July 2006 Symposium on Nanotechnology and the Environment: Applying RCRA and CERCLA Requirements to Nanoscale Materials and Wastes: Highlights, Question and Answer Session

July 13, 10:15 AM -12:00 PM

Applying RCRA and CERCLA Requirements to Nanoscale Materials and Wastes

Mr. Tracy D. Hester, Bracewell and Giuliani, LLP, Houston, Texas

Highlights

There are over 270 consumer products marketed as containing nanomaterials and a projected market of over $9 billion for carbon nanotubes by 2020. Some nano-containing products are not adequately labeled; truth in labeling will be an issue, especially for consumer products.

There is growing interest in management standards for nanomaterials: there have been several petitions to EPA and at least one call for a moratorium on the commercial use of nanomaterials.

Material Safety Data Sheets (MSDS) may not adequately identify hazards or protections needed for nanoparticles. For example, one MSDS drawn from a cursory Internet search describes a tin oxide nanopowder and states that "no data exist on the effects of fine particles" that would reflect a hazard, but it then advises that "care should be taken to avoid ingestion, inhalation, and skin or eye contact." The data sheet adds that the tin oxide is not considered to a hazardous product, but it then warns that there are no data on first aid response and urges readers to "seek medical advice immediately upon exposure." These conflicting statements reflect a growing need for consistent disclosure practices in MSDSs for nanoparticles.

How are nanoparticles to be disposed of? In many cases, the value of nanomaterials is high - for example, several nanoscale products use nanoscale precious metals such as gold, silver and platinum. Certain configurations of carbon nanotubes are extremely difficult to fabricate and are extremely valuable in small quantities. Generators of wastes containing these materials therefore can have a strong incentive to recapture nanoscale materials as recovered product rather than discard them in waste streams.

As the volume of nanoscale materials in commerce and consumer products grows, we will inevitably have to face situations where nanoscale materials have been spilled or released into the environment or workplace. For example, a facility operator who suffers a spilled drum of nanoscale material will immediately face several novel issues: how do you handle spills of nanomaterials that pose different properties from conventional versions of the same materials? How do you notify workers about such a release and assure their safety? How do you code waste as containing nanomaterials when the material does not appear on any hazardous materials lists? Given the current lack of readily available technology to detect many nanoscale materials in the environment, how do you measure/demonstrate the amount of nanoparticles in waste media to show that it is not hazardous? Ambiguities exist in CERCLA, EPCRA, and state laws on virtually all of these issues.

For example, nanoscale silver in a waste stream might appear in extracts in a TCLP test that would render the waste characteristically hazardous. It is unclear, however, whether the current design of the TCLP properly reflects the actual levels of nanoscale silver released from the waste when disposed into the environment. Changes to the mobility of a waste constituent when it is nanoscale in size may also affect the true degree of risk, if any, that it would pose upon improper co-disposal.

Environmental permitting for facilities that manage nanoscale materials will also need to be addressed. For example, a facility that manufactures a product that uses nanoscale materials may produce hazardous waste streams that contain nanomaterials. Many current facilities produce nanomaterials in small quantities, and as a result they may qualify for exemptions from full-scale hazardous waste permitting requirements for treatment, storage and disposal facilities. For example, small lots of nanoscale waste could easily fall under exemptions for satellite accumulation areas, conditionally exempt small quantity generators, or product reuse exemptions. As facilities grow in size and the volumes of nanoscale wastes increase, however, EPA will need to assess how to review and issue waste, water and air permits for these types of facilities. This path may require EPA to wrestle ultimately with novel questions about corrective action, land ban treatment standards, and innovative treatment technologies.

Nanoscale materials can be used to treat spills (nanoremediation), but data are still needed to demonstrate long-term effectiveness. Nanoscale iron has been used in several field tests for ground water remediation and costs 30 -50% less than pump-and-treat technology; it degrades without long-term groundwater impacts, and can be effective against TCE, PCBs, PCE. The intentional release of nanoscale iron into the environment, however, poses exactly the type of concerns which have led some scientific advisory groups and environmental organizations to urge application of the precautionary principle. Given the reluctance of some environmental agencies to use novel remediation technologies, it will take some outreach to get acceptance.

Thoughts for the future: This is a difficult challenge due to differences in activities and toxicities of nanoparticles. States will also be developing guidance and regulations.

Question-and-Answer Session

When asked how to distinguish nanotechnology as a legislative context, Mr. Hester added that Congress’ concern is not solely regulation, but also to strongly promote the economic benefits and opportunities of nanotechnology. This attitude may change, however, following a significant spill or injury caused by nanomaterials.