In March 2024, the Environmental Protection Agency (EPA) published a final rule that completed the elimination of all forms of asbestos used in or imported to the United States by prohibiting the use of chrysotile asbestos, which was the last remaining form of asbestos in the U.S. The EPA first made an effort to ban asbestos products more than 50 years ago. The EPA filed a brief with the Fifth Circuit Court of Appeals to uphold the prior rule banning chrysotile asbestos – here is what manufacturers should know.
What Does the EPA Brief Mean for Your Business?
You should know that, since the EPA filed its brief, the Fifth Circuit issued a 120-day stay in the litigation. The order staying the ongoing case will allow the EPA time to determine whether President Trump’s directive to rescind or reduce implementing regulations that possibly have a negative impact on industry is applicable to this specific rule.
For right now, the EPA brief itself and its assertions mean only that you are in a holding pattern. At the conclusion of the 120-day review period, however, there is likely to be ongoing litigation. Regardless of whether the Government ultimately seeks to uphold the band, edit it, or rescind it entirely, advocacy groups and immediate parties to the litigation will be unhappy.
Parties seeking to ensure the ban remains in place will likely seek some intervention if the EPA wishes to rescind or descope the rule, whereas parties who currently assert that the ban is overly restrictive on industry will seek assistance from the courts if the ban remains in place.
How the Brief May Affect Your Industry
The degree to which this rule will influence your business depends on the varying impacts it could have based on your industry. For example, the auto industry will see an impact in its use of asbestos in some brakes, linings, and other friction parts. The ban was originally supposed to go into effect in May 2024, but litigation has kept it on hold. Finding alternatives to the import and use of asbestos is critical to be prepared for either upholding or revising the ban as issued in the EPA’s final rule.
The chlor-alkali industry depends upon asbestos diaphragms to make chlorine and sodium hydroxide. Those two chemicals are then used to disinfect both drinking and waste water. All plants that use asbestos for that purpose will have a minimum of five years to find and implement options to replace the diaphragms currently in use.
While the timeline is much more generous for the chlor-alkali sector than it is for the auto industry, it will be relatively short given the impact and possible resulting impacts on other requirements related to drinking and wastewater. The American Chemistry Council provided the EPA with statistics that show at least 15 years would be a more appropriate timeline to prevent disrupting the sodium hydroxide and chlorine supply.
What Comes Next?
Asbestos ban advocates will continue to support the rule as it marked an important success for their efforts to prevent the use or import of asbestos in the United States. They often focus on health statistics that asbestos exposure causes diseases like mesothelioma and cancers of the lungs, ovaries, and larynx. The rule was introduced as part of former President Biden’s Cancer Moonshot.
Industry advocates who oppose the ban will likely depend on President Trump’s recent executive order requiring a review of recent regulations and a specific focus on ones that impact industry and America’s overall competitiveness in production. That major attempt at deregulation, especially as applied to industry, may support the argument for maintaining the ban, which could reduce industry innovation and the ability for manufacturers’ businesses to expand in both the domestic and international economies.
It is also possible that either the executive or judicial branch determines that there is a middle ground superior to either extreme. Occupational health standards could be modified to protect workers, consumers, and the environment, or another balance could be found to reduce the impact on industry while reducing any potential negative public health results. Congress may choose to take action through legislation, which ultimately would result in many of these issues resurfacing as the executive branch issues implementing regulations through the notice-and-comment process.
What Should Your Company Do Right Now?
The EPA still has the authority to publish and enforce implementing regulations that stem from the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605, et seq. Specifically, it is important to take time to be familiar with Section 6(a) of the TSCA, which provides the EPA with that authority when, based upon risk assessments, it determines that a chemical presents “unreasonable risk” to public health or the environment. The current case reminds us that the EPA can, in fact, restrict the use or import of specific chemicals following an appropriate risk evaluation.
We know the EPA has the authority to act, but it also must do so within the long-established limits. We also know that all three branches of Government have the opportunity to do something to effectuate change for the betterment or worsening of your business operations. While all of this remains in limbo, establishing best practices and project plans for all possible outcomes is important so implementation is simpler and results in less risk for your operations and your workers.
Consult With MehaffyWeber Concerning EPA Rulings and More
The EPA published its final rule in the Federal Register on March 28, 2024, so deadlines would have long come and gone but for the ongoing litigation. During this stay period, Texas environmental law attorneys at MehaffyWeber will be monitoring the impact on industry and following any movement across all three branches of Government to determine how best to advise our clients.
Now is the time to start a discussion with us so we can help you prepare to adapt to the final path for chrysotile asbestos.