Reported / Citable
Background
Decabromodiphenyl ether (decaBDE) is a flame retardant widely used in electronics, appliances, and vehicle parts. It is classified as a persistent, bioaccumulative, and toxic (PBT) chemical—meaning it lingers in the environment, accumulates in the food chain, and can damage the immune system, thyroid, liver, and reproductive organs at low concentrations. When it eventually breaks down, it can generate byproducts that are even more harmful.
In 2016, Congress amended the Toxic Substances Control Act (TSCA) to require the EPA to take “expedited action” on PBT chemicals like decaBDE. EPA issued an initial rule in 2021 banning manufacture and distribution of decaBDE but left significant gaps: it did not regulate decaBDE in recycled plastics, waste disposal, wastewater discharges, or sewage sludge used as fertilizer. After a voluntary remand and public comment period, EPA issued a 2024 amended rule that made only minimal additions. The Yurok Tribe, Alaska Community Action on Toxics, and other petitioners challenged both rules, arguing EPA had failed its statutory mandate.
The Court’s Holding
The Ninth Circuit granted the petition for review, holding that EPA’s decisions not to regulate decaBDE in four key areas were not supported by substantial evidence. The court applied TSCA’s heightened “substantial evidence” standard of review, which requires a more searching examination than ordinary arbitrary-and-capricious review.
On recycling, the court held EPA could not justify inaction by pointing to “low levels” of decaBDE exposure, because TSCA section 6(h) presumes that any exposure to listed PBT chemicals warrants regulation—the only question is how to regulate, not whether to. EPA’s cost estimates relied on studies of other chemicals (lead and phthalates) that did not reflect actual decaBDE testing costs, and the agency failed to consider less drastic alternatives like targeted restrictions on high-concentration waste streams.
On disposal, wastewater, and sewage sludge, the court found EPA improperly relied on existing RCRA regulations without examining gaps in that regime’s coverage of decaBDE. EPA also ignored contrary evidence—including Washington state data showing substantial decaBDE discharges—and based its sewage sludge decision on the same impermissible “low levels” rationale. The court rejected EPA’s argument that it could regulate in stages, distinguishing the D.C. Circuit’s Bluewater Network precedent because TSCA section 6(h) requires expedited, not tiered, rulemaking. The court remanded without vacatur, leaving existing protections in place while EPA conducts renewed rulemaking.
Key Takeaways
- Under TSCA section 6(h), EPA cannot justify a decision not to regulate PBT chemicals like decaBDE by pointing to low exposure levels. Congress already determined these chemicals are hazardous enough to require regulation; EPA’s discretion extends only to choosing among regulatory tools.
- EPA must support its practicability findings with evidence specific to the chemical at issue. Cost estimates based on testing for different chemicals (lead, phthalates) do not constitute substantial evidence for decaBDE regulation decisions.
- Compliance with one environmental statute (RCRA for waste disposal) does not excuse EPA from its obligations under another (TSCA). The court emphasized that TSCA was designed to fill regulatory gaps left by other statutes.
- TSCA section 6(h) requires expedited, comprehensive rulemaking for PBT chemicals—not the tiered, phased approach EPA claimed authority to pursue.
- The remand-without-vacatur remedy preserves existing protections while requiring EPA to expand regulation, preventing a regulatory rollback during the rulemaking process.
Why It Matters
This decision has direct consequences for California’s environment and public health. DecaBDE contamination is found in electronics recycling facilities, construction demolition waste, and wastewater systems throughout the state. The Yurok Tribe, a Northern California tribal nation, was among the lead petitioners, reflecting the chemical’s particular threat to communities that rely on subsistence fishing and natural food sources where bioaccumulative toxins concentrate.
For California businesses involved in recycling, waste management, or manufacturing, the ruling signals that stronger federal decaBDE regulations are coming. Companies should begin evaluating their decaBDE exposure and considering compliance strategies now. The court’s emphatic rejection of EPA’s “regulate in stages” argument also has broader implications for how quickly the agency must act on other PBT chemicals subject to TSCA section 6(h).