Workers' Compensation: Asbestos: USA's Unfinished Ban Battle

For decades, the insidious threat of asbestos has loomed over public health, leaving a trail of devastating diseases. While many developed nations have long enacted comprehensive bans, the United States has lagged, allowing a dangerous legacy to persist. Recent actions by the Environmental Protection Agency (EPA) mark a significant, albeit still incomplete, step towards finally addressing this critical issue. The issue is still pending before the US 5th Circuit Court of Appeals.

EPA's Latest Move: A Partial Victory

In March 2024, the EPA announced a final rule prohibiting the importation and ongoing use of chrysotile asbestos, the last known form of asbestos still used in the U.S. This is a crucial development, as chrysotile asbestos has been primarily used in products like diaphragms in the chlor-alkali industry, brake blocks, and specific gaskets. The rule aims to protect individuals from the severe health risks associated with exposure, including lung cancer, mesothelioma, ovarian cancer, and laryngeal cancer.

However, it's important to understand that this is not a complete ban. The rule includes phase-out periods for certain uses, with some industries having up to five or even twelve years to transition away from chrysotile asbestos. Furthermore, the ban does not prohibit the continued use of existing, already installed products containing chrysotile asbestos (e.g., in situ building materials). The EPA is also in the process of evaluating other types of asbestos fibers and legacy uses, indicating that the fight for a full ban is far from over.

The Grave Health Hazards of Asbestos Exposure

The dangers of asbestos are well-documented and undeniable. When asbestos-containing materials are disturbed, microscopic fibers are released into the air. These fibers, invisible to the naked eye, can be inhaled and become lodged deep within the lungs and other organs. Over time, this can lead to a range of severe and often fatal diseases, with a latency period that can span decades.

The primary health hazards include:

Mesothelioma: A rare and aggressive cancer of the lining of the lungs, abdomen, or heart. It is almost exclusively caused by asbestos exposure.
Lung Cancer: Asbestos exposure significantly increases the risk of developing lung cancer, especially for smokers.
Asbestosis: A chronic, non-cancerous respiratory disease characterized by scarring of the lung tissue, leading to shortness of breath and reduced lung function.
Other Cancers: Exposure has also been linked to cancers of the digestive system, including colon cancer, ovarian and laryngeal cancers.

There is no safe level of asbestos exposure. Even minimal contact can pose a risk, as evidenced by cases of mesothelioma in family members of asbestos workers who were exposed to fibers brought home on clothing.

The Global Landscape: A Stark Contrast to the USA

While the U.S. takes incremental steps, over 50 countries worldwide have already implemented comprehensive bans on all forms of asbestos. Nations like Australia, Canada, Japan, and all 28 member states of the European Union have recognized the severe public health threat and taken decisive action. This global consensus highlights the urgency and necessity of a complete ban in the United States. The continued use and importation of asbestos in the U.S. puts American workers and citizens at a disadvantage, exposing them to risks that are no longer tolerated in much of the developed world.

Political Undercurrents: The Trump Administration and Asbestos

The path to a full asbestos ban in the U.S. has been fraught with political challenges. Historically, efforts to ban asbestos have faced industry opposition and legal setbacks. A significant EPA ban in 1989 was largely overturned by a federal court in 1991, leaving many loopholes.

More recently, the stance of political leaders has come under scrutiny. During his previous administration, Donald Trump expressed skepticism about the dangers of asbestos, famously stating in his 1997 book, "The Art of the Comeback," that asbestos is "100 percent safe, once applied." He also suggested that the movement against asbestos was "led by the mob." These comments and the subsequent actions of his administration raised concerns among public health advocates.

In June 2025, reports emerged that the EPA under the current administration is reconsidering the Biden-era rule banning chrysotile asbestos. While the ban remains in effect as of this writing, the EPA has requested a pause in litigation to reassess the regulation, citing arguments from industry groups that the ban was "overbroad." This move has been met with alarm by environmental and health organizations, who fear it could undermine years of progress and put more lives at risk. The fact that a Russian asbestos mining company, Uralasbest, even used Trump's image on its product packaging in 2018, with the words "Approved by Donald Trump," further underscores the political dimensions of this public health issue.

The Fight Continues

The recent EPA rule is a step in the right direction, but it is not the end of the journey. The continued presence of asbestos in existing structures, the phase-out periods for certain uses, and the political pushback against a full ban underscores the need for vigilance. For the health and safety of current and future generations, a complete and unequivocal ban on all forms of asbestos in the United States is not just a policy goal, but a moral imperative.

Key Takeaways

Here are the main takeaways regarding asbestos regulations and their implications, based on the information discussed:

Partial U.S. Ban: The EPA's 2024 rule prohibits chrysotile asbestos importation and use but is not a complete ban, with existing materials and other fiber types still under review or permitted.
Severe Health Risks: Asbestos exposure causes fatal diseases like mesothelioma, lung cancer, and asbestosis, with no safe level of exposure and long latency periods.
Global Disparity: Over 50 countries have full asbestos bans, highlighting the U.S.'s slower progress and continued health risks compared to much of the world.
Political Influence: The political landscape, including past administrations' stances, has influenced asbestos regulation, with ongoing challenges to strengthening bans.
Workers' Compensation Impact: The long latency of asbestos-related diseases means that workers' compensation insurance agents face ongoing and complex claims spanning decades, requiring them to manage long-tail liabilities, assess historical exposures, and navigate evolving legal and medical landscapes, leading to sustained administrative burdens and financial payouts related to illnesses from past exposures.

EPA's Chrysotile Asbestos Ban Under Review: A Deep Dive into Ongoing Legal Battles

The U.S. Environmental Protection Agency's (EPA) ban on chrysotile asbestos, finalized on March 18, 2024, marked a significant milestone as the first rule enacted under the 2016 amendments to the Toxic Substances Control Act (TSCA). Chrysotile remains the only known form of asbestos currently imported or used in manufacturing within the United States. This ban, however, has not gone unchallenged, leading to numerous appeals now consolidated and pending before the Fifth Circuit Court of Appeals.

The EPA's Rationale and the Scope of the Ban

The EPA determined that chrysotile asbestos presents an unreasonable risk of injury to human health, specifically citing mesothelioma and lung, ovarian, and laryngeal cancers resulting from chronic inhalation exposure.

The final rule, effective May 28, 2024, prohibits the manufacture (including import), processing, distribution in commerce, and commercial use of chrysotile asbestos in various applications. These include its use in the chlor-alkali industry and for sheet gaskets in chemical production, where interim workplace controls are also mandated.

Furthermore, the ban extends to the manufacture, processing, distribution in commerce, and commercial use of chrysotile asbestos in oilfield brake blocks, aftermarket automotive brakes and linings, other vehicle friction products, and other gaskets. For consumer use of aftermarket automotive brakes and linings and other gaskets, the rule prohibits their manufacture, processing, and distribution in commerce. The EPA's decision also includes requirements for disposal and recordkeeping.

The EPA considered the costs and benefits, as well as the cost-effectiveness, of this regulatory action. Notably, chlor-alkali producers are the sole industry in the U.S. that still fabricates products from raw chrysotile asbestos. The agency has emphasized that the rule is not expected to exacerbate existing environmental justice concerns in communities surrounding affected chlor-alkali facilities, which already experience high levels of industrial pollution and disproportionately high cancer risks among residents of color. To ensure worker safety, the rule mandates workplace information and training on the health effects of asbestos and the quantities involved. Additionally, records related to the disposal of chrysotile asbestos must be kept for five years.

Legal Challenges and Industry Concerns

The legal landscape surrounding the ban is complex, with petitions for review filed by various entities. The Texas Chemistry Council, alongside other chemistry councils, and the Asbestos Disease Awareness Organization (ADAO) are among the petitioners challenging the EPA's regulation. The EPA itself is the respondent in these consolidated cases.

The Asbestos Disease Awareness Organization (ADAO) and other petitioners, including the American Public Health Association, Collegium Ramazzini, and several firefighter associations, argue that the EPA's rule does not adequately address the dangers of asbestos. They contend that the rule fails to eliminate the unreasonable risks associated with the repair and replacement of asbestos-containing vehicle parts. Furthermore, they highlight that the risk evaluation and the rule itself do not adequately address the risks of asbestos environmental releases as required by TSCA.

Advocates against asbestos emphasize the dire consequences, stating that over 40,000 asbestos-related deaths occur annually in the U.S., with millions still exposed. There is a strong scientific consensus that no safe level of asbestos exposure exists. Dr. Richard Lemen, formerly Assistant U.S. Surgeon General, has underscored that historical data consistently shows the inability to identify a threshold level below which individuals are not at risk of asbestos disease. Concerns also persist about the continued circulation of asbestos-bearing products, including construction materials, evidenced by online discussions, how-to videos, and advertisements. Firefighters, for instance, face a mesothelioma rate twice that of the general U.S. population, largely attributed to asbestos exposure, and the fibers can be carried home, endangering families.

While non-asbestos technologies are prevalent in markets for gaskets, oilfield brake blocks, and other friction products, the transition to asbestos-free gaskets in some domestic facilities, particularly those requiring re-engineered flanges, is projected to take several years.

Current Status and Future Outlook

Recently, the EPA requested a stay in the litigation to conduct a regulatory review, a move mandated by a newly issued executive order. This stay was granted on February 14. By the fall of 2025, a clearer picture is anticipated regarding whether the ban will be upheld, modified, or entirely eliminated. Should the ban remain in place, ongoing appeals and legal battles are likely to persist, reflecting the long-standing and contentious nature of the dispute surrounding chrysotile asbestos.

Related Resources

Texas Chemistry Council v. EPA (24-60193), Court of Appeals for the Fifth Circuit (Docket) Court Listener

"Asbestos the way to dusty death", (1978) ABC News Documentary (youtube), also available at U of Georgia

"Mesothelioma, Today, Tomorrow, & Never". Dr. Richard Lemen (2018)

Recommended Citation: Gelman, Jon, Asbestos: USA's Unfinished Ban Battle (07/01/2025) https://workers-compensation.blogspot.com/2025/07/asbestos-usas-unfinished-ban-battle.html

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*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers' Compensation Law (West-Thomson-Reuters). For over five decades, the Law Offices of Jon Gelman 1.973.696.7900
jon@gelmans.com has represented injured workers and their families who have suffered occupational illnesses and diseases.