On March 18th, 2024, the U.S. Environmental Protection Agency’s ban of Chrysotile asbestos became the first rule to be finalized under the 2016 amendments to the nation’s chemical safety law, the Toxic Substances Control Act (TSCA). Chrysotile is currently the only known form of asbestos being imported or used in manufacturing in the United States. Since the ban, there have been numerous appeals filed, all of which have since been consolidated and are pending in the Fifth Circuit Court of Appeals. Most recently, the EPA requested that the Fifth Circuit stay the litigation so that it may conduct a regulatory review mandated by a recently issued executive order. The stay was granted on February 14, 2025, and will pause the litigation for 120 days, allowing the EPA to review the ban in light of broader policy considerations.

The Ban

The 2024 ban targets the few remaining products that incorporate the use of Chrysotile asbestos, including asbestos diaphragms used for water filtration, automotive brakes/linings, other automotive friction products, and gaskets. The ban does not apply to, or require the eradication of, asbestos present from historical uses, like insulation in older buildings. As drafted, the ban addresses each remaining product type/industry and provides transitionary periods to allow each industry time to eliminate the use of asbestos.

The proponents of the ban have argued that asbestos, when inhaled at specific levels, is a known carcinogen and a ban is the most appropriate safeguard. Notably, the scientific studies utilized to justify that ban have come under scrutiny and opponents of the ban argue that further review of these studies is necessary.

The Opposition

Opponents to the ban argue it is overly broad and fails to account for existing workplace safety regulations. They also argue the EPA’s utilization of the broader 2016 amendments creates a “slippery slope” for additional restrictions with wide-reaching economic impacts. One argument highlights the EPA’s conclusion that the use of Chrysotile asbestos in the production of chlor-alkali products does not present an unreasonable risk if the existing protective measures are used, such as engineering controls, glove boxes, and personal protective equipment (PPE). The EPA has justified the ban by noting necessary PPE may not be used correctly.

With this rationale, the EPA could justify the ban of any substance by finding it poses an unreasonable risk when PPE is not utilized or not utilized correctly. This logic could be viewed as problematic, given that it likely incorporates nearly every substance the EPA would review under the Toxic Substances Control Act. While the EPA may be viewing asbestos as a special case given the decades long battle to pass and implement safeguards, any particular considerations have not been expressed.

The Appeal and Stay

While the current stay only provides time for the EPA to review the ban, it underscores that the EPA’s current application of TSCA may differ from years past. By mid-June 2025, we expect a consensus as to whether the ban will be upheld, modified, or eliminated all-together. If the ban is not eliminated, the ongoing appeals and legal battles will likely continue.

The ban of Chrysotile asbestos in the United States has been a drawn out, controversial dispute that has seen numerous industrial professionals and scientists on both sides of the argument weigh in on the appropriateness of a complete ban of the product. Judging by the most recent activity in the Fifth Circuit, it is clear that differing opinions remain and the battle is likely to continue.