EPA Takes Action to Regulate Nanomaterials

November 16, 2008
by MEREDITH DuBARRY HUSTON
Client Alert Newsletter November 2008

The U.S. Environmental Protection Agency ("EPA") has signaled its intention to regulate nanomaterials on an individual basis—just like any other chemical. Nanoscale materials are microscopic substances that, because of their small size, may have different properties from similar materials that are larger in scale. On October 31, 2008, EPA announced that carbon nanotubes, nanoscale-sized carbon molecules, are subject to the Toxic Substances Control Act ("TSCA"). Then, exercising its authority under TSCA, on November 5, 2008, EPA issued its first significant new use rules ("SNURs") for two nanoparticles: siloxane modified silica nanoparticles and siloxane modified alumina nanoparticles.

TSCA authorizes EPA to determine that a particular use of an existing chemical constitutes a "significant new use" of that chemical through the promulgation of a regulation subject to public notice and comment. The resulting SNUR identifies the significant new use of the chemical and its potential risks and imposes limitations on its manufacture, processing, distribution, and use, as EPA deems appropriate. After issuance of a SNUR, entities must give EPA 90 days' notice prior to manufacturing, importing, or processing the chemical for that use.

As it appears that EPA is preparing to take a more active stance toward regulating the manufacture and use of nanomaterials, companies working with nanoscale materials should evaluate carefully TSCA's implications for their activities.