cite United Steelworkers of America v. Marshall. 80 Ibid, 1270. As mentioned, this decision upheld almost all of OSHA's 1986 standard, including its 0.2 f/cc exposure limit. 7  54  secretive nature of industry and OMB's attempt to defer the regulation of asbestos to OSHA and CSPC. The Subcommittee reports that it uncovered over twenty cases of communication between industry representatives and OMB concerning asbestos regulation. However, "there is no [legally required] record of the communications and comments . . OMB, then, may serve as a secret conduit to administrative agencies for industry views."^* The Subcommittee's castigation of this informal lobbying reveals another distinctive characteristic of the US regulatory system. Participation between affected interests and regulators is to be highly formalized through the use of notice and comment and rights to petition. Informal communications between regulators and interests-which characterize the Canadian systemsare not viewed as legitimate.  Conclusion Although a higher percentage of workers are unionized in Canada, the movement is more fragmented. In contrast, asbestos companies are highly unified in both countries. The unequal involvement of US and Canadian environmental groups is also shown. The procedural opportunities offered to these groups are very different. The US system is unique in offering interests the opportunity to petition agencies. While private interests are not directly part of the standard setting process as they are in Quebec, they set the pace of agency action and set into motion reviews of agency rules, which often lead to significant policy changes. The Quebec occupational system differs from the Ontario system in its devolution of responsibilities to tripartite bodies; interests themselves formulate standards within the context of ministerial discretion.  Subcommittee Report, 102-03.  55  Chapter 5: Explaining the Outcomes  Science and Its Politicization This study partly supports the assertion that the more science is certain, the less politics will matter. Science does set the parameters of the asbestos debate. Both US and Canadian risk assessments agree on the presence and absence of thresholds for asbestos, and none of the competing interests in this case, for example, ever claim that exposure to 50 f/cc over an extended period of time does not cause cancer. Moreover, although workplace standards in the three jurisdictions differ, changes over time follow similar patterns; in the early 1970s asbestos standards for the three stand between 12 to 10 f/cc, while in the late 1970s standards in all three fell to between 5 to 2 f/cc. However, the uncertain areas of science are intensely politicized. The extent of this politicization is extraordinary considering that the science on asbestos exposure is comparatively certain.* Within all of the jurisdictions, labour, environmental and industry interests contribute to the politicization of science. As the Subcommittee's Report on OMB Interference shows, American industry interests and the OMB manage to delay EPA's ban for several years by arguing that the costs are "enormous" and the benefits overemphasized.  2  While OMB questions the integrity of EPA's asbestos rule, the Subcommittee criticizes OMB's cost-benefit analysis for being "ghoulish."  3  1 The science of asbestos is relatively certain given the availability of human exposure data. Subcommittee Report, 25. Chemical Regulation Reporter. 4-19-85, 69.  2  3  56  More unique to the case of asbestos, though, is the international character of this politicization. The battle lines are clear: the Canadian asbestos industry, Quebec asbestos workers, and the federal and Quebec governments against EPA, US environmental and labour interests, and OSHA. This politicization of science becomes evident by examining the statements made by leaders of governments and interest organizations on the supposed risks of exposure to asbestos. Both the Quebec and federal governments make use of the media in attempts to undermine the credibility of EPA's ban. Their approach, as these passages clearly illustrate, is to appeal to the emotions of the reader-often at the expense of factual information. Statements, as one might expect, are espoused without explanation. For example, in 1986 Federal Mines Minister Robert Layton says that EPA's policy toward asbestos "is unfair and based on emotion rather than scientific evidence." Quebec Mines Minister Raymond Savoie calls asbestos a "miracle" 4  substance and says that the US is "basing its actions on political and not scientific considerations."^ The asbestos industry also makes use the media to at once commend the two provincial governments for their 'controlled philosophy,' and attack studies done for the American agencies. A lawyer for the Canadian asbestos industry, for instance, argues that U.S. policy towards asbestos "is baseless" and the EPA and OSHA "unfairly" fail to consider the findings of the 1984 Ontario Royal Commission.  0  The president of the Mining Association of Canada,  George Miller, argues that the EPA's ban on asbestos is more a product of public panic than good science. He writes that "even a cursory glance at the EPA ruling leads one to suspect that political and economic factors [are] more significant than the risk to human health."  7  Statements often question the rationality of decisions. For instance, Savoie sums up the policy  Sheila McGovern, "Imports Cut Spells Doom for Town of Asbestos," Montreal Gazette. 25 January 1986, 4(A). Montreal Gazette. 14 March 1986,5(A). Montreal Gazette. 7 October 1986, 5(B). Northern Miner Magazine. Dec. 1989,34-36. 4  5  6  7  57  divergence between the US and Canada as "a battle between the irrational and rational."  8  The president of Asbestos Corp. (which is partly owned by the Quebec government) George McCammon, in commenting on the slight rise in asbestos consumption, states that "some reason and rationality is coming back into this whole business."^ The national labour federations, on the other hand, cite studies done for the American agencies. For example, the president of CFL in 1987 says that federal and provincial Ministers of Labour will not be acting in the best health interest of Canadian workers if they persist with their policies of 'controlled usage.' In the CFL's opinion there is "indisputable scientific evidence" that asbestos cannot be used safely.*^ As mentioned, the Quebec unions vehemently reject this view, and support the position taken by the asbestos industry and Quebec government. It is also important to consider the role played by the Asbestos Institute in this rhetorical battle. This 'Institute' is funded by the Quebec and federal governments and by the asbestos industry. Both government and industry leaders cite the work of this Asbestos Institute without stating that it is funded by both.** This tends to give the impression that the Institute is an impartial actor. Instead, its expressed purpose is to promote the expansion of asbestos sales by improving the image of the product, and to support research into the safe use of asbestos.* An 2  examination of newspaper articles and journals, though, suggests that the first goal is the more important.  In March of 1987, the Montreal Gazette reports that the Institute hired a social  psychologist for the purpose of planning an effective public relations strategy; the main thrust of the strategy is to show that asbestos is not "the bogey-man."*^ A publicity and "education"  Jennifer Robinson, "Quebec Mines Minister on Mission to Support Claim Asbestos is Safe," Montreal Gazette, 5 July 1986,7(A). ^ Allan Swift, "Asbestos Producer Encouraged by Rise in Consumption," Globe & Mail. 10 July 1989,3(B). CES&HG. #74. ** One of the Dupre' Commission's study papers was written by a Dr. G. Bragg, The Technical Feasibility and Cost of Controlling Workplace Exposure to Asbestos. (Toronto: Ontario Ministry of the Attorney General, 1982). Bragg has also been associated with the Asbestos Institute. In 1988, he wrote The Control of Asbestos Dust for the Institute. * See the Institute's "For the Safe Use of Asbestos," (Montreal: The Asbestos Institute, 1988). Montreal Gazette. 22 March 1987,5(B). 8  1 0  2  1 3  58  campaign of the Institute's in 1988 informs readers that the chances of being killed by exposure to asbestos are 21,900 times less than being killed by the effects of smoking, and 1,600 times less than being killed in an auto accident.* The Institute fails to remind the reader that exposure 4  to smoking, unlike nonoccupational exposure to asbestos, is based on choice. Facts like this are thrown at the reader without explanation. Finally, there is the role of international organizations, like the International Labour Organization. The ILO is a body of the United Nations which claims to promote social justice and the improvement of labour conditions. The ILO promulgates recommendations concerning occupational health and safety. When a convention is ratified, the member government is in effect stating an intention to align its laws so as to conform with that convention.*^ Member governments are invited to present their opinions on, in this case, asbestos standards with accompanying scientific 'evidence.' The Quebec and federal governments—and the Institutecite the policy of the 1986 ILO Conference routinely in their defence of the controlled use of asbestos. At this meeting of the ILO it is decided that crocidolite be banned and "strict controls" be placed on all other types of asbestos.* Quebec Labour Minister P. Paradis says of 0  the ILO decision in 1986: "international endorsement means a lot for the industry, the ILO decision practically obliges the US to re-examine its scientific studies."*  7  It must be remembered, however, that the ILO is not a scientific body but a political one, open to influence through lobbying. This is often overlooked, giving the impression that the ILO decision is based on 'pure' scientific documentation. Moreover, the 1986 Conference does not establish specific quantitative standards for airborne asbestos in the workplace. This allows both the Ontario and Quebec governments to justify their standards for asbestos—even though they are significantly different until January of 1990. In addition, it is never mentioned by the Ibid, 7 March 1988,14(D). * p. Magna et al, Occupational Health and Safety: Issues and Alternatives. (Toronto: Ontario Ministry of the Attorney General, 1981), 114. International Labour Conference. 72nd Session: Record of Proceedings. (Geneva: International Labour Office, 1987), Minutes, 29/3-29/37. Montreal Gazette, 28 November 1986, 5(B). 1 4  5  1 7  59  Canadian government or the Institute that Quebec failed to follow through with the banning of crocidolite until January of 1990, and that Ontario has yet to do so-four years after the ILO Conference established its recommendations. The ILO's recommendations, then, are clearly manipulated by affected interests. Although science does set the parameters of the asbestos debate, the remaining areas of uncertainty are politicized by competing interests, undermining science's potential unifying role. In this battle between competing interests, science is politicized through the use of the media, and bodies like the Asbestos Institute and ILO. Thus, an approach that considers the capacity of science to encourage policy convergence must also consider the relationship between uncertainty and politicization.  The Pluralist Approach This approach provides only a minor contribution to explaining the various asbestos outcomes. The weakness of Canadian environmental regulations compared to American is partly explained by the impact of interest groups. The only environmental group in Canada to lobby the federal government, CELA, does not consider asbestos regulation a top priority, and does not undertake any sustained lobbying campaign. In stark contrast, two of the most powerful environmental groups in the US, NRDC and EDF, consider asbestos regulation a top priority. However, a pluralist approach fails to explain the stringency of US workplace standards for asbestos. Clearly, when OSHA adopts its final asbestos rule in 1986, labour interests are not more powerful than business. In fact, organized labour suffers significant set-backs during the 1980s, "reflecting the impact of structural changes in the economy, new management attitudes, and the political environment."^ In 1984, two years before OSHA adopts its 0.2 f/cc standard, the numbers of unionized workers drops to 18.8% of the workforce.^ In addition, the pluralist approach fails to explain the significant differences between Trade Unions of the World. 404. 19 Ibid. 1 8  60  Ontario and Quebec workplace standards until 1990. Labour interests in both provinces are roughly similar in strength; or worded differently, organized labour in Quebec is not significantly weaker than organized labour in Ontario. So, while somewhat useful in emphasizing the differences in strength between US and Canadian environmental groups, the pluralist approach fails to explain many significant aspects of this case.  Rational Choice Theory This approach emphasizes the difficulties of organizing effective political action in policy areas where benefits are diffuse. In Canada, rational choice theory has some value in pointing out the stark differences between industry and environmental interests. On the one hand, industry interests—keenly aware of the benefits from weak environmental regulation—easily unite under the Asbestos Information Association. On the other hand, the three most influential environmental groups, Greenpeace, Friends of the Earth, and Pollution Probe, do not have asbestos campaigns. The benefits from stringent environmental regulations are too diffuse for the members of these groups to make asbestos a top priority. However, this approach fails to explain the stringent environmental regulations in the US. Although environmental interests have to face the asbestos industry with its special interests, the former is successful in seeing its policy preference adopted. Likewise, this approach fails to explain the comparatively stringent American occupational standards. Clearly, labour has to overcome more organizational difficulties than does industry. Lastly, this approach fails to explain why Ontario workplace standards are more stringent than Quebec's until 1990. So, although somewhat useful in emphasizing the disparate problems faced by industry and environmental groups in Canada, it fails to explain many elements of this case.  The Structural Marxist Approach A structural Marxist approach has some utility in explaining policy outcomes in relation to varying degrees of economic dependence on asbestos. With the development of asbestos  61  substitutes, the US economy over the last fifteen years has become less dependent upon asbestos. While it is cheaper for Ontario manufacturers to use asbestos from Quebec in the manufacturing of various products, they can also make use of asbestos substitutes. In contrast, revenues from asbestos mining remain crucial to the Quebec economy. These varying levels of dependence correlate with the stringency of workplace standards in all three jurisdictions. ^ This 2  approach is also somewhat useful in explaining the weak Canadian environmental regulations. By banning asbestos, as in the US, the Canadian government would eliminate highly profitable export markets in Europe and the developing countries. This approach is most useful, though, in helping to explain Quebec's lenient workplace standards up to 1990. In contrast to the US and Ontario, the Quebec mining industry remains a crucial part of the provincial economy. This economic dependence is heightened by the state's ownership of a significant part of the industry. Most notable of course is the government's takeover of Asbestos Corp., one of the largest companies in the province. * Implicit in the 2  takeover is the desire of the Parti Quebecois to be 'masters in their own house.' Although 22  Quebec is a dominant producer of asbestos, the economic benefits that it derives from this production are relatively negligible. Also implicit in the takeover is the desire to improve working conditions. Dauphin writes that "the nationalist mainstream has made asbestos the symbol for abundance in natural resources, of foreign control of Quebec's economy, and of labour's struggle for better working conditions." ^ The takeover, then, represents an attempt to improve 2  the position of the economic condition of the quebecois, and especially the condition of workers. Ironically, though, the operations taken over by the government are the worst in terms of health and safety conditions. With the sagging of the US market, the government loses a 24  20 Doern argues that the closure of the Matachewan asbestos plant in Ontario (late 1970s) "must be seen in the context of the relatively weak position of asbestos production in the total Ontario economy." In contrast, the standards in Quebec reflect the high economic stakes. See his Regulatory Processes. 109112. * As mentioned in the 'Benefits' section of this paper, the reported profits for 1977 were $ 229 million. 22 Fraser "Quebec's White Gold: To the PQ, Asbestos is More Than a Business." 23 Dauphin, "Asbestos," 258. Historically, the industry has been dominated by American multinationals. 2 During the government's attempts to take ownership of Asbestos Corp.'s mines, union leaders 2  4  62  total of $248 million in the early eighties.-" In an effort to revitalize the industry, the government sets up the Asbestos Institute. Millions are spent for public relations purposes and not, as was originally intended, to improve health and safety conditions. Fournier writes on the tension between health and safety and public relations: as regards potential improvements on health and safety problems, recent developments seem ominous. Most of the new research money, for example, has been concentrated on finding new industrial uses for asbestos, at the expense of research on health and safety.26 This particular ranking of health and economic concerns is especially significant given the supposed ideological character of the Parti Quebecois. Even though the PQ party views itself as 'pro-worker,' business interests are made a priority over the interests of workers because of the economic dependence on asbestos. This ranking of priorities is reflected in the asbestos standards. In the late seventies, the government disregards the findings of it Beaudry Commission and implements a less stringent standard. In the eighties, the Quebec government cites ILO's 'controlled use' recommendations in justifying its regulation of asbestos, yet it fails to ban crocidolite asbestos until 1990. Unlike the pluralist approach or rational choice theory, a neo-Marxist approach is also useful in pointing out the possible biases of collective action. While capital makes use of three forms of collective action in order to defend its interests, the firm, informal cooperation, and the business association, labour often only makes use of its associations. Moreover, labour has a much more difficult time maintaining organizational cohesion of its only mode of collective action. Offe and Wiesenthal argue that "unions are faced with the task of organizing the entire spectrum of needs that people have when they are employed as wage workers," for  expressed grave concern. The president of the Confederation of National Trade Unions argues that the government "is buying a pack of troubles." "CNTU Fears Quebec Asbestos Take-over," Montreal Star. 27 October 1977,12(A). 25 Jeanne Laux and Maureen Molot, State Capitalism and Public Enterprise in Canada. (Ithaca: Cornell University Press, 1988), 120. 26 Pierre Fournier, "The National Asbestos Corporation of Quebec," Public Corporations and Public Policy in Canada. A. Tupper, and B. Doern, eds. (Montreal: Institute for Research on Public Policy, 1981), 363.  63  example meeting both health and financial needs.  27  This approach is especially useful in explaining the leniency of Quebec standards up to 1990. The collective action taken by business and labour is very different. On the one hand, industry interests are represented through the Quebec Mining Association and through the Asbestos Information Association/NA. In addition, industry's interests are informally represented through close relations with the government. For instance, the senior managers of the government-owned companies regularly communicate with relevant Cabinet Ministers. ** 2  So, industry's interests are represented through mining associations, the AIA/NA, and through informal cooperation with government officials. In contrast, labour's interests are represented through their associations. These labour associations must try to reconcile the disparate needs of its members—an onerous task not faced by business in the case of asbestos. The reconciling of economic and health and safety interests is especially difficult. The tension between safety and wages is seemingly inherent. In a competitive market labour is often compelled to to accept higher health and safety risks. This is heightened when unemployment is high, and the mobility of workers is restricted as is often the case in one-industry towns. ^ This tension between interests characterizes asbestos workers 2  in Quebec, as shown by a 1989 story in the Montreal Gazette on Thetford-Mines. It reports that "the unions asked for studies of the risks of cancer but their main goal was to get pay increases."^ Although to a different degree, this problem of trying to reconcile disparate interests also occurs in Ontario. Gunderson and Swinton cite a Safety Coordinator for the United Steelworkers of America: the employers [find] out very early that when safety was on the table you could get it to the last item of bargaining. If you [can] not get the union to move on health and safety issues then you [can], very often, for two or three cents, buy the members away from the  Offe and Wiesenthal, 'Two Logics of Collective Action," 75. Laux and Molot, State Capitalism. 118. ^ Reschenthaler, Occupational Health and Safety in Canada. 10. Montreal Gazette. 7 July 1989,2(A).  2 7  2 8  2  3 0  64 safety issues .31  In examining the views of individual workers in Ontario manufacturing plants, Luce and Swimmer also reveal this tension between wages and health and safety. Sixty percent of the workers state that a total ban on asbestos is a good idea (i.e., use substitutes instead), however, most could not give up any percentage of their wage for tougher standards. Reschenthaler 32  reports on the potential intensity of this tension. He provides examples of workers threatening health and safety inspectors not to invoke stop-work orders because of safety violations.  33  This tension between safety and health is heightened in smaller communities, like Lindsay, Ontario, where there is less alternative employment. Another bias of collective action not pointed out by pluralist or rational choice theory, is the unequal availability of information. Industry interests tend to have more resources to generate useful information, and they can sometimes profit from close cooperation with government officials. In developing products, for example, companies extensively test for such things as performance and safety. Business interests also have the capital to commission 'independent' studies on the safety of a certain product or substance, and use the results for public relations purposes. Organized labour, in contrast, is much more financially constrained and can rarely afford to commission an independent study. They are also often denied access to company reports; disclosure of this information is avoided in the name of competition.  34  Power, then, partly "hinges on the ability to manipulate knowledge." ^ 3  The experience of asbestos workers in the US is characterized by this unequal availability of information. Paul Brodeur's Outrageous Misconduct shows that the largest manufacturer of asbestos-containing products in the US, the Johns-Manville Corporation, knew about the hazards of exposure to asbestos as far back as the early 1930s.  30  Studies done for the  31 Collective Bargaining and Asbestos Dangers. 5.3. Salley Luce and Gene Swimmer, Worker Attitudes About Health and Safety in Three Asbestos Brake Manufacturing Plants. (Toronto: Ontario Ministry of the Attorney General, 1982), 6.8. 33 Occupational Health and Safety in Canada. 142-43. 3 For an excellent example of this see Schrecker, Political Economy of Environmental Hazards, 69. 35 D. Nelkin in T. Schrecker's Political Economy of Environmental Hazards. 48. 36 Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial, (New York: Pantheon Books, 3 2  4  65  corporation in 1931 by a Dr. Lanza show that exposure to asbestos fibres poses serious health risks to workers."^ Other studies are undertaken, but are also not disclosed.38 7  Industry can also make use of its superior resources by commissioning studies that underestimate the hazards of a profitable substance. The most notable case being the McGill University study, which was indirectly funded by the Quebec Asbestos Mining Association. It reports that workers in the chrysotile mining industry have a lower mortality rate than the general population of Quebec of the same age.^9 Informal cooperation with government officials is another source of information not usually offered to labour. The most notable example involves a dispute between labour and the owners of the last operating asbestos mine in Ontario, the Matachewan mine near Kirkland. It opens in 1975 and attracts workers who are largely new to asbestos mining and hence fairly ignorant about some of the hazards. *^ The same year Ministry of Health inspectors write an extremely 4  critical report of the conditions in the mine. This report, however, is made available to the company of the mine, but not the union or workers concerned. * Thus, a neo-Marxist approach is 4  generally useful in emphasizing the unequal availability of information which can bias collective action.  This approach's emphasis on economic dependence is generally useful, but it is not subtle enough. For example, in explaining the US ban, this approach points to declining dependence on asbestos coupled with the rise of substitutes. This is only partly convincing; it fails to explain why more stringent environmental standards are not adopted as opposed to a ban. This economic dependence argument, though, is helpful in explaining Quebec's historically lenient workplace standards. The neo-Marxist approach is also useful in pointing out the possible 1985). Ibid, 113. There is also a study by W. Hemeon in 1947, for example. See page 143 of Outrageous Misconduct. 9 Outrageous Misconduct. 6. 40 Doern, "The Political Economy of Regulating Occupational Health," 13. 41 Doern, Regulatory Processes. 111. 3 7  3 8  3  66 asymmetry of collective action. While business has more avenues in which to express its interests, labour has a difficult time maintaining the effectiveness of its only avenue, the labour association. It must constantly try to balance the sometimes conflicting interests of its members. This approach, once again, is most convincing in explaining Quebec's workplace standards, and to a lesser extent collective action in Ontario. Lastly, this perspective is generally useful in emphasizing the unequal availability of information.  Institutionalism This approach is unique in emphasizing the autonomy of institutions. It places importance on institutional structures, and on the reciprocal relationship between these structures and societal interests. This approach is helpful in explaining the stringency of US occupational and environmental standards. Unlike their counterparts in Canada, US groups can make use of the right to petition for agency action and for judicial review. Thus they are guarantied formal access to the policymaking process through these procedures. Moreover, the nature of this participation has a significant impact upon the groups. In petitioning for action or review, interest groups must offer comparatively detailed and scientifically sophisticated explanations. At once, then, the character of provisions for participation formalize access and make some groups, like NRDC and EDF, more powerful by encouraging them to become scientifically competent. This approach, however, fails to explain the historical divergence between Ontario and Quebec. Although labour—the natural advocate of stringent standards—is provided more access to decision-making in the Quebec system through the CSST, its asbestos standards are more lenient than Ontario's until 1990, and remain more lenient than the US's.  42  Thus, an  institutionalist approach mostly helps to explain the stringency of US standards, while it fails to convincingly explain the historic divergence between the two provinces. Lastly, an emphasis  Tuohy reports that in general Quebec's standards are comparatively weaker. See her "Occupational Health Arena: Quebec," 258.  4 2  67  on procedures in explaining the absence of stringent Canadian environmental standards is not particularly helpful since none of the three largest environmental groups even has an active asbestos campaign.  Combining Neo-Marxist and Institutionalist Explanations Some elements of the neo-Marxist approach are affected by institutional structures. An emphasis on the difference between business and labour collective action is useful when considered in relation to the impact of federalism. The federal structure of the Canadian state has the effect of fragmenting both business and labour groups. Three of the largest business associations, the Canadian Manufacturers Association, the Canadian Federation of Independent Business, and the Canadian Chamber of Commerce are highly decentralized, unable in most instances to speak on behalf of their members. ^ As already mentioned, labour is 4  also fragmented by federalism. However, the significance of this fragmentation increases when considered in relation to the asymmetry of associations. While business interests can rely on the lobbying efforts of individual firms, and informal cooperation with government officials, labour must rely on its fragmented labour associations. This approach is somewhat fruitful in explaining the regulatory outcomes of asbestos. Although the mining associations are fragmented by federalism, industry interests are also represented through the Asbestos Information Association/NA. Not only does this group represent the unified interests of asbestos companies from all Canadian provinces, but from both the US and Canada. In sharp contrast, labour interests are divided by the federal structure. This is poignantly revealed by looking at the CLC's 1986 national convention and its policy on asbestos in the workplace. During this convention delegates pass "a resolution favouring a ban on the mining and use of asbestos." While members of the BC Federation argue that asbestos 44  P. Fournier, "Consensus Building," 318-19. J. Deverell, "Asbestos Issue Sparks Labour Walkout," Toronto Star. 1 May 1986,10(A).  68  is "an inherently unsafe product,'"" and representatives of the Ontario Federation state that "asbestos [cannot] be controlled," members of the QFL patently disagree. They argue that 40  the preservation of jobs is of primary importance, and that asbestos is safe if used under controlled conditions. These rifts are glossed over by the adoption of the CLC's old "no 47  exposure" to carcinogens guideline. The vague nature of this guideline is highly significant: it allows both those favouring a more stringent policy and those wanting no new policy to claim victory.  48  So, while the unified interests of the asbestos industry are represented through the  AIA/NA, labour's only mode of collective action, the association, is fragmented by federalism. This fragmentation allows for a more lenient policy on asbestos exposure to be adopted. An emphasis on the unequal availability of information can also be viewed in relation to institutional procedures. Unlike the tripartite Quebec system, the Ontario occupational system relies heavily on notice and comment procedures, and on public meetings. In both cases, affected interests are offered the opportunity to express their views. The credibility of their views is partly related to their expertise. Expertise, though, is often a function of financial and human resources. The Ontario Federation of Labour is frank about its limitations in this respect. It argues that the meaningful participation of labour is hampered by "limited financial and manpower resources," and that the "consultative process that has evolved in Ontario does little to overcome the basic inequalities between labour and management in terms of informational resources." Thus, a regulatory system that relies on consultative procedures 49  tends to underestimate the inequalities faced by labour and business in generating useful information. It is also somewhat useful to consider US procedures for participation in relation to the argument that business has a privileged position in capitalist societies. This study has dealt Ibid. P. Rickwood, "Ontario's Asbestos Probe is Put Off Again," Toronto Star. 6 Feb. 1983,4(D). Deverell, Toronto Star. 10(A). "Both Sides Claim Victory in Asbestos Debate," G&M, 2 May 1986, 9(A). OFL, 'Towards A More Comprehensive Approach To Regulation of Workplace Health Hazards," (Toronto: OFL, 1984). 4 5  4 6  4 7  4 8  4 9  69 with two elements of this privileged position argument. First, there is the economic dependence on substances like asbestos. Regardless of the strength of labour or provisions for participation, policy outcomes will tend to favour business interests. Government officials will tend to preserve business confidence, regardless of the collective efforts of business or labour. Another element of the privileged position argument, though, focuses on collective action. As already mentioned, business interests have three modes of collective action, while labour has one which suffers seemingly inherent organizational problems. However, US procedures offering interests therightto comment and petition add a new element to collective action. Although business interests are arguably more powerful than labour in the US, and thus can exert more informal pressure on policymakers through lobbying, US provisions offer formalized opportunities to all of the relevant interests. These procedures, then, to some extent equalize opportunities to influence. While this combining of neo-Marxist and institutionalist explanations is generally useful in pointing out the relationship between state procedures and the availability of information, it is more useful in emphasizing the uneven impact of federalism, and the equalizing impact of US procedures for participation.  Synthesizing the Explanations First, it is clear that none of these approaches can explain the policy outcomes without considering the impact of science. This study partly supports the assertion that the more science is certain, the less politics will matter. Science does set the parameters of the asbestos debate, however, uncertain areas of science are politicized. More importantly, the extent of this politicization is extraordinary considering that the science on asbestos exposure is relatively certain compared to other toxic chemicals. This study also shows that none of the other approaches alone can explain cross-national policy outcomes in the case of asbestos. The pluralist and rational choice approaches fail to explain adequately the stringency of US standards, and the historical divergence of workplace  70 standards between Ontario and Quebec. The neo-Marxist approach fails to adequately explain the severity of US environmental regulations, while the institutionalist approach fails to convincingly explain the historic leniency of Quebec regulations. However, taken together the four approaches offer a convincing explanation of the various policy outcomes. The US workplace regulations are more stringent than Ontario's mostly because of the different institutional provisions for participation. While Ontario labour interests must try to influence policy in a minister-centered system, US labour is offered formalized procedures to affect agency rulemaking. The divergence between the US and Quebec workplace standards cannot be adequately explained by looking at institutions; labour interests in Quebec have significantly more access to the policymaking process than do their counterparts in Ontario. Instead, it is more a function of economic dependence. While the economic dependence on asbestos in the US is slowly declining, it remains significant in Quebec. This is heightened by government-ownership, and the importance of asbestos to one and two-industry towns. Economic dependence on the mining of asbestos also affected the collective action of labour interests. While most workers in Canada argue that asbestos is dangerous at any level of exposure, Quebec workers espouse the same 'safe use' philosophy as industry. More generally, the leniency of the two Canadian province's workplace standards compared to the US is partly explained by asymmetrical aspects of collective action. While labour interests in the US present a unified position, the CLC is unable to unite the disparate interests of its members. The US environmental regulations are more stringent than Canadian because of interest group politics, and to a lesser extent institutional arrangements. US groups are well funded, scientifically competent and have formalized access to the policymaking process. Institutional provisions matter less in Canada because there is not extensive interest group activity. Regardless of the character of procedures for participation in the environmental arena, none of the three major Canadian groups have an active asbestos campaign.  71  Conclusion Unlike many studies on the regulation of hazardous substances, this study gives equal weight to scientific and political determinants of public policy. This balanced consideration illustrates the double impact of science. While science can set the boundaries of a policy debate, uncertain areas of scientific evidence are usually politicized by competing interests. Thus, the less science is certain, the more politics matters. Although limited by its case study focus, the comparative nature of this work also proves fruitful. Through cross-national comparison, the strengths and shortcomings of systems are shown. While the discretionary systems allow ministers and their advisory councils the freedom to undertake comprehensive studies, to consult with all affected interests, and to act decisively, this freedom also permits policymakers not to act, even if this means disregarding the findings of their own studies. While a legalistic adversarial system may offer all interests the right to petition regulators, it also encourages a preoccupation with procedural rather than substantive questions, and the politicization of scientific issues. While systems based on tripartite bargaining offer both labour and industry interests access to the decision-making process, these arrangements fail to counter the pressures faced by workers dependent upon asbestos-related employment. The comparative nature of this work also has theoretical implications. Policies are shown to emerge from very different interrelationships between state structures and societal actors, influenced by varying degrees of economic dependence on asbestos. Although often useful in explaining outcomes in one of the jurisdictions, none of the approaches alone can explain crossnational outcomes. Group theory alone fails to explain cross-national outcomes; so do neoMarxist and institutionalist approaches. Thus, this study demonstrates the superiority of integrative approaches, as opposed to those which emphasize one causal variable at the expense of others. What these monocausal explanations gain in elegance, they lose in comprehensiveness.  72  Appendix A Chronology of the Asbestos Decisions  United States - the original OSHA standard for asbestos was derived from a 1969 federal standard issued under the Walsh-Healy Act, establishing a limit of 12 f/cc* - in November of 1971, the AFL-CIO petitioned OSHA to adopt an emergency standard of 2 f/cc. - in December of 1971, OSHA issued an emergency standard of 5 f/cc, the same level then recommended by the ACGIH; OSHA issued a permanent standard of 5 f /cc in June. This 1972 rule also provided for the reduction of exposure to 2 f/cc as of July 1976. - in 1975, OSHA proposed a new rule that would reduce exposure to 0.5 f/cc, but it was never adopted. - in 1980, NIOSH scientists endorsed a 0.1 fibre limit as the lowest feasible standard; the limit at this time was 2 f/cc.^ - in June of 1983, the International Ass. of Machinists petitioned Secretary of Labour R. Donovan for an emergency temporary standard of 0.1 f/cc.° - in August of 1983, the EPA announced a planned ban of five categories of asbestos products, all of which have viable substitutes. - in November of 1983, OSHA issued an emergency standard of 0.5 f/cc, which is to be achieved through engineering controls and protective equipment. The AIA immediately filed suit against the standard; organized labour also criticized the standard, but for being too lenient. - in December of 1983, the U.S. Court of Appeals barred OSHA from lowering the limit "pending further order of the court." - in September of 1984, the National Resources Defence Council, an environmental lobby group, petitioned the EPA to ban asbestos in new and replacement brake products.* - in October of 1985, a House subcommittee report found that OMB "unlawfully pressured the EPA into halting plans to regulate asbestos," and that J. Barnes EPA Deputy Administrator compromised the EPA's integrity by caving into OMB pressure.* * - in January of 1986, EPA announced a proposal to phase out importation, ban five uses of asbestos, and force users to find alternatives over a 10-year period.* - in June of 1986, OSHA set the exposure limit for asbestos at 0.2 f/cc, with provisions for extensive worker education and training; this exposure level was 10 times lower than the 2 f/cc 2  3  4  7  8  9  0  2  R. Williams, Government Regulation of the Occupational and General Environments in the UK. the US. and Sweden. (Ottawa: Science Council of Canada, 1977), 84. D. McCaffrey, OSHA and the Politics of Health Regulation, (New York: Plenum Press, 1983), 81. 838 Federal Reporter. 2d Series. 1262. Ibid, 1263. Chemical Regulation Reporter, 4-15-83,140. Ibid, 6-24-83,461. Ibid, 8-5-83,659. Ibid, 11-11-83,1230. Ibid, 12-2-83,1288. Ibid, 9-14-84,604. Ibid, 10-4-S5,723-24. Ibid, 1-24-86,? 1  2  3  4  5  6  7  8  9  1 0  1 1  1 2  73  limit set in 1976. Labour criticized OSHA for not lowering the limit to 0.1 f/cc, and for not establishing short-term exposure limits; AIA was pushing for the adoption of a 0.5 f/cc limit.* - in response to OSHA's 1986 rule, the Asbestos Information Association/North America petitioned for judicial review, questioning the technological feasibility of the new standard. The AFL-CIO also petitioned for review of the rule, arguing that a lower limit is feasible.* - in October of 1986, the Asbestos Hazard Emergency Response Act is signed into law by Pres. Reagan; it ordered school systems to inspect buildings for asbestos, and remove if determined hazardous.*^ - in January of 1989, the Reagan administration's OMB blocked EPA's proposed ban by refusing to sign the final rule.*** - in June of 1989, the OMB 'gave the green light' for the EPA to issue a final rule to phase out and ban the manufacture and sale of asbestos. In July, EPA implemented its ban.* - also in August, AIA filed a petition asking the U.S. Court of Appeals to review and overturn EPA's rule banning the future manufacture and use of asbestos products.***  3  4  7  Canada - in March of 1975, workers in the Thetford-Mines area went on strike to, among other things, secure in their collective agreement a clause which would enable workers to stop work if the asbestos threshold exceeded 5 f /cc; instead of enacting the limit the Beaudry Commission was set up.*9 - in early 1977, the Beaudry Commission recommends that a 2 f/cc standard is "essential in terms of worker health, and is economically and technologically feasible. ^ - in 1978, the Quebec government adopts a standard of 5 f/cc for all types of asbestos. - in 1978, the Quebec Parti Quebecois government took over (54.6%) Asbestos Corporation from General Dynamics. - in July of 1981, at Ontario Royal Commission hearings on the effects of asbestos, the Quebec Mining Association argued that it is "technically impossible" to reduce asbestos below an average of 1.5 to 2 f/cc, while the Canadian Environmental Law Association recommended a limit of 0.1 f/cc - in August of 1982, the Ontario government enacted a regulation to make asbestos a "designated substance" under the Occupational Health and Safety Act even though the Royal Commission on the effects of asbestos has yet to make its recommendations; limits are set for the various types of asbestos at 1 f/cc for chrysotile, 0.5 f/cc for amosite, and 0.2 f/cc for crocidolite. The 2  21  22  2  3  24  Ibid, 6-20-86,341-42. 838 Federal Reported. 2d Series. 261-62. In these multiple suits the Canadian Asbestos Institute is listed as an "Intervenor." Chemical Regulation Reporter. 1-23-87,1342. Ibid, 1-20-89,1523. Ibid, 6-23-89,395. Ibid, 8-25-89,676. *9 Doern, "The Political Economy of Regulating Occupational Health," Canadian Public Administration. 20 (1977), 5. Ibid, 8. * Doern, Regulatory Processes. 109. Graham Fraser, Maclean's. 12 June 1978, 48-51. Charlotte Montgomery, G&M. 10 July 1981,5. Canadian Employment Safety & Health Guide (CES&HG). # 21. 1 3  1 4  1 5  1 6  1 7  1 8  2 0  2  2 2  2 3  2 4  74  previous limit for asbestos was 2 f/cc for all types of asbestos. - in December of 1983, the Quebec-owned asbestos company SNA announced its plans to fight the EPA's threat to ban asbestos. Also in December, the Quebec government announced its intentions to review its standard for permissible exposure to asbestos fibres following OSHA's enactment of a 0.2 f /cc emergency standard. - in May of 1984, the Dupre Commission announced its 117 recommendations to tighten controls on the use of asbestos; among other things, the report says that a Johns-Manville plant in Scarborough, Ontario created "a world-class occupational health disaster." - in September of 1985, an international conference in Montreal of the safe use of asbestos ended early because of poor turnout; most of the 60 delegates attending the conference were Canadian. - in December of 1985, the Ontario Labour Minister announced that a regulation concerning asbestos in construction projects, buildings, and repair operations was enacted. It prohibits the spraying of materials or installation of boiler or pipe insulation material containing more than 1% asbestos. - in March of 1986, asbestos workers marched at the U.S. embassy in Ottawa to protest the EPA's proposed ban. - in May of 1986, Quebec delegates walked out of the Canadian Labour Congress convention, rejecting a resolution favouring a ban on the mining and use of asbestos; the Quebec workers favoured the guidelines established by the ILO initiative. * - in June of 1986, Labour Canada announced its full support of the International Labour Conference's policies towards asbestos, stating that the conference was "a milestone in Canada's objective of establishing a stable international regulatory climate within which the continued use of asbestos under properly controlled conditions will be permitted." - in July of 1986, the Quebec and federal governments announced an important increase in the resources "to be devoted to the defence of asbestos." Both governments gave a total of $2.5 million to the Asbestos Institute. - also in July of 1986, the Asbestos Institute petitioned to intervene in the challenge filed in the U.S. Fifth Circuit Court of Appeals by the AIA, arguing that OSHA failed to follow the ILO Convention which distinguishes between types of asbestos. The Institute also announced its opposition to EPA's proposed ban, arguing that it is based on "flawed scientific data." - in October of 1986, Energy Mines and Resources Canada announced its proposed "strategy for the revitalization and development of the asbestos industry." Through, among other things, the Asbestos Institute the federal government and three producing provinces planned to show that asbestos can be used safely, and that the "EPA's scientific and technical data is quite questionable." - in late 1986, the CFL announced its opposition to the oft cited ILO initiative and those that 25  20  27  28  29  30  3  32  33  34  35  ^ Montgomery, G&M. 10 July 1981,5. CES&HG. # 37. CES&HG Montreal Gazette. 15 Sept. 1985,3(C). CES&HG. #62. Montreal Gazette. 6 March 1986,1(B). John Deverell, Toronto Star. 1 May 1986,10(A). CES&HG. #68. Ibid. CES&HG. # 69. CES&HG. # 73.  2 6  2 7  2 8  2 9  3 0  3 1  3 2  3 3  3 4  3 5  75 support it, arguing that "there is no completely safe way to use asbestos." - in early 1987, the federal government announced its plans to give the Asbestos Institute $2 million over four years, supporting its efforts to show that new techniques have been developed that make asbestos safe to handle. - in July of 1987, the Ontario Ministry of Labour proposed the "prohibition" of the mining of amosite and crocidolite, and their use in manufacturing. ^ This prohibition has yet to be implemented. - in June of 1988, the federal government announced that it is preparing new regulations to meet the requirements of the ILO 1986 Convention. ^ - in August of 1988, Federal Consumer and Corporate Affairs Minister Harvie Andre announced proposed regulations to ban the spraying of asbestos unless the fibres are encapsulated with a binder during spraying, and regulations that will "severely restrict" the advertising, sale and importation of products containing crocidolite asbestos. ^ - at a press conference in September of 1989, M. Masse called EPA's ban "rash, arbitrary, and irresponsible" especially "since the substitution products which are proposed to replace asbestos have not been subject to the analysis and tests that asbestos has undergone over more than 20 years." - in December of 1989, the president of the Mining Association of Canada G. Miller pleaded "for common sense," arguing that the EPA's ban on asbestos is more the product of public panic than good science. - in January of 1990, the Quebec government changed their standards for permissible concentrations of asbestos, now distinguishing asbestos by type, with chrysotile, tremolite, anthophylite and actinolite at 1.0 f/cc, and crocidolite and amosite at 0.2 f / c c . 36  37  3  3  4  41  42  43  3 6  3 7  3 8  3 9  4 0  4 1  4 2  4 3  CES&HG. #74. CES&HG. # 77. Ontario Gazette. 4 July 1987,3180. CES&HG. # 92. CES&HG. # 94. Conference Statement. 89/113. Northern Miner Magazine. Dec. 1989, 34-36. Quebec Gazette. 122(5): 339-341.  


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