Warning Signs

At the sole company EPA identified as owning and using plastic shipping pallets containing decaBDE, the federal government required warning signs, respirators, and chemically resistant gloves.

After a voluntary remand, a new proposal, and another round of public comment, EPA kept those controls as its answer for the pallet operation. The substance at issue is an additive flame retardant used in electronics, appliances, wire and cable, textiles, and automotive and aerospace parts. EPA rates it high for hazard, exposure, persistence, and bioaccumulation. It can remain in soil for years and in sediment likely for decades, move up the food chain, and break down into byproducts that persist even longer. EPA has linked it to damage to the immune and reproductive systems, the brain, thyroid, and liver, as well as cancer, endocrine disruption, and altered gene expression.

No court had previously interpreted Section 6(h). The Ninth Circuit compared EPA’s explanations with the statute and the administrative record for recycling, disposal, wastewater, and sewage sludge. In each area, the panel held that EPA had not produced enough evidence to justify leaving further controls out of the rule.

Congress had already directed EPA to reduce exposure to this small class of persistent, bioaccumulative, and toxic chemicals as far as practicable. Exposure levels, cost, and technical limits could affect which control EPA chose, but the agency still had to evaluate the actual measure, its cost, the available technology, and the pollution source.

Congress Had Already Answered the Threshold Question

Section 6(h) was designed to avoid the delays that had weakened EPA’s earlier authority over existing chemicals.

Under the original 1976 statute, EPA’s authority over existing chemicals was burdened by a requirement to choose the “least burdensome” regulatory option. The best-known example was EPA’s failed asbestos ban. In 1991, the Fifth Circuit vacated EPA’s decade-in-the-making asbestos ban in Corrosion Proof Fittings v. EPA, faulting the agency’s proof and its treatment of less restrictive alternatives. For the next quarter-century, TSCA’s core authority over existing chemicals was widely regarded as close to unusable.

One feature of the old regime survived: substantial-evidence review. Whether that standard demands more than the arbitrary-and-capricious test is an old debate, and many courts treat the two as converging in practice. Its record under TSCA is clearer. The Fifth Circuit used substantial-evidence review to examine the asbestos ban closely, and the panel applied the same standard here, describing its review as “searching.” Congress retained that standard in 2016 while discarding the substantive constraint that had helped doom the asbestos rule. The close review once used to test a strong restriction now tests EPA’s reasons for declining stronger controls under a statute that directs it to reduce exposure.

Congress rewrote TSCA in 2016. For most chemicals, the modernized law created a structured process of prioritization, risk evaluation, and risk management. For a smaller group already identified in EPA’s 2014 work plan—chemicals rated high for persistence or bioaccumulation and likely to expose the public, susceptible populations, or the environment—Congress created an expedited process. DecaBDE was one of them, alongside PIP (3:1) and three other PBT chemicals.

Section 6(h) dispensed with a new risk evaluation and put EPA on a clock: a proposed rule within three years, a final rule eighteen months later. In choosing regulatory tools, the agency was directed to address the risks and “reduce exposure to the substance to the extent practicable.”

Congress had already decided that these chemicals required expedited action. EPA’s remaining task was to identify the exposure, examine available controls, measure their costs and limits, and explain why it chose or rejected them.

EPA’s first decaBDE rule arrived on January 6, 2021, shortly after the statutory deadline. It broadly prohibited manufacture, processing, and distribution of decaBDE and products or articles containing it, subject to delayed compliance dates and exclusions. But it left much of the chemical’s afterlife alone: plastics already in circulation, new articles made from recycled feedstock, disposal, releases to air, water, and soil, and concentrations in sewage sludge.

Environmental, tribal, and consumer petitioners challenged the rule. EPA sought a voluntary remand, which the Ninth Circuit granted in 2022. The agency proposed revisions, accepted another round of comments, and issued amendments in November 2024.

At the pallet operation, the amendments became a sign, respirators, and chemically resistant gloves. Wastewater received an anti-backsliding provision for releases during manufacture, processing, and distribution of decaBDE and decaBDE-containing products, while the articles dominating downstream recycling and disposal remained outside it. Disposal and sewage sludge received no new controls.

After two rulemakings across two administrations, EPA still had not explained why stronger downstream controls were impracticable.

The Agency Priced the Wrong Problem

The first explanation was “low levels.” EPA relied on low estimated concentrations to leave recyclable articles and sewage sludge largely untouched. But Section 6(h) uses exposure to shape the response, not to reopen the threshold question Congress had bypassed. A low estimate might support a concentration limit instead of a ban, targeted controls instead of universal ones, or monitoring instead of prohibition. Standing alone, it says nothing about whether those measures are practicable.

EPA called further recycling regulation prohibitively expensive. Its economic support consisted largely of two studies aimed elsewhere. One surveyed laboratory testing across many chemicals without isolating decaBDE or the industries at issue. The other, from the Consumer Product Safety Commission, concerned children’s products tested for lead and phthalates. From those materials EPA cited a range of $50 to $350 per article, while acknowledging that the figure did not represent the cost of screening recycled plastics for decaBDE.

The agency priced the wrong chemical, in the wrong products, for the wrong regulated community—and called the answer impracticability.

EPA also focused on the cost of the most drastic option without adequately evaluating narrower controls. The record identified several alternatives. EPA could set concentration limits for waste streams known to carry more decaBDE, including end-of-life vehicles, construction and demolition debris, and electronic waste. It could examine density separation, which causes many high-bromine plastics to sink while lower-density plastics float. The record also described conveyor-mounted X-ray transmission scanners and handheld XRF instruments that can read bromine in seconds. The court noted that XRF screening cost roughly one-tenth of the average laboratory-testing figure EPA had invoked. EPA neither costed those tools meaningfully nor explained why they would fail.

EPA also argued that tighter controls on contaminated recyclables would undermine its broader recycling policy. Circular systems can reduce extraction, energy use, and waste, but they can also carry persistent chemicals from old products into new ones. Section 6(h) required EPA to evaluate that tradeoff through the actual waste streams and available controls.

EPA could weigh its recycling policy when choosing among lawful controls, but the statute still required it to examine each source of exposure and the controls available for it.

What RCRA Leaves Uncovered

For disposal, EPA pointed to the Resource Conservation and Recovery Act and to state solid-waste programs. Existing controls, the agency said, had already reduced exposure as far as practicable.

RCRA regulates waste facilities and disposal practices implicated by decaBDE. Its coverage, however, stops short of the chemical’s full path through products, recycling, emissions, discharges, workplaces, and waste. TSCA was designed in part to reach those gaps.

Those gaps were visible in the record. Ordinary municipal incinerators can send decaBDE into the stack while burning nonhazardous trash. Construction and demolition landfills receive the crushed remains of buildings. Certain small landfills fall outside important parts of the federal scheme. Once a product becomes mixed debris, a facility-based waste program may no longer identify the chemical by the product that carried it. TSCA can address that gap because it regulates the chemical itself and its exposure pathways. Petitioners also identified disposal controls used abroad and technologies that might reduce exposure. European and British controls appeared as evidence, not templates; they still required an answer before EPA could declare further action impracticable.

Before relying on RCRA, EPA needed to identify the exposure pathways it covered and the gaps it left.

The Zero in EPA’s Reporting Data

EPA defended its limited water prohibition in part with 2021 reporting data showing “zero releases” of decaBDE to water. The number came from self-reporting by a limited set of facilities. The same record also contained Washington State Department of Ecology monitoring that documented substantial decaBDE discharges from categories EPA had not addressed, including wastewater treatment plants, industrial laundries, and metal finishers.

The Washington measurements supplied contrary evidence directly relevant to EPA’s zero-release premise, even though they did not establish a national discharge total. EPA had to answer the measured discharges before relying on zero.

A peer-reviewed Washington study sampled house dust and laundry wastewater from twenty homes near the Columbia River. Eighteen of the twenty-one flame retardants detected in dust also appeared in the wash water. The study covered a suite of flame retardants rather than a court-certified national mass balance for decaBDE, but it showed how chemicals shed from household products can leave through a washing machine, enter a sewer, and arrive at a treatment plant.

Wastewater treatment can move the contamination into two places: effluent discharged to water and solids later managed as sewage sludge. When that sludge is applied to land, the same chemicals can move from household products into water, soil, and food chains.

EPA’s rule treated each missing control as an isolated exception. The record described a connected route from legacy products to sewers, treatment plants, receiving waters, and soil.

The Missing Next Stage

EPA’s fallback was a familiar argument: complex rules often develop in stages as agencies learn, adjust, and tighten standards. The D.C. Circuit’s Bluewater Network decision had upheld a staged Clean Air Act rule where the statute contemplated future revisions and EPA committed to stricter standards later.

A staged rule requires both statutory support and a concrete commitment to return to the unresolved controls.

Section 6(h) is titled expedited action. It sets deadlines and omits the open-ended language that supported incremental regulation in Bluewater. EPA had made no commitment to return for another round of controls. EPA had not committed to a later rulemaking, so the staged-regulation analogy did not fit.

What National Averages Concealed

Tribal trust duties, treaty rights, and environmental justice were not the bases of decision.

The petitioners exposed what a national average can conceal. The Yurok Tribe and Alaska Community Action on Toxics came to the case from places where water, sediment, fish, food, economy, and culture meet. Persistent chemicals moving through those systems distribute exposure unevenly. EPA itself identifies tribes and subsistence fishers among the populations that may be especially vulnerable to PBT chemicals. For communities relying heavily on local fish, exposure is measured in the water, sediment, species, and meals, while a national mean can hide the places where contamination concentrates.

Any claim of “low exposure” requires a location, a population, and a point in the chemical’s life cycle. A national estimate can be numerically correct and still obscure the community living where the average breaks down.

The substantial-evidence standard required EPA to address contrary measurements, identify the communities included in its averages, and explain whether the rule protected places where exposure was concentrated.

The Difficult Afterlife of Legacy Chemicals

Downstream regulation of legacy chemicals is genuinely hard. Recyclers may not know which incoming articles contain decaBDE. Testing and sorting costs fall on businesses far removed from the original manufacture. Wastewater plants receive contaminants from thousands of upstream sources. A closed-loop recycling system may offer real environmental advantages over disposal or replacement. The 2024 anti-backsliding provision supplied a real, though modest, safeguard. An agency with finite staff and money must triage.

EPA could rely on cost, technical limits, other statutes, and scientific uncertainty, but it had to connect each explanation to the control and exposure source at issue. A cost claim required the cost of the relevant measure. A technical objection required examination of the relevant technology. When EPA relied on another statute, it had to explain which exposures that statute did not cover.

The panel held that EPA’s record did not complete that analysis and therefore did not support the agency’s decision to stop where it did.

What the Remand Leaves Open

The rule remains in force because both sides asked for remand without vacatur. Vacating it would have removed the existing prohibitions, water-release provision, warning signs, respirators, and gloves along with the unsupported omissions. The court therefore kept those protections in place while requiring EPA to reconsider recycling, disposal, wastewater, and sewage sludge.

On remand, EPA can impose additional controls or show from the record why a particular control is impracticable. Either way, it must examine the actual measure and the source of exposure. The court sets the legal question; EPA still chooses among the lawful options.

The panel declined to impose the 180-day deadline petitioners requested. EPA must return to the rulemaking record, but the court did not set a date for completing that work. The next rule or explanation will show whether the agency meaningfully evaluates the alternatives and contrary evidence the opinion identified.

The decision also affects how EPA must explain controls for the other Section 6(h) chemicals, including PIP (3:1), which the agency revised in the same 2024 rulemaking. PIP’s exclusions remain in place, as does the 0.1 percent trace threshold. Exposure levels may inform the selection of a tool. For any threshold, exemption, or delay, EPA must show from the record why the chosen limit is practicable and why stronger alternatives are not.

Borrowed cost studies, unexamined alternatives, statutory overlap, selective data, and future action promised only in litigation recur across complex rulemaking. The opinion requires EPA to show its work in the administrative record rather than rely on general claims of cost, uncertainty, or regulatory complexity.

What EPA Must Do on Remand

The plastic pallets remain in use. At the operation EPA identified, workers handle them beneath a warning placard while wearing respirators and chemically resistant gloves. Those protections address the workers closest to the chemical but do not answer what happens when the pallets are recycled, discarded, or release decaBDE into water and sludge.

The Ninth Circuit sent EPA back to the administrative record to answer those unresolved questions.

Congress made practicability the governing question. EPA may use exposure levels to choose among controls, but it must evaluate the actual measure, its cost, the gaps left by other statutes, and the contrary evidence in the record. Staged regulation also requires a next stage written into the rule rather than promised for the first time in litigation.

The panel remanded because EPA had not connected the rule’s limits to the actual costs, technologies, exposure pathways, and contrary evidence in the record.