Background
Congress amended the Toxic Substances Control Act in 2016 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 maintained exemptions for recycling, disposal, wastewater discharges, and sewage sludge, prompting petitioners to challenge the rule as unsupported by evidence and contrary to statutory mandates.
The court’s reasoning
The panel held 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 rejected the EPA’s reliance on low exposure levels, high costs, and recycling goals as valid rationales under the specific statutory section. Furthermore, the court clarified that the statutory framework for decaBDE does not allow for tiered or staged rulemaking, requiring the agency to complete regulation on an expedited timeline.
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. United States Environmental Protection Agency, 24-7497 (9th Cir. 2026)
What it means going forward
The Environmental Protection Agency must return to the rulemaking process to propose and finalize regulations covering recycling, disposal, wastewater, and sewage sludge for decaBDE within specified timeframes.