On April 5, 2022, the EPA published its proposed rule that would ban the use of chrysotile asbestos under the Toxic Substances Control Act (TSCA). The EPA 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 the industry to manufacture a significant amount of the chlorine produced in the United States. Although the industry will be given two years to switch away from the use of asbestos-containing products, the EPA recognizes that the TSCA rule may necessarily lead to an increase use of PFAS in the industry. While the EPA is willing to proceed with the proposal despite the increased PFAS use, businesses must pay close attention to the Safe Drinking Water Act and CERCLA developments with respect to PFAS, which could result in significant financial consequences with increased PFAS use.

EPA Chrysotile Ban Proposal

The EPA’s April 5, 2022 proposed rule seeks to ban the import and use of chrysotile asbestos in the United States. Chrysotile is the only form of asbestos that is currently imported into and used in the United States. While certain products in the United States still utilize some level of chrysotile asbestos, the chlor-alkali industry is the only industry that imports and uses raw asbestos fiber.

Chlor-alkali production involves electrolysis of a sodium chloride solution, which creates chlorine, sodium hydroxide, and oxygen. Membrane cells are used to control the chemical reactions involved, and are often made with chrysotile asbestos. The membranes can also be made using some forms of PFAS.

Proposal Impact On PFAS Use

The EPA’s 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, most notably PTFE. The EPA indicated that it weighed the risks of an increased use of PFAS compared to the continued use of chrysotile asbestos, and determined that the benefits of banning chrysotile outweighed the risks.

“EPA acknowledges that substitute 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 asbestos-containing diaphragms….Non-asbestos diaphragms have a higher concentration of polytetrafluoroethylene (PTFE, a polymeric perfluorinated substance) than asbestos-containing diaphragms, and non-asbestos membranes are made of PTFE, perfluorinated carboxylic acids and perfluorosulfonic acids. Therefore, the transition away from asbestos-containing diaphragms could result in greater usage and release of PFAS. EPA lacks information to determine whether increased usage is likely to cause increased release of PFAS at chlor-alkali facilities that currently rely on asbestos-containing diaphragms,
chlor-alkali facilities that do not currently use asbestos-containing diaphragms that may expand their production as a result of the regulation, upstream facilities that produce membranes, or upstream facilities that produce perfluorinated fibers used in non-asbestos diaphragms.”

Impact On Businesses

As we have discussed in prior articles, the downstream effects of a PFAS designation under CERCLA and an enforceable drinking water standard under the Safe Drinking Water Act would be massive. Companies that utilized designated PFAS in their industrial or manufacturing processes and sent the PFAS waste to landfills or otherwise discharged the chemicals into the environment will be at immediate risk for enforcement action by the EPA given the EPA’s stated intent to hold all PFAS polluters of any kind accountable. Chlor-alkali companies should be especially concerned given the EPA’s proposed rule to ban the use of chrysotile, which would necessitate a switch to PFAS in the industrial process to achieve the same results. If the PFAS waste or effluent is not properly controlled and managed, the industry will be opening itself up to costly enforcement action issues once the drinking water regulations and CERCLA regulations take effect.