March 25, 2024
By: Patricia L. Boye-Williams and Raquel Herrera-Soto
On March 18, 2024, the Environmental Protection Agency (EPA) announced that it had finalized its rule prohibiting the importation and ongoing use of chrysotile asbestos, the only known type of asbestos still used in or imported to the United States. The EPA determined that these prohibitions were necessary to prevent unreasonable risk of injury to health in accordance with the Toxic Substances Control Act.
Chrysotile asbestos is currently used in a limited number of industrial processes in the United States, including certain automotive products, gaskets and diaphragms used in the production of sodium hydroxide and chlorine. Businesses that manufacture, import, process, distribute in commerce, use, or dispose of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, will likely be impacted by this rule.
The final rule prohibits (1) the manufacture, importation, processing, distribution in commerce, and commercial use and disposal of chrysotile asbestos in certain products or articles, identified in the rule, that contain chrysotile asbestos including, diaphragms in the chlor-alkali industry and brake blocks in the oil industry, among others; and (2) the manufacture, importation, processing, and distribution in commerce for consumer use of aftermarket automotive chrysotile asbestos-containing brakes/linings and other chrysotile asbestos-containing gaskets.
The final rule also establishes disposal and recordkeeping requirements and, in some cases, requires the implementation of interim workplace controls. This rule (once final) will not prohibit the continued use of existing, already installed products that contain chrysotile asbestos (e.g., in situ building material, aftermarket automotive brakes and linings, and other gaskets which are already installed and in use before the prohibition) or the associated disposal for chrysotile asbestos or other asbestos fiber types. Note, (1) that this rule applies to chrysotile asbestos even if it is being manufactured, processed or distributed in commerce solely for export from the United States; and (2) the EPA has indicated that as Part 2 of its risk evaluation for asbestos, it will be evaluating whether further regulation of installed products that contain chrysotile asbestos is needed to address legacy and associated disposal conditions of use.
The final rule has not yet been published in the Federal Register (as of the date of this writing). The date that the manufacture, processing and use of chrysotile asbestos is banned will depend on the specific product. For example, the use of chrysotile asbestos in the manufacture or distribution of oilfield brake blocks, aftermarket automotive brakes and linings, other vehicle friction products, and certain gaskets will be banned six months after the effective date of the final rule. By comparison, sheet gaskets used in chemical production which contain asbestos will be banned two years after the effective date of the final rule, with five-year phase-outs for sheet gaskets used to produce titanium dioxide and to process nuclear material.
As to chrysotile asbestos in the chlor-alkali sector, in order to prevent substantial harm or adverse impacts to the country’s drinking water supply, the final rule provides a transition period for the eight chlor-alkali plants in the United States that still use asbestos diaphragms. Specifically, although the manufacture of chrysotile asbestos diaphragms will be banned immediately upon the effective date of the final rule, the final rule will allow continued processing, distribution in commerce, and commercial use of chrysotile asbestos diaphragms for five years after the effective date of the final rule, with the potential for longer phase-out periods if certain conditions are met.
Owners and operators who continue to process or use materials containing chrysotile asbestos (in accordance with the rule) after the effective date of the rule may need to comply with specific workplace safety measures, including an eight-hour existing chemical exposure limit and must ensure that asbestos is disposed of in accordance with industry standards and otherwise comply with OSHA requirements and the Asbestos National Emission Standards for Hazardous Air Pollutants.
If you have any questions about the final rule or how it might impact your business operations, please contact Patricia L. Boye-Williams at pboyewilliams@murthalaw.com or Raquel Herrera-Soto at rherrerasoto@murthalaw.com.
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