Background
DecaBDE (decabromodiphenyl ether) is a persistent, bioaccumulative, and toxic flame retardant used in electronics, appliances, automobiles, and aircraft parts. It poses documented risks to the immune, reproductive, and nervous systems, and has been linked to cancer and endocrine disruption. Congress, through the 2016 amendments to the Toxic Substances Control Act (TSCA), mandated expedited regulation of PBT chemicals like decaBDE, requiring the EPA to propose rules within three years and finalize them within eighteen months.
The EPA issued an initial decaBDE regulation in 2021 that prohibited manufacturing and commercial distribution but left gaps regarding recycling, disposal, wastewater discharges, and sewage sludge. Environmental and consumer groups petitioned for review. After the EPA voluntarily remanded the rule, it issued revised amendments in November 2024 that made only minimal changes, primarily requiring warning signs and personal protective equipment for workers handling recycled pallets containing decaBDE. The EPA continued to decline regulating the four exposure pathways Petitioners identified.
Petitioners returned to the Ninth Circuit in December 2024, arguing that the 2024 amendments violated TSCA § 6(h)’s mandate to “reduce exposure to the substance to the extent practicable.” They sought remand without vacatur and instructions for the EPA to propose amended rules within 180 days and finalize them within one year.
The Court’s Holding
The Ninth Circuit granted the petition for review and remanded without vacatur, holding that the EPA’s decisions not to regulate decaBDE in four critical exposure pathways lacked substantial evidentiary support under TSCA § 6(h). The court rejected each of the EPA’s rationales: (1) EPA cannot rely on “low levels” of decaBDE exposure to justify non-regulation because TSCA § 6(h) presupposes that these chemicals are sufficiently hazardous to warrant regulation at any level—unlike TSCA § 6(a), which requires risk assessment; (2) the EPA’s cost and recycling-policy arguments were unsupported by adequate evidence, as the agency ignored cheaper testing methods (XRF scanning at one-tenth the cost) and targeted alternatives like restrictions on high-concentration waste streams; (3) the EPA improperly deferred to the Resource Conservation and Recovery Act without examining regulatory gaps, failing to address that RCRA does not cover incinerators, certain construction landfills, or small landfills; and (4) the EPA ignored evidence from Washington State showing substantial decaBDE discharges in wastewater and failed to consider treatment technologies and facility categories beyond recyclers.
The court also rejected the EPA’s reliance on Bluewater Network v. EPA to justify staged rulemaking. Unlike the Clean Air Act statute at issue in Bluewater Network, TSCA § 6(h) expressly mandates expedited action on a defined timeline and contains no language contemplating tiered rulemaking. The EPA offered no commitment to further regulation, distinguishing this case from the staged approach the D.C. Circuit upheld under the CAA.
Key Takeaways
- Under TSCA § 6(h), the EPA cannot avoid regulation by citing low exposure levels; Congress has already determined PBT chemicals warrant regulation regardless of concentration.
- An agency must account for contrary evidence in the administrative record and cannot rely on outdated or limited data when petitioners provide substantial contradictory information.
- The EPA cannot satisfy TSCA by simply deferring to other statutes (like RCRA) without examining regulatory gaps and alternative approaches.
- TSCA § 6(h)’s expedited timeline and statutory mandate foreclose tiered rulemaking strategies; the EPA must provide comprehensive regulation or articulate a fully supported decision not to regulate specific pathways.
Why It Matters
This decision significantly constrains EPA discretion in regulating PBT chemicals and sets a high bar for agency decisions not to regulate. By holding that “low levels” cannot justify non-regulation under § 6(h), and by requiring rigorous examination of cost data and consideration of alternatives, the court shifts the burden toward comprehensive regulation. The ruling affects not only decaBDE but also the EPA’s ongoing regulation of other PBT chemicals designated under the 2014 TSCA Work Plan, potentially requiring more aggressive action on substances like pentaBDE and other legacy flame retardants still in commerce through recycled materials.
For regulated industries, the decision means stricter controls over recycling, waste disposal, and wastewater management of decaBDE-containing products. The remand without vacatur keeps the 2024 rule in place while the EPA rewriting regulations, avoiding immediate disruption but signaling that tighter rules are coming. The opinion also reflects broader judicial scrutiny of EPA cost-benefit analyses, particularly when the agency relies on studies that do not isolate relevant chemical-specific or industry-specific data.