ADAO: FREQUENTLY ASKED QUESTIONS ABOUT EPA’s PART 1 RISK MANAGEMENT RULE FOR CHRYSOTILE ASBESTOS UNDER TSCA 

Posted on April 18, 2022

FREQUENTLY ASKED QUESTIONS ABOUT EPA’s PART 1 RISK MANAGEMENT RULE FOR CHRYSOTILE ASBESTOS UNDER TSCA 

On April 5, 2022, Environmental Protection Agency (EPA) announced its proposed Part 1: Chrysotile Asbestos Risk Management rule under the Toxic Substances Control Act (TSCA). The proposed rule would ban importation of raw chrysotile asbestos and chrysotile-containing products for the six conditions of uses addressed in EPA’s  Part 1: Chrysotile Asbestos Risk Evaluation.  

EPA has also released the detailed Economic Analysis of the TSCA Section 6 Proposed Rule for Asbestos Risk Management, Part 1 report which further supports the need to ban the six limited condition of us for chrysotile asbestos as defined in the Part 1 proposed rule.

Key elements of the proposal include:   

• Asbestos could no longer be imported and used by the chlor-alkali industry – the only current U.S. importer of raw chrysotile asbestos – to manufacture  chlorine and caustic soda.
• Importation and use of chrysotile asbestos-containing sheet gaskets, brake blocks, aftermarket automotive brakes/linings, other vehicle friction products, and other gaskets would also be prohibited. 
• No restrictions would be placed on the five remaining asbestos fibers and other conditions of use of chrysotile asbestos.  
• EPA’s prohibitions on asbestos diaphragms used in chlor-alkali production and sheet gaskets would take effect two years after the effective date of the final rule. 
• The prohibitions for the remaining four conditions of use would take effect 180 days after the final rule becomes effective. 
• EPA anticipates that the final rule will be promulgated in late 2023.  

Comments on the proposed EPA Part 1 rule must be submitted online on or before June 13, 2022.  

Asbestos is the most hazardous substance used widely since the industrial revolution. When inhaled, microscopic asbestos fibers can become lodged in the lungs, irritating lung tissues. Exposure can cause malignant and non-malignant diseases such as asbestosis, pleural disease, lung cancer, mesothelioma, cancer of the larynx, ovary, and others. Studies in the scientific literature cite asbestos-caused cancers of the pharynx, stomach, and colorectum. From 1991 to 2021, more than one million Americans died from preventable asbestos-caused diseases, and asbestos continues to kill over 40,000 Americans each year. Scientists agree that no level of exposure to asbestos is safe. 

The Asbestos Disease Awareness Organization (ADAO), an independent nonprofit dedicated to preventing asbestos exposure through education, advocacy, and community work, believes that the EPA risk management proposal is an historic step forward but does not provide full protection against unsafe asbestos exposure. 

EPA’s proposed rule only addresses chrysotile asbestos. It does not restrict importation and use of five other amphibole asbestos fibers that are equally dangerous. Nor does it prohibit current or future uses of chrysotile asbestos beyond the six regulated conditions of use. Because of these gaps and limitations, the proposed rule is not a full asbestos ban. 

To effectively safeguard public health, the five amphibole asbestos fibers (crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite and actinolite) must be prohibited. All conditions of use of chrysotile asbestos must also be banned. 

Other regulatory mechanisms in place under TSCA, such as the Significant New Use Rule (SNUR), are no substitute for a clear and comprehensive ban and will not ensure that asbestos fibers do not harm Americans. The same is true of EPA’s Part 2 risk evaluation and risk management rulemaking. Part 2  will address the five amphibole fibers only from the standpoint of legacy asbestos exposure and will not ban their ongoing importation and use.  For these reasons, Congress must ban all uses of all six asbestos fibers now.  

A centerpiece of EPA’s proposal is the elimination within two years of the dangerous use of chrysotile asbestos by three companies in the chlor-alkali industry who have failed to adopt proven non-asbestos technology. In its January meeting with the Biden administration, one of these companies – Olin – requested  a “permanent exemption” from any restriction on asbestos imports and use. EPA should not accommodate companies that have put their own profits ahead of public health by refusing to eliminate an obsolete and unsafe technology that the rest of the industry has replaced.  

Based on meeting materials and press statements, ADAO is concerned that industry opposition and litigation will delay the rule for years, thus allowing imports and use of asbestos to continue. These roadblocks would be eliminated if Congress enacts a comprehensive asbestos ban that prohibits all six asbestos fibers by clear and expeditious deadlines. 

THE PART 1 PROPOSAL IS INADEQUATE TO ELIMINATE ASBESTOS RISK 

• What is the definition of asbestos?

Asbestos is defined in TSCA Title II Section 202 as: “asbestiform varieties of six fiber types – chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite or actinolite.” 

• Does the proposed Part 1 risk management rule cover all types of asbestos that pose a health threat?

No.  EPA’s proposed rule is limited to chrysotile asbestos and fails to cover the other five recognized amphibole asbestos fiber types: crocidolite, amosite, anthophyllite, tremolite, and actinolite. Leading health authorities have consistently recognized that all six fibers, not just chrysotile, are known to cause mesothelioma, lung cancer and other serious diseases.  

• Is the Part 1 proposal a ban?

No. The proposal only prohibits six current uses of chrysotile asbestos. It does not restrict importation and use of five other asbestos fibers that are equally dangerous. Nor does it prohibit current or future uses of chrysotile asbestos beyond the six regulated conditions of use. Because of these gaps and limitations, the proposed rule is not a full asbestos ban.

• Are the five other asbestos fibers still in use?

Yes. These five fibers can be found as impurities or intentional components in products, including toys for children, currently imported into the U.S. Without a clear, enforceable prohibition on their importation and use, there will be no effective protection against exposure to these fibers and U.S. residents will be at risk of harm.

• Doesn’t EPA’s Significant New Use Rule (SNUR) prohibit imports of the five fibers even though they are not covered by the proposed Part 1 rule? 

No. The SNUR is not a ban, but simply a requirement to notify EPA before certain types of asbestos products are imported. Upon receiving a notice, EPA could take no action and allow the product to be sold and used in the US. Moreover, an unequivocal  ban will send a strong  message to potential importers that asbestos-containing products are not lawful in the US and will be far more effective in deterring unsafe imports than the SNUR.  

• Will EPA ban the other five asbestos fibers in its Part 2 Risk Evaluation and Risk Management Rule? 

No. The main focus of Part 2 will be determining the risks of “legacy asbestos” – i.e. discontinued building materials and other asbestos-containing products that remain in place. These materials and products are known to contain all six of the recognized asbestos fibers. While EPA has agreed to examine the risks of these fibers in the Part 2 evaluation, its focus will be on health risks that arise during exposure to legacy asbestos. Because legacy asbestos embedded in buildings and articles cannot be readily removed, Part 2 risk management will not result in a comprehensive ban on the six fibers. While EPA might prohibit particular products containing these fibers that come to light during the Part 2 evaluation, these restrictions will be limited in scope and fall far short of an across-the-board ban on all future importation and use. 

• Why didn’t the EPA address all six asbestos fibers in Part 1?  

The Trump EPA made an unfortunate decision to only address chrysotile asbestos in its Part 1 risk evaluation. The narrow scope of the Part 1 evaluation was heavily criticized by EPA’s Science Advisory Committee on Chemicals (SACC) as well as by ADAO and many scientists, but the Agency chose to finalize the evaluation without including the other five fibers. The Biden EPA was forced to accept this decision or else delay risk management for asbestos well beyond the TSCA deadlines. The consequence was a proposed chrysotile-only rule that excludes the other fibers.   

• Are any current or future uses of chrysotile asbestos outside the scope of the Part 1 proposed rule?  

Yes. It is important to recognize that the proposed rule only addresses six chrysotile asbestos conditions of use: asbestos diaphragms, sheet gaskets, brake blocks, aftermarket automotive brakes/linings, other vehicle friction products, and other gaskets. ADAO and its experts have consistently believed that these conditions of use do not comprise the full universe of currently imported chrysotile-containing products. The SACC expressed the same concerns in its review of the draft risk evaluation. For example, import records and other information provide evidence of current importation of knitted fabrics (woven products), asbestos cement products, compressed asbestos fiber jointing paper, millboard and felt, building materials and yarn and thread. In his 2020 decision directing EPA to require asbestos reporting by industry, Federal District Court Judge Edward Chen said that EPA has “little information . . .about the quantities of asbestos-containing products in the U.S. chain of commerce and the overall consumer and occupational exposure for downstream uses of asbestos.”

• Will the asbestos reporting rule that EPA is developing in response to Judge Chen’s decision identify all asbestos-containing products that are not addressed in Part 1?  

No. We support the proposed reporting rule and believe it will produce useful information. However, we are not confident that all companies who are now importing asbestos and asbestos-containing products will submit reports or that EPA will ban those additional products that are reported. Moreover, once the rule expires, there will be no reporting obligation and asbestos and asbestos-containing products that are not addressed in Part 1 could be imported without the knowledge of EPA or the public.    

• Can legislation close the gaps in Parts 1 and 2 risk management? 

Yes. The Alan Reinstein Ban Asbestos Now Act (ARBAN), advocated by ADAO and many stakeholders and previously introduced in Congress, would ban all six recognized asbestos fiber types without exceptions or limitations. This comprehensive ban would permanently close the door to all importation and use of raw asbestos and asbestos-containing products – not just for chrysotile but for all six asbestos fibers and not just for the six conditions of use addressed in the Part 1 proposal but for all current and future conditions of use. In the absence of legislation, Americans will have no assurance that exposure to all lethal asbestos fibers has been eliminated.  

THE PROPOSED BAN ON ASBESTOS USE IN CHLOR-ALKALI PRODUCTION IS ESSENTIAL 

• From 2019 – 2021, how many metric tons of raw chrysotile asbestos has been imported into the US for the Chlor-Alkali industry?

EPA’s Economic Analysis indicates that bulk asbestos imports by the chlor-alkali industry “tend to range between 100 and 800 metric tons during a given year.”According to the United States International Trade Commission, imports by the industry were 172 metric tons in 2019, 305 metric tons in 2020, 100 metric tons in 2021, and 80 metric tons in 2022 (first two months). 

• Which countries have mined and exported raw chrysotile asbestos to the US for use by the chlor-alkali industry?

According to the United States International Trade Commission, raw asbestos has been imported from Brazil, China and Russia.

• What were the US ports of entry for the raw chrysotile asbestos for the Chlor-Alkali industry?

According to the United States International Trade Commission, imports have arrived in the ports of Houston-Galveston, TX, Los Angeles, CA, New Orleans, LA and New York, NY

• How does the Part 1 proposal address use of asbestos in the production of chlorine and caustic soda? 

EPA concluded in its Part 1 evaluation that exposure to asbestos during chlor-alkali operations presents an unreasonable risk to human health. To address this unreasonable risk, the proposed rule would prohibit import, processing, distribution in commerce, and commercial use of chrysotile asbestos to manufacture and use asbestos diaphragms in chlor-alkali production. This prohibition would take effect two years after the effective date of the final rule

• What is ADAO’s position on the proposed Part 1 Chrysotile Asbestos asbestos diaphragm ban? 

We strongly support putting an end to the dangerous use of asbestos by the three companies who continue to use asbestos diaphragms: Olin Corporation, Occidental Chemical, and Axial/Westlake. These companies are the only remaining importers of raw asbestos in the U.S. They are outliers in the industry, which has broadly adopted proven non-asbestos technology in the decades since it became available. EPA has determined that these companies’ use of asbestos is unsafe. It would be indefensible to grant a loophole to firms that have put its own profits ahead of public health.  EPA’s Economic Analysis shows that conversion to non-asbestos technologies may produce net economic benefits

• Hasn’t the chlor-alkali industry been moving away from asbestos for some time? 

Yes. A 2020 Chlorine Institute survey of the industry cited in the EPA analysis shows that there are 21 companies that produce chlorine at 42  plants. U.S. chlorine production capacity using asbestos diaphragms has already declined dramatically, with 50 percent of the plants using this process closing or undergoing conversion. Since TSCA was amended in 2016, the number of plants using asbestos diaphragms has declined from 17 to nine. According to the EPA Economic Analysis, the asbestos diaphragm process now accounts for 33 percent of US production of caustic soda and chlorine while membrane cell and non-asbestos diaphragm technologies contribute 66 percent of total production.   The EPA Analysis reports that 14 plants currently have membrane cell units and 5 have non-asbestos diaphragms. The Chlorine Institute survey shows 26 membrane cell plants and 7 plants with both membrane and diaphragm processes.  The three current users of asbestos also operate membrane cell plants, demonstrating their reliance on the membrane cell process.  NOTE: As noted in the text, the Chlorine Institute’s 2020 survey reports a somewhat higher number of membrane cell plants than the EPA Economic Analysis, even though EPA states that it is relying on the Institute’s data.  The reason for the difference is not clear and should be clarified by EPA.    

Outside the US, the membrane technology accounts for nearly all production of chlorine and caustic soda.   Only two plants in Western Europe and Canada still use asbestos diaphragms and these plants are mandated to eliminate asbestos by the end of the decade. 

This massive shift away from asbestos has occurred without shortages of chlorine, supply disruptions, or adverse economic impacts.  Both membrane technology and non-asbestos diaphragms pay for themselves in several years by improved energy efficiency, higher quality product and longer service life. For this reason, EPA’s Economic Analysis projects that asbestos diaphragm units would be retired or replaced even in the absence of the Part 1 rule.    

• Why are the remaining users of asbestos in the industry unwilling to transition away from harmful asbestos-diaphragm technology?  

Of the three companies importing and using raw chrysotile asbestos, one has informed EPA that it will be discontinuing asbestos diaphragms but the other two have strongly opposed a ban in communications with the Biden administration. Olin has recklessly asserted that there is “proven zero public health risk with asbestos-based diaphragms.” On April 5, the American Chemistry Council (ACC), representing chemical producers, “expressed industry’s disapproval” of EPA’s proposal and claimed that it “would ban the manufacture of nearly one-third of chlorine and sodium hydroxide chemicals and have significant adverse effects on the supply of the nation’s drinking water.” 

• Are the industry claims of massive supply shortages correct?  

No. The industry is using scare tactics and misrepresentations to create a false narrative that the proposed rule will harm the economy by significantly reducing the supply of chlorine and caustic soda.   Since two-thirds of U.S. chlorine and caustic soda production and a much higher share of global production now use non-asbestos technologies, it is simply not credible to claim that the three remaining asbestos users in the industry would close their diaphragm units rather than convert to alternate processes. These companies already have non-asbestos production processes and it is baffling why they would refuse to continue investing in non-asbestos technology in order to comply with the Part 1 rule.  According to EPA, while conversion would incur capital costs, it would also increase energy efficiency and reduce operational costs and could enable production of higher-quality caustic soda that would boost revenues. EPA’s analysis shows that, under some scenarios, the Part 1 rule would actually result in annualized cost savings to the industry, meaning that the rule  would produce net economic benefits.  Thus, EPA concludes that replacement of asbestos diaphragms with non-asbestos technology with no long-term loss of supply is a “high probability.” 

• What about claimed threats to the safety of the drinking water supply because of shortages of chlorine-based disinfectants?

EPA indicates that in 2013 seven percent of  total chlorine and 5 percent of total caustic soda production were used for drinking water treatment. Moreover,  many treatment facilities are moving away from chlor-alkali treatment methods and the volume of production devoted to this use has likely declined.  If, as EPA predicts, the three producers using asbestos diaphragms adopt alternate technologies, the chlor-alkali industry will have no trouble supplying the relatively small amounts of chlorine and caustic soda needed by drinking water providers.  

• Chlor-alkali producers are opposing using the membrane cell process because the polymers comprising the membrane are based on per- and polyfluoroalkyl substances (PFAS) chemistry. Is this a reason to exempt chlor-alkali producers from the Part 1 requirements?  

No. According to EPA’s Economic Analysis, all three cell technologies – asbestos diaphragms, non-asbestos diaphragms and membrane cells –  are made from Polytetrafluoroethylene (PTFE) polymers, which are derived from PFAS chemistry. Accordingly, it is open to question whether conversion of the 9 existing asbestos-using plants to the cell membrane process under the Part 1 rule would increase PFAS production and exposure. Both membranes and diaphragms have finite life-spans and must be periodically replaced; for all technologies, the replacement units would thus require additional production and use of PTFE fibers. EPA notes that,  “[a]though they contain a higher concentration of PFAS compounds, non-asbestos diaphragms and membranes have a lifespan of 3 to 5 or more years, compared to 200 to 500 days for asbestos diaphragms.” The higher replacement frequency of asbestos diaphragms could create more demand for PTFE and greater PFAS production than for the non-asbestos technologies.   

According to the Department of Energy (DOE, non-asbestos technologies have environmental and economic benefits that the asbestos diaphragm process lacks and for this reason “[m]embrane cells are the most environmentally benign of all the cell technologies.”  The benefits of non-asbestos technologies  include lower energy consumption, reduced air pollution, absence of hazardous waste and significantly lower wastewater generation. These benefits must be weighed against PFAS concerns. 

Most importantly,  elimination of asbestos – a lethal carcinogen – significantly lowers human health risks.  Thus,  EPA states in its proposed rule that “the benefits of removing chrysotile asbestos, a known human carcinogen that causes an aggressive and deadly cancer (mesothelioma), from continued use in the United States, are significant enough to outweigh the potential additional exposure to PFAS that might result from this action.” 

• What will happen if companies in the chlor-alkali industry challenge EPA’s final rule in court? 

If the rule is challenged, it would be tied up in protracted litigation, potentially delaying implementation for years and allowing asbestos imports and use to continue. Legislation would remove these roadblocks by setting binding deadlines for terminating asbestos importation and use that could not be challenged in court.    

• In addition to the elimination of asbestos exposure and reduction of energy costs, will conversion to the non-asbestos processes have other health and environmental benefits? 

Definitely. As EPA states in its proposal, “the proposed rule is expected to generate significant benefits from reduced air pollution associated with electricity generation.” This is because “membrane cells are more energy efficient than diaphragm cells [and] reduce . . . [emissions] of carbon dioxide, particulate matter, sulfur dioxide, and nitrogen oxides.”  EPA estimates that “converting asbestos diaphragm cells to membrane cells could yield tens of millions of dollars per year in environmental and health benefits from reduced emissions.”  

• How do asbestos and non-asbestos technologies compare in terms of waste generation and management?   

Another benefit of the membrane process is the elimination of the substantial asbestos wastes generated during use and disposal of asbestos diaphragms and their parts. According to Toxic Release Inventory (TRI) reports,  landfills currently receive millions of pounds of asbestos waste from chlor-alkali plants. Large volumes of waste from the asbestos diaphragm process are also stored on site. The substantial costs and health risks associated with managing these wastes would be avoided under EPA’s rule.  According to EPA, similar benefits would be obtained from use of non-asbestos diaphragms.  Significantly, EPA does not include these monetized pollution reduction benefits in determining the costs and benefits of the Part 1 proposal although they are fully addressed in its Economic Analysis. Incorporating these benefits would show that the rule has significantly greater net benefits than the formal cost-benefit analysis indicates.    

• EPA exempted chlor-alkali facilities from its 1989 asbestos ban under TSCA. Is this exemption still justified?   

No. When the rule was promulgated, membrane cell technology was new and largely unproven. According to the Chlorine Institute, only 2.4% of chlor-alkali production in 1987 came from membrane cells. Thus, EPA in its rule said that “[i]insufficient information was available to determine whether suitable product substitutes will soon be available for use in existing chlorine production facilities” and “[t]he cost of modifying existing plants to accept new membrane cell technology in response to a ban on asbestos use in this product may be very high.” 54 Federal Register 29501 (July 12, 1989). These conditions have changed dramatically since 1989 with the widespread acceptance of membrane technology due in part to its greater efficiency and lower costs of operation. In the 1989 rule, EPA “specifically recommend[ed] that users of asbestos diaphragms use non-asbestos diaphragm cells in facilities that will accept them and in the design of new facilities.” The global industry has generally followed this advice, except for the three companies that have stuck with outdated asbestos technology.     

• Why would ARBAN be more protective of public health than the TSCA Part 1 rule? 

The Part 1 proposed rule would only prohibit the importation and use of chrysotile asbestos for six conditions of use. The rule could be challenged and overturned in court, like the 1989 EPA asbestos ban under TSCA. By contrast, the Alan Reinstein Ban Asbestos Now Act (ARBAN) would ban all six recognized asbestos fiber types within a year of enactment for all uses, transition the chlor-alkali industry from asbestos diaphragms to alternative technology within two years, and could not be overturned by a legal challenge. Without legislation, current and future exposure from unregulated uses of chrysotile and five other fibers that have the same lethal properties would continue. Congress can put a stop to this exposure by banning all six asbestos fibers for all uses now.