The panel sided with environmental groups and the Yurok tribe, which challenged the agency’s decision not to regulate exposure to the chemical Decabromodiphenyl Ether in recycled products.
(CN) – The Ninth Circuit ruled Wednesday that the Environmental Protection Agency must redo its decision to no longer regulate exposure to Decabromodiphenyl Ether – a toxic fire retardant used in electronics, appliances and car and aircraft parts – when it is recycled, disposed of, landfilled or landfilled.
Unanimously commandthe three-judge panel returned the EPA’s 2024 decision to the agency because it was not supported by substantial evidence. The panel did not go so far as to loosen the rule governing the fire retardant, also known as , or decaBDE.
“EPA cannot uphold 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,” wrote US District Judge Ronald Gould, a Bill Clinton appointee. “Therefore, EPA’s reliance on low levels of decaBDE in recyclables does not support its decision not to regulate.”
“EPA’s other reasons — that there was an alleged 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.
Fire retardant is a persistent, bioaccumulative and highly toxic chemical, the panel said. Exposure to the chemical can damage the immune system, reproductive system, brain, thyroid, liver and other organs, and has also been linked to cancer, endocrine disruption and altered gene expression.
In 2016, Congress amended the Toxic Substances Control Act and required EPA to develop risk management rules addressing exposures to decaBDE and other chemicals.
In response, the EPA issued a rule in 2021 banning the manufacture, processing and distribution of decaBDE and articles or products containing it with several caveats.
The 2021 rule did not regulate the exposure of the retardant in the recycling of plastics containing it, the manufacture of new articles from the plastic when “no new decaBDE was added”, the disposal or release of the retardant to air, water and land, and the concentration of decaBDE in sewage sludge.
After 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 only minor changes, leading to the current case before the Ninth Circuit.
An attorney for the petitioners and a representative of the US Department of Justice, which represented the EPA in the litigation, did not immediately respond to a request for comment on the decision.
The other two judges on the appeals panel were Senior U.S. District 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 appointment.
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