Background
Congress amended the Toxic Substances Control Act in 2016 to require the EPA to regulate persistent, bioaccumulative, and toxic (PBT) chemicals on an expedited timeline. DecaBDE, a flame retardant used in electronics, appliances, vehicles, and aircraft, was designated for regulation. EPA issued an initial rule in 2021 but did not address several significant exposure pathways. After a voluntary remand and public comment, EPA issued amended regulations in November 2024 that similarly failed to regulate decaBDE in recycling, waste disposal, wastewater discharges, and sewage sludge. Environmental and consumer advocacy groups petitioned for judicial review.
DecaBDE poses severe health and environmental risks. According to EPA’s own findings, it damages the immune system, reproductive system, brain, thyroid, and liver; is linked to cancer and endocrine disruption; and persists in the environment for generations, bioaccumulating through food chains. TSCA § 6(h) required EPA to propose regulations within three years and finalize them within 18 months, mandating “expedited action” to “address risks of injury to health or the environment” and “reduce exposure to the substance to the extent practicable.”
Petitioners challenged EPA’s decisions not to regulate decaBDE in: (1) recycling of plastics containing decaBDE; (2) disposal of decaBDE-contaminated materials; (3) wastewater discharges from manufacturing, processing, and disposal facilities; and (4) use of decaBDE-contaminated sewage sludge as fertilizer.
The Court’s Holding
The Ninth Circuit held that EPA’s decisions not to further regulate decaBDE in recyclable articles, disposal, wastewater, and sewage sludge were not supported by substantial evidence. The court applied TSCA’s “substantial evidence” standard—more rigorous than the typical “arbitrary and capricious” review—and required EPA to provide a “searching review” of agency rationales.
On recycling, the court rejected EPA’s reliance on “low levels” of decaBDE exposure as justification for non-regulation. Under TSCA § 6(h), Congress has already determined that PBT chemicals are sufficiently hazardous to warrant regulation regardless of exposure levels. EPA’s cost justification also failed: the studies EPA cited did not address decaBDE-specific testing costs or industry-specific expenses. The court found EPA failed to consider targeted alternatives, such as restrictions on high-concentration waste streams from electronics, vehicles, and construction debris. The court also rejected EPA’s argument that general recycling-promotion policies could override the statutory mandate to reduce exposure to the extent practicable.
On disposal, wastewater, and sewage sludge, the court found EPA cannot satisfy TSCA obligations merely by deferring to the Resource Conservation and Recovery Act (RCRA). EPA failed to address significant gaps in RCRA coverage, such as non-hazardous waste incinerators and construction-demolition landfills. For wastewater, EPA ignored contrary evidence of substantial decaBDE discharges documented by Washington State and failed to consider practicable restrictions on multiple facility types (wastewater treatment plants, industrial laundries, metal finishers). For sewage sludge, EPA improperly again invoked “low levels” as justification. The court rejected EPA’s reliance on *Bluewater Network v. EPA* for staged rulemaking, holding that TSCA § 6(h)’s expedited timeline precludes tiered regulation.
Key Takeaways
- EPA cannot justify declining to regulate a PBT chemical under TSCA § 6(h) based on “low exposure levels”—Congress’s designation for expedited regulation means any exposure level warrants consideration for regulation.
- Agency cost determinations must be supported by substance-specific and industry-specific evidence; generalized studies addressing different chemicals cannot justify non-regulation.
- TSCA regulatory obligations are independent of and not satisfied merely by compliance with other environmental statutes such as RCRA.
- Agencies must affirmatively address contrary evidence in the administrative record and cannot ignore contradictory data when making regulatory decisions.
- TSCA § 6(h)’s expedited timeline precludes staged or tiered rulemaking; EPA must comprehensively regulate all identified exposure pathways on the statutory timeline.
Why It Matters
This decision significantly constrains EPA’s discretion in regulating hazardous chemicals under TSCA, particularly chemicals designated for expedited 6(h) regulation. By rejecting reliance on “low exposure levels” and imposing rigorous scrutiny of cost justifications and policy preferences, the court has made it substantially harder for EPA to justify excluding entire exposure pathways from regulation. The ruling also establishes that regulatory gaps between TSCA and other environmental statutes do not excuse EPA’s failure to regulate under TSCA. Environmental and public health advocates view the decision as a major victory, requiring EPA to comprehensively address all exposure pathways for PBT chemicals on an expedited timeline.
For EPA and regulated industries, the decision necessitates remand to reconsider decaBDE regulation in recycling, disposal, wastewater, and sewage sludge sectors, potentially leading to more stringent restrictions. More broadly, the ruling will likely influence EPA’s approach to other PBT chemicals on the 2014 TSCA Work Plan, establishing precedent that agencies cannot use cost or policy preferences to avoid comprehensive regulation of chemicals designated for expedited action. The substantial evidence standard, stricter than ordinary administrative review, also heightens EPA’s evidentiary burden in future TSCA rulemakings.