How a TSCA Rule Argument Reaches Into Workers’ Compensation.

On June 1, 2026, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument in Texas Chemistry Council v. EPA, No. 24-60193 (consolidated with American Public Health Association v. EPA, No. 24-60281). The case challenges the EPA’s 2024 “Part 1” risk management rule under the Toxic Substances Control Act (TSCA), the first rule of its kind to ban chrysotile asbestos, the only form of asbestos still imported and used in the United States.

What makes the argument notable is the lineup. This is not an industry-versus-regulators conflict in the ordinary sense. Chemical manufacturers argue the ban goes too far; workers, public health, and disease-awareness petitioners argue it does not go far enough. And lurking behind both sets of arguments is a question that matters to every workers’ compensation practitioner: who bears the cost when occupational asbestos exposure is not fully controlled at the regulatory level?

The Rule and the Ghost of 1989

The Fifth Circuit is the same court that, in Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991), vacated the EPA’s 1989 attempt to ban most asbestos products, finding the agency had not mustered substantial evidence and had not adequately considered less burdensome alternatives. That decision effectively froze federal asbestos regulation for roughly 35 years and allowed continued use in the United States long after most industrialized nations had moved on.

The 2016 amendments to TSCA gave the EPA new authority, and in 2024, the agency used it. The Part 1 rule bans ongoing uses of chrysotile asbestos, most prominently in the chlor-alkali industry (which uses asbestos diaphragms to produce chlorine) and in sheet gaskets used throughout chemical manufacturing. The rule sets phase-out schedules of five to twelve years for chlor-alkali facilities and an Existing Chemical Exposure Limit (the “ECEL”) set roughly 20 times lower than the decades-old OSHA permissible exposure limit.

Standing Dominated the Morning

Before reaching the merits, the panel pressed every advocate on a single threshold question: who has standing to be here at all? The court had given advance notice that jurisdiction was a concern, and it repeatedly returned to the issue.

Industry petitioners. David Chung, for the American Chemistry Council and affiliated trade associations, argued that industry standing was “self-evident” because member companies are directly regulated by a rule that bans their current use of asbestos. The panel was skeptical, noting the absence of declarations or affidavits from injured members and citing the Supreme Court’s repeated instruction that standing cannot be assumed. Complicating matters, Olin Corporation, whose shortened transition timeline had supplied the clearest concrete injury, had withdrawn from the case. The court directed industry counsel to submit a letter by the close of business identifying record support for standing.

Worker, health, and disease-awareness petitioners. Robert Sussman, representing 18 petitioners including the Asbestos Disease Awareness Organization (ADAO), the American Public Health Association (APHA), and firefighter locals, expressly disclaimed any reliance on an organizational “diversion of resources” theory. That was a deliberate move: the en banc Fifth Circuit had recently rejected diversion-of-resources standing in United States v. Texas, echoing the Supreme Court’s reasoning in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), that an organization cannot “spend its way into standing.” Sussman instead pressed associational standing, harm to identifiable members and supporters.

The United Steelworkers. Nate Finch, for the United Steelworkers, argued the union had the clearest associational standing of all, invoking Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977), and UAW v. Brock, 477 U.S. 274 (1986). He pointed to an uncontested motion to intervene, alleging that thousands of USW members are exposed when they install, repair, and remove asbestos sheet gaskets. The panel noted that standing is jurisdictional and cannot be admitted by silence; the court ultimately invited the petitioners to submit record citations, and Finch offered to convert the intervention allegations into a sworn declaration by the next day.

Two Opposite Merits Fights

Industry: the ban went “beyond the extent necessary.”

Industry’s core argument is statutory. TSCA Section 6(a) directs the EPA to apply restrictions “to the extent necessary” so that a chemical no longer presents an unreasonable risk. Because the EPA itself found that holding exposures at or below the ECEL would eliminate unreasonable risk, and found the ECEL both achievable and feasible based on industry’s own monitoring data, industry contends the agency should have stopped at the exposure limit plus mandatory workplace controls, rather than imposing an outright ban. A ban, they argue, reads the limiting phrase “to the extent necessary” out of the statute. Industry asked the court to vacate only the bans on chlor-alkali and chemical manufacturing uses, not the entire rule.

The EPA, through Laura Glickman, responded that substantial evidence supports the conclusion that only a ban eliminates the risk. Respirators, the agency argued, repeatedly fail in real-world chlor-alkali conditions; high heat makes them uncomfortable and leads to inconsistent wear; and the best available study shows that respiratory protection often falls short. The agency also defended its decision not to refer asbestos to OSHA, noting OSHA’s exposure limit had gone unchanged for more than 30 years and that OSHA has said it lacks authority to ban asbestos outright.

Worker and health petitioners: the rule left gaps

On the other side, petitioners argued the rule does too little. They stressed that TSCA’s definition of “conditions of use” reaches not only known and intended uses but “reasonably foreseen” ones, and that the Part 1 rule fails to address all six asbestos fiber types or the possibility that imports resume. With more than a million metric tons of asbestos still produced annually in countries like India, China, and Russia, they argued the threat of renewed imports is not theoretical.

The Steelworkers pressed a narrower, more pointed inconsistency: the EPA imposed interim worker protections for the titanium dioxide segment of the chemical industry but not for the rest of the industry, even though the agency’s own risk assessment found an unreasonable risk whenever asbestos sheet gaskets are installed or removed, work that releases millions of fibers. The EPA’s answer, that remaining gasket exposures will be handled as “legacy” uses in a forthcoming Part 2 rule with no committed timeline, drew evident concern from the bench, which asked twice when Part 2 would issue and received no estimate.

Where Workers’ Compensation Enters the Analysis

Although no one argued workers’ compensation doctrine at the lectern, the compensation system is woven through the entire dispute, and the outcome will move real dollars through it.

• Regulation is the front line; workers’ compensation is the backstop. Every gap the petitioners identified, unprotected gasket work, foreseeable resumed imports, the twelve-year chlor-alkali phase-out, represents continuing occupational exposure. Asbestos diseases have latency periods of decades, so exposures permitted in 2026 become mesothelioma, lung cancer, and asbestosis claims well into the 2050s and beyond. Each of those is a future workers’ compensation (or occupational disease) claim.

• The firefighter standing theory is a compensation theory in disguise. The IAFF locals’ declarations rest on the established fact that cancer is the leading cause of line-of-duty death among firefighters and that asbestos is a significant contributor. Many states now recognize firefighter cancer presumptions in their workers’ compensation statutes. A weaker federal rule means more fireground exposure, which means more presumptive compensation claims absorbed by municipal employers and their carriers.

• TSCA vs. OSHA vs. Workers’ Compensation. The referral fight over Section 9 is, at its core, an argument about which system best protects workers. Industry would push asbestos back toward OSHA’s aging exposure limit; the EPA argues that the limit leaves significant residual risk. Workers’ compensation sits downstream of both; it pays out precisely when the upstream exposure controls prove inadequate.

• The “respirators are enough” debate is a workers’ compensation-cost debate. Industry’s position that respirators can manage residual risk, versus the EPA’s position that they fail in practice, is the classic question behind every occupational-disease claim: did engineering controls or personal protective equipment prevent the exposure that later produced disease? Workers’ compensation adjudicators answer that question one injured worker at a time.

Impact on Benefits for Exposed Workers

For workers and the practitioners who represent them, the practical stakes break down along the lines of how the panel rules.

• If the ban is upheld in full, future occupational exposure is curtailed at the source, which over decades should reduce the incidence of new asbestos-disease claims, the most protective outcome for the workforce, even though long latency means existing exposures will continue to generate claims for a generation.

• If industry prevails and the bans are vacated, chlor-alkali and chemical manufacturing exposures will continue under an exposure-limit-plus-respirator regime. Where PPE fails in practice, the cost migrates into the workers’ compensation system through future disease claims, and the comp dispute shifts to causation and apportionment over very long latency periods.

• If the worker/health petitioners prevail, the EPA would have to close the gaps, extend protections to all gasket workers, address all six fiber types, and treat reasonably foreseeable resumed uses, thereby most broadly reducing the universe of compensable future exposures.

• The gasket-worker gap is the immediate exposure: the Steelworkers’ point is that non-titanium-dioxide chemical workers are currently being exposed to asbestos without the interim protections their titanium-dioxide counterparts received. If the EPA’s “we’ll fix it in Part 2” answer holds without a timeline, that population continues to accrue exposures that later become workers’ compensation claims.

The Takeaway

The Fifth Circuit may dispose of the case on standing without ever reaching the merits, but the court’s repeated focus and its end-of-day letter deadlines signaled real doubt. However it resolves, the case is a reminder that toxic-substance regulation and workers’ compensation are two ends of the same pipe. Every fiber that regulation fails to stop eventually arrives, decades later, as a claim on a workers’ compensation desk. For employers, carriers, and the workers themselves, Texas Chemistry Council v. EPA is worth watching closely.