S-5235-119
Read twice and referred to the Committee on Environment and Public Works.
Sponsored by Jeff Merkley (D-OR)
What it does
This bill would amend the Toxic Substances Control Act (TSCA) to prohibit the manufacture, processing, use, and distribution in commerce of commercial asbestos and products containing it, effective upon enactment. It would provide a temporary exemption for chlor-alkali facilities (which use asbestos in a chemical production process) until 2032, extendable to 2036 for qualifying operators who begin transitioning away from asbestos. It would also allow the President to grant one-time national security exemptions of up to six years, and would preserve existing phase-out rules for asbestos sheet gaskets.
Who benefits
Workers in industries with historical asbestos exposure (construction, shipbuilding, manufacturing) who would face reduced ongoing risk. People living near asbestos-using facilities. Mesothelioma and asbestos-related disease patients and their families, including the family of Alan Reinstein for whom the bill is named. Manufacturers of asbestos-free alternative materials (e.g., membrane technology for chlor-alkali production). Environmental and occupational health advocacy organizations. Future workers who would otherwise be exposed in industries still using asbestos. Countries that have already banned asbestos and compete with U.S. producers who currently use it.
Who is hurt
Chlor-alkali chemical producers who rely on asbestos diaphragms and would face transition costs to alternative membrane technology. Workers at those facilities who may face job disruption during conversion. Asbestos importers and distributors, primarily those importing chrysotile asbestos. Industries using asbestos sheet gaskets in high-temperature or high-pressure applications who must find alternatives. Defense contractors or military programs that may currently rely on asbestos-containing components and would need to apply for national security exemptions. Metal ore mining operations near naturally occurring asbestos deposits, though the bill explicitly exempts that sector. Suppliers and manufacturers in countries that export asbestos to the U.S. (primarily Russia, Brazil, and Kazakhstan).
Supporters argue
Supporters argue that asbestos is the leading cause of occupational cancer in the United States, responsible for an estimated 40,000 deaths annually according to the EPA, and that more than 50 countries have already enacted comprehensive bans. They contend that the U.S. has lagged behind the international community — a 1989 EPA attempt to ban asbestos was struck down in court, leaving the U.S. as one of the few developed nations still permitting its use. Supporters further argue that the bill's targeted exemptions for chlor-alkali producers and national security uses demonstrate a measured, phased approach that gives industry time to transition while ending new exposure for workers and communities.
Opponents argue
Opponents argue that the chlor-alkali industry, which produces chlorine and caustic soda essential to water treatment, pharmaceuticals, and plastics, has not yet fully developed cost-competitive asbestos-free alternatives at scale, and that an abrupt ban — even with the 2032 exemption — could disrupt supply chains for critical chemicals. They contend that the bill's national security exemption process, which routes decisions through the President rather than technical agencies, may be too cumbersome for time-sensitive defense procurement needs. Opponents may also argue that existing TSCA regulations and OSHA exposure limits already manage risk, and that a statutory ban removes regulatory flexibility to address future, unforeseen industrial uses where no substitute exists.
Constitutional context
The bill operates under Congress's Commerce Clause authority (Art. I, §8, cl. 3), which has long been the basis for TSCA and other chemical regulation statutes. Because this bill directly amends TSCA with a clear statutory prohibition — rather than delegating broad rulemaking authority to the EPA — it is less vulnerable to the major questions doctrine articulated in West Virginia v. EPA (2022) and the post-Chevron scrutiny established in Loper Bright v. Raimondo (2024), since courts would be interpreting an explicit congressional command rather than an agency's reading of ambiguous statutory text.
Checks and balances
Congress gains authority by codifying the ban directly in statute, bypassing EPA rulemaking; the Executive Branch retains limited discretion through the national security exemption process; courts retain review authority over enforcement actions and any constitutional challenges to the prohibition.
Historical precedent
The EPA issued a near-total asbestos ban under TSCA in 1989, but the Fifth Circuit Court of Appeals struck it down in Corrosion Proof Fittings v. EPA (1991), holding that the agency had not adequately considered less burdensome alternatives — a ruling that left most asbestos uses unregulated for decades until EPA's 2024 chrysotile rule.