Case Explained: ALASKA COMMUNITY ACTION ON TOX V. USEPA, ET AL

Court: United States Court of Appeals for the Ninth Circuit

Filed: 2026-07-07

The Ninth Circuit granted the petition for review of the Environmental Protection Agency’s 2024 rule concerning Decabromodiphenyl Ether (decaBDE) and remanded the matter to the EPA for renewed rulemaking without vacatur of the existing rule. The court held that the EPA’s decisions not to further regulate decaBDE exposures in recyclable articles, waste disposal, wastewater discharges, and sewage sludge were not supported by substantial evidence under the Toxic Substances Control Act (TSCA) § 6(h). The court applied the “substantial evidence” standard of review mandated by 15 U.S.C. § 2618(c)(1)(B)(i)(I), requiring a searching review of the agency’s rationales. The court reasoned that under TSCA § 6(h), which mandates expedited action for persistent, bioaccumulative, and toxic chemicals without a prior risk evaluation, the EPA cannot justify a total failure to regulate based on “low levels” of exposure; such factors may guide the selection of regulatory tools but do not permit a decision to regulate nothing. Regarding recyclable articles, the court found the EPA’s reliance on cost estimates derived from unrelated studies and its assertion that regulation would undermine recycling goals were unsupported by substantial evidence. For waste disposal, the court ruled that the EPA could not evade TSCA responsibilities merely by invoking compliance with the Resource Conservation and Recovery Act (RCRA), noting significant regulatory gaps between the two statutes. In the context of wastewater, the court found the EPA’s determination of “zero releases” unsupported because it ignored contradictory evidence from state agencies and failed to consider other facility categories or available treatment technologies. Finally, regarding sewage sludge, the court held that basing a decision not to regulate on low exposure levels exceeded the agency’s statutory authority under § 6(h). The court also rejected the EPA’s argument that it could regulate in stages, distinguishing the case from *Bluewater Network v. EPA* by noting that TSCA § 6(h) requires completing regulation on an expedited timeline rather than tiered rulemaking. The practical consequence is that the 2024 Rule remains in effect to prevent further health and environmental harm while the EPA must conduct renewed proceedings to either promulgate regulations for the identified areas or provide a substantiated explanation for why such regulation is not practicable, consistent with the court’s findings.

Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.