On April 5, 2022, the EPA released its proposed rule which would ban the use of chrysotile asbestos under the Toxic Substances Control Act (TSCA). The EPA has also recognized the fact that a complete ban on chrysotile asbestos will have a particular impact on chlor-alkali companies, as asbestos-containing diaphragms are currently used by industry to manufacture a significant amount chlorine produced in the United States. Although industry has two years to phase out the use of asbestos-containing products, the EPA recognizes that the TSCA rule may necessarily lead to increased use of PFAS in industry. While the EPA is willing to pursue the proposal despite the increased use of PFAS, companies should pay close attention to developments in the Safe Drinking Water Act and CERCLA regarding PFAS, which which could lead to significant financial consequences with increased use of PFAS.
EPA Chrysotile Ban Proposal
The rule proposed by the EPA on April 5, 2022 aims to prohibit the import and use of chrysotile asbestos in the USA. Chrysotile is the only form of asbestos currently imported and used in the United States. While some products in the United States still use some level of chrysotile asbestos, the chlor-alkali industry is the only industry that imports and uses raw asbestos fiber.
The production of chlor-alkali involves the electrolysis of a solution of sodium chloride, which creates chlorine, sodium hydroxide and oxygen. Membrane cells are used to control the chemical reactions involved and are often made with chrysotile asbestos. Membranes can also be made using some forms of PFAS.
Impact of the proposal on the use of PFAS
The EPA proposal for chrysotile asbestos would give the chlor-alkali industry two years to phase out the use of chrysotile asbestos, the most likely substitute for the industry will be certain types of PFAS including PTFE. The EPA said it weighed the risks of increased use of PFAS against the continued use of chrysotile asbestos and determined that the benefits of banning chrysotile outweighed the risks.
“The EPA recognizes that replacement technologies for asbestos-containing diaphragms in chlor-alkali production use an increased concentration of per- and polyfluoroalkyl substances (PFAS) relative to the amount of PFAS compounds contained in diaphragms containing asbestos… Non-asbestos diaphragms have a higher concentration of polytetrafluoroethylene (PTFE, a perfluorinated polymeric substance) than diaphragms containing asbestos, and non-asbestos diaphragms are made of PTFE, perfluorinated carboxylic acids and perfluorosulfonic acids. Therefore, moving away from asbestos-containing diaphragms could lead to increased use and release of PFAS. The EPA lacks information to determine whether increased use is likely to result in increased releases of PFAS at chlor-alkali facilities that currently rely on diaphragms containing asbestos.
chlor-alkali facilities that do not currently use asbestos-containing diaphragms that may increase production due to regulations, upstream facilities that produce membranes, or upstream facilities that produce perfluorinated fibers used in asbestos-free diaphragms.
As we have discussed in previous articles, the downstream effects of a PFAS designation under CERCLA and an enforceable drinking water standard under the Safe Drinking Water Act would be enormous. Companies that have used designated PFAS in their industrial or manufacturing processes and sent the PFAS waste to landfills or otherwise released the chemicals into the environment will be at immediate risk of enforcement action from of the EPA given the stated intention of the EPA to retain all polluters of PFAS of any kind. indebted. Chlor-alkali companies should be particularly concerned given the EPA’s proposed rule to ban the use of chrysotile, which would require a switch to PFAS in the industrial process to achieve the same results. If PFAS wastes or effluents are not properly controlled and managed, industry will face costly enforcement action once the drinking water regulations and CERCLA regulations come into effect.
©2022 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume XII, Number 115