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

United States Court of Appeals, Ninth Circuit

May 30, 2017

Natural Resources Defense Council, Petitioner,
v.
U.S. Environmental Protection Agency, Respondent. Center for Food Safety; International Center for Technology Assessment, Petitioners,
v.
U.S. Environmental Protection Agency; Scott Pruitt,

          Argued and Submitted November 17, 2016 San Francisco, California

         On Petition for Review of an Order of the Environmental Protection Agency

          Jaclyn H. Prange (argued), San Francisco, California; Aaron Colangelo, Washington, D.C.; as and for Petitioner Natural Resources Defense Council.

          George A. Kimbrell and Sylvia Wu, Center for Food Safety, San Francisco, California, for Petitioners Center for Food Safety and International Center for Technology Assessment.

          Sue Chen (argued), Attorney, and John C. Cruden, Assistant Attorney General, Environmental Defense Section, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Amber Aranda, Of Counsel, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondent.

          Before: Michael J. Melloy, [**] Richard R. Clifton, and Paul J. Watford, Circuit Judges.

         SUMMARY[***]

         Pesticides / EPA

         The panel vacated the United States Environmental Protection Agency's ("EPA") conditional registration of the pesticide NSPW-L30SWS - an antimicrobial materials preservative that uses nanosilver as its active ingredient - because the EPA failed to support its requisite finding that NSPW was in the public interest under 7 U.S.C. § 136a(c)(7)(C).

         The Federal Insecticide, Fungicide, and Rodenticide Act governs the sale, use, and distribution of pesticides, and the Act requires that pesticides generally must be registered with the EPA before being sold or distributed. The EPA may grant a temporary, conditional registration if it first determines that use of a pesticide was in the public interest.

         The panel held that substantial evidence supported the EPA's findings that NPSW has lower application and mobility rates than conventional-silver pesticides.

         The panel held, however, that substantial evidence did not support the EPA's finding that use of NPSW was in the public interest because it had the "potential" to reduce the amount of silver released into the environment. The panel held that the EPA's finding was based on two unsubstantiated assumptions: first, that current users of conventional-silver pesticides would replace those pesticides with NSPW; and second, that NSPW would not be incorporated into new products to the extent that such incorporation would actually increase the amount of silver released into the environment. The panel concluded that without evidence in the record to support the assumptions, it could not find that the EPA's public-interest finding was supported by substantial evidence as required by the Act.

          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.

         This case involves the pesticide NSPW-L30SS ("NSPW"). Manufactured by Nanosilva 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 nanosilver. 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, may 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 ...


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