Background
DecaBDE is a flame retardant chemical used in electronics, appliances, and vehicles. It is persistent, bioaccumulative, and toxic (PBT)—remaining in the environment indefinitely, accumulating up the food chain, and causing immune, reproductive, and neurological damage. In its 2016 amendments to the Toxic Substances Control Act (TSCA), Congress added Section 6(h), which mandated that the EPA regulate decaBDE and other PBT chemicals on an expedited timeline: proposed rules within three years, final rules within 18 months thereafter.
The EPA promulgated an initial rule in 2021 prohibiting most manufacturing and distribution of decaBDE but leaving several exposure pathways unregulated. After petitioners challenged the rule, the EPA voluntarily remanded it for reconsideration. The agency issued amended regulations in 2024 that made only marginal changes: requiring warning signs for recyclers and limiting wastewater prohibitions to manufacture and processing stages. The 2024 Rule did not regulate: (1) recycling of plastics containing decaBDE, (2) disposal of decaBDE-containing waste, (3) wastewater discharges from facilities disposing of or recycling decaBDE articles, or (4) decaBDE in sewage sludge used as fertilizer.
The Court’s Holding
The Ninth Circuit held that EPA’s decision not to regulate decaBDE in recyclable articles, disposal, wastewater, and sewage sludge was not supported by substantial evidence under TSCA § 6(h). The court applied more searching review than the typical “arbitrary and capricious” standard under the Administrative Procedure Act, requiring that rules be supported by substantial evidence in the rulemaking record.
The court rejected EPA’s rationales across all four disputed areas. First, EPA cannot justify non-regulation based on “low levels” of decaBDE exposure. Under § 6(h), Congress pre-determined that decaBDE is sufficiently hazardous—the statute does not require EPA to risk-assess whether exposure levels are dangerous enough to warrant regulation. Exposure levels may guide EPA’s choice of *how* to regulate, but not *whether* to regulate. Second, EPA’s cost analysis was unsupported: the studies cited did not isolate decaBDE-specific testing costs, and EPA ignored cheaper alternatives like X-ray fluorescence testing (one-tenth the cost). EPA also did not consider less drastic measures than a complete recycling ban, such as restrictions on high-concentration waste streams from electronics and construction waste. Third, EPA cannot escape its TSCA obligations by deferring to another statute (RCRA). TSCA is layered on top of existing regulatory regimes and fills gaps they leave—EPA must regulate decaBDE disposal even if RCRA addresses some solid waste streams, because RCRA does not cover non-hazardous incinerators, construction-demolition landfills, or certain small landfills.
Regarding wastewater, EPA claimed “zero releases” of decaBDE to water based on limited self-reporting data, ignoring contradictory evidence from Washington State documenting substantial discharges. The court held that agencies must account for evidence that disputes their findings. EPA also failed to consider wastewater treatment facilities, industrial laundries, and metal finishers as regulated entities, and ignored available treatment technologies. The sewage sludge decision was fatally flawed because EPA based it solely on low exposure levels, exceeding its statutory authority. Finally, the court rejected EPA’s reliance on *Bluewater Network v. EPA*, which upheld tiered rulemaking under the Clean Air Act. TSCA § 6(h) is categorically different—it mandates expedited action and does not contemplate staged implementation, and EPA made no commitment to future regulation.
Key Takeaways
- Under TSCA § 6(h), exposure levels cannot justify a decision not to regulate PBT chemicals—they guide only the choice of regulatory tool.
- Agencies must address contrary evidence in the rulemaking record and cannot ignore data that disputes their factual findings.
- Compliance with one statute does not exempt an agency from its obligations under a layered, complementary statute.
- Cost rationales for non-regulation must be grounded in specific, applicable evidence; general cost concerns and policy preferences cannot override statutory mandates.
- Expedited statutory timelines like § 6(h) do not permit tiered rulemaking approaches unless the statute expressly contemplates them.
Why It Matters
This decision significantly constrains EPA’s discretion under TSCA § 6(h) and may reshape how the agency regulates PBT chemicals designated for expedited action. The court’s holding that exposure levels cannot justify non-regulation—only the selection among regulatory tools—forecloses a common agency defense. The decision also rejects the notion that EPA can effectively delegate TSCA compliance to other federal or state regimes. For regulated industries, this signals that EPA will likely face successful judicial challenges if it does not comprehensively address all significant exposure pathways for PBT chemicals on the expedited timeline Congress mandated.
The remand without vacatur leaves the 2024 Rule in effect while EPA conducts new rulemaking, but the court has effectively instructed EPA to issue new regulations addressing recyclable articles, disposal, wastewater from article processing and disposal, and sewage sludge within strict timelines. The ruling also provides a template for judicial review of other § 6(h) rulemakings, establishing that “practicability” determinations must be based on substantial evidence and cannot rest on general policy goals or incomplete cost analyses.