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Home > Nanotechnology Columns > Bergeson & Campbell, P.C. > NRDC Files Suit to Block EPA's Conditional Registration of Nanosilver

Lynn L. Bergeson
Managing Director
Bergeson & Campbell, P.C.

Abstract:
On January 26, 2012, the Natural Resources Defense Council (NRDC) filed a lawsuit in the U.S. Court of Appeals for the Ninth Circuit (California) against the U.S. Environmental Protection Agency (EPA) concerning its conditional registration of a pesticide product containing nanosilver as a new active ingredient for use as a preservative for textiles.

January 27th, 2012

NRDC Files Suit to Block EPA's Conditional Registration of Nanosilver

On January 26, 2012, the Natural Resources Defense Council (NRDC) filed a lawsuit in the U.S. Court of Appeals for the Ninth Circuit (California) against the U.S. Environmental Protection Agency (EPA) concerning its conditional registration of a pesticide product containing nanosilver as a new active ingredient for use as a preservative for textiles. See http://www.nrdc.org/media/2012/120126.asp?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NRDCPressReleases+%28NRDC+Press+Releases%29 NRDC states that it seeks to limit public exposure to the nanosilver's use in clothing, baby blankets, and other textiles. On December 1, 2011, EPA announced its conditional approval of HeiQ AGS-20. As a condition of registration, EPA is requiring HeiQ to conduct a number of studies within four years, which EPA chose to allow time for protocol reviews prior to initiation of the studies, completion of the studies, and its review of the study results. NRDC states that it seeks to block EPA "from allowing nanosilver on the market without the legally-required data about its suspected harmful effects on humans and wildlife."

NRDC is challenging EPA's actions under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 16(b). This provision allows "any person" who claims to be adversely affected by an EPA order issued after a "public hearing" to obtain judicial review "praying that the order be set aside in whole or in part." The "public hearing" component of the provision may have been EPA's request for comment on its proposed decision conditionally to register HeiQ's nanosilver product on August 13, 2010. No additional information is available in the docket at this time. The court's review is limited to the record before it, and it does not undertake de novo review of EPA's actions.

Regardless of whether HeiQ ultimately prevails in this dispute, the fact that the registration is now being challenged is likely to cause additional commercial uncertainty both for HeiQ and the nanopesticide community as a whole. Parties are likely to intervene in this action so stay tuned.

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