Court Vacates and Remands EPA's Conditional Registration of HeiQ's Nanosilver Products

On November 7, 2013, the U.S. Court of Appeals for the Ninth Circuit granted in part and denied in part the Natural Resources Defense Council’s (NRDC) petition for review of the U.S. Environmental Protection Agency’s (EPA) conditional registration of HeiQ AGS-20 and AGS-20 U (collectively, AGS-20) nanosilver products. The court held that “substantial evidence” supported EPA’s decision to use the characteristics of toddlers rather than infants in determining whether AGS-20 placed consumers at risk. 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 are surface-coated with AGS-20.” The court stated: “Our decision to grant the petition and vacate the decision in part is based solely on the fact that EPA’s own rule states that there is a risk concern requiring mitigation when the calculated MOE is less than or equal to 1,000 and, under these circumstances, the actual MOE equals 1,000. This holding does not affect any portion of EPA’s decision where the calculated MOE is greater than 1,000.” Finally, the court 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.”

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