Nanomaterials are becoming an increasing part of everyday life. Even now, man-made materials that measure one ten-thousandth the diameter of a human hair are found in products from computer chips and pesticides to stain-resistant fabrics and shampoo. As such, the U.S. Environmental Protection Agency is beginning to study the scientific properties of engineered nanomaterials to determine whether they should be regulated under the environmental statutes.

The cross-governmental National Nanotechnology Initiative, a partnership among several governmental agencies focused on research and sharing information about nanomaterials, states that to be nanotechnology, three factors must be met. The technology must 1) involve “an understanding and control of matter at dimensions of roughly 1 to 100 nanometers” (a nanometer is one-billionth of a meter); 2) “encompass nanoscale science, engineering, and technology”; and 3) involve “imaging, measuring, modeling and manipulating matter at this length scale.” Nanomaterials, thus, are purposefully engineered materials that measure between 1 and 100 nanometers. Interest is increasing in nanomaterials because their physical properties are governed by the laws of quantum mechanics, which produces “dramatic changes in [their] mechanical, optical, chemical, and electronic properties.”

While the EPA has not yet taken any formal action to regulate the manufacture, distribution, or disposal of nanomaterials, it is beginning to study the nature and use of nanomaterials to determine whether future regulation is needed. The EPA has conducted activities such as a call for voluntary submittals of research data on nanomaterials, consideration of voluntarily submitted premanufacture notices under the Toxic Substances Control Act (TSCA) to determine how future reviews could work, a draft white paper considering the EPA’s position on nanomaterials and their potential regulation, and a cross agency research effort to increase the scientific knowledge concerning nanomaterials. In addition, the American Bar Association’s Section on Environment, Energy, and Resources recently conducted a comprehensive review of all the major environmental statutes to determine the EPA’s authority to regulate the manufacture, sale, and use of nanomaterials. The committee found that the EPA appears to have authority to regulate nanomaterials under the existing environmental laws with little or no statutory revision. However, with a final white paper expected from the EPA in October 2006, increasing funding being applied to government research of nanomaterials, over $1 billion in the 2006 federal budget, and EPA’s concern of contamination from nanomaterials released into the natural environment, future regulation is a possibility.

Regulation of nanomaterials will potentially impact all producers and consumers of such materials. A wide range of industries, such as clothing, electronics, computers, and food production, are beginning to use nanomaterials in everyday operations. It is estimated that over 700 nanoproducts are available on the U.S. market today, and future uses include not only consumer products, but industrial uses such as filters for pollution control and purification as well as compounds to aid in environmental remediation of contaminated lands.

While regulation is not yet certain, Porter Wright Morris & Arthur LLP will continue to monitor these developments.