On April 5, 2022, the Environmental Protection Agency (“EPA”) announced proposed regulation that would prohibit the use, manufacture, and import of chrysotile asbestos, also known as ‘white asbestos.’ Chrysotile asbestos is the most commonly used variety of asbestos in the United States and can be found in certain products, including brake pads and linings, gaskets, and roofing materials. EPA Administrator Michael S. Regan characterized the proposal as a “bold, long-overdue” action with the aim of protecting the American people.
This is not the first time the EPA has adopted measures to restrict the use of asbestos. In 1989, the EPA imposed a partial ban on the manufacture, import, processing, and distribution of some asbestos-containing products, and also prohibited new uses of asbestos and new asbestos products. However, shortly thereafter, the United States Court of Appeals for the Fifth Circuit largely overturned the ban, holding that the EPA failed to demonstrate that the ban was the “least burdensome alternative” to regulating asbestos. The George H.W. Bush-era EPA did not appeal this ruling, but the court did clarify that the ban could stand with respect to asbestos products that were not being manufactured, processed or imported as of July 12, 1989, the date the EPA announced the ban.
In October 2020, an attempted Congressional ban on asbestos garnered bipartisan support. However, due to last-minute changes to the bill, that effort failed and was pulled from the agenda. Two months later in December 2020, the EPA issued a final Toxic Substances Control Act (“TSCA”) risk evaluation for chrysotile asbestos, finding that it posed unreasonable risks to workers, occupational non-users, consumers, and bystanders.
While widespread support from the general public is expected, others outside of the asbestos litigation believe a broad ban would do more harm than good. For example, the American Chemistry Council, a lobbying group for the chemical industry, has criticized the EPA proposal, citing concerns that it could cause substantial harm to the nation’s drinking water supply. Almost a dozen factories in the U.S. still use chrysotile asbestos diaphragms and sheet gaskets to aid in chlorine production and depend on asbestos imports to meet goals and uphold expectations. The American Chemical Council believes that the EPA’s proposed asbestos ban could directly impact the nation’s drinking water supply by reducing the domestic supply of chlorine.
It remains to be seen whether this ban will pass, and if so, the nature and extent of its consequences. The EPA is currently accepting public comments on the proposed ban. If passed, this landmark regulation would take effect two years after the effective date of the final rule.