May 2010 Update: Climate Change
CERCLA UAOs Deemed Constitutional

Promoting Transparency for Nanomaterials

By James A. Vroman

On June 25, 2010, the Government Accountability Office (GAO) published a report entitled Nanotechnology:  Nanomaterials Are Widely Used in Commerce, but EPA Faces Challenges Regulating Risk (See GAO Report).   In this report, the GAO notes that companies are increasingly using nanoparticles in the products they manufacture and that industry is diligently conducting research and development in new and innovative ways to incorporate nanoparticles into new materials and products that will reach the market in the not-to-distant future.  The GAO acknowledges that the body of research on nanomaterials is growing.  However, at the same time, the GAO notes that little is known about the risks nanomaterials pose to human health and the environment.  As a result, the GAO strongly encourages the U.S. EPA to expand and improve its efforts to collect data and information on nanomaterials so that it may effectively regulate the manufacture and distribution of products containing nanoparticles. 

The GAO recommends in its report that the U.S.EPA implement seven different actions to improve its information and data collection efforts with respect to nanomaterials that are entering, or have entered, the stream of commerce.  These recommendations to the U.S. EPA include expanding the use of the existing regulations under the Toxic Substances Control Act ("TSCA") that require chemical manufacturers and importers, who must register the new chemicals they manufacture or import into the United States with the Agency, to provide the Agency with data and information on the toxicity and the environmental and health risks of any registered chemical when it is subject to a "Significant New Use" as a nanomaterial, or when the Agency requires updates to the TSCA Public Inventory of Chemicals.  See, 15 U.S.C. Section 2607(b)(1); 15 U.S.C. Section 2604(a)(1)(B). 

The GAO also recommended that the U.S. EPA also modify its guidelines under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which requires pesticide manufacturers to register their products with the U.S.EPA.  The guideline modifications the GAO has recommended include requiring new pesticide registrants to identify any nanomaterial ingredients in the pesticides that are being registered and to clarify to those manufacturers who have registered their pesticides with the Agency that any nanomaterials in these pesticides must be reported to the Agency.  

Finally, the GAO is encouraging the U.S. EPA to expand its use of its information gathering authority under such environmental laws as the Clean Water Act and TSCA to gain a better understanding of the potential for nanomaterials to be discharged into the environment as waste a result of manufacturing operations.  The GAO recognizes that instruments that can detect such discharges of nanomaterials into the environment are only now being developed.

The U.S. EPA has accepted and embraced these recommendations from the GAO.  Indeed, the Agency has announced that it will promulgate and publish this December a "Significant New Use Rule" under TSCA, which will address nanomaterials.