by John C. Monica, Jr., guest contributor to Small Times
August 10, 2007 — The U.S. Environmental Protection Agency’s long-awaited concept paper for its proposed proposed Nanoscale Materials Stewardship Program (NMSP) under the Toxic Substances Control Act (TSCA), published in July, provides a broad outline of how the NMSP will likely be structured once it’s finalized. A public meeting the EPA hosted on August 2 to discuss the paper drew about 150 of people, mostly from government and industry, and generated conversation that highlighted some of the program’s challenges.
The NMSP is completely voluntary, but the EPA is encouraging all manufacturers, users, and importers of nanoscale materials to participate in order to jumpstart “responsible development” of nanotechnology. The agency expects the program will foster the openness and transparency many in the public and certain non-governmental organizations believe is crucial to the success of any regulatory program.
NMSP asks participants to take two actions:
1. implement a nanotechnology environmental, health, and safety (“EHS”) risk management program
2. submit nano-related information for use in EPA’s future regulatory decisions.
Nanoscale material manufacturers, chemical associations, and business interests commenting at the August 2 meeting largely embraced NMSP and felt EPA has done a good job of crafting the program without rushing to judgment on nano-related EHS issues. Some were concerned about when the program will be up and running and how long information will be collected under each tier. Others encouraged EPA to make sure it is actually requesting all of the data it needs to properly move the program forward.
On the other hand, environmental and consumer groups were generally skeptical. Environmental Defense announced it does not support NMSP because of how long it has taken to come to fruition, its lack of compliance deadlines, and lack of a mandatory regulatory compliment to ensure increased industry participation. Similarly, Consumers Union criticized the NMSP because of its voluntary nature and a concern that companies will selectively report information. Terry Davies of the Woodrow Wilson International Center for Scholars also advocated pairing NMSP with a mandatory regulatory backstop to ensure increased participation.
The success of NMSP is important. It may be the only nano-specific initiative under TSCA forthcoming from EPA for the next 3-5 years. You can comment on it until September 10, 2007, by including with your input the docket ID number that EPA has established for it: EPA-HQ-OPPT-2004-0122. You can submit comments online or by mail: Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
John C. Monica, Jr., a partner at Porter Wright Morris & Arthur LLP, is a specialist on nanotechnology product liability issues.