EPA has scheduled a stakeholder meeting in Washington, D.C. on June 11 to discuss its proposed nanoscale materials rule under the Toxic Substances Control Act (TSCA).  The proposed rule would require manufacturers of nanoscale materials to provide EPA certain information, including health and safety-related information, regarding their nanoscale materials.  Public comments are due by July 6, 2015.  EPA’s proposed rule is significant in part because EPA intends to use the information gathered under the proposed rule to determine whether to take further action under TSCA regarding nanoscale substances.

EPA issued its proposed rule on April 6, 2015.  The rule would require entities that manufactured nanoscale substances during the three years prior to the rule to provide the required information to EPA within six months after the rule is finalized.  EPA also proposes a continuing requirement that manufacturers who begin to produce nanoscale materials after the date of the rule provide the same information to EPA at least 135 days before they commence manufacturing.  The information required to be reported to EPA includes chemical identity, production volume, methods of manufacture, exposure and release information, and health and safety information.

Information gathered through this proposed reporting rule will be used to “determine if any further action under TSCA,” such as additional information collection or regulation, is necessary.  EPA has requested comments on a number of aspects of the proposed rule, including regarding a potential future rule that would require regular, periodic reporting of the manufacture of nanoscale substances, and has invited participants at the upcoming stakeholder meeting to provide input on these issues.

The proposed rule recognizes that nanoscale materials have “a range of potentially beneficial” applications, such as “clean energy, pollution reduction and environmental cleanup,” but also states that nanomaterials can raise “questions” as to whether the material can “present increased hazards to humans and the environment.”  That a material is nanoscale is not “an indication of, or criterion for, hazard or exposure potential,” that the proposal does not make any finding about the potential risks of nanoscale material, and that all evaluations of nanomaterials “will be based on the specific nanoscale chemical substance’s own properties.”   Nevertheless, an underlying premise of EPA’s rulemaking efforts is that nanoscale substances may have significantly different characteristics from the same substances on a more conventional scale.

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Photo of Wendy L. Feng Wendy L. Feng

Wendy Feng currently represents companies at several state and federal Superfund sites in California.  She has litigated contribution actions under CERCLA, negotiated settlements, consent decrees and administrative orders with EPA and/or California’s Department of Toxic Substances Control, and engaged with enforcement authorities within…

Wendy Feng currently represents companies at several state and federal Superfund sites in California.  She has litigated contribution actions under CERCLA, negotiated settlements, consent decrees and administrative orders with EPA and/or California’s Department of Toxic Substances Control, and engaged with enforcement authorities within EPA and the California Air Resources Board on issues involving compliance with Clean Air Act and corresponding California regulations.  Wendy also litigates insurance matters on behalf of manufacturers seeking coverage for underlying environmental liabilities.  And she has acted as common counsel overseeing the defense of a toxic tort lawsuit on behalf of more than 70 companies identified as generators of hazardous substances.

Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.