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Natural Resources Defense Council v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20248
Nos. 12-70268, (9th Cir., 11/07/2013)

The Ninth Circuit granted in part and denied in part an environmental group's petition challenging EPA's conditional registration of a pesticide that uses nanosilver to suppress the growth of microbes that cause odors, stains, discoloration, and degradations in manufactured textiles such as clothing, blankets, and carpet. The court rejected the group's argument that EPA should have used the body weight and other characteristics of infants in assessing the risks posed to consumers by the pesticide. EPA's decision to consider three-year-old toddlers rather than infants the most vulnerable subpopulation is supported by substantial evidence. But the court vacated EPA's decision to the extent that the Agency concluded that there is no risk concern requiring mitigation for short- and intermediate-term aggregate oral and dermal exposure to textiles that are surface coated with the pesticide. EPA's own rule of decision states that there is a risk concern requiring mitigation when the calculated "margin of exposure" is less than or equal to 1,000. Under the circumstances presented in this case, the actual margin of exposure equals 1,000. The court, however, rejected the group's claim that EPA should have considered sources of potential consumer exposure to nanosilver other than the pesticide at issue here. EPA's decision not to conduct an aggregate risk assessment of other possible sources of nanosilver exposure is supported by substantial evidence.