NRDC v. EPA, No. 12-70268 (9th Cir. 2013)
Annotate this CaseThis case involved EPA's conditional registration of two pesticides, AGS-20 and AGS-20 U, that HeiQ Materials sought to apply to manufactured textiles. NRDC petitioned the court to vacate EPA's decision to conditionally register the pesticides. The court held that NRDC had Article III standing; EPA's decision not to use the body weight and other characteristics of infants in determining whether the pesticides placed consumers at risk, and instead using the characteristics of a three-year-old toddler, was supported by substantial evidence; and EPA's decision not to consider additional sources of exposure to nanosilver other than the pesticides in concluding that the product would not have unreasonable adverse effects on consumers was supported by substantial evidence. The court vacated EPA's decision insofar as it concluded that there was no risk concern requiring mitigation for short- and intermediate-term aggregate oral and dermal exposure to textiles that were surface coated with the pesticide. Accordingly, the court granted in part and denied in part NRDC's petition for review.
Court Description: Federal Insecticide, Fungicide, and Rodenticide Act. The panel granted in part and denied in part a petition for review of a decision of the Environmental Protection Agency granting an application for conditional registration of two pesticides, AGS-20 and AGS-20 U, that applicant HeiQ Materials sought to apply to manufactured textiles such as clothing, blankets, and carpet. The Federal Insecticide, Fungicide, and Rodenticide Act prohibits the sale of any pesticide that has not been “registered” with the Environmental Protection Agency. AGS-20 and AGS-29U (collectively, “AGS-20) uses nanosilver to suppress the growth of microbes that cause odors, stains, discoloration, and degradation. The EPA conducted a risk assessment of AGS-20 that was published in its decision granting HeiQ’s application for conditional registration. The panel first held that petitioner Natural Resources Defense Council, Inc. had Article III standing to challenge the EPA’s conditional registration of AGS-20. Second, the panel held that substantial evidence supported the EPA’s decision to use the characteristics of toddlers rather than infants in determining whether AGS-20 placed consumers at risk. Third, the panel vacated the EPA’s decision insofar as it concluded that there was no risk concern requiring mitigation for short- and intermediate-term aggregate oral and dermal exposure to textiles that are surface-coated with AGS-20. Fourth, the panel held that substantial evidence supported the EPA’s decision not to consider additional sources of exposure to nanosilver other than AGS-20 in concluding that the product would not have adverse effects on consumers. District Judge Adelman concurred in the judgment insofar as it granted the petition in part and remanded to the EPA, and dissented from the judgment insofar as it denies the petition in part. Judge Adelman would grant the petition for review in full.
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