EPA’s New Rule Bans Chrysotile Asbestos in U.S.

On March 18, 2024, the Environmental Protection Agency (EPA) announced a final rule that prohibits imports of chrysotile asbestos. The Agency also published a “Risk Management” Guide setting forth “actions to manage risks from chrysotile asbestos.” According to the Agency’s Guide, raw chrysotile asbestos was imported into the U.S. as recently as 2022. Russia is currently considered to be the predominant producer of chrysotile asbestos.

Chrysotile asbestos – also known as “white asbestos” – is found in products such as roofs, ceilings, walls and floors of homes and businesses, automobile brake linings, gaskets, boiler seals, insulation for pipes, ducts and appliances, and is used to manufacture chlorine bleach and sodium hydroxide, also known as caustic soda. According to one source, chemical manufacturers also use chrysotile asbestos in making chlorine, which is used in pharmaceuticals, pesticides, and to purify drinking water. Asbestos is also present in power plant equipment, such as turbines, boilers, and arc chutes; power plant workers have high rates of asbestos-related diseases due to exposure they encountered using asbestos products on the job.

According to the EPA’s news release, this ban on ongoing uses of chrysotile asbestos is the first rule to be finalized under the 2016 amendments to the nation’s chemical safety law, the Toxic Substances Control Act (TSCA). While this is a major expansion of EPA regulation, the journey to achieve this ban has been a long time coming.

Approximately 70 countries have already banned the import of chrysotile asbestos that – up until this recent Rule - made the U.S. one of the few nations that still allowed it.

In 1989, the EPA first tried to ban asbestos use when it issued a final rule banning most asbestos-containing products listed under Section 6 of the TSCA. Under this rule, the “manufacture, importation, processing and distribution of commerce of asbestos” in almost all asbestos-containing products under the TSCA were prohibited.

However, this regulation was overturned by the Fifth Circuit Court of Appeals in New Orleans in 1991, when the Court concluded that the EPA had failed to satisfy the “least burdensome requirement” with its asbestos ban.

As a result of the federal court overturning the EPA’s efforts, the EPA’s 1989 asbestos regulation only banned new uses of asbestos in products that would be initiated for the first time after 1989, and only banned the following specific asbestos-containing products: flooring felt, rollboard, and corrugated, commercial, or specialty paper.

In 2016, Congress amended the TSCA via the Lautenberg Act, which significantly amended the manner of identifying unreasonable risk under the TSCA, and the EPA’s authority to address unreasonable risk under the TSCA.

One of the major amendments under the Lautenberg Act included replacing the EPA’s previous “cost-benefit” safety standard (which was the root of the federal court’s 1991 overhaul of the EPA’s 1989 final rule) with a pure, health-based safety standard. In other words, the Lautenberg Act struck the “least burdensome” requirement altogether and clarified that the risk is to be determined “without consideration of costs or other non-risk factors.” Thus, under the new health-based safety standard, the EPA was prohibited from considering costs when making safety decisions.

Additionally, the Lautenberg Act expressly required the EPA to consider, identify, assess and eliminate any unreasonable risk a chemical presents or may present, in order to protect of those most susceptible to harm from chemicals, such as children, pregnant women, and the elderly. Previously, there was no such factor in the TSCA.

There are at least six (6) known forms of asbestos: chrysotile, crocidolite, tremolite, actinolite, amosite, and anthophyllite. These different forms of asbestos have been used in a variety of products such as cement, insulation, roofing materials, tiles, paint, sealants, and plumbing materials. Asbestos exposure causes lung cancer, ovarian cancer, laryngeal cancer and mesothelioma.

The recent EPA rule applies specifically to chrysotile asbestos, which the EPA stated is “the only known form of asbestos currently used in or imported to the United States.”

The new Rule will take effect at different stages for different industries, giving industries time to comply with this new Rule. For example, chlor-alkali plants which still use asbestos to treat and disinfect water, must comply with the new Rule immediately upon publication, while a ban on most other uses will take effect in two years. Further still, certain other industries have a range of six months to thirteen years to comply with the new Rule.