EPA Seeks Changes in Asbestos Rule Affecting Chlorine Makers (1)

The EPA asked a federal appeals court to pause litigation over a regulation phasing out ongoing uses of chrysotile asbestos to allow the agency to reconsider parts of the rule, including provisions affecting chlorine manufacturers.

The Environmental Protection Agency’s motion asked the US Court of Appeals for the Fifth Circuit to pause the litigation for six months to reassess the 2024 regulation. Yet, regulatory changes the EPA would like to propose may take two-and-a-half years to complete, the agency said.

If the court pauses the lawsuit, the EPA plans to consider whether some of the rule’s requirements went beyond what the 2016 Toxic Substances Control Act amendments require and whether workplace protections required in the regulation should be revised.

Changes the EPA would consider making to the 2024 regulation could address a core industry concern—the domestic supply of chlorine.

Industry trade associations previously told the Fifth Circuit the EPA’s rule unnecessarily bans the mineral chrysotile asbestos that certain manufacturers, including petitioner Olin Corp., have long used to produce chlorine—a critical disinfectant and compound for many different chemicals used in the transportation, energy, health care, and other industries.

But the rule was needed to reduce the risks faced by an estimated 40,000 people who die each year from lung cancer, mesothelioma, ovarian cancer, and laryngeal cancer due to their exposure to the mineral, the agency said last year when it issued the regulation.

The EPA, during the Biden administration, sought to address water utilities’ concerns about insufficient chlorine by giving chemical manufacturers years longer than originally proposed to phase out their use of asbestos to produce the disinfectant.

Agency’s Plans

If the court allows the EPA to pause the litigation and redo the regulation, the agency wants to reconsider whether workplace protection requirements the rule set are applicable to chemical manufacturers other than titanium dioxide producers, said Lynn Ann Dekleva, deputy assistant administrator for chemical safety and pollution prevention, in a declaration included with the EPA’s motion.

The Chemours Co., which makes titanium dioxide, voluntarily disclosed to the EPA its use of chysotile asbestos-containing sheet gaskets, a type of industrial equipment seal. The rule’s worker safety requirements, however, applied to producers of other chemicals even though the EPA acknowledged some information gaps about those other manufacturers.

The agency also seeks to review whether its prohibitions on asbestos sheet gaskets and its ban of chrysotile asbestos some chlor-alkali manufacturers use went beyond what was necessary to achieve the 2016 Toxic Substances Control Act (TSCA) amendments’ requirement to eliminate the mineral’s unreasonable risks. Chlor-alkali manufacturers use diaphragms made with asbestos or two other technologies to produce chlorine and caustic soda.

And the EPA intends to consider whether the rule was based on the best available science as TSCA requires, said Dekleva, who previously worked for the American Chemistry Council (ACC), which is among the industry groups opposing the rule.

ACC, Olin, and the other industry trade groups said in their brief they intend to challenge TSCA compliance regarding additional aspects of the rule. For example, they want the Fifth Circuit to weigh in on whether the EPA violated the law by failing to refer the regulation of chrysotile asbestos in the workplace to the Occupational Safety and Health Administration.

The United Steelworkers and a coalition of health professionals and firefighters’ unions led by the Asbestos Disease Awareness Organization (ADAO) told the court in their briefs the agency failed to adequately protect the public and laborers.

At risk employees include auto mechanics that might be exposed while working with imported parts still containing the mineral and factory workers who could be exposed to asbestos contained in the sheet gaskets used to seal some industrial equipment.

Fifth Circuit Opinions

Industry and labor petitioners cited different cases involving asbestos that the Fifth Circuit has ruled on.

The industry brief cited the 1991 decision in Corrosion Proof Fittings v. EPA, which overturned a rule banning many uses of asbestos. The agency had failed to comply with the original 1976 TSCA’s requirement to choose the least burdensome regulatory alternative, the court held.

The 1991 decision was pivotal in shaping the 2016 TSCA amendments, ADAO’s brief said. “As interest in TSCA reform gathered steam, asbestos became a poster child for the law’s deficiencies,” and the amendments removed the barriers to regulation that prompted the Fifth Circuit’s ruling, it said.

The United Steelworkers’ brief, meanwhile, referenced the Fifth Circuit’s Borel v. Fibreboard opinion that found manufacturers had to disclose risks from known and reasonably foreseeable uses of their products.

The case is Texas Chemistry Council v. EPA, 5th Cir., No. 24-60193, motion filed 6/16/25.