Two authors from the Environmental Law Institute recently considered the timely question of "how various forms of nanomaterials will be disposed of and treated at the end of their use.”
L. Breggin and J. Pendergrass, “Where Does the Nano Go? End-of Life Regulation of Nanotechnologies,” Woodrow Wilson International Center for Scholars, Project on Emerging Nanotechnologies, July 2007.
The article begins with the observation that “[a]s we are learning, when we throw something away, there really I no ‘away.’ " Key to the authors’ article is the question of whether “regulation designed to deal with end-of-life issues [will] work for nanotechnology.” To address this issue, the authors analyzed the applicability of two end-of-life environmental laws to nanotechnology: (i) Resource Conservation and Recovery Act (RCRA), and (ii) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Regarding RCRA, the authors determined that the statute “covers nanowastes, although focused on mass as a determinant of regulatory coverage is not necessarily appropriate for nanowastes.” They also recommended further scientific research to determine whether existing handling, treating, storing, and disposing practices are sufficient for nanowastes. Further, the authors appear to implicitly endorse labelling nanowastes as "hazardous wastes" in order to ensure they are covered by RCRA: “Though, as of yet, no nanowastes have been regulated as hazardous waste, this authority seems the most likely mechanism for dealing with risks associated with nanowastes under the existing regulations.” Additionally, they note four RCRA-specific questions EPA should resolve: (i) are the 4 traditional characteristics for determining whether a substance is a "hazardous waste" under RCRA (ignitability, corrosivity, reactivity, and toxicity) also appropriate for nanowastes? (ii) is the Toxicity Characteristic Leaching Procedure currently in place adequate for nanowastes? (iii) should specific nanowastes or categories of nanowastes be listed as “hazardous wastes?” and (iv) are current handling, treating, storing, and disposal practices sufficient for nanowastes?
Regarding CERCLA, the authors determined that the statute will cover nanowastes if they are eventually defined as “hazardous substances.” They also believe that "even if nanomaterials are not hazardous substances, the statue provides broad authority to EPA to address releases of pollutants and contaminants that present an imminent and substantial danger.” The authors presented two CERCLA-related questions for EPA to resolve: (i) whether any CERCLA listed substances produced in nano form and if so, does the listing cover it in nano form, and (ii) whether EPA should evaluate nanomaterials to determine whether they should be classified as "hazardous substances" under CERCLA.
Finally, the paper reminds businesses that even if nanowastes are not currently considered "hazardous wastes" under environmental statutes, they may be deemed as such in the future and should be treated accordingly.