The Natural Resources Defense Council ("NRDC") recently issued its own EHS nanotechnology framework. See J. Sass, “Nanotechnology’s Invisible Threat: Small Science, Big Consequences,” NRDC Issue Paper, May, 2007.
As readers may recall, NRDC is a member of the Civil Society-Labor Coalition which recently published an open letter rejecting the DuPont Chemical Company and Environmental Defense joint voluntary "risk assessment" framework for nanotechnology. We previously expressed our disappointment with the Coalition’s blanket rejection of the ED/DuPont framework without offering its own substantive comments. NRDC’s issue paper provides some of the substance we felt was lacking in the Coalition’s open letter. It is encouraging to see at least one Coalition member join the substantive debate rather than simply rejecting the effort out of hand.
NRDC’s underlying position should be very familiar to anyone monitoring nano-EHS issues: “The warning bells are ringing: People are beginning to raise serious questions about the possible impact of nanomaterials on human health.” . . . “In light of these threats, it is imperative that the government move quickly to establish health and safety standards for workers who manufacture these products, consumers who use them, and the environment that absorbs the waste.” . . . “Governments must act preemptively to protect people form the potential dangers of nanomaterials, even though the exact health and ecological impacts are still undetermined.” While unnecessarily alarmist in tone (in our view), the general idea that government should be diligently trying to figure out how to deal with any potential nano-related EHS risk is valid, and the federal government has already made it abundantly clear that it takes these issues seriously.
A large portion of of NRDC’s position, however, appears to be base on perceived inadequacies with the entire regulatory process and burdens of proof in the United States, rather than with any hazard or risk specifically associated with engineered nanomaterials: “The current approach to chemical regulation is slow and costly, and it is designed to accept a level of harm as if it were a necessary cost of progress” . . . “This approach has failed for 30 years to prevent human and environmental exposures to harmful industrial chemicals.”
In this same vein, NRDC argues that EPA’s impending voluntary stewardship program for nanomaterials is problematic because it is voluntary. NRDC believes that “[c]ompanies with the riskiest products, as well as those with poor business ethics – that is, those most likely to need government oversight – are least likely to participate.” Accordingly, NRDC argues that “a voluntary program without a mandatory regulatory component will not be able to address potential risks.” Presumably, this is the same basis for the Civil Society-Labor Coalition‘s rejection of the EDDuPont framework.
After explaining its basic positions on the above issues, NRDC then invokes the "precautionary principle" in crafting its own framework for regulation of commercial nanomaterials. NRDC’s framework has four major components:
• Prohibit the untested or unsafe use of nanomaterials. NRDC argues:
“This approach must assume worst-case scenario exposure scenarios in order to prevent unsafe in order to prevent unsafe human exposure and releases into the environment . . .” and . . . “Such a precautionary regulatory approach places the burden on the manufacturer to provide evidence of safety prior to widespread use, rather than on regulators to prove harm."
Obviously, this approach runs counter to currently accepted regulatory methods in the United States. It is difficult to imagine the federal government reversing many years of precedent in this regard when determining how to address potential nano-related EHS concerns.
• Conduct full life-cycle environmental, health, and safety impact assessments as a prerequisite to commercialization. This analysis would require treating nanomaterials as new substances, and would use nanospecific toxicological testing methods. Additionally, this element of the framework would require the evaluation of company risk management practices at all points in supply chain.
• Facilitate full and meaningful participation by the public and workers in nanotechnologies development and control; considering the social and ethical implications of nanotechnologies.” On this point, NRDC calls for true public involvement, rather than a one way “education of the public” by government and business.
• Finally, NRDC believes that regulatory agencies must facilitate public access to critical information by: creating a publicly available database of nanotoxicology issues; requiring labeling of all consumer products containing nanomaterials; enforcing existing “right to know” rules as they apply to nanomaterials; and creating a publicly available tracking system for all nanomaterials.
While we do not agree with many of the positions advocated by NRDC in its issue paper or the structure of its proposed framework, nonetheless it is apparent a lot of thought went into the document and that it provides some good food for thought. It is well worth reading.