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Erik Baptist Discusses Recycling Exemption in EPA’s Final TSCA PBT Rule for Flame Retardant DecaBDE

Inside EPA's Inside TSCA
April 7, 2021

Erik C. Baptist, partner in Wiley’s Environment & Product Regulation Practice, was quoted by Inside EPA’s Inside TSCA about a recycling exemption in a new U.S. Environmental Protection Agency (EPA) rule that limits the use of decabromodiphenyl ether (decaBDE), a flame retardant chemical. DecaBDE is classified as persistent, bioaccumulative, and toxic (PBT) under the amended Toxic Substances Control Act (TSCA).

The final decaBDE rule, adopted by the Trump Administration on January 6, is being challenged in litigation – Alaska Community Action on Toxics (ACAT) v. EPA – and the EPA has asked the court to hold the case in abeyance through July 1 while the Biden Administration reviews the rule.

As reported by Inside TSCA, the suit is expected to focus on an exclusion in the decaBDE rule that permits the continued recycling of plastics that contain decaBDE, as well as the use of new consumer products made from those recycled materials.

The fate of the recycling exemption “might have a precedent in both policy and law about [how] EPA addresses recycling of plastics,” according to Mr. Baptist, who previously served as Deputy Assistant Administrator for Law and Policy in the EPA’s Office of Chemical Safety and Pollution Prevention.

If a court strikes down the recycling exclusion as unlawful, or if the Biden Administration chooses to drop it, “those who recycle plastic or incorporate recycled plastic into new articles and products may need to verify whether a regulated or prohibited chemical is present in the recycled plastic, or otherwise they could arguably risk being in violation of EPA regulations,” Mr. Baptist told Inside TSCA. “That may be a cost-prohibitive, infeasible scenario.”

“[W]e all support recycling and removing this [recycling] exemption could actually hinder recycling efforts for plastic in many ways because if recyclers … are now told they can't have any decaBDE coming out of that process, that's potentially a problem and whether they will undertake that activity [is] yet to be determined,” Mr. Baptist said.

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Read Time: 2 min

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Patricia O'Connell
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poconnell@wiley.law

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