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EPA Pesticide Decision Unlikely To Set Precedent On Nanotech Rules
EPA's decision to regulate under pesticide law silver particles that are marketed as nanomaterials is likely to have limited precedential value in the agency's effort to regulate nanotechnology, although it could accelerate companies' growing decisions not to market nanomaterials because of public concern about possible health risks, observers say.
Environmentalists are already citing the agency's decision in a call to expand regulation of a slew of other products containing similar silver particles.
EPA earlier this month agreed to a request from the wastewater treatment industry to regulate as pesticides under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) silver particles released from a Samsung washing machine that are used to sanitize clothes in cold water without the use of toxic bleach.
According to Samsung, the technology directs electrical currents to “nano-shave” silver plates, which release silver ions that remove or kill 99.9 percent of bacteria and odor from laundered material. Samsung says the technology cuts energy costs by reducing the need for hot water and limits environmental harm by eliminating the need for bleach.
Samsung officials were unavailable for comment.
The agency's decision, which is expected to be published in the
Federal Register in the coming weeks, has drawn widespread attention as a
possible first-time EPA regulation of a nanomaterial. However, EPA and other
outside observers say recent press reports are misleading and that EPA is simply
regulating a pesticide that is being marketed as a nanomaterial, which is not a
broad precedent. “[The press reports] missed the point,” says one observer.
“[EPA] is not regulating it as nanotech.”
The observers say the precedent is limited because EPA is regulating the
material under FIFRA, while most observers believe the agency's future
regulation of nanomaterials will rely on the Toxic Substances Control Act (TSCA).
The American Bar Association earlier this year issued a series of papers that say EPA has significant authority under FIFRA to regulate pesticides that contain nanomaterials, but that most nanomaterials are likely to be regulated under TSCA. The papers argue TSCA is “front loaded” and “is essential to the concept of ‘cradle-to-grave' regulation of commercial activity,” which can complement other environmental statutes.
However, EPA is still struggling to determine how to regulate the materials in part because the unique properties of the materials have made it difficult for EPA and other agencies to determine their risks.
An EPA source also suggests the decision may have limited precedential value for future nanotechnology rules because the silver ions may be too big to be considered a nanomaterial.
While Congress has never set a statutory definition for nanomaterials, EPA generally relies on a standard set by the National Nanotechnology Initiative (NNI), a federal research and development program, which defines nanomaterials as items “of roughly 1 to 100 nanometers” in size.
Environmentalists, however, say the silver ions in this case range in size from
20-30 nanometers, meaning they fall within the size threshold set by NNI.
EPA officials did not return calls for comment for this article, but the agency
source said Nov. 20 that EPA had previously determined the silver particles were
“devices,” which required a less stringent regulatory review than if the
particles were determined to be pesticides.
A number of observers outside the agency are looking toward the Federal Register notice expected in the coming months to outline EPA's decision- making process over why it chose to regulate the silver particles as pesticides. One nanotechnology expert says the recent decision and the upcoming notice will likely not suggest how EPA will move forward with regulating nanomaterials in the future, but will offer a glimpse into how the agency may regulate silver particles under FIFRA “that just so happen to be at the nanoscale.”
EPA's decision to regulate the silver ions stems from a request from the National Association of Clean Water Agencies (NACWA), which represents wastewater treatment utilities. The group first raised concerns with the silver ions in a Feb. 14 letter to EPA asking the agency to regulate the disinfectant in washing machines under FIFRA.
Because silver is highly toxic to aquatic life at low concentrations and can bioaccumulate in some aquatic organisms, wastewater treatment utilities are required by EPA and states to monitor their effluent for such materials and comply with strict toxicity limit in their Clean Water Act discharge permits.
The letter to EPA notes that silver is registered as a pesticide in numerous products and should be registered as one in washing machines that use the silver for sterilization purposes. “To allow unrestricted use of a product that intentionally releases silver into the environment would be an irresponsible neglect of the principles of environmental sustainability that should strongly influence such decisions,” the letter says.
EPA responded to the requestMarch 10, saying that it would issue a decision
within weeks, but as of press time has not yet issued a response, a NACWA source
says.
Meanwhile, the Natural Resources Defense Council is pressuring EPA to broaden its regulation of “nanosilver” as a pesticide. “We are confident that once EPA has specifically examined nanosilver pursuant to the appropriate FIFRA risk assessment provisions, EPA will recognize the significant harm that this substance inflicts on the environment (particularly aquatic organisms) and will be compelled either to prohibit or significantly restrict its use,” the group says in a Nov. 22 letter to the agency.
The letter applauds EPA's decision to regulate the silver ions and calls for a broader assessment on the risks posed by the products. In addition, the letter notes that The Sharper Image, a specialty retailer, has used similar materials in consumer products such as clothing and food containers, but recently dropped statements on the materials' benefits. The Sharper Image did not return calls for comment. -- Colin Finan