Natural Resources Defense Council v. U.S. Environmental Protection Agency

857 F.3d 1030, 2017 WL 2324714
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 30, 2017
DocketNo. 15-72308, No. 15-72312
StatusPublished
Cited by5 cases

This text of 857 F.3d 1030 (Natural Resources Defense Council v. U.S. Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Natural Resources Defense Council v. U.S. Environmental Protection Agency, 857 F.3d 1030, 2017 WL 2324714 (9th Cir. 2017).

Opinion

OPINION

MELLOY, Circuit Judge:

The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y, governs the sale, use, and distribution of pesticides. Under FIFRA, a pesticide generally must be registered with the Environmental Protection Agency (“EPA”) before it is sold or distributed. Id. § 136a(a). In order to obtain pesticide registration, an applicant must submit sufficient data “concerning the product’s health, safety, and environmental effects.” Pollinator Stewardship Council v. EPA, 806 F.3d 520, 523 (9th Cir. 2015). The registration requirement thus enables the EPA to prohibit pesticides that will cause “unreasonable adverse effects on the environment.” Id. (quoting 7 U.S.C. § 136a(c)(5)). Sometimes, however, the EPA may receive sufficient data to determine that short-term use of a pesticide is reasonable, but not enough data regarding its long-term use. See 7 U.S.C. § 136a(c)(7)(C). If the EPA lacks this data “because a period reasonably sufficient for generation of the data has not elapsed since the [EPA] first imposed the data requirement,” the EPA may grant a temporary, conditional registration. Id. But, to issue the conditional registration, the EPA must first determine “that use of the pesticide is in the public interest.” Id.

[1034]*1034This case involves the pesticide NSPW-L30SS (“NSPW”). Manufactured by Nano-silva LLC, NSPW is an antimicrobial materials preservative that uses nanosilver as its active ingredient. Petitioners—the Natural Resources Defense Council, the Center for Food Safety, and the International Center for Technology Assessment—opposed the EPA’s conditional registration of NSPW during public notice and comment. Petitioners argued the EPA failed to support its findings that (1) use of NPSW is in the public interest; and (2) Nanosilva LLC had insufficient time to submit the required data. The EPA, nonetheless, conditionally registered NSPW in May 2015. Petitioners filed a timely petition for review and now renew their arguments before this Court. We have jurisdiction for direct review of the agency action pursuant to 7 U.S.C. § 136n(b).

After reviewing the conditional registration for substantial evidence, we conclude the EPA failed to support its finding that NSPW is in the public interest. We therefore vacate the registration in whole and need not reach Petitioners’ insufficient-time arguments.

I

NSPW is a materials preservative incorporated into plastic and textile products. When SO' incorporated, the EPA explains, NSPW can help “suppress the growth of bacteria, algae, fungus, mold[,] and mildew, which cause odors, discoloration, stains, and deterioration.”1 NSPW may be used in products such as trash cans, mops, window blinds, furniture, baseboards, light switches, plastic decking, carpet, toilet seats, shower curtains, tubs, cell phones, computers, plastic components in humidifiers, vacuums, combs, brushes, electric razors, blow dryers, beds, wall coverings, wheelchairs, linens, golf bags, exercise equipment, life preservers, sportswear, nursing uniforms, watch bands, restaurant uniforms, litter boxes, swimming pool equipment, ink pens, portable toilets, office supplies, and luggage. NSPW may not be used, however, in products designed for food contact, food packaging, or drinking water.

The active ingredient in NSPW is nano-silver. Simply put, nanosilver is a version of “conventional” silver that is engineered to have a much smaller particle size. Conventional silver has long been recognized as an antimicrobial agent and is the active ingredient in a number of currently registered pesticides used as materials preservatives. Nanosilver, due to its much smaller particle size, can have significantly different properties than conventional silver. These different properties provide new benefits and opportunities to industry.

But with these new benefits come new risks. After companies seeking to market nanosilver and other nanomaterials began approaching the EPA for pesticide registration, the EPA convened a meeting of the FIFRA Scientific Advisory Panel (“the Panel”) in November 2009 to discuss potential hazards. In part, the Panel summarized its meeting as follows:

The Panel was not aware of any information that suggested that silver ions released from silver nanomaterials would behave differently than silver ions generated by any other source. However, the Panel believed that the rate of silver ion production, as well as the distribution of silver in [biological] tissue, [1035]*1035may differ substantially between silver nanomaterials and other forms of silver. Nanomaterials can deliver ions directly to specific tissues, cell membranes or inside cells. The biological effects of silver nanomaterials (including temporal pattern for ion delivery), as well as their environmental fate, can be affected by other materials present in the preparation (e.g., surfactants). Nanosilver can also potentially act as a carrier for other toxic chemicals. These issues led the Panel to suggest that the hazard profile of silver nanomaterials may differ from other forms of silver.

The Panel thus recommended that the “EPA treat nanosilver differently from its conventional silver counterpart.” The Panel also “cautioned about extrapolating from one nanosilver formulation to another when assessing hazards.”

After the Panel convened, the EPA evaluated and conditionally registered two pesticides containing a form of nanosilver: AGS-20 and NSPW. Like NSPW, AGS-20 is a nanosilver-based antimicrobial pesticide used as a materials preservative. However, unlike NSPW, which is a liquid suspension incorporated into plastics and textiles, AGS-20 is a powder which may be used as a surface coating or by incorporation with textiles only. The nanosilver in AGS-20 also “has different size range and surface coatings than the nanosilver in NSPW[].” The EPA conditionally registered AGS-20 in December 2011, approximately three years after its manufacturer submitted its application for registration.2

Granting conditional registration to NSPW, however, took longer. While Nano-silva LLC submitted an application to register NSPW in 2009, the EPA did not conditionally register NSPW until May 2015. This conditional registration is for a four-year period.

In granting conditional registration, the EPA found, as required by 7 U.S.C. § 136a(c)(7)(C), that NSPW contained a new active ingredient and would not cause unreasonable adverse effects on the environment. The EPA also made two findings relevant to Petitioners’ arguments in the present case. The EPA, first, found that granting conditional registration was in the public interest.

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Cite This Page — Counsel Stack

Bluebook (online)
857 F.3d 1030, 2017 WL 2324714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/natural-resources-defense-council-v-us-environmental-protection-agency-ca9-2017.