On May 13, 2026, the U.S. Court of Appeals for the Ninth Circuit issued a critical decision. A three-judge panel unanimously ruled that the 2024 rule issued by the U.S. Environmental Protection Agency (EPA) regulating decabromodiphenyl ether (decaBDE) contained significant legal deficiencies. The court held that the EPA's decision to exempt recycling, solid waste, and wastewater from further regulation was "not supported by substantial evidence." Accordingly, the court granted the petitioners' (environmental organizations and the Yurok Tribe) petitions for review and remanded the rule to the EPA for further proceedings.
1. What Is at Stake: decaBDE's Environmental and Health Impact
DecaBDE is an additive brominated flame retardant previously widely used in electrical and electronic equipment, household appliances, automobiles, and aerospace components. Scientific evidence indicates that decaBDE is a highly hazardous persistent, bioaccumulative, and toxic (PBT) chemical that damages human immune, reproductive, nervous, and endocrine systems, and is a known carcinogen. Because it is highly resistant to degradation and bioaccumulates in the food chain, Congress, through the 2016 Lautenberg Chemical Safety Act (TSCA Section 6(h)), mandated the EPA to take "expedited action" to strictly address such substances. However, the regulation of this substance over the past five years has led to multiple rounds of litigation among environmental groups, Native American tribes, and the industry.
2. A Five-Year Legal Battle: The Regulatory Timeline
The regulatory timeline reflects a continuous conflict between the opposing parties:
January 6, 2021: The EPA published its initial 2021 Final Rule under TSCA Section 6(h).
March 19, 2021: Dissatisfied with various industry exemptions left in the 2021 rule, Earthjustice, representing Alaska Community Action on Toxics, the Yurok Tribe, and other co-petitioners, filed lawsuits challenging the regulation.
June 23, 2022: The Ninth Circuit granted the EPA's motion for a voluntary remand. The EPA acknowledged the need to re-evaluate the rule following a change in administration and public scrutiny, and the court held the litigation in abeyance.
November 19, 2024: Following a two-year re-evaluation and public comment period, the EPA issued its 2024 Revised Rule. While this version established a 0.1% threshold for unintentional impurities and restricted wastewater discharges during manufacturing, the EPA explicitly reiterated that it would not impose additional regulations on plastic recycling, solid waste landfills, or sewage sludge.
December 12, 2024: Citing the EPA's regulatory inaction on plastic recycling (which risks allowing the carcinogenic flame retardant to contaminate black plastic kitchen utensils and children's toys) and its impact on tribal ecosystems, Earthjustice led the petitioners to file another petition for review, arguing the 2024 rule remained unlawful.
May 13, 2026: The Ninth Circuit issued its final judgment, ruling in favor of the petitioners. The court concluded that the EPA's decision to exempt wastewater, recycling, and solid waste from further regulation lacked substantial evidence and remanded the matter to the agency.
3. Remand Without Vacatur: What It Means for Industry
Although the rule was remanded, the court applied the principle of "remand without vacatur." This means that the 2024 rule remains in effect while the EPA develops a stricter version. Regulated companies must continue to comply with the existing prohibitions on manufacturing, processing, and commercial distribution, as well as the phase-out requirements.
In its 2024 rule, the EPA sought to justify its exemptions for solid waste, wastewater discharges, and sewage sludge by arguing that ambient exposures were low and compliance costs were disproportionate. However, following the new ruling, the EPA will likely be forced to tighten wastewater discharge standards, restrict recycled materials, and impose stricter solid waste landfill mandates.
These anticipated requirements will increase the EPA's administrative and enforcement burdens and elevate supply chain compliance costs for industries. Consequently, the EPA will face significant pressure from the industry while simultaneously defending its record against environmental organizations. Balancing public health with economic cost represents a major administrative challenge for the EPA moving forward.
4. Global Regulatory Alignment on decaBDE
From a global perspective, this U.S. judicial ruling aligns with international efforts to eliminate hazardous chemicals. DecaBDE is listed under Annex A (Elimination) of the Stockholm Convention on Persistent Organic Pollutants. The European Union banned its manufacture, use, and marketing under the EU POPs Regulation ((EU) 2019/1021) in 2019, while establishing strict limits for unintentional trace contaminants and recycled materials. Similarly, China's Ministry of Ecology and Environment and other authorities have implemented a comprehensive phase-out of decaBDE through the New Pollutant Control Action Plan and the List of Priority Controlled New Pollutants. While the global elimination of decaBDE is certain, managing the risks associated with historical landfills and plastic recycling remains an ongoing challenge for regulatory agencies and chemical supply chains worldwide.
5. REACH24H Regulatory Recommendations
Given the tightening regulatory environment, REACH24H advises affected enterprises to verify current compliance, closely monitor the upcoming rulemaking process, and adopt tailored strategies based on their position in the supply chain:
Downstream Manufacturers and Exporters to the US (Electronics, Appliances, Automotive and Parts): Ensure that documentation certifying products as "decaBDE-free" can be provided upon request by US importers. Companies should strengthen supply chain verification and accelerate substitution efforts to phase out decaBDE in alignment with global regulatory trends.
US Recyclers and Processors (Plastic Recycling, Waste Management, Compounding Industries): Monitor subsequent draft rules concerning wastewater discharge limits, recycled material restrictions, and solid waste landfill standards. Companies are encouraged to actively participate in the public comment periods to advocate for reasonable transition windows or technical exemptions to mitigate disruption to their supply chains.
Appendix: Current US decaBDE Compliance Quick Reference
Note: Under the "remand without vacatur" principle, the following requirements remain legally binding and enforceable:
1. Core Prohibitions and Restrictions
General Prohibitions:
Manufacturing and processing of decaBDE and decaBDE-containing products have been prohibited since March 8, 2021.
Commercial distribution of decaBDE and decaBDE-containing products has been prohibited since January 6, 2022.
Water Discharge Restrictions: Since January 21, 2025, the discharge of decaBDE to water during manufacturing, processing, and distribution is strictly prohibited.
Exemption Threshold: Products where decaBDE is present as an unintentional impurity at a concentration below 0.1% by weight are exempt from the prohibition.
2. Phased-Out Use Timelines (Exemptions with Expiration Dates)
Manufacturing, processing, or distribution for the following uses is prohibited after the specified dates:
Hospital Curtains: Prohibited since July 6, 2022.
Nuclear Power Plant Wire and Cable: Prohibited since January 6, 2023 (distribution permitted for the remainder of its service life).
New Aerospace Parts: Prohibited since January 8, 2024 (import, processing, and distribution of decaBDE-containing aerospace vehicles or replacement parts are prohibited after their service life ends).
Motor Vehicle Replacement Parts: Prohibited after the end of the vehicle's service life or 2036, whichever is earlier.
Plastic Shipping Pallets: Pallets manufactured before March 8, 2021, are permitted to remain in distribution until the end of their service life.
3. Plastic Recycling Exemption
Recycling and distribution of plastic containing decaBDE are permitted, provided that no new decaBDE is added during the recycling or compounding process.
4. Workplace Protection Requirements (Effective January 21, 2025)
Facilities engaging in the non-exempt manufacturing and processing of decaBDE must implement the following controls:
Regulated Areas: Establish defined regulated areas with controlled access and clear boundaries.
Respiratory Protection: Mandate the use of respirators providing a level of protection at least equivalent to a NIOSH-approved N95 respirator (Assigned Protection Factor [APF] of 10).
Dermal Protection: Require workers to wear chemical-resistant, impermeable gloves and protective clothing.
Training: Implement mandatory training prior to job placement, with mandatory annual refresher training.
Warning Signs: Post multilingual warning signs at the entrances to regulated areas where plastic pallets containing decaBDE are recycled.
5. Recordkeeping and Export Notification
5-Year Retention Period: Regulated entities must retain ordinary business records (e.g., invoices, bills of lading) containing compliance statements for 5 years from the date of generation, subject to EPA inspection.
Export Notification: Any export of decaBDE-containing wire or cable destined for nuclear power generation facilities requires an export notification to the EPA pursuant to TSCA Section 12(b).
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