Chain of mistrust – Gaps in enforcement of asbestos rules

As a safety chief for a B.C. construction contractor, I’ve always been interested in the logistics of asbestos regulation, dissemination, administration and enforcement – in other words, the Prohibition of Asbestos and Products Containing Asbestos Regulation. I followed its progress from the point of writing the regulation all the way through to testing and disposal, both in the industry and in our communities.

The dangers of inhalation of asbestos fibres are well known. But who is watching to make sure workers are kept safe? PHOTO: ©KIM BRITTEN/ADOBE STOCK

In every instance, my interviews with safety professionals revealed a predominance of attitudes that the professionals (not just in the construction industry) are so focused on knowing the topic that they rarely zoom out to see the process itself. This also mirrors my experience in dealing with this issue over the years. After speaking with many representatives in the chain – project managers responsible to ensure environmental testing; workers responsible for working with asbestos; companies who perform the tests; and, finally, the legislators who define the regulation – I found not one individual could elaborate beyond their specific role. This implies a belief in complete trust in the system to protect everyone involved. My role in this article is to explore by whom and how this chain of trust is established, maintained and authenticated for effectiveness.

We know there are rules on the ground pertaining to safe job procedures for sampling small and large amounts of asbestos. We know there are rules around disposal and that indeed the regulation exists. But really, how much do we know and who, if anyone, is really watching the work and enforcing the rules? It has always been my opinion that, with a material as toxic as asbestos, how it’s regulated, controlled and the rules enforced should be straightforward to understand. The government relies on people like you and me to carry out the ground work regardless of our individual capacity to truly understand the risks involved. Doesn’t it fall on the regulators to make sure we do understand the map without needing to become a cartographer?

Let’s start at the beginning. I contacted the government of Canada’s Toxic Substance Management
department to request an interview, laying out my questions. I was rather quickly referred to a media relations liaison with Environment and Climate Change Canada. The liaison either misread or didn’t read my original request because she replied quoting my deadline date which I had not provided in any communications. And so it began. The long journey of jargon and spiralling loops of repeated claims. “It’s not our responsibility, it’s the other guys’.”

After all the back and forth my understanding is the Department of Justice and the Ministry of Environment and Climate Change Canada write the regulation based on reasons not disclosed to me. The regulation is then communicated to all the relevant parties (manufacturing, production, suppliers and services) identified as the stakeholders. Beyond the initial distribution of the regulation communication, there is no oversight for the stakeholders. Here’s a breakdown of my interview questions and answers from ECCC.

Who writes the regulation and why?
The Department of Justice in consultation with Environment and Climate Change Canada and Health Canada write the regulation. These regulations prohibit the import, sale and use of asbestos and products containing asbestos, as well as the manufacturing of products containing asbestos, with a
limited number of exclusions.

What happens after the regulation is written and how is the regulation disseminated?
The Prohibition of Asbestos and Products Containing Asbestos Regulations were published on Oct. 17, 2018, in the Canada Gazette, Part II, and came into force on Dec. 30, 2018. Following the publication of the regulations, outreach activities are undertaken to raise awareness of the regulations and the associated requirements. The compliance promotion approach for the regulations
includes maintaining a stakeholder database, preparing and delivering compliance promotion information, as well as responding to specific inquiries from stakeholders and reviewing reports and permit applications for completeness and accuracy.

Is receipt of the regulation confirmed by the stakeholders?
There is no confirmation or follow-up to confirm that all the stakeholders have received the regulation. The publication of the regulation was followed by a targeted compliance promotion campaign to inform stakeholders of the coming-into-force of the regulation and the regulatory requirements. This promotion campaign, essentially a marketing tool, was the only method used to ensure stakeholders awareness.

After the regulation is disseminated what happens with the various parties having received the regulation?
Industry is responsible for taking measures to comply with the regulation. Measures could include verifying Safety Data Sheets, consulting suppliers and product testing. An exhaustive list of
measures was not available.

How is the regulation enforced after the parties receive it?
ECCC is responsible for, and committed to, administering and enforcing the Canadian Environmental Protection Act, 1999 (CEPA) and its regulations including Prohibition of Asbestos and Products Containing Asbestos Regulations. Ensuring compliance with the regulations requires the delivery of timely and targeted information to the regulated community followed by enforcement of the regulations. This act and its regulations are enforced in accordance with the compliance and enforcement policy for CEPA, which, for the purposes of this article, are measures to compel compliance through court action, such as injunctions, prosecution, court orders upon conviction, and civil suit for recovery of costs.

When there is sufficient evidence that an offence under CEPA or its regulations has occurred, ECCC enforcement officers may take appropriate action in accordance with the compliance and enforcement policy, including issuing warnings, environmental protection compliance orders or directions. When it’s appropriate, officers conduct investigations to collect evidence for the purposes of prosecution in a court of law. The decision to prosecute is at the discretion of the Public Prosecution Service of Canada.

There we have it, the governmental chain of insurances. I don’t know about you, but, for me, none of the above gives me any sure sense or confidence that we are being protected from exposure. There are so many ways to be exposed to asbestos on a job site, it’s alarming.

Nowhere in the regulation is there a list of the innumerable past products still installed in buildings today manufactured prior to the regulation or imported from other countries. Many items contain asbestos that are removed during renovations: flooring, ceiling and roofing tiles, cement and textiles, to name just a few. I can’t tell you how many times I’ve seen guys ripping out a room without wearing proper protection or even having an awareness they should be concerned.

Asbestos fibres are odourless,tasteless, indestructible fibres that can remain suspended in the air for seconds or more depending on the density of the fibres released. The fibres can be subdivided so finely that only an electron microscope will reveal them. The finest asbestos fibres are 0.00000071 inches in diameter – in comparison, a human hair might have a diameter of 0.00158 inches. These are minute numbers. To put it into perspective, an asbestos fibre can be 2,000 times smaller than a human hair. This is why it is absolutely critical to be clean shaven and fit your mask before wearing. A single facial hair in between your mask and face can allow thousands of asbestos fibres into your mask and, in turn, into your lungs. On the disposal front, even though disposal is screened as per regulations in large urban centres, there are countless small communities in Canada that rely on the honour system when it comes to disposing waste. I’ve seen it firsthand and, trust me on this, it’s not working.

In all of my articles, I continue to return to the theme that education, education and more education is the only way to effectively communicate the plethora of existing hazards that require worker and community protection. In the end, the entire responsibility for protecting workers comes down to the company. If the company is willing to overlook safety management for the sake of profit, workers remain unprotected, untrained and potentially exposed to hazards that may have short- and long-term health effects for years to come. And, might I add, without even knowing where their health conditions originated from. When safety training is not enforced as a mandate for new and continued employment, it’s the employees that are potentially in harm’s way and, at times, in extremely hazardous conditions.

I started this article wanting to talk about the logistics of asbestos regulation and ended being rather discouraged, but with a strong motivation to make a hopeful call to all workers and employers to do better, train better and keep the best interests of workers and the community in mind. Because the reality is that all we have in the end is ourselves, our families, our companies
and our communities.

Be well, Be safe.

James Hong is an OH&S consultant for the construction industry.