Background
Congress amended the Toxic Substances Control Act to require the Environmental Protection Agency to issue expedited risk-management rules for decaBromodiphenyl Ether, a hazardous flame retardant. The EPA issued a final rule in 2024 that prohibited manufacturing but excluded recycling, disposal, wastewater discharges, and sewage sludge from regulation. Petitioners challenged this exclusion, arguing the agency failed to address all practicable exposure-reduction measures.
The court’s reasoning
The panel found that the EPA’s decisions not to regulate recycling, disposal, wastewater, and sewage sludge were not supported by substantial evidence. The agency could not rely on low exposure levels, high costs, or recycling goals to evade statutory mandates. Furthermore, the court rejected the EPA’s reliance on the Resource Conservation and Recovery Act to avoid TSCA responsibilities and noted that the statute did not permit tiered rulemaking.
EPA cannot support a decision not to regulate under TSCA when EPA encounters low levels of decaBDE exposure because that consideration falls outside the scope of EPA’s statutory authority.
Yurok Tribe v. USEPA, 21-70670 (9th Cir. 2026)
What it means going forward
The EPA must propose and finalize new regulations covering recycling, disposal, wastewater, and sewage sludge for decaBDE within specified deadlines, while the 2024 rule remains in effect during the remand.