Nanotechnology Briefing Paper Clean Water Act

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Courtesy of American Bar Association (ABA)

The purpose of this briefing paper is to evaluate the existing statutory authority under the Clean Water Act (CWA or Act) to regulate nanotechnology and nanoparticles.2 One of the stated national goals of the CWA is the elimination of the discharge of pollutants into the navigable waters. Accordingly, the CWA generally provides the U.S. Environmental Protection Agency (EPA) with authority to regulate the discharge of “pollutants” consistent with this national goal. The term “pollutant” is defined fairly broadly so that nanoparticles discharged into a navigable water would likely be subject to regulation under the Act as a discharge of a pollutant. Thus, there appears to be adequate existing authority under the CWA that would allow EPA to regulate nanoparticles.

Although EPA likely has the authority to regulate nanoparticles, however, it would also likely be necessary for EPA to demonstrate that certain nanoparticles (e.g., specific compounds or a class or category of nanoparticles) have a potential adverse effect on human health or the environment, thus making regulation of the nanoparticle necessary and appropriate under the CWA. To this end, further research and study would likely be necessary. In addition, before any meaningful regulation could be implemented, the technology must be developed that would allow nanoparticles to be accurately monitored, measured, and controlled.

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