New Zealand Journal of Environmental Law
Last Updated: 30 January 2023
Regulating Ecotoxicity Attributed to Nanomaterial Waste
The increasing numbers of products containing manufactured nano- materials (MNMs) are generating nanoparticle waste, some of which is toxic to the environment. Given the potential market of nanoproducts and the growing evidence of risks, it is important to have adequate regulation of nanowaste to prevent adverse environmental and public health outcomes. This article examines the current scientific data on ecotoxicity attributed to nanotechnology and nanoproducts. The suitability of New Zealand’s regulation of nanoecotoxicity is evaluated. Specifically, I assess the adequacy of the Waste Minimisation Act 2008 (WMA) for regulating potential environmental risks associated with nanomaterials. I argue that there will be challenges in applying the WMA to MNMs. Current deficiencies in knowledge about nanoecotoxicity mean that there is not adequate information to assess against the statutory thresholds. The absence of documented cases of adverse environmental effects directly attributable to MNMs may mean that nanoproducts may not be singled out as products likely to harm the environment when disposed of as waste. No jurisdiction has applied its media-specific environmental laws to nanowaste. This article explores how such law in New Zealand could be applied to nanowaste and the novel challenges posed by nanoproducts.
*Dr Jennifer Moore is a Research Fellow, Centre for Law and Policy in Emerging Technologies, Faculty of Law, University of Otago (Wellington), with training in law and health (PhD in Med/ Public Health). Jennifer coauthored a New Zealand governmentcommissioned report on the ability of New Zealand’s regulatory systems to manage the possible impacts of manufactured nanomaterials. She is also a barrister and solicitor of the New Zealand High Court.
I wish to thank Natasha Tod and Sue Ruston (Ministry for the Environment) for their expert advice about how nanoproducts may trigger the Waste Minimisation Act 2008. I am grateful to Ceri Warnock for her invaluable commentary on my analysis of the Waste Minimisation Act 2008. Thanks also to Dr David Robinson and Sue Robinson for their insightful analysis of earlier drafts.
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The management and minimisation of waste in New Zealand is regulated by the Waste Minimisation Act 2008 (WMA). Only “waste”, as defined by the WMA, and hazardous waste1 are discussed in this article because the production and use of nanotechnology and its products (hereafter “nanoproducts”) primarily generates these types of waste (hereafter “nanowaste”). There are powers in the WMA to prohibit the disposal of certain types of waste. Can these powers be invoked to prohibit the disposal of nanowaste? This article investigates the adequacy of New Zealand’s regulation of nanowaste and whether we can effectively regulate ecotoxicity attributed to nanowaste. I argue that there will be challenges in applying the WMA to manufactured nanomaterials (MNMs). Although there are potential health and environmental risks associated with MNMs, to date there have been no documented cases of adverse environmental effects directly attributable to MNMs. The current lack of data on exposure and ecotoxicological properties of some MNMs means that products containing MNMs may not be singled out as products likely to harm the environment when disposed of as waste.
Manufactured nanomaterials can be categorised as natural or engineered/ manufactured. Naturally occurring MNMs include particles in our atmosphere such as volcanic ash. Engineered MNMs are manufactured to have regular shapes which may contribute to their toxicity. This article is concerned with engineered/manufactured MNMs.
Manufactured nanomaterials are generally sized between 1 to 100 nano metres.2 MNMs have different physical, chemical and biological properties from their equivalent macro counterparts. Proponents claim that MNMs and nanotechnology offer the potential of environmental remediation and energy technologies that are environmentally sound and efficient. For example, MNMs may provide a method for detection and treatment of trace pollutants in the environment.3 Despite the potential promise of MNMs, there is concern that the novel and unique properties of some nanoscale chemical substances will bring unforeseen human and environmental health and safety risks.4
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Manufactured nanomaterials are used in a broad range of consumer products such as cosmetics, sunscreens, food packaging, paints, textiles, medicines and herbal remedies.5 There are over one thousand manufacturer identified nanoproducts currently on the market.6 The increasing numbers of products containing nanomaterials are generating nanoparticle waste, some of which may be toxic to the environment. An estimated US$2.6 trillion worth of manufactured goods are expected to incorporate MNMs by 2014.7 Given the potential market for nanoproducts and the growing evidence that “certain applications of nanotechnology will present risks unlike any we have encountered before”,8 it is important to have adequate regulation of nano products and nanowaste in order to prevent harm to the environment and adverse public health ramifications.
Manufactured nanomaterials and nanoproducts are being disposed of on land, emitted into the air and discharged into the water, with limited understanding of the possible effects on the environment. Most jurisdictions including the United States (US), Australia, and the European Union (EU) are relying on laws that apply to chemical substances, cosmetics and food as the main mechanisms for regulating MNMs and nanoproducts. This approach has been adopted in order to attempt to address the potential risks posed by nanoscale chemicals before they can be released into the water and air, disposed of on land, or used in consumer products.
However, mediabased environmental laws can also be used to regulate nanowaste. Such laws typically focus on minimising, preventing and/or regulating the extent of releases of pollutants into the ecosystem during manufacture, use and/or disposal. Mediaspecific environmental laws provide “useful tools” for addressing the health and safety risks to humans and the environment posed by MNMs at all stages of their life cycles.9
Expert Judgment” (2007) 9 Journal of Nanoparticle Research 137; Andrew Maynard “Nanotechnology: The Next Big Thing or Much Ado About Nothing?” (2007) 51 Annals of Occupational Hygiene 1; Andrew Maynard and others “Safe Handling of Nanotechnology” (2006) 444 Nature 267; G Oberdorster and others “Nanotoxicology: An Emerging Discipline Evolving from Study of Ultrafine Particles” (2005) 113 Environmental Health Perspectives 823; Ian Illuminato and Georgia Miller Nanotechnology, Climate and Energy: Over-heated Promises and Hot Air? (Friends of the Earth, US and Australia, 2010).
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Despite the potential of such laws, most countries have not fully assessed the use of mediabased environmental laws to regulate nanowaste.10 No jurisdiction has applied its mediabased environmental laws to nanoproducts or nanowaste; consequently no regulators have taken enforcement action, issued permits or written policy which states that nanowaste or nanoproducts are covered by regulations.11 This article aims to examine the application of one New Zealand mediabased environmental law (the WMA) to nanoproducts and nanowaste.
Reviews initiated by governments in several jurisdictions (US,12 United Kingdom,13 EU,14 Australia15 and New Zealand16) identified legislative gaps in the coverage of nanotechnology and its products. Many of these reviews recommend changes to the existing legislation to ensure that the instruments adequately regulate nanoproducts. Similarly, other commentators have reviewed the suitability of the legislative status quo and called for amendments.17
In contrast to the proponents of the legislative status quo,18 I submit that the inadequacy of the current regulatory regimes for safeguarding the environment
Maynard (eds) International Handbook on Regulating Nanotechnologies (Edward Elgar, Cheltenham, 2010) at 343.
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has been demonstrated. Existing regulations will “function only as a filter — allowing particles smaller than the relevant pore size to escape through the regulatory process”.19 This often occurs because some legislative triggers fail to fire when applied to nanoproducts and nanowaste. The existing legislation was drafted before nanoproducts entered the market and it is not designed to deal with their novelty.
2. NANOMATERIALS AND NANOWASTE
2.1 Nanotechnology and Nanomaterials
Nanotechnology has been touted as the “next industrial revolution”.20 The definition of nanotechnology is contested,21 but most commentators agree that “nanotechnologies” refers to a multidisciplinary and heterogeneous field involving the manipulation of matter at the atomic and molecular scales. Nanotechnology allows manipulation of properties at the nanoscale and it can have many applications in, for example, energy use and storage, medicine, food and electronics. Proponents claim that nanotechnology has the potential to improve water treatment, energy storage and use, environmental remediation and energyefficient products.22 Recent research suggests that it may have potential value in renewable energy and energy production.23
Problems Require NanoSpecific Solutions?” (2010) IEEE International Symposium on Technology and Society 68.
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One nanometre is one billionth of a metre. Scientists have been working with nanoscale materials for centuries, but the relatively recent development of special microscopes,24 capable of displaying tiny particles such as atoms, has improved researchers’ ability to work with these tiny materials.
At these very small sizes, engineered nanomaterials have greater surface area to volume ratios than at larger sizes. The considerably larger surface area per unit mass increases their potentials for biopersistence and reactivity. The nano features of these materials include not only size, but also other parameters such as shape, surface chemistry, composition, solubility and aggregation.
The ETC Group estimates that 44 elements in the periodic table are commercially available in nano form.25 Nanoscale materials exhibit different properties from their bulk counterparts. For instance, gold as a bulk material is nontoxic, but gold particles below 2 nanometres have shown unexpectedly high toxicity in a variety of cell lines.26 Examples of MNMs include quantum dots, fullerenes (C60 or Buckyballs), carbon nanotubes, polymers and metal oxides.
Those examples of MNMs are first generation nanoproducts. This genera
tion of nanoproducts are “passive nanostructures, illustrated by nanostructured coatings, dispersion of nanoparticles, and bulk materials — nanostructured metals, polymers and ceramics”.27 Next generations of nanoproducts will be built and active at the atomic or molecular level to interact with the environment. These materials may change in response to electric fields, light or in the presence of specific molecules. The next generation of MNMs will create further regulatory challenges because the WMA is not designed to deal with the novel properties of these new materials, nor are the standard methodologies adequate for testing nanoecotoxicity.
Not all MNMs are the same, nor are they all potentially harmful to human and environmental health and safety. There is growing evidence that the novel properties of MNMs will bring unforeseen human and environmental health and
Climate and Energy: Over-heated Promises and Hot Air? (Friends of the Earth, US and Australia, 2010) at 11.
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safety risks.28 Research on carbon nanotubes, for example, suggests that their size and fibre shape may lead to health effects similar to asbestos.29 However, the lack of data on exposure pathways of certain MNMs, combined with uncertainty about the suitability of some existing testing methods, are widely recognised as barriers to the effective implementation of regulations.30
Detailed discussions about the health risks, toxicity31 and exposure routes32 of MNMs have been conducted in the academic literature. This literature, however, has primarily focused on risks to human health and safety. The potential environmental impacts of nanoproducts and nanowaste are less well understood.
The relative dearth of information about nanoecotoxicity, the increasing numbers of nanoproducts, and the myriad ways that MNMs can be released into
— part 2: Uncertainties and Recommendations for the Future” (2006) 2 Wisconsin Medical Journal 18; J D’Silva and G van Calster “Taking Temperature — A Review of European Union Regulation in Nanomedicine” (2009) 16 European Journal of Health Law 249; Andrew Maynard Nanotechnology: A Research Strategy for Addressing Risk (Woodrow Wilson International Center for Scholars, Washington DC, 2006); A Maynard and ED Kuempel “Airborne Nanostructured Particles and Occupational Health” (2005) 7 Journal of Nanoparticle Research 587.
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the environment have led commentators to question whether enough is being done to address the environmental risks associated with nanotechnology.33 I will, therefore, now discuss MNMs in the environment and their ecotoxicity.
The commercialisation of nanoproducts has resulted in the appearance of MNMs in our soil, plants, microorganisms, wildlife and fish. However, the behaviour of MNMs in the environment34 and their ecotoxicology35 is relatively less often studied. One of the challenges for scientists wishing to conduct such studies is the scarcity of standardised test materials for measuring nanoecotoxicity.36 For MNMs to present risks to the environment, there must be both exposure and a hazard that results from exposure. MNMs can be released into the environment during manufacturing processes, delivery, use and disposal. Accidental release during manufacture or transportation is also possible. Humans can be exposed to MNMs by consuming plants or animals that have accumulated MNMs or through exposure to the water, air or soil. One exposure modelling study predicts that up to 50 per cent of MNMs used in paints and up to 95 per cent of MNMs used in cleaning agents, cosmetics and coatings may end up in sewage treatment plants.37 It is unlikely that waste treatment plants are sufficiently equipped to remove MNMs before the discharge of effluent.38
Studies suggest that the ecological burden of nanoscale materials manu facturing is greater than that of equivalent macroscale materials.39 Although
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used in smaller quantities, the toxic burden of MNMs is predicted to be more than macroscale materials, by mass.40
Some nanotechnologies use materials that are known to be toxic, presenting risks to ecosystems. For example, nanodots (or quantum dots) use heavy metals such as cadmium, lead and selenium which are toxic.41 Early studies suggest that quantum dots could bioaccumulate and be transferred along food chains, and that coatings could eventually degrade, exposing their toxic cores.42 A recent Friends of the Earth report found that “many nanomaterials used in the nano solar sector incorporate heavy metals and pose inherent toxicity”.43 Manufactured nanomaterials may change the bioavailability and transport of organic chemical pollutants and deliver them to sites in the human body and environment to which they would not typically have access.44 The toxicity and bioaccumulation of nanoscale heavy metals is recognised as a significant environmental challenge.45
Most research on the fate and transport of MNMs in terrestrial ecosystems concludes that increased entry into the soil of manufactured MNMs raises concern about the potential adverse effects on environmental, animal and human health.46 MNMs can absorb both organic (herbicides) and inorganic pollutants (heavy metals) because of their high surface area. Silver MNMs (used frequently in commercial products for their antibacterial properties) may endanger microorganisms in the air and soil which are necessary for ecological health. Ecotoxicologists predict cumulative toxic effects due to the aggregation of MNMs.47
There is also evidence suggesting potential harm to aquatic life, algae and plants. Largemouth bass exposed to carbon fullerenes, a type of MNM, suffered oxidative stress in the brain.48 A literature review on the toxicity to aquatic
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invertebrates concluded that chronic toxicity and behavioural changes had been demonstrated at concentrations in the high micrograms per litre range.49 Preliminary data suggest that some MNMs could adversely affect algae and plants and impair the function of fungi.50
Manufactured nanomaterials may persist in the environment after they have served their purpose and after the nanoproducts in which they were embedded have degraded.51 Moreover, MNMs are too small to be removed from the environment with any currently available filtering technologies.52 Research on the ecological impact and movement of MNMs on whole terrestrial ecosystems is lacking.53 There are only a few papers describing the transport of MNMs in soil.54 More research on nanoecotoxicity is needed. Currently, the funding for nanoecotoxicity and health risks is lacking relative to the nanotechnology research and development budget.55
Mediaspecific environmental laws provide regulatory agencies with regulations that, in theory, can be used to address the environmental risks posed at various points in the life cycle of MNMs. Organisations such as the Royal Society in England and the US Environmental Law Institute have emphasised the need to take a life cycle approach to the regulation of MNMs.56 This approach covers MNMs from their production and use through to their disposal. A recent US Environmental Protection Agency report adopted a life cycle approach to its review of nanoscale titanium dioxide in water treatment and sunscreen.57 This
the Brain of Juvenile Largemouth Bass” (2004) 112 Environmental Health Perspective 1058.
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report explores how products containing nanoscale titanium dioxide will be disposed of and the potential environmental impact.58 Nanoscale titanium dioxide sunscreen containers will likely be primarily disposed of as solid waste and end up in landfills or incinerators.59 The report concludes with several outstanding questions about the disposal of nanoproducts as waste. For example, if nanoTiO2 becomes produced at higher volumes, will packaging and shipping of nanoscale titanium dioxide change, and “how would such change affect the potential release and exposure during transport, storage, and disposal”?60
Waste containing MNMs is generated at different stages of the life cycle from byproducts created during manufacture and purification processes to nanoproducts becoming waste at the end of their useful lives. NMs manu facturing produces a “new type of waste”: nanowaste.61 There are numerous ways that waste can contain MNMs. The rapidly developing nanotechnologies industry is increasing the amount of nanowaste generated. The manufacture of some types of NMs is energy intensive and itself highly polluting.62 For example, only 10 per cent of manufactured fullerenes were usable and the rest were sent as waste to landfill.63 Nanoproducts and construction materials have the potential to release significant amounts of MNMs into the waterways as waste.64 Titanium dioxide MNMs, shed from paint on building exteriors, have been found in nearby soil beds, streams and in urban runoff after a rainstorm.65 Products containing MNMs end up in municipal solid waste or landfill.66 Little is known about the longterm behavior of MNMs in landfill. Release depends on the MNMs’ “mobility as well as on the degradability of the host material for fixed particles”.67 When nanoproducts are incinerated, the thermal
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properties of MNMs determine their fate.68 For example, C60 behaves like gran ite in a combustion chamber, while carbon nanotubes (like diamonds) are stable until very high temperatures.69
Unbound MNMs may be released from disposed or residue cosmetics, paints or medicines that contain these materials. Nanosilver (used for its antibacterial properties in clothes, cosmetics, food containers) can end up as silver sulphide NMs in wastewater treatment plants.70 It is unlikely that MNMs detach from structural components. For example, it is unlikely that the nanosilver contained in the inner elements of Samsung fridges71 will detach from this location. It is expected, however, that oxidised nanosilver released in the Samsung nanosilver washing machines72 will eventually reach the communal wastewater.73 The impact that wastewater treatment has on MNMs and, conversely, the impact that MNMs have on wastewater treatment is largely unknown.74 Further information is needed from companies about the level and type of MNMs emitted in order to estimate the amount of nanowaste that will be generated in the future.
3. WASTE REGULATION IN NEW ZEALAND
3.1 Regulation of Waste including Nanowaste in New Zealand
New Zealand’s primary agency for protecting the environment is the Ministry for the Environment (MfE). The 2002 New Zealand Waste Strategy’s vision of “zero waste and a sustainable New Zealand”75 is the background against which the Waste Minimisation Act 2008 (WMA) was passed.76 The WMA was passed in September 2008. The WMA provides for waste management and
European Legislation on the Management of Risks Related to Nanomaterials” (2007) 48 Regulatory Toxicology and Pharmacology 171 at 178.
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minimisation. The collection and disposal of waste in urban areas is tradition ally a function and service of territorial authorities.77 Territorial authorities are compelled to have regard to the New Zealand Waste Strategy.78 The 2002 New Zealand Waste Strategy was replaced by the New Zealand Waste Strategy: Reducing Harm, Improving Efficiency in October 2010.79 Waste management and minimisation plans are to have regard to the New Zealand Waste Strategy.80 Many of the OECD’s recommendations in its Environmental Performance Review of New Zealand have been incorporated in the WMA.81
The Resource Management Act 1991 (RMA) and the Local Government Act 1974 (LGA) were the primary methods of dealing with solid waste management before the enactment of the WMA.82 The RMA deals with the environmental effects of activities such as solid waste disposal. The Health Act 1956 addresses the effects of solid waste where this creates a nuisance or any conditions likely to be injurious to health or offensive.83 The WMA is the first New Zealand statute that specifically regulates waste.84
The WMA brings territorial authorities’ responsibilities for waste manage ment into one statute. However, there are also provisions relating to waste in the RMA and the Hazardous Substances and New Organisms Act 1996 (HSNO Act). The RMA deals with the effects of activities such as waste disposal on the environment.
The Basel, Stockholm and Waigani conventions are New Zealand’s inter national obligations relating to the management of hazardous wastes. Each one is implemented through domestic legislation and policy that is not covered in this article and could be useful instruments to manage MNMs, particularly if MNM waste and products becomes a higher priority internationally. There may be a regulatory gap if these international conventions do not adequately address the environmental risks posed by MNMs.
Nanowaste will be managed by New Zealand regulatory agencies in a generic way because there are no specific references to MNMs in the WMA. There is currently no national policy statement or national environment standard covering NM disposal management.85
78 WMA, s 42(c).
79 Ministry for the Environment The New Zealand Waste Strategy: Reducing Harm, Improving Efficiency (Ministry for the Environment, Wellington, 2010) <www.mfe.govt.nz>.
80 WMA, s 42(c).
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3.2 Application of Waste Minimisation Act 2008 to Nanoproducts and Nanowaste
The purpose of the WMA is to encourage waste minimisation and a decrease in waste disposal in order to protect the environment from harm and to provide environmental, social, economic, and cultural benefits.86 The WMA continues the sustainability objectives set out in the RMA and LGA. The objective to protect the environment from harm has a link to the purpose of the RMA.87 The WMA is not underpinned by the precautionary principle to the same extent as the RMA. However, some of the tools in the WMA (such as the regulation making powers) could be applied in a precautionary manner.88
One of the main triggers of the WMA is the disposal of waste. Disposal means the final (or more than shortterm) deposit of waste into or onto land set apart for that purpose, or the incineration of waste.89 Disposal facility means a facility, including a landfill, at which waste is disposed of; and at which the waste disposed of includes household waste; and that operates, at least in part, as a business to dispose of waste; and any other facility or class of facility at which waste is disposed of that is prescribed as a disposal facility.90 The disposal of waste will trigger the WMA, whether or not some of the constituents of the waste are MNMs or produced using nanotechnology.
Section 5(1) defines “waste minimisation” as the reduction of waste and the reuse, recycling, and recovery of waste and diverted material. “Waste” is defined in s 5(1) as any thing disposed of or discarded and includes a type of waste that is defined by its composition or source (for example, organic waste, electronic waste, or construction and demolition waste), and includes any component or element of diverted material, if the component or element is disposed of or discarded. What constitutes waste is a contentious issue.91 There are different types of waste such as solid waste, organic waste, and hazardous waste. Hazardous wastes include substances with properties that are explosive, flammable, able to oxidise, or are corrosive, toxic or ecotoxic.92 The US, EU and Australian reviews of the application of hazardous waste regulations to
disposal management, or whether the WMA (with revision) could provide appropriate national consistency.
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MNMs conclude that many MNMs will be caught by the hazardous waste provisions.93 In New Zealand, if a NM is considered a hazardous substance, then disposal of that substance into the environment as waste will be regulated by the disposal provision (s 2) in the HSNO Act. However, the New Zealand report on the regulation of MNMs suggests that not all MNMs will invariably be caught by the statutory definition of hazardous substances.94
Pursuant to the WMA definition of “waste”, waste associated with many MNMs falls within the scope of this Act. For example, the definition will include waste from the preparation and production of products containing MNMs. Such waste will fall within the scope of “waste” under the WMA by virtue of being “waste”, not as a consequence of incorporating MNMs. The trigger for the application of the Act will not be whether or not the waste contains MNMs. Rather, “waste” will be defined as such, whether or not some of the constituents of the waste are MNMs or produced using nanotechnology. While some products containing MNMs will be considered “waste”, it is doubtful whether this control will be adequate for classifying risks associated with nanoproducts and nanowaste. The WMA does not include any provisions specifically intended to deal with nanoproducts or nanowaste. Equivalent mediaspecific environmental laws in other jurisdictions do not contain provisions for nanowaste. For example, the US Resource Conservation and Recovery Act (which regulates the disposal of solid and hazardous waste), the EU Waste Directive (Directive 2008/98/EC), and the Australian Hazardous Waste (Regulation of Exports and Imports) Act 1989 do not include specific
Nanowaste will not trigger special WMA oversight. Although it may be difficult for regulators and waste managers to distinguish nanowaste and other waste, not distinguishing nanowaste from standard/macro waste could be problematic. MNMs do not behave in the same way as normal waste; therefore, standard tests may not be suitable to predict the fate of nanoparticles disposed of in landfills.95 The WMA is not designed to deal with the novel challenges and unique risks posed by nanoscale materials.
Hazardous Substances (Disposal) Regulations 2001 issued pursuant to s 76(1)(c) of the HSNO Act.
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Although there is research on nanoecotoxicity, such projects are few compared with the research on risks to human health posed by MNMs. Knowledge gaps persist. Arguably, therefore, the main barrier to using mediaspecific environmental laws to address the environmental risks presented by MNMs is the limited scientific data available. The key scientific uncertainties concern: the classification of MNMs, the identification of hazards and exposure levels, and environmental effects.
This knowledge is typically required for statutory thresholds to be triggered and for environmental laws to function effectively. Commentators highlight that “scientific uncertainty is undermining the effectiveness of existing regulatory frameworks”96 and “regulatory gaps ... emerge when there is insufficient scientific evidence or reliable data”.97 These knowledge deficiencies mean that although MNMs are widely used, regulatory agencies face challenges in regulating risk. Regulatory agencies lack the tools to monitor many MNMs. These problems are not unique to New Zealand. For example, the US equivalent Resource Conservation and Recovery Act 1976 requires regulators to determine whether nanowaste has the characteristics of hazardous waste. However, the procedure:98
may not be appropriate for nanowaste and may need to be revised to account for the different ways that nanoscale materials react in the environment compared with the bulk materials that were the basis of the current test.
There will be challenges in applying the Act to MNMs. Although research demonstrates that there are potential environmental risks associated with MNMs, to date there have been no documented cases of adverse environmental effects directly attributable to MNMs. The current lack of data on exposure and ecotoxicological properties of some MNMs means that products containing MNMs may not be singled out as products likely to harm the environment when disposed of as waste.
It is obviously important that regulators remain apprised of the most recent reliable information with regard to the possible hazards presented by MNMs; indeed, the authors of New Zealand’s report on regulating MNMs were reassured that many of the regulators had already acknowledged this
Nanotechnologies (Woodrow Wilson International Center for Scholars, Washington DC, 2007).
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obligation.99 More challenging, however, is the question of how to proceed in situations of uncertainty. With regard to burden of proof, should regulators assume that a nanoform of an existing product is safe until reliable evidence shows otherwise? Or should they operate the contrary assumption: that a new product is unsafe until the contrary can be demonstrated?
The WMA is not underpinned by the precautionary principle to the same extent as the RMA. However, some of the tools in the WMA (such as the regulationmaking powers) could be applied in a precautionary manner. Also, the HSNO Act, which regulates, inter alia, hazardous waste (including hazardous nanowaste), adopts a “precautionary approach”, which emphasises “the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects”.100 However, a range of opinions can be found as to how “caution” is to be understood. The Environmental Risk Management Authority’s (ERMA) view is that “while the HSNO Act provides for decisions to be precautionary where there is scientific or technical uncertainty ... it does not empower ERMA to act when there are suspicions but little or no evidence”. This understanding of the precautionary remit is likely to be controversial, not least because it may be thought that many of the situations in which there is “scientific or technical uncertainty” will arise precisely because “there are suspicions but little or no evidence”.
This is far from a straightforward matter. As one commentator on the regulation of emerging technologies has said, “there is scope for endless argument about just how strong the evidence needs to be before precaution kicks in”.101 On one view, it seems inevitable that, when dealing with MNMs about which the evidence of hazard is still emerging, particular MNMs must either be presumed to be safe or unsafe. It is unclear what an approach avoiding either of those presumptions might look like, even in theory. However, it is also possible that more nuanced options may exist within those broad presumptions. For example, an approach could perhaps be adapted from criminal law, whereby anyone objecting to an MNM would bear an evidentiary burden of demonstrating some risk of harm, but having passed that threshold, the burden of proof would then transfer to the manufacturer to prove that the risk was unfounded or adequately managed. This could potentially avoid the possibility of a MNM being banned because of a mere suggestion of hazard, but would perhaps avoid the danger of regulatory paralysis until some harm has actually occurred.
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The WMA does not provide the MfE with regulatory powers relating to the general approval of products (including nanoproducts) prior to their importation, sale or use within New Zealand. However, Part 2 of the WMA establishes a framework for product stewardship. Product stewardship enables the “best means of minimising the environmental risks of a product to be considered at the most appropriate stage of its lifecycle”.102 Section 8 encourages (and, in certain circumstances, requires) people and organisations (including producers, brand owners, importers, retailers, consumers) to take responsibility for the environmental effects from the beginning to the end of the production process. In s 5(1) “producer” is defined broadly to mean a person who —
(a) manufactures a product and sells it in New Zealand under the person’s own brand; or
(b) is the owner or licence holder of a trademark under which a product is sold in New Zealand; or
(c) imports a product for sale in New Zealand; or
(d) manufactures or imports a product for use in trade by the person or the person’s agent
A producer of products containing MNMs would be considered a producer under the Act by virtue of falling within the s 5(1) definition and not as a result of having products containing MNMs. Therefore, nanoproducts would not be specifically singled out for regulatory assessment.
“Product” is defined in s 5(1) to include packaging and a class of products such as fridges and freezers. Manufactured products, whether or not they contain MNMs, will be caught by this definition.
If that product is declared a priority product,103 a product stewardship scheme must be developed for the product as soon as practicable and that scheme must be accredited under the WMA.104 Under ss 5(1) and 9(1) a product is a priority product if it is so declared by the Minister for the Environment. The Minister can only declare a priority product when s/he is satisfied that:
102 Ministry for the Environment “Product Stewardship” (2010) <www.mfe.govt.nz>. 103 WMA, ss 9 and 10.
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The Minister for the Environment has not yet declared any priority prod ucts. Accordingly, no products containing MNMs have been declared priority products. The MfE’s 2009 discussion document Waste Minimisation in New Zealand sought feedback on products that should be the initial focus for developing product stewardship schemes such as agricultural chemicals, used oil and refrigerant gases. Some of these products could contain MNMs and may be declared priority products by virtue of their status as potential priority products, whether or not they contain MNMs.
Current deficiencies in knowledge about MNMs and their ecotoxicity mean that there may not yet be adequate information to assess against the thresholds in s 9(2). These deficiencies in knowledge mean that it is currently difficult to show that the waste from products containing MNMs will cause “significant environmental harm”. Recent research on silver sulphide nanoparticles in sewer sludge suggests that there is sufficient use of products which incorporate silver MNMs to generate silver sulphide nanoparticles in wastewater treatment plants.105 However, despite the use of products containing silver MNMs, there are scientific knowledge deficiencies; more evidence is required to establish how silver MNMs move from products into the environment and how the environment will be impacted.
Before the Minister makes a declaration of priority products, s/he must provide the public with the opportunity to comment on the proposal.106 The Minister must obtain and consider advice from the Waste Advisory Board and also consider any public concerns about environmental harm associated with a product.107 There is no appeal process for the declaration of a priority product. However, the decision is open to judicial review.108
There is also provision for the development and accreditation of voluntary product stewardship schemes.109 A number of voluntary product stewardship schemes already exist: whiteware, refrigerants, cell phones, and paint. MNMs are used in some paints and whiteware such as refrigerators. The voluntary schemes can seek to be accredited for a nonpriority product. These schemes could be accredited for nonpriority products, whether or not the products contain MNMs.
105 Bojeong Kim and others “Discovery and Characterization of Silver Sulfide Nanoparticles in Final Sewage Sludge Products” (2010) 44 Environmental Science and Technology 7509.
106 WMA, s 9(3)(c).
107 WMA, s 9(3).
108 I am grateful to Ceri Warnock for raising this issue.
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Also, the Act does provide the GovernorGeneral with the power to make regulations to prohibit the sale of a priority product,110 and the power to control or prohibit the disposal or sale of products or waste whether or not priority products.111 As already outlined, the thresholds in s 9(2) must be met before a priority product can be declared and the statutory thresholds may create barriers to declaring some nanoproducts to be priority products under the Act.
Under the WMA, the Ministry for the Environment does not undertake safety assessments. However, safety assessments for hazardous substances are conducted by ERMA under the HSNO Act. The current standard safety assessment methodologies may not be appropriate for assessing MNMs partly because MNMs when disposed of as waste do not behave in the same way as standard waste.
Territorial authorities are required to undertake waste assessments for their districts before considering their waste management and minimisation plans.112 Territorial authorities must indicate how their proposals will, inter alia, ensure that public health will be adequately protected.113 The enquiry into how public health will be protected will occur irrespective of MNMs. “It is unlikely that issues to do with nanotechnology would be specifically addressed in [waste] assessments.”114 The possibility that MNMs may be overlooked is troubling because of the potential for nanowaste to be ecotoxic.
Although the WMA does not have specific environmental safety assessment provisions, one of the objectives in the Act is to protect the environment from harm.115 This objective is linked to the purpose of the RMA.116 Section 5 of the RMA integrates social, economic, cultural, and health and safety considerations alongside the sustainable management of natural and physical resources. Assessments of environmental effects are required under the RMA.117 The definition of environment in the WMA has the same meaning as in s 2(1) of the RMA.118 The RMA’s definition of environment includes people and communities. The objective of protecting the environment from harm could be
110 WMA, s 22(1)(a).
111 WMA, s 23(1)(a).
112 WMA, s 50.
113 WMA, s 51(1)(f )(i).
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invoked as a rationale for specifically targeting nanowaste due to its potential for ecotoxicity.
The WMA includes monitoring, compliance, and enforcement provisions in relation to managing environmental harm. However, few of the enforcement and auditing powers are likely to be applicable to products containing MNMs.119 The most relevant regulatory instrument which may, theoretically, cover products containing MNMs is s 23(1). Pursuant to s 23, the GovernorGeneral
may make regulations for:
Section 23(2) outlines when the Minister must not make regulations under s 23(1). Section 23(1)(b) concerns controlling or prohibiting the manufacture or sale of products that contain specified materials. This section could potentially cover products with MNMs.123 Regulations could be made for the labelling of products whether or not those products contain MNMs.
Under s 20(a), for example, the Secretary for the Environment may monitor the performance of accredited product stewardship schemes and recover the costs of doing so from the scheme manager. However, as already outlined, products (whether or not they contain MNMs) would have to be declared a priority product, therefore requiring a product stewardship scheme, or have an industryled nonpriority product stewardship scheme.
The Secretary for the Environment may request the New Zealand Customs Service to provide any information that Customs holds about the importers and importation of priority products.124 This statutory request could be made for priority products whether or not they contain MNMs.
119 Email from the Ministry for the Environment to Jennifer Moore regarding waste assess ments and the WMA (1 June 2010).
120 WMA, s 23(1)(a).
121 WMA, s 23(1)(b).
122 WMA, s 23(1)(f ).
New Zealand Journal of Environmental Law
Under s 48 the GovernorGeneral may give directions to territorial authorities to include, omit, or amend one or more provisions in their waste management and minimisation plans. Such directions may be made whether or not the territorial authorities’ plans contain specific provisions on the disposal of products containing MNMs.
The commercialisation of nanoproducts is creating regulatory challenges in many jurisdictions. Compared to conventional/bulk/macroscale materials, MNMs pose new challenges for scientists. These challenges are particularly troublesome for nanowaste, because of its difference from other waste, and for MNMs due to their novelty and unpredictable behaviour in the environment. Will regulation designed to deal with waste management work for nanoproducts and nanowaste?
This article has explored whether and how the WMA could work to regulate nanoproducts and nanowaste. My analysis is primarily theoretical because no jurisdiction, including that of New Zealand, has yet applied its mediaspecific environmental laws to nanowaste or nanoproducts. Theoretically, s 23(1)(b) (which concerns controlling or prohibiting the manufacture or sale of products that contain specified materials) could potentially cover products with MNMs. I have argued that the WMA can provide mechanisms for addressing the environmental risks posed by MNMs, but the Act’s utility will be limited. It is unlikely that the monitoring techniques under the WMA are adequate for detecting MNMs that are released into the environment. This challenge is not unique to New Zealand. Also, the limited state of current knowledge about the risks posed by some MNMs presents a number of obstacles to any attempt to regulate in this area. There is little evidence of actual harm directly attributable to MNMs and/or nanowaste, and uncertainty about the behaviour of MNMs in the environment or in living organisms makes it difficult to accurately assess the adverse effects and the nature of those effects. The current knowledge deficiencies may preclude nanoproducts from meeting statutory thresholds of “significant environmental harm”. Such regulatory triggers, which require the identification of a product as presenting a risk, may fail to work for
The Royal Society recognises that the risk of release of potentially toxic MNMs is the highest during disposal, destruction or recycling.125 Despite this recognition, and the commercialisation of nanoproducts and the generation of
125 The Royal Society and The Royal Academy of Engineering Nanoscience and Nano- technologies: Opportunities and Uncertainties (2004) at 74.
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nanowaste, relatively little attention has been paid to the environmental issues associated with the disposal of nanoproducts and nanowaste. Furthermore, mediaspecific environmental laws are rarely being used to regulate MNMs due to the following key barriers to effective use that I have outlined in this article:
Therefore, it is not necessarily that the WMA will not apply to nanoproducts and nanowaste, but that the absence of the key data hinders the law from working effectively. However, there are regulatory gaps and challenges in applying the WMA and HSNO Act to nanowaste. For example, regulators will need to determine how the precautionary principle should apply to nanowaste and nanoproducts.
The regulatory response must be balanced against the broader socio economic implications, and potential benefits for environmental remediation, when faced with scientific uncertainties. However, the longterm consequences of the weaknesses in the existing regulatory approach are significant for nanowaste from ecotoxicological and public health perspectives. The arrival of nanoproducts, and the generation of nanowaste, presents an opportunity to add mediaspecific environmental laws to the nanotechnology governance toolkit and to address the novel challenges presented by MNMs.