Key Takeaways

What Happened: The Ninth Circuit reminded us that TSCA has teeth—and those teeth may apply to the world of recycling, disposal, wastewater, and biosolids. On May 13, 2026, the Ninth Circuit remanded the U.S. Environmental Protection Agency’s (EPA) 2024 Risk Management Rule regulating decabromodiphenyl ether (decaBDE) under Section 6(a) of the Toxic Substances Control Act (TSCA). The panel determined that the 2024 rule failed to adequately address exposure pathways via solid waste disposal or recycling, wastewater discharge, and biosolids (sometimes called sewage sludge). Because the parties requested remand without vacatur, the 2024 rule remains effective as EPA conducts further proceedings to either promulgate additional regulations or better explain its refusal to refrain from regulating.

Who’s Impacted: Companies that manufacture, import, process, distribute, recycle, dispose of, or manage products, articles, recycled-content feedstocks, wastewater, or waste streams that may contain decaBDE.

What Should They Consider Doing in Response: Stakeholders should begin preparing for future EPA rulemaking by reviewing how business operations may implicate the decaBDE exposure pathways highlighted by the court, and consider preparing public comments.

By When: EPA has not yet announced a timetable for the forthcoming rulemaking. Companies should monitor EPA activity.

Background: DecaBDE under TSCA

In 2016, Congress amended TSCA to add Section 6(h), which directs EPA to restrict or ban certain persistent, bioaccumulative, and toxic substances (PBTs). DecaBDE, one such PBT, is an additive flame retardant—now largely phased out of global use—that may appear in plastic pallets. It also historically appeared in electronics, appliances, and parts for cars and airplanes.

EPA issued its original decaBDE rule in 2021, which our prior news alert covered. EPA revised the rule in 2024, as detailed in a subsequent news alert. The 2024 rule prohibits the manufacture (including import), processing, and commercial distribution of decaBDE (including products and articles containing decaBDE); requires export notifications in certain contexts; requires personal protective equipment (PPE) for certain activities involving decaBDE; modifies existing recordkeeping requirements; and allows compliance-date extensions for certain uses. Under the 2024 rule, some ongoing decaBDE activities remain lawful, but they are narrow: legacy aerospace vehicles and aerospace replacement parts through the relevant vehicles’ service lives; motor-vehicle replacement parts through the vehicles’ service lives or 2036, whichever is earlier; pre-March 8, 2021, plastic shipping pallets through pallet service life; and decaBDE-containing nuclear-power wire/cable insulation through the wire/cable service life. The rule also preserves an exclusion for recycling/distribution of decaBDE-containing plastic, and products/articles made from that recycled plastic, where no new decaBDE is added, plus an exclusion for products/articles with unintentionally present decaBDE below 0.1% by weight.

The Ninth Circuit’s Decision

The appellate panel remanded the 2024 rule because it concluded EPA failed to support with substantial evidence its decision not to regulate decaBDE exposures in recyclable articles, solid waste disposal, wastewater discharge, and biosolids. EPA raised the following arguments in defense of its decisions not to regulate, all of which the panel denied:

• Recyclable Articles: DecaBDE concentrations are too low to justify regulation, implementing regulations would be too costly, and imposing those regulations would undermine EPA’s overall goal of promoting recycling.
• Solid Waste Disposal: RCRA’s existing waste disposal regime already adequately reduces decaBDE exposure, and regulating solid waste disposal methods would be too costly.
• Wastewater Discharge: 2021 data indicate “zero releases of decaBDE to water,” and regulating wastewater discharge would be burdensome for both wastewater treatment plants and recycling facilities that accept articles containing decaBDE.
• Biosolids: DecaBDE levels in biosolids are too low to justify regulation.

In response to arguments about low exposure, the panel reasoned that TSCA Section 6(h)’s statutory mandate is categorically different from other TSCA subsections, which is why low exposure cannot justify a complete decision not to regulate. As for EPA’s cost analyses, the panel noted that the studies EPA cited did not adequately isolate decaBDE as a variable to make the studies relevant enough, and the panel faulted EPA for neglecting to consider targeted alternatives.

EPA has until June 27, 2026, to petition for en banc review and until August 11, 2026 to file a petition for certiorari.

Looking Ahead

As the nuclear industry recently learned, the complexity of supply chains makes TSCA’s far-reaching consequences difficult to predict. But solid waste disposal companies, recyclers, and wastewater treatment facilities can avoid similar pitfalls by engaging EPA in advance. Potentially affected stakeholders should consider submitting comments to illustrate how decaBDE manifests in the variety of scenarios common to each industry’s operations. Because the court did not require EPA to impose any single control, EPA is free to choose between targeted exposure-reduction measures and no further controls, which means flexibility exists.

The court’s opinion strongly suggests that broad cost or circularity arguments may carry less weight absent specific evidence submitted to the record. Stakeholders should consider introducing concrete data from waste-stream concentrations, sorting and treatment options, disposal practices, wastewater controls, and the cost and feasibility of narrower alternatives.

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical and products companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions.