The battle over America's long-awaited ban on asbestos has reached a critical juncture in the U.S. Court of Appeals for the Fifth Circuit, where the 2024 EPA rule faces fierce industry challenges that could determine the fate of worker safety protections nationwide.
1. The Case: Texas Chemistry Council v EPA
In the consolidated case Texas Chemistry Council v EPA (No. 24-60193), industry groups including the American Chemistry Council, Olin Corporation, and several state chemistry councils are challenging EPA's March 2024 final rule that banned chrysotile asbestos under the Toxic Substances Control Act (TSCA). The rule imposed immediate and phased compliance deadlines for various applications, including the chlor-alkali industry, which is the only industry that still imports raw asbestos fibers.
Facts of the Case: EPA's rule prohibits ongoing uses of chrysotile asbestos, the only known form of asbestos currently imported, processed and distributed in the U.S., marking the first rule to be finalized under the 2016 amendments to TSCA. The ban includes different compliance deadlines to transition away from each use of chrysotile asbestos, providing reasonable transition periods while protecting public health.
2. Issues Before the Court
The central legal issues include:
- EPA's Authority Under TSCA: Industry petitioners argue EPA exceeded the limits of TSCA's gap-filling role with regard to other statutes, relied on unfounded assumptions, and failed to show that a ban was needed when less drastic measures were available.
- Workplace Protection Requirements: Industry groups want the Fifth Circuit to determine 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.
- "Least Burdensome" Standard: Industry briefs reference the 1991 Corrosion Proof Fittings v. EPA decision, which overturned a broad asbestos ban because the agency had not chosen the least burdensome regulatory alternative as required by the original 1976 TSCA.
3. Positions of the Parties
Industry Petitioners (Texas Chemistry Council, American Chemistry Council, Olin Corporation): Industry petitioners support the EPA's decision to reconsider the rule, advocating for a risk-based approach that limits the EPA's regulatory actions to what is necessary to address "unreasonable risk" and defers to other agencies where appropriate. They argue the EPA's rule unnecessarily bans the mineral chrysotile asbestos that certain manufacturers have long used to produce chlorine—a critical disinfectant and compound for many different chemicals.
EPA: After initially filing a motion in June 2025 to pause litigation for six months to reconsider certain provisions, EPA withdrew its motion in July 2025 and stated it "no longer intends to conduct notice-and-comment rulemaking to evaluate potential changes at this time". EPA plans to explore whether guidance could provide further clarity to stakeholders as they implement the Rule, particularly with respect to workplace protection measures.
Public Health Organizations (Asbestos Disease Awareness Organization, United Steelworkers): The United Steelworkers and a coalition of health professionals and firefighters' unions led by ADAO argue the agency failed to adequately protect the public and laborers, referencing the Fifth Circuit's Borel v. Fibreboard opinion that found manufacturers had to disclose risks from known and reasonably foreseeable uses of their products.
4. Recent Court Filings
EPA and petitioners in consolidated litigation are proposing a schedule for resuming briefing in the case, with a September 17 deadline for reply briefs from the petitioners, with 9,000 words of briefing to be divided among United Steelworkers, Asbestos Disease Awareness Organization, and other parties.
5. Impact on Worker Safety
The case has profound implications for American workers. At-risk employees include auto mechanics that might be exposed while working with imported parts still containing the mineral and factory workers who handle asbestos-containing gaskets in industrial equipment. According to ADAO president Linda Reinstein, "Every 13 minutes, someone in the U.S. dies from an asbestos-caused disease".
Public health advocates warn that delays in enforcement could prolong exposure to a known carcinogen responsible for an estimated 40,000 deaths annually in the United States. According to the U.S. Geological Survey, 224 tons of raw asbestos were imported into the country in 2022, with the chlor-alkali industry accounting for 100% of U.S. asbestos fiber consumption since no later than 2015.
6. The Alan Reinstein Ban Asbestos Now Act of 2025
While the court battle unfolds, Congress has an opportunity to provide legislative certainty. Oregon's U.S. Senator Jeff Merkley partnered with U.S. Representatives Suzanne Bonamici (D-OR-01) and Don Bacon (R-NE-02) on a bipartisan effort to prohibit the manufacture, processing, use, and distribution in commerce of all six recognized asbestos fibers.
Key Provisions of the ARBAN Act: The Alan Reinstein Ban Asbestos Now Act of 2025 would amend TSCA to prohibit the manufacture, processing, use, and distribution in commerce of commercial asbestos and mixtures containing commercial asbestos, covering chrysotile, crocidolite, amosite, anthophyllite, tremolite, actinolite, richterite, and winchite.
The bill includes a five-year transition period for the chlor-alkali industry (until January 1, 2030) and provides for national security exemptions that cannot exceed three years, with one possible three-year extension.
Legislative Progress: For the first time, the ARBAN Act is bipartisan and being co-led in the House by Representatives Bonamici and Bacon, with Senator Merkley championing the bill in the Senate, representing the only comprehensive and durable solution to finally eliminate asbestos from commerce. The bicameral ARBAN Act was previously voted out of the U.S. House of Representatives Committee on Energy and Commerce with a strong bipartisan margin of 47-1 on November 19, 2019, though it failed to proceed for a floor vote in 2020.
7. Path Forward
The legislation would close dangerous loopholes left by EPA's 2024 rule by prohibiting all uses, not just limited chrysotile applications, and deliver durable protections through legislation that cannot be overturned in court. With the passage of ARBAN, the United States would finally join nearly 70 countries that have already banned asbestos, providing lasting protections for workers, first responders, consumers, children, and disadvantaged communities most at risk of exposure.
The convergence of legal challenges in the Fifth Circuit and bipartisan legislative action creates a pivotal moment for asbestos policy in America. While industry groups seek to weaken regulatory protections through the courts, Congress has the opportunity to provide the comprehensive, litigation-proof ban that public health advocates have sought for decades.
8. Key Takeaways
- Legal Challenge Intensifies: Industry groups are challenging EPA's 2024 chrysotile asbestos ban in federal court, arguing the agency exceeded its authority under TSCA
- Worker Safety at Stake: Over 40,000 Americans die annually from asbestos-related diseases, with continued exposure risks for auto mechanics and industrial workers
- EPA Stands Firm: After initially considering revisions, EPA withdrew its motion to reconsider the ban and will defend the rule in court
- Bipartisan Legislative Solution: The Alan Reinstein Ban Asbestos Now Act of 2025 offers a comprehensive alternative that would ban all six asbestos fibers and provide litigation-proof protections
- International Precedent: Nearly 70 countries have already banned asbestos, making the U.S. one of the last Western nations to allow its continued use.
Recommended Citation: Gelman, Jon, Asbestos Ban Under Fire (09/19/2025) https://workers-compensation.blogspot.com/2025/09/asbestos-ban-under-fire.html
Blog: Workers' Compensation
LinkedIn: JonGelman
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