Reported / Citable
Background
DecaBDE (decabromodiphenyl ether) is a flame retardant used in electronics, appliances, furniture, automobile parts, and countless other products. EPA has rated it high for hazard, persistence, and bioaccumulation — meaning it builds up in the food chain, damages the immune system, liver, and thyroid, and has been linked to cancer and endocrine disruption. Once released into the environment, decaBDE can take generations to break down and generates even more toxic byproducts in the process.
Congress specifically targeted decaBDE in the 2016 Frank R. Lautenberg Chemical Safety Act, which amended the Toxic Substances Control Act (TSCA) to add section 6(h). That provision put decaBDE on an expedited rulemaking track, requiring EPA to propose regulations within three years and finalize them within 18 months after that. EPA first issued a rule in January 2021 restricting most manufacturing and distribution of decaBDE, but left several categories unregulated — including the recycling of plastics containing decaBDE, disposal of decaBDE waste, wastewater discharges from facilities handling decaBDE-containing articles, and use of decaBDE-contaminated sewage sludge as fertilizer. After voluntarily taking the 2021 rule back for reconsideration, EPA issued amended regulations in November 2024 that still left those gaps largely unfilled.
The Yurok Tribe of Northern California, Alaska Community Action on Toxics, and allied environmental and consumer groups petitioned the Ninth Circuit for review, arguing that EPA’s repeated failure to regulate the four exposure categories violated TSCA’s mandate and was unsupported by the evidence EPA had gathered. The case was argued in San Francisco in March 2026 and the panel’s original opinion was amended on July 7, 2026.
The Court’s Holding
A Ninth Circuit panel (Judge Gould, writing) granted the petition for review and remanded the 2024 Rule to EPA without vacating it — meaning the existing rule stays in effect while EPA conducts new rulemaking. The court found that EPA’s decisions not to regulate decaBDE in each of the four disputed areas were not supported by substantial evidence.
First, on recyclable plastics: EPA declined to regulate recycling of products containing decaBDE, citing low exposure levels and the cost of tighter controls. The court rejected both rationales. TSCA section 6(h) does not permit EPA to use “low exposure” as a reason to decline regulation — that consideration falls outside the statute’s framework, which directs EPA to reduce exposures to practicable minimums rather than calibrate them against observed levels. The cost and recycling-promotion rationales also lacked evidentiary support.
Second, on disposal, wastewater, and sewage sludge: EPA claimed regulating decaBDE disposal was not “practicable” because other statutes (such as the Resource Conservation and Recovery Act) already addressed solid waste. The court said EPA cannot evade TSCA obligations by pointing to other regulatory regimes that don’t directly address decaBDE hazards. EPA’s wastewater and sewage sludge decisions similarly ran counter to or ignored evidence in the administrative record. The court also rejected EPA’s argument that it could regulate in stages — unlike other TSCA provisions, section 6(h)’s expedited timeline does not permit tiered rulemaking.
Key Takeaways
- EPA cannot use “low exposure levels” as a reason to decline regulating a persistent, bioaccumulative, and toxic (PBT) chemical under TSCA section 6(h) — the statute requires reduction of practicable exposures, not a comparison to observed baseline levels.
- Compliance with other environmental statutes (RCRA, Clean Water Act) does not excuse EPA from separately addressing the same substance under TSCA’s PBT rules — each statutory mandate must be fulfilled on its own terms.
- TSCA section 6(h)’s expedited timeline is not a license for incremental, staged rulemaking; EPA must address all required exposure categories within the statute’s compressed schedule.
- The remand-without-vacatur remedy means the existing 2024 Rule remains operative while EPA revises it, avoiding a regulatory vacuum — but EPA must now fill the four identified gaps.
- California businesses that manufacture, recycle, or process products containing decaBDE (electronics recyclers, appliance manufacturers, auto parts facilities) should anticipate significantly tighter federal regulations covering recycling, disposal, and wastewater in the next rulemaking cycle.
Why It Matters
California has its own strict limits on certain flame retardants under Health & Safety Code section 108945, and many California manufacturers and recyclers have already moved away from decaBDE — but the chemical persists in legacy products, recycled materials, and soil and water. This Ninth Circuit decision accelerates federal action on the gaps California’s own rules don’t fill, particularly the handling of legacy decaBDE in recycled plastics and the management of contaminated sewage sludge used in agricultural settings. The Yurok Tribe, whose members depend on Northern California rivers and fisheries, brought this case partly because decaBDE accumulates in fish and wildlife — a reminder that this is not just an industrial regulation issue but one with real environmental-justice dimensions.
For environmental lawyers and regulated industries, the opinion offers a clear signal that TSCA section 6(h) has teeth: the expedited PBT regulatory track cannot be avoided by invoking cost concerns, citing other statutory regimes, or deferring to staged approaches. Companies handling decaBDE-containing materials in any phase of the product lifecycle should begin evaluating compliance options now, before the new rulemaking sets binding limits.