The Trump EPA’s plan to rewrite the Biden-era TSCA phaseout of the major uses of chrysotile asbestos and further delay litigation over the measure is raising questions over whether the agency will continue to enforce the existing rule as it expects it will take 30 months -- much of the administration’s remaining term -- to redo the rule.
The announcement comes in an abeyance motion the Justice Department filed late June 16 on behalf of EPA, asking the U.S. Court of Appeals for the 5th Circuit to continue to hold litigation known as Texas Chemistry Council, et al. v. EPA “in abeyance for six months, as EPA will conduct a rulemaking to reassess the challenged rule.”
The 5th Circuit, where industry and public health advocates’ challenges to the rule were consolidated, placed the case in abeyance for 120 days in February at EPA’s request.
EPA notes that its latest request is opposed by the Asbestos Disease Awareness Organization (ADAO) while industry petitioners do not oppose the request. The motion adds that labor petitioners “take[] no position on the relief requested, however reserves the right to oppose after reviewing this motion.”
In a June 16 press release, ADAO blasted the request, calling it the “agency’s plan to gut” the March 2024 rule.
“This is a serious setback for public health that creates more unnecessary chaos and confusion,” Linda Reinstein, ADAO’s president and co-founder, said in the statement.
“The 2024 rule bans the importation and use of an important type of asbestos, but the planned rollback would reverse this progress and move the nation backward, once again putting lives at risk. EPA’s own science confirms that asbestos is deadly, even at low exposures. Each year, 40,000 Americans die from preventable asbestos-caused diseases. Workers and families cannot afford more exposure to the dangers of asbestos as a result of the EPA gutting protections it has already deemed necessary for public health.”
ADAO’s statement also raises concern that “it is not certain whether EPA will continue to enforce the 2024 rule’s bans on importing and using asbestos during” the rule’s rewriting process.
EPA was not immediately available for comment.
But similar concerns over the rule’s implementation led ADAO in March to unsuccessfully urge the 5th Circuit to lift its stay on litigation over the rule, which it opposed from the outset. Among other arguments, the group said continuing to pause the litigation would complicate ongoing compliance efforts.
The first compliance deadlines associated with the March 2024 rule -- prohibiting imports of certain automotive and oilfield brake components containing chrysotile asbestos -- took effect immediately. More deadlines took effect in November 2024.
But the 5th Circuit in April declined ADAO’s request to restart litigation and consolidate oral argument over the asbestos rule with argument over a second TSCA rule, phasing out many uses of the solvent methylene chloride, also before the 5th Circuit.
Oral argument in that case, East Fork Enterprises et al. v. EPA, took place June 3.
Unreasonable Risk
Lynn Dekleva, the Trump administration’s deputy assistant administrator in EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP), said in a declaration attached to the agency’s motion that officials want to reconsider the rule because they believe that some provisions go beyond what is needed to prevent unreasonable risk, the law’s regulatory threshold.
“During abeyance . . . OCSPP intends to reconsider the applicability of workplace protection requirements in the use of asbestos-containing sheet gaskets in nontitanium dioxide chemical production,” she said.
“Additionally, OCSPP will consider all reasonably available information and assess whether, consistent with the best available science and its risk management authority in Section 2605(a), the prohibitions with respect to the Asbestos sheet gasket and Chlor-alkali conditions of use in the Asbestos Part 1 Rule went beyond what is necessary to eliminate the unreasonable risk and whether alternative measures -- such as requiring permanent workplace protection measures -- would eliminate the unreasonable risk,” she added.
Dekleva’s language mirrors industry’s challenge to the rule in the 5th Circuit. Industry petitioners’ joint September 2024 opening brief in the asbestos litigation asks the court to sharply cabin EPA’s power to regulate existing chemicals under the reformed TSCA, saying it can only impose limits “to the extent necessary” to address unreasonable risks, and that it must defer to other agencies when their authority overlaps with the toxics law.
Specifically, the industry petitioners, including the American Chemistry Council (ACC) -- where Dekleva worked between her tenures as a chemicals appointee in the first and second Trump administrations -- argued that when EPA sets an existing chemical exposure limit (ECEL), or workplace exposure standard, at a level it says is sufficient to address unreasonable risk, it must allow facilities that can meet the standard to continue using the substance indefinitely.
Section 6(a) of the Toxic Substances Control Act (TSCA) “allows EPA to regulate only ‘to the extent necessary’ to eliminate unreasonable risk. . . . EPA erred by imposing a ban notwithstanding its own determination that unreasonable risk can be managed, and in fact eliminated, by measures less than a ban -- specifically, ensuring that exposures to chrysotile asbestos remain at or below” the ECEL, the companies argue.
Should the 5th Circuit agree with these arguments, it would effectively scrap the agency’s approach to not only the asbestos rule, but other TSCA rules governing other existing chemicals as well. Most of the Biden-era TSCA rules utilize the same model of phasing out most uses of a target substance over a period of years, but require facilities to meet an ECEL and adopt other workplace protections as an interim measure during the transition.
“ACC supports EPA reconsidering TSCA risk management rules to ensure they use a risk-based approach consistent with the best available science and based on the weight of the scientific evidence, considering both hazards and exposure, as required by the statute,” an ACC spokesman said.
Compliance Deadlines
The Biden-era chrysotile asbestos rule took effect in May 2024, setting a November 2024 deadline for a first round of compliance mandates. The rule sets an array of restrictions on importing and using certain products made with chrysotile asbestos, including oilfield brake blocks; automotive brakes or linings; and “vehicle friction products.” It also triggered provisions governing safe disposal of the material, and recordkeeping provisions that require companies to document their disposal practices.
A second compliance deadline hit May 27, when chlor-alkali plants and other facilities that qualified for an extended, multi-year phaseout must implement new workplace safety measures, including the ECEL of 0.005 fibers per cubic centimeter of air (f/m3) through engineering controls and work practices. If those changes alone cannot achieve the limit, operators must also provide workers with personal protective equipment.
Under the rule’s extended phaseout timeline, chlor-alkali companies switching to non-asbestos diaphragms must complete the transition within five years, by May 2029. But those converting to a “membrane” technology -- a transition that industry has argued is more difficult than switching to non-asbestos diaphragms -- only need to convert one facility by that date, a second by 2032, and a third by 2036, 12 years from the rule’s effective date.
The Environmental Protection Network of former EPA officials and staff criticizes the Trump EPA’s revision plans, arguing in a June 17 statement that the filing “specifically targets critical provisions restricting asbestos in chlorine manufacturing and industrial gasket installations, sectors where safer alternatives are available and well-established.”
“The United States remains one of the few industrialized nations that has not imposed a comprehensive ban on asbestos. This failure to act decisively places the burden of preventable disease on future generations. The science is unambiguous; the alternatives are available, and the regulatory tools are in hand. Any further delay is indefensible,” EPN adds.
Dekleva adds in her declaration that “OCSPP intends to solicit early stakeholder input, issue a proposed rule seeking public comment on potential changes to the Asbestos Part 1 Rule, and as appropriate considering public input, finalize a new rule.”
Dekleva says this process is expected “to take 30 months,” pointing to EPA’s recent filings informing federal courts that it intends to redo multiple TSCA rules on methylene chloride, trichloroethylene and perchloroethylene, as well as the risk evaluation of 1,4-dioxane and a framework procedural rule undergirding all of the risk evaluations.
“OCSPP currently has several other rulemaking proceedings to conduct, each with aggressive statutory and/or court -ordered deadlines. OCSPP will thus have to balance its commitment of resources between this Asbestos Part 1 rulemaking and its numerous other TSCA rulemaking proceedings,” Dekleva writes. “Because of this, EPA currently believes that 30 months is the fastest it can complete this rulemaking.”
That pace puts the new TSCA rule’s finalization in December 2027, late in President Donald Trump’s current term. -- Maria Hegstad (mhegstad@iwpnews.com)
