EPA Announces Ban on Chrysotile Asbestos

The White House and US Environmental Protection Agency (EPA) jointly announced on March 18 a final rule to prohibit ongoing uses of chrysotile asbestos, the only known form of asbestos currently used in or imported to the United States.

The EPA claims that this rule provides “long overdue public protection” after the US Court of Appeals for the Fifth Circuit’s ruling in Corrosion Proof Fittings v. EPA (947 F.2d 1201 (5th Cir. 1991)) that deemed a previous 1989 EPA attempt at banning chrysotile unsupported by substantial evidence and therefore in violation of the terms of the Toxic Substances Control Act (TSCA.) The EPA stated that the Corrosion Proof Fittings opinion “largely struck down EPA’s 1989 ban on asbestos and significantly weakened EPA’s authority under TSCA to address risks to human health from asbestos.”

This ban on ongoing uses of asbestos is the first rule to be finalized under the 2016 amendments to the nation’s chemical safety law, the TSCA, which were implemented by Congress in response to the Corrosion Proof Fittings opinion. The 2016 amendments to the TSCA, Public Law 114–182, altered both the manner of identifying unreasonable risk under the TSCA and the EPA's authority to address unreasonable risk under the TSCA. These amendments required the EPA, following a determination of unreasonable risk, only to apply risk management requirements to the extent necessary so that the substance no longer presents unreasonable risk and only consider costs to the extent practicable, 15 USC 2605(a), (c)(2).

The 2016 amendments to the TSCA were said to reflect congressional intent to “delete the paralyzing ‘least burdensome’ requirement,” [1] a reference to TSCA Section 6(a) as originally enacted, which required the EPA to use “the least burdensome requirements” that protect “adequately” against unreasonable risk. [2]

Dual press releases by the White House and the EPA claim that this final rule “advances the goals of President Biden’s Cancer Moonshot, a whole-of-government initiative to end cancer as we know it.” Administration officials are likewise quoted in these releases describing the hazards related to asbestos and the justification for the implementation of this ban.

EPA Administrator Michael S. Regan is quoted as stating, “The science is clear—asbestos is a known carcinogen that has severe impacts on public health. President Biden understands that this concern that has spanned generations and impacted the lives of countless people. That’s why EPA is so proud to finalize this long-needed ban on ongoing uses of asbestos. Under the President’s leadership, EPA has been working expeditiously to put the nation’s chemical safety program back on track and finally realize the protections of the 2016 law. This action is just the beginning as we work to protect all American families, workers, and communities from toxic chemicals.”

White House Council on Environmental Quality Chair Brenda Mallory is quoted as stating, “Asbestos has harmed people across the country for decades, and under President Biden’s leadership, we are taking decisive action to ban its use and advance this administration’s historic environmental justice agenda. This action marks a major step to improve chemical safety after decades of inadequate protections, helping advance President Biden’s Cancer Moonshot goal to end cancer as we know it.”

In addition to these and other quotes from Biden administration officials, the press releases contain conclusory language relating to asbestos injury attribution and historical effect:

• “Exposure to asbestos is known to cause lung cancer, mesothelioma, ovarian cancer, and laryngeal cancer, and it is linked to more than 40,000 deaths in the U.S. each year.” (See, EPA Press Release.)
• “For too long, polluters have been allowed to make, use, and release toxics like asbestos and PFAS without regard for our health. Thanks to the leadership of the Biden EPA, those days are finally over.” (See, EPA Press Release.)
• “Asbestos is used in facilities that are located disproportionately near communities with environmental justice concerns and also particularly affects workers.” (See, White House Press Release.)

Defendants in asbestos litigation should be aware of the potential effect of this EPA action, the statements from regulatory and administrative officials, the breadth of current and future media attention, and attempts to politicize the potential impact of the rule in this election year environment.

Morgan Lewis continues to be at the forefront of evaluating the effect of these developments and implementing resolution and litigation strategies that involve the very latest governmental and regulatory actions.