The U.S. Court of Appeals for the Ninth Circuit ruled on May 13, amending its opinion on July 7, that EPA's 2024 rule regulating decaBDE, a flame retardant used in electronics, appliances, and vehicle and aircraft parts, was not supported by substantial evidence where it declined to further regulate the chemical in recycled articles, waste disposal, wastewater discharges, and sewage sludge. The court granted the petition brought by the Yurok Tribe, Alaska Community Action on Toxics, Consumer Federation of America, and the Center for Environmental Transformation, and remanded the rule to EPA for renewed rulemaking, without vacating it. That means the 2024 rule's existing requirements, including its manufacturing and processing prohibitions, stay in place while EPA reconsiders the areas the court flagged.
At issue is Section 6(h) of the Toxic Substances Control Act (TSCA), which Congress added in 2016 to force expedited regulation of chemicals already identified as persistent, bioaccumulative, and toxic. The panel held that EPA cannot cite low exposure levels as a reason to decline regulation entirely under that section, since Congress had already determined those chemicals warrant regulation regardless of exposure level. Exposure data can inform which regulatory tool EPA selects, the court found, but not whether to regulate at all, a distinction that mirrors the reasoning courts have applied in other recent challenges to EPA's rulemaking rationale under the Clean Air Act.
Cost and Recycling Rationales Both Fell Short
The court also rejected EPA's cost-based justification for exempting recycled decaBDE-containing articles, finding the agency's cited testing costs were drawn from a Consumer Product Safety Commission study on lead and phthalates rather than any decaBDE-specific analysis. EPA's argument that regulating recyclables would undermine its broader recycling goals fared no better; the panel held that policy preferences cannot override TSCA's statutory mandate. The court applied similar reasoning to wastewater, finding EPA relied on self-reported "zero releases" data while ignoring contrary state monitoring evidence, and to sewage sludge, where EPA again cited low exposure levels outside its statutory authority.
Petitioners had asked the court to direct EPA to propose new rules within 180 days and finalize them within a year. The panel's order does not include that specific deadline, leaving the timeline for renewed rulemaking on recycling, disposal, wastewater, and sewage sludge exposures undetermined for now.
Who Has Exposure While EPA Reworks the Rule
The ruling carries the most direct relevance for manufacturers and recyclers handling decaBDE-containing plastics, including end-of-life vehicles, electronics, and construction and demolition waste streams, as well as wastewater treatment plants, industrial laundries, and metal finishers named in the record as contributors to decaBDE in wastewater. None of these categories face new regulatory requirements yet, since the 2024 rule remains in effect and EPA has not yet proposed a revised approach. But the ruling signals that EPA's eventual rulemaking is likely to extend further into these areas than the current rule does, a pattern consistent with the broader expansion of TSCA-linked reporting and liability exposure companies are already tracking on other persistent chemicals. Companies with decaBDE in their supply chains, recycling streams, or wastewater discharges should treat this as an early signal to review documentation now rather than wait for a proposed rule, particularly as EPA's regulatory choices on other persistent chemicals face similar evidentiary scrutiny in ongoing rulemakings.
