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EPA Announce Final Rule to Prohibit Use of Asbestos in United States

The Environmental Protection Agency announced on March 18 a final rule to prohibit the use of chrysotile asbestos in the United States. Although numerous types of asbestos exist, chrysotile is unique in that it is the only form imported into the country. Industries such as the chlori-alkali industry continue to utilize asbestos products, with imports of raw chrysotile as recent as 2022.  EPA’s ban is set to be the first rule finalized under the 2016 amendments to the Toxic Substances Control Act (TSCA). Passed in 1976, the TSCA serves to regulate chemicals not regulated by other federal statutes. This includes both chemicals already in commerce, such as chrysotile asbestos, and the introduction of new chemicals. At the time of enactment, all existing chemicals were considered safe and, thus, grandfathered in.

Now recognized as a carcinogen, asbestos is known to cause mesothelioma, lung cancer, ovarian cancer, and laryngeal cancer, among other illnesses. It is reportedly connected to over 40,000 deaths in the United States annually. Although banned in more than 50 countries, the substance remains legal in the United States. Efforts to change this began decades ago and EPA effectively banned asbestos in 1989. However, a Fifth Circuit decision in 1991 weakened EPA’s authority under the TSCA and largely overturned this rule. This has enabled asbestos to remain in the country in some applications. It is still found in products such as asbestos diaphragms, sheet gaskets, brake blocks, and automotive brakes/linings. Even today, the chlori-alkali industry employs asbestos diaphragms in the production of sodium hydroxide and chlorine, two chemicals commonly used to disinfect drinking water. While other methods of chlorine production exist, approximately one-third of the chlorine produced in the United States involves asbestos materials.  As a result, EPA aims to ensure facilities that currently use the substance have an adequate timetable to transition away from it.

Nevertheless, EPA’s import ban is immediate. Further, it aims to ban all ongoing use of asbestos by 2037. The agency determined the shift away from asbestos diaphragms will require extensive construction for some companies. As such, EPA will require multi-facility companies to convert their first facility within five years, their second within eight years, and their third within 12 years.  EPA hopes to minimize the disruption of chlorine production in the Unites States through this incremental phase-out approach.

Aside from asbestos diaphragms, EPA’s final rule bans most asbestos-containing sheet gaskets beginning two years after the rule’s effective date. It also includes a five-year phase-out plan for sheet gaskets used in the production of titanium oxide and nuclear material processing. This includes the Department of Energy’s Savannah River Site, where asbestos-gaskets may remain through 2037.  Meanwhile, oilfield brake blocks, aftermarket automotive brakes and linings, and other vehicle friction products containing asbestos will be banned six months after the rule’s effective date. 

EPA will also require strict workplace safety measures to protect workers from exposure during any phase-out period lasting over two years. The agency will continue to ensure asbestos-containing materials are properly disposed according to industry standards, Occupational Safety and Health Administration requirements, and the Asbestos National Emission Standards for Hazardous Air Pollutants. 

EPA on April 16 announced the availability of, and requested public comment on, “The Draft Asbestos Part 2.” Within this evaluation, EPA assessed the risks of other types of asbestos fibers, legacy uses, the disposal of chrysotile asbestos, and asbestos-containing talc. It highlighted that one legacy use of asbestos exists in fire retardant in building materials. Such asbestos does not pose a risk until it is disturbed and can be released during the construction, modification, or demolition of asbestos-containing materials in homes, schools, and commercial buildings. EPA also considered the presence of asbestos in imported talc used in products such as fillers, putties, and even crayons. The agency stated there was no reasonably available information identified to provide evidence that the import of such products is ongoing. Finally, EPA announced the potentially exposed or susceptible subpopulations (PESS) with the greatest risks from asbestos exposure are those with occupational exposure, those exposed through do-it-yourself (DIY) home projects, children, and people who smoke with risk to respiratory effects. EPA welcomes public comment until June 17, and will complete its final risk evaluation by its December 1 deadline.