The U.S. Environmental Protection Agency (“EPA”) issued its “Nanotechnology White Paper” (the “White Paper”) this February. The White Paper is timely in light of EPA’s recent decision to regulate nanosilver materials under the Federal Insecticide, Fungicide and Rodentcide Act (“FIFRA”) and is a generally valuable resource for both the knowledgeable and the novices among us who are grappling with the environmental implications of this breakthrough technology.
Sections “1.0 Introduction,” “2.0 Environmental Benefits of Nanotechnology” and “3.0 Risk Assessment of Nanomaterials” are well worth reading to understand the implications of nanomaterials entering the environment. These introductory parts set the framework for the White Paper’s key sections, “4.0 Responsible Development,” “5.0 EPA’s Research Needs for Nanomaterials” and “6.0 Recommendations,” which should inform potentially affected parties such as industry, legal counsel and environmental consultants, of EPA’s likely approaches to regulation and enforcement.
Potentially regulated parties must be aware that EPA recognizes the economic and environmental benefits of nanomaterials and “supports the responsible development of nanotechnology.” EPA believes that achieving responsible development can be accomplished through a “proactive approach” in “partnerships with industrial sectors” to develop “best practices and standards” in the workplace, through the supply chain and for disposal.
EPA also recognizes that “statutory authority already exists” through the Clean Air Act, Clean Water Act and Toxic Substances Control Act, among other laws, to foster responsible development based on media and risk. As mentioned, EPA has taken the first such steps under the FIFRA to regulate nanosilver materials used as pesticides. These issues were examined in detail in Reed Smith’s “Nanotechnology Teleseminar” Jan. 11, 2007, and now available at www.reedsmith.com/nanotechnology. In the near term, private parties should focus on assessing and mitigating risks, determining what information must be communicated to EPA under TSCA or similar laws, and, if the nanomaterials are “new” chemicals or “new uses” of existing chemicals, commencing the regulatory and registration processes that may be implicated. Further, industry must consider the boundaries of “partnerships” with governments, NGOs and others to protect valuable intellectual property and proprietary information.