The U.S. Environmental Protection Agency filed a brief Feb. 7 with the Fifth U.S. Circuit Court of Appeals to uphold its prior rule banning chrysotile asbestos.
The rule was issued by the EPA pursuant to relevant provisions of the Toxic Substances Control Act, 15 U.S.C. § 2605, et seq (“TSCA”). Under the TSCA, Section 6(a) granted the EPA with the authority to regulate or restrict the manufacture, processing, distribution, use, and disposal of a chemical substance if it is determined to present an “unreasonable risk” to human health or the environment based upon “risk assessments.”
This provision, in essence, provided the EPA with authority to ban or limit the use of certain chemicals. The EPA is required to first conduct a “risk evaluation” to determine if a certain chemical poses an unreasonable risk before any regulatory action – whether restricting, limiting or banning completely – can be taken pursuant to the TSCA. Pursuant to the authority granted by the TSCA, the EPA finalized a rule which prohibited the manufacture (including import), processing, distribution in commerce, and commercial use and disposal of chrysotile asbestos, on March 28, 2024.
The EPA’s basis for implementing this rule included a finding that current uses of chrysotile asbestos pose an “unreasonable risk to human health.” The EPA further asserted the ban would have minimal costs because alternative products are available. The agency, therefore, declared this rule is in accord with the pertinent sections of the TSCA.
Some industry groups, including the United Steelworkers and the Asbestos Disease Awareness Organization, have subsequently filed a joint brief with the Fifth Circuit in support of the EPA’s decision prohibiting chrysotile asbestos. These groups are urging the court to uphold the EPA’s ban by primarily arguing there is no safe level of exposure to chrysotile asbestos. This ban would, therefore, protect people from having lung cancer, mesothelioma and other serious disease. As such, they are requesting the Fifth Circuit to uphold the EPA’s rule.
Other industry groups, however, have also filed briefs with the Fifth Circuit requesting the court to overturn the EPA’s rule. These groups argue, among other things, the EPA has exceeded its authority under the TSCA, and that the EPA failed to defer to the Occupational Safety and Health Administration.
The Fifth Circuit has not rendered a decision. Any eventual ruling, though, could have a long-lasting impact, including a reshaping of the EPA’s authority under the TSCA.