10 April 20223 minute read

EPA moves to prohibit ongoing uses of chrysotile asbestos

On April 5, 2022, the US Environmental Protection Agency (EPA) released a proposed rule to ban ongoing uses of chrysotile asbestos.  The proposal is the first risk management rule issued under the Toxic Substances Control Act since it was significantly amended in 2016.

The proposed rule would prohibit the import, manufacture, processing, distribution and commercial use of chrysotile asbestos in connection with six current uses:  asbestos diaphragms used in the manufacture of chlorine and sodium hydroxide; sheet gaskets used in the production of chemicals; brake blocks used in the oil industry; aftermarket automotive brakes and brake linings; and asbestos-containing pre-cut gaskets used in the exhaust system of a particular utility vehicle.

The EPA estimates that it will cost the nine remaining chlorine manufacturing plants that still use asbestos diaphragms $1.8 billion dollars to switch over to membrane cells, and that switching from asbestos-containing brakes to asbestos-free brakes will cost an additional $18,000 to $25,000 per year.  It was not able to calculate the costs of complying with the proposed rule for the remaining industries.

Under the proposed rule, the chlorine manufacturing industry and any chemical industry still using asbestos-containing sheet gaskets will have two years following the effective date of the final rule to phase out chrysotile use. Prohibitions relating to asbestos use in brake blocks by the oil industry, aftermarket automotive brakes and gaskets, and pre-cut gaskets in commercial use would take effect 180 days after the effective date of the final rule.

Disposal and recordkeeping requirements

The proposed rule also requires that any disposal of the asbestos-containing materials be done in accordance with existing regulations governing the disposal of asbestos.  In addition, records relating to and documenting the disposal would have to be retained for a period of five years after the records are generated.  These additional requirements would also take effect 180 days after the effective date of the final rule.

The EPA has established a 60-day comment period following publication of the proposed rule in the Federal Register via docket EPA-HQ-OPPT-2021-0057.

Supplemental risk assessment for other asbestos types and products

The EPA additionally announced that it anticipates releasing a supplemental asbestos risk analysis related to legacy uses of chrysotile asbestos, other types of asbestos fibers and conditions of use of asbestos in talc and talc-containing products in December 2024, with any associated proposed rules issuing approximately two years later.

DLA Piper continues to monitor these and other regulatory developments related to asbestos, and our lawyers are well versed in identifying related risks and developing cutting-edge compliance programs. To understand how the proposed ban on asbestos use might affect your business, contact your usual DLA Piper attorney or any of the authors.