Ninth Circuit tells EPA to redo its rulemaking for toxic flame retardant

(CN) — The Ninth Circuit on Wednesday ruled the Environmental Protection Agency must redo its decision not to further regulate exposure to Decabromodiphenyl Ether— a toxic fire retardant used in electronics, appliances and car and airplane parts — when it’s recycled, disposed of, discharged as wastewater or ends up in fertilizer.

In a unanimous order, the three-judge panel remanded the EPA’s 2024 decision back to the agency, because it wasn’t supported by substantial evidence. The panel did not go as far as to vacate the rule governing the fire retardant, also known as , or decaBDE.

“EPA cannot support a decision not to regulate under [the Toxic Substances Control Act] when EPA encounters ’low levels’ of decaBDE exposure because that consideration falls outside the scope of EPA’s statutory authority under,” U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, wrote. “EPA’s reliance on there being low levels of decaBDE in recyclable articles, therefore, does not support its decision not to regulate.”

“EPA’s other rationales — that there was a purportedly high cost of implementing such regulations, and that regulating decaBDE would undermine EPA’s overall goal of promoting recycling — were not supported by substantial evidence,” the judge added.

The fire retardant is a highly hazardous persistent, bioaccumulative, and toxic chemical, the panel said. Exposure to the chemical can damage the immune system, reproductive system, brain, thyroid, liver, and other organs, and it has also been linked to cancer, endocrine disruption, and altered gene expression.

In 2016, Congress amended the Toxic Substance Control Act and required the EPA to develop risk management rules addressing exposures to decaBDE and other chemicals.

In response, the EPA issued a rule in 2021 that prohibited the manufacturing, processing, and distribution of decaBDE and articles or products containing it with some caveats.

The 2021 rule didn’t regulate the retardant’s exposure in recycling of plastics containing it, manufacturing of new articles from plastic when “no new decaBDE” was added, disposal of or releases of the retardant into air, water, and soil, and decaBDE concentration in sewage sludge.

After the Alaska Community Action on Toxics, the Yurok Tribe, the Consumer Federation of America and the Center for Environmental Transformation petitioned the Ninth Circuit in a challenge to the 2021 rule, the EPA voluntarily agreed to seek public input.

In 2024, however, the agency reissued the rule with just a few small changes, leading to the current case before the Ninth Circuit.

“The court’s ruling makes clear that the EPA cannot ignore its duty to protect Americans from highly toxic, long-lasting chemicals like decaBDE,” Kelly Lester, an attorney with Earthjustice who represented the petitioners, said in a statement. “For too long, communities around the country have been left to bear the health consequences of exposure to this highly toxic chemical, with children especially vulnerable to its harms. This decision requires the agency to follow the science and the law to protect public health.”

Representatives of the U.S. Justice Department, which represented the EPA in the litigation, didn’t respond to a request for comment on the ruling.

The other two judges on the appellate panel were Senior U.S. Circuit Judge Sidney Thomas, also a Clinton appointee, and Chief U.S. District Judge Brian Morris of the District of Montana, a Barack Obama appointee sitting on the panel by designation.

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