The U.S. Environmental Protection Agency (EPA) released the final version of its new “Nanomaterial Research Strategy” (or “report”) on Tuesday, September 29, 2009. The report, previously released in draft form in June 2009, details EPA’s overall strategy for investigating the human health and environmental effects potentially associated with exposure to manufactured nanomaterials. According to EPA, its nanomaterial research agenda is largely driven by the need for information that can be used in EPA’s decision-making under existing federal environmental law. The outcome of EPA’s health and environmental research activities thus carries potential implications for environmental attorneys and toxic tort practitioners alike.

Nanomaterials to Be Targeted

There are numerous kinds of nanomaterials in widespread use today, and with extensive research and development underway, many more loom on the horizon. According to the report, however, EPA is primarily focusing its initial nanomaterial research on seven types of manufactured nanomaterials:

  • single-walled carbon nanotubes
  • multi-walled carbon nanotubes
  • fullerenes
  • cerium oxide
  • nanosilver
  • titanium dioxide
  • zero-valent iron

EPA is reportedly prioritizing these particular nanomaterials, in part, because they are already prevalent in products being encountered by consumers and manufacturers today. Further, EPA has indicated that each of these materials deserves special attention either because (i) EPA may be obligated to make decisions about their safety, or (ii) they show promise for use in environmental cleanup techniques.

Key Questions To Be Resolved

EPA will explore nanomaterials’ potential health and environmental implications via phased, multi-year research plans aimed at answering questions in several broad areas.  

Sources, Fate, Transport and Exposure

  • What technologies exist or must be developed to detect nanomaterials in the environment or in biological samples?  
  • What are the major processes and/or properties that govern the environmental fate, transport and transformation of manufactured nanomaterials? How are these related to nanomaterials’ physical and chemical properties?  
  • What exposures could result from nanomaterial releases?  

Human Health and Ecological Effects

  • What are the health effects of manufactured nanomaterials, and how can these effects be best quantified and predicted?  
  • What are the ecological effects of manufactured nanomaterials, and how can these effects be best quantified and predicted?  

Risk Assessment Methods and Case Studies

  • How should risk assessment techniques be amended to address the special characteristics of manufactured nanomaterials?  

Preventing and Managing Risks

  • Which manufactured nanomaterials have a high potential for release?  
  • What decision-making methods and practices can be used to minimize nanomaterial risks?  
  • How can manufactured nanomaterials be used to treat and remediate other pollutants?

Environmental and Toxic Tort Implications

The information generated by EPA’s agenda could have widespread ramifications for both environmental and toxic tort attorneys. There is little question, for example, that more detailed characterizations of nanomaterial properties, as well as advancements in detection methods, may lay the groundwork for further research. Likewise, better nanomaterial fate and transport data, as well as the identification of potential exposure opportunities during manufacturing and disposal activities, could help lay the groundwork for environmental and worker protection efforts. Further, developing information about nanomaterial toxicities and ecological risks could not only yield better risk assessments, but potential toxic tort and environmental litigation as well.

Fortunately, businesses manufacturing, using and selling nanomaterial-related products still have an opportunity to address such regulatory and litigation risks proactively. Alston & Bird, in conjunction with the ScottMadden consulting firm, has developed a specific Nanomaterial Readiness Assessment Tool to help nanotechnology companies, investors and nanomaterial users evaluate and manage nanotechnologyrelated risk issues.