                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             JUL 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


PESTICIDE ACTION NETWORK                         No. 14-71514
NORTH AMERICA; et al.,

              Petitioners,
                                                 MEMORANDUM*
 v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY,

              Respondent.


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

                        Argued and Submitted May 9, 2016
                            San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

      Pesticide Action Network North America, United Farm Workers, and

Pineros y Campesinos Unidos del Noroeste (“Petitioners”) petition for review of

the Environmental Protection Agency’s (“EPA”) partial denial of their

administrative petition, “Pesticides in the Air – Kids at Risk: Petition to the EPA to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Protect Children from Pesticide Drift.” We have jurisdiction under 7 U.S.C.

§136n(b). The EPA’s order “shall be sustained if it is supported by substantial

evidence when considered on the record as a whole.” Id.

      Substantial evidence supports the EPA’s decision to deny Petitioners’

request that the EPA “immediately adopt interim prohibitions on the use of toxic

drift-prone pesticides such as organophosphates and n-methyl carbamates near

homes, schools, parks, and daycare centers or wherever children congregate.”

Viewed as a whole, the record adequately supports the EPA’s conclusion that the

imposition of uniform buffer zones is not the most “scientifically appropriate”

method for mitigating the risk of exposure to pesticide drift.

      The record generally suggests that the risk of exposure to pesticide drift

depends on a number of factors, including pesticide toxicity, the method of

pesticide application, the size of pesticide droplets, and weather conditions. Based

on this evidence, the EPA could reasonably conclude that Petitioners’ proposal of

uniform buffer zones for a large number of pesticides would not adequately

address the variable risk of exposure to pesticide drift without unnecessarily

curtailing some safe pesticide use. Petitioners did not request any interim relief

tailored to prevent demonstrated drift by specific pesticides, and thus Petitioners’

evidence that some unsafe pesticide drift occurs does not establish that the EPA’s


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order was unsupported by substantial evidence. Moreover, to require the

immediate imposition of uniform buffer zones would likely divert limited agency

resources from the risk assessment process and disrupt the EPA’s established

process for evaluating the safety of pesticide registrations and tolerances.

Therefore, substantial evidence supports the EPA’s determination that, as a matter

of science and policy, the immediate imposition of interim buffer zones is not an

appropriate means of mitigating the risk of children’s exposure to pesticide drift.1

      PETITION FOR REVIEW DENIED.




      1
        The Food Quality Protection Act of 1996 required the EPA to determine
each food-use pesticide’s eligibility for reregistration and to review the safety of all
food-use pesticide tolerances or exemptions by August 3, 2006. See 7 U.S.C.
§ 136a-1(g)(2)(A)(i); 21 U.S.C. § 346a(q)(1)(C). We lack jurisdiction to review
these reregistration and tolerance determinations, as any challenge to these
determinations would be time-barred. See 7 U.S.C. § 136n(b); 21 U.S.C.
§ 346a(h)(1). In addition, this petition is moot as to any pesticides for which the
EPA has already made final reregistration review determinations and to any
pesticides for which the EPA has already imposed interim no-spray buffer zones,
such as chlorpyrifos.

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