Out of Hibernation

by Matt Shudtz

February 05, 2009

More evidence that EPA is starting to find its bearings after eight years of hibernation: in an interim report on the year-old Nanoscale Materials Stewardship Program, EPA admits that asking companies who work on nanomaterials to voluntarily conduct and disclose research on health and environmental hazards isn’t producing much useful information. As a result, the agency is going to start considering how to use its powers under the Toxic Substances Control Act to require data submission.


The Nanoscale Materials Stewardship Program “was developed to help provide a firmer scientific foundation for regulatory decisions by encouraging submission and development of information for nanoscale materials.” It is comprised of two parts: the Basic Program (which asks companies to voluntarily report any information they have about the nanomaterials with which they work); and the In-Depth Program (which asks for volunteer companies to sponsor research into the health and environmental hazards posed by nanomaterials). Check out the Interim Report (pdf) for more details.


A year into the two-year program, EPA hasn’t obtained much information from companies that already have nanomaterials in their products:

  • “It appears that nearly two-thirds of the chemical substances from which commercially available nanoscale materials are based were not reported under the Basic Program.”
  • “It appears that approximately 90 percent of the different nanoscale materials that are likely to be commercially available were not reported under the Basic Program.”

So companies that have already commercialized nanomaterials aren’t very forthcoming with any information they might have on hand. That’s troubling, but not surprising.


Worse, EPA didn’t recruit many companies who were interested in researching the potential hazards of nanomaterials. The report’s conclusion includes this gem: “The low rate of engagement in the In-Depth Program suggests that most companies are not inclined to voluntarily test their nanoscale materials.”


The NMSP is set to run for one more year. Under the last president, EPA might have been content to idly wait for more volunteers. But now it looks like the career staff might be getting ready to start exercising their long-dormant regulatory muscles.


The NMSP report suggests that EPA might look to TSCA as a tool for prying information out of recalcitrant companies. From the “Next Steps” part of the report:

EPA will consider how to best apply regulatory approaches under TSCA section 8(a) to address the data gaps on existing chemical nanoscale material production, uses and exposures that were identified through this analysis of the Basic Program information. Due to the limited participation in the In-Depth Program, EPA will also consider how best to apply rulemaking under TSCA section 4 to develop needed environmental, health, and safety data.

Unfortunately, TSCA probably isn’t the most useful tool. Under § 8(a), EPA can only require companies to submit “existing data concerning the environmental and health effects” of a chemical – not very useful if the companies haven’t done any research yet. And under § 4, EPA can only require health and safety testing after first determining that a chemical “may present an unreasonable risk of injury to health or the environment.” But how can EPA make that determination if they don’t have any hazard information yet?


After eight years, these are tentative and clumsy first steps for EPA, but it’s good to see that the agency is finally starting to wake up.


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Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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