American Bar Association (ABA)

Regulation of Nanoscale Materials under the Toxic Substances Control Act


Courtesy of Courtesy of American Bar Association (ABA)

Nanotechnology, loosely described as creating or using materials or processes at a scale of approximately one to one hundred nanometers (a nanometer is one billionth of a meter, or 10-9 m) in at least one dimension, is a rapidly-growing technology being used in virtually all major industrial sectors, including electronics, medicine, coatings, consumer products, aerospace, and specialty materials. Nanotechnology holds promise for environmental protection as well, offering the possibility of increased energy efficiency, improved pollution controls, and more effective cleanup technologies. With these promises come concerns: the possibility that applications of nanotechnology may pose new or unusual risks to human health or the environment.

This paper addresses how the risks that may be associated with nanotechnology can be addressed by the Toxic Substances Control Act (TSCA). Unlike most other environmental statutes that focus on controlling the end products of economic activity (e.g., emissions, discharges, and wastes), TSCA is largely a “front-loaded” statute that provides EPA with the authority and obligation to regulate chemicals before and during their use. In that sense, TSCA is essential to the concept of “cradle-to-grave” regulation of commercial activity. TSCA complements several other statutes available to EPA to regulate the nanotechnology (e.g., Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)). Other U.S. agencies also have the authority to regulate nanotechnology (e.g., Food and Drug Administration (FDA), Consumer Product Safety Commission, and Occupational Safety and Health Administration (OSHA)).

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