Background
Congress amended the Toxic Substances Control Act in 2016 to require the Environmental Protection Agency to take expedited action on risk-management rules for decaBDE, a hazardous flame retardant. The EPA issued a rule in 2021 and amended it in 2024, but both rules excluded regulation of decaBDE in recyclable articles, disposal, wastewater, and sewage sludge. Petitioners challenged these exclusions, arguing the agency failed to meet statutory mandates.
The court’s reasoning
The panel found that the EPA’s decisions not to regulate decaBDE in recyclable articles, disposal, wastewater, and sewage sludge were not supported by substantial evidence. The court determined that low exposure levels, high costs, and recycling goals fall outside the scope of the agency’s authority under the specific statute. Additionally, the court rejected the EPA’s reliance on the Resource Conservation and Recovery Act to avoid TSCA responsibilities and noted that the agency failed to address contrary evidence regarding costs and discharges.
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.
Alaska Community Action on Toxics v. U.S. Environmental Protection Agency, 21-70168 (9th Cir. 2026)
What it means going forward
The EPA must propose and finalize new regulations within specified timelines to address decaBDE exposures in recycling, disposal, wastewater, and sewage sludge, while the existing 2024 rule remains in effect during the remand.