REGULATION & COMPLIANCE the rule . Some would say that since no one is happy , the EPA must have got it right . These cases will eventually be consolidated , and a long , contentious litigation process will begin to adjudicate the issues , the most significant of which are described below .
Key final prohibitions
Chrysotile asbestos has been imported and used by the chlor-alkali industry for the fabrication of semipermeable diaphragms used in the production of chlorine and sodium hydroxide . The EPA approached the regulation of chrysotile asbestos used at the handful of sites processing and using asbestos on a site-by-site basis .
As of 28 May 2024 , the effective date of the final rule , all persons in the chloralkali industry are prohibited from the manufacture , including import , of chrysotile asbestos , including any products or articles containing it . From five years after the effective date of the final rule , entities are prohibited from processing , distributing in commerce and commercially using it for diaphragms in the chlor-alkali industry , except as provided in the rule .
Entities may process , distribute in commerce and commercially use chrysotile asbestos for diaphragms in the chlor-alkali industry at no more than two facilities until eight years after 28 May 2024 , if they meet certain conditions , and at not more than one
Chrysotile asbestos is the only form of asbestos known to be used in the US
facility until 12 years after the effective date of the final rule , if it meets certain conditions specified under the rule .
Interim workplace controls
In addition to the bans noted above , many other prohibitions , restrictions and record-keeping obligations apply , as would be expected under a risk management rule . Central to this discussion is what the EPA decided to require regarding workplace controls during the phase-out period .
For most of the COUs where the prohibition on processing and industrial use will take effect in five or more years , the EPA requires owners or operators to comply with an eighthour existing chemical exposure limit ( ECEL ), beginning six months after the effective date of the final rule . It identified the specific COUs to which this requirement applies .
The agency ’ s stated goal is to require compliance with these interim workplace controls as set forth in the final rule . Adherence to these adequately addresses , in the EPA ’ s view , the unreasonable risk from chrysotile asbestos to workers directly handling the chemical or in the area where it is used until the relevant ban goes into effect . This is a critically important concept , as the EPA ’ s authority under TSCA Section 6 ( a ) to impose restrictions is explicitly limited “ to the extent necessary so that the chemical substance or mixture no longer presents such risk .”
The TSCA risk management requirements may incorporate and reinforce requirements in Occupational Safety and Health Administration ( OSHA ) standards . For chrysotile asbestos , the EPA ’ s approach for interim controls seeks to align with certain elements of the existing OSHA standard for regulating asbestos under 29 CFR Sections 1910.1001 and 1926.1101 .
According to the EPA , the OSHA permissible exposure limit ( PEL ) and ancillary requirements “ have established a long-standing precedent for exposure limit threshold requirements within the regulated community .” The agency acknowledges , however , that it is applying a “ lower , more protective ” ECEL derived from EPA ’ s TSCA risk evaluation . 2
Discussion
So why is this important and what are the key takeaway points ? First , the rule ’ s scope is significant . It applies to the few , limited ongoing uses of chrysotile asbestos that were not banned in the 1980s . In addition to the chlor-alkali industry uses outlined above , the rule also bans the use of chrysotile asbestos to make industrial gaskets , oilfield brake blocks and aftermarket brakes , and other automotive industry products .
The rule does not apply to the asbestos types that may already be in place , such as in old buildings . These will be addressed in a separate rulemaking including legacy uses and associated issues related to asbestos disposal .
Secondly , the EPA concluded that the use of chrysotile asbestos in chlor-alkali production does not present an unreasonable risk if protective measures are used , such as engineering controls , glove boxes and personal protective equipment ( PPE ). In the final risk management rule , the agency nevertheless asserts that it must be banned because it “ believes than an ECEL cannot ensure that chrysotile asbestos does not present unreasonable risk to workers and , therefore , it is not a substitute for a ban as a long-term risk management solution .” 3
In other words , the necessary PPE may not be used correctly , or monitoring to or below the ECEL “ may at times be problematic ,” or owners “ may be unable to reliably ensure with sufficient confidence ” that workers are protected ( emphasis added in each case ). 2
To some , this reflects a whole lot of unsupported anticipatory speculation that looks more like the precautionary principle than it does a
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