EPA's Workplace Protection Failure Heads to Federal Court

A critical worker safety case is reaching a pivotal moment in federal court, with new filings revealing that the Environmental Protection Agency has conceded a significant failure in protecting chemical industry workers from deadly asbestos exposure.

Background: The Asbestos Rule That Fell Short

In March 2024, the EPA issued its "Asbestos Part 1: Chrysotile Asbestos" final rule under the Toxic Substances Control Act (TSCA). The rule addressed one of the most dangerous workplace hazards: chrysotile asbestos exposure from sheet gaskets used in chemical production facilities.

The EPA's own risk evaluation found that workers installing, removing, and disposing of asbestos-containing sheet gaskets face unreasonable health risks. Under TSCA, once the EPA makes such a determination, the agency has a mandatory duty to issue rules that eliminate those risks.

However, the final rule created a troubling two-tier system:

Titanium dioxide facilities: Must implement comprehensive Workplace Chemical Protection Programs (WCPP) within 180 days and eliminate all asbestos gaskets within five years.
All other chemical production facilities: May continue using, repairing, removing, and disposing of asbestos sheet gaskets for their useful life—potentially decades—without any worker protections.

The Current Legal Battle

The United Steelworkers union (USW), representing thousands of chemical industry workers, challenged this gap in protection before the Fifth Circuit Court of Appeals. In their January 9, 2026, reply brief, the union argues that EPA violated TSCA by failing to protect non-titanium dioxide chemical workers from the same asbestos risks the agency acknowledged.

The case consolidated multiple petitions (Nos. 24-60193, 24-60281, and 24-60333) from various industry groups, public health organizations, and worker advocates, each challenging different aspects of the rule.

EPA's Stunning Admission

What makes the latest filing particularly significant is the EPA's subsequent change in position. According to sworn declarations submitted to the court, the EPA made a public statement to the New York Times admitting:

"EPA believes that the Biden Administration's risk management rule failed to adequately protect chemical industry workers from the health risks posed by chrysotile asbestos."

The agency initially told the court it would reconsider the rule through formal rulemaking. However, EPA then reversed course, announcing it would instead issue non-binding "guidance" to address the protection gap.

Why These Filings Matter

The January 9, 2026, reply brief is crucial for three reasons:

1. Legal Accountability
The USW argues that EPA's post-hoc justifications don't hold up. The agency never explained in its original rulemaking why it was treating non-titanium dioxide workers differently. Under the Supreme Court's SEC v. Chenery doctrine, agencies cannot rely on rationales not articulated when the rule was issued.
2. Worker Lives at Stake
The Occupational Safety and Health Administration's (OSHA) current asbestos standard allows exposures up to 100 parts per million (ppm)—vastly higher than the 0.004 ppm level at which EPA found asbestos presents unreasonable risk. Every day the protection gap remains, workers face exposure to a known carcinogen at levels 25,000 times higher than the safe threshold.
3. Inadequate Agency Response
The brief demolishes EPA's proposed solution:

Guidance isn't enforceable: Unlike rules adopted through notice-and-comment procedures, guidance documents "do not have the force and effect of law" under Supreme Court precedent (Perez v. Mortgage Bankers).
Respirators aren't enough: Throughout the rulemaking, EPA emphasized that respiratory protection alone doesn't adequately protect workers from asbestos. Yet the agency now proposes guidance focused only on "respiratory protection," not the engineering and administrative controls required in other industries.
Timing failures: TSCA required EPA to protect workers by December 2025 at the latest—five years after determining asbestos posed an unreasonable risk. That deadline has passed with no enforceable protections in place.

The Broader Implications

This case raises fundamental questions about agency accountability and worker protection:

Can federal agencies acknowledge a deadly workplace hazard yet fail to protect some workers from it based on post-hoc reasoning?
Does TSCA's mandatory language—requiring EPA to eliminate unreasonable risks—mean anything if agencies can substitute non-binding guidance for enforceable rules?
How long can statutory deadlines be ignored while workers remain exposed to known carcinogens?

What Happens Next

The court ordered final briefs due by January 16, 2026. The USW has requested the court:

Find that EPA violated TSCA by failing to protect non-titanium dioxide chemical workers
Order EPA to expeditiously amend the rule to extend WCPP requirements to all chemical facilities using asbestos sheet gaskets
Impose a strict timetable for the EPA to fulfill its statutory obligations

Given EPA's admission that the rule "failed to adequately protect chemical industry workers," the union argues the legal question is essentially settled. The only remaining issue is the appropriate remedy.

Conclusion

The stakes in this case extend beyond the chemical industry. The court's decision will help define the boundaries of agency discretion when workers' lives are on the line. Can an agency that acknowledges failing to protect workers delay meaningful action indefinitely? Or will the courts enforce TSCA's mandate to eliminate unreasonable risks?

For the thousands of workers who handle asbestos-containing gaskets without adequate protection, the answer could be a matter of life and death. As the court filings make clear, every day of delay means continued exposure to one of the most dangerous substances known to science—at levels the EPA itself has deemed unreasonably risky.

The Fifth Circuit's decision in this case will be closely watched by worker advocates, environmental groups, and industry stakeholders alike. It may well set the precedent for how seriously federal courts take agencies' mandatory duties to protect American workers from toxic exposures.

Texas Chemistry Council v. EPA, 24-60193, (5th Cir.)