A recent lawsuit has accused the US Environmental Protection Agency (EPA) of neglecting its duty to shield the public from the hazardous effects of decabromodiphenyl ether, commonly known as decaBDE, a flame retardant. The legal action was initiated on behalf of indigenous communities in Alaska and California, as well as consumer advocacy groups. DecaBDE has been detected in a variety of everyday items, including black plastic kitchen tools, disposable food containers, grocery trays for meat and produce, and children's toys that have been repurposed from electronic waste such as old TVs and computer screens, as per a recent study.

"The EPA is permitting the unrestricted recycling of plastics containing decaBDE, which contravenes the legal mandate under the Toxic Substances Control Act to implement all feasible steps to minimize public exposure to decaBDE," stated Katherine O'Brien, a senior legal representative for Earthjustice, a non-profit organization that offers pro bono legal services in matters concerning environmental and public health. Earthjustice is dedicated to upholding the rights of communities and the environment.

In response to these allegations, an EPA spokesperson informed via email that the agency is unable to provide any details regarding ongoing litigation. The EPA had imposed limitations on the use of decaBDE in 2021 after the synthetic compound was associated with a range of severe health issues, including cancer, hormonal and thyroid disorders, developmental problems in fetuses and children, and impacts on the reproductive and immune systems. Despite these restrictions, an October study revealed the presence of decaBDE in 70% of 203 consumer products, with concentrations ranging from five to 1,200 times higher than the European Union's threshold of 10 parts per million.

Researchers from the study estimated that exposure to contaminated black plastic kitchen utensils, such as spatulas and slotted spoons, could result in an average daily exposure of 34.7 parts per million of decaBDE for an individual. One particular consumer item, a black plastic sushi tray, was found to contain an alarming 11,900 parts per million of decaBDE, which belongs to the polybrominated diphenyl ethers (PBDEs) class of flame retardants. According to the National Oceanic and Atmospheric Administration, PBDE levels in Americans are generally "10–100 times higher than those found in individuals in Europe and Asia."

An April study indicated that individuals with the highest blood levels of PBDEs were approximately 300% more likely to succumb to cancer compared to those with the lowest levels. Flame retardants are widely used in electronic devices to prevent fires, which are a common feature in American homes, as stated on the American Chemistry Council’s website: "The average household contains over 20 electronic devices, including televisions, smartphones, computers, gaming consoles, and tablets. These devices are integral to our daily routines, yet they could pose additional safety hazards without the presence of flame retardants."

In 2023, the EPA proposed stricter regulations on decaBDE, according to O'Brien of Earthjustice. However, these proposals did not address loopholes such as recycling, which allows the chemical to persist in both the environment and in new consumer products. "While most new applications of decaBDE have already been prohibited or are in the process of being phased out, our primary concern lies with the substantial quantity of decaBDE that is still circulating in consumer products," O'Brien explained. "The question at hand is how to manage these already existing products."

E-waste, which encompasses outdated and discarded devices such as monitors, televisions, VCRs, stereos, copiers, fax machines, laptops, circuit boards, hard drives, audio-video equipment, and automotive electronic systems, is often discarded, donated to charities, or placed in home recycling bins, according to experts. "Workers in household recycling facilities and those who dismantle end-of-life vehicles and electronics for recycling are exposed to elevated levels of decaBDE," O'Brien noted. "Additionally, there are chemical emissions into the air, water, and soil surrounding recycling facilities, which pose a risk of exposure to individuals living in proximity to these sites."

While there are certain restrictions on the open disposal of products containing flame retardants in landfills, no such limitations exist for the incineration of products with high levels of decaBDE in municipal solid waste facilities, she added. "Many of these incinerators do not reach high enough temperatures to destroy the chemical, resulting in the release of its toxic byproducts into the environment," O'Brien explained. "DecaBDE then lingers in the environment for an extended period and accumulates in human bodies and wildlife. The EPA itself has acknowledged the significant concern associated with the proliferation of this chemical in the environment, yet their regulations permit exactly that."

The lawsuit was filed in the 9th US Circuit Court of Appeals on behalf of the Yurok tribe, the largest Native American tribe in California, as well as Alaska Community Action on Toxics, a non-profit organization advocating for the indigenous people of Alaska. Both the Yurok and Alaskan indigenous communities rely heavily on their local environment for sustenance and livelihood. "These chemicals not only threaten the health of tribal members but also jeopardize the survival and recovery of salmon populations, which are crucial to the tribes' culture and economy," O'Brien stated. "The Toxic Substances Control Act mandates that the EPA give special consideration to groups that are either more exposed to a chemical than the general population or more vulnerable to its harmful effects, and both of these conditions apply to tribal populations in relation to decaBDE."

The act allows for direct review of the EPA's regulations under that statute in federal appellate courts. Another plaintiff is the Center for Environmental Transformation in Camden, New Jersey. Camden is home to a vehicle recycling facility and a solid waste incinerator, which are believed to be significant sources of decaBDE releases into the local environment, O'Brien said. Local trash burning is also another potential route of exposure, she added. The remaining plaintiff is the Consumer Federation of America, a coalition of non-profit consumer health and safety organizations with a combined membership of 50 million individuals.

While any final decisions on the federal lawsuit may be years away, there are proactive steps consumers can take to mitigate their risk from flame retardants. "Consider replacing your plastic kitchen utensils with stainless steel alternatives or opt for plastic-free items to reduce your overall exposure to harmful additives and plastics," advised Megan Liu, the science and policy manager for Toxic-Free Future, an environmental advocacy group, in a previous interview. "Some manufacturers have robust policies in place for the removal of retardants from their products, so being a discerning shopper is also a viable option," Liu, who authored the October study revealing high levels of decaBDE in black household products and food containers, suggested.

Regular hand washing, dusting, mopping, and vacuuming, along with proper ventilation, can assist in removing dust that may be contaminated with plastics and other concerning chemicals beyond flame retardants. Avoid microwaving or heating black plastic containers with food, as heat can cause chemicals to leach into the food, according to toxicologist Linda Birnbaum, former director of the National Institute for Environmental Health Sciences and the National Toxicology Program, who spoke  in October. "Many people clean and reuse the black plastic containers their food comes in," Birnbaum said. "I advise people to immediately transfer the food from that black plastic to a glass, stainless steel, or ceramic dish."

Nevertheless, there are limits to what consumers can do on their own, O'Brien remarked. "I'm sitting at a desk in front of two computer monitors made from black plastic that likely contain some flame retardant—potentially decaBDE," she said. "Day after day, some of that chemical is seeping out of the monitors and sticking to my hair, my clothes, and the dust in my office. I'm inhaling and absorbing some of that dust as I go about my daily tasks. Then I leave my office and enter an environment where these chemicals from old plastics are permitted to spread further." "Ultimately, this is an issue that requires a regulatory solution. We need the government to step up and address this problem before it escalates further."