Implementing successful voluntary nanotechnology environmental programs appears to be a challenge
(Nanowerk Spotlight) Governments always struggle when faced with regulating highly complex subject matters such as nanotechnologies. Primarily concerned with managing the potential risks to the environment, human health and the safety of workers (EHS), regulators often feel overwhelmed by the complexity and novelty of new technologies, stymied by a lack of data, and confused by conflicting research findings and advice from various interest groups. In the meantime, against a backdrop of a legal environment that ranges from gaping holes to regulatory vacuum, research organizations and early-adopting industry players push ahead with the new technology.
Not being able to create any breathing room for lengthy political and legal considerations, the last 15-20 years have seen several governments adopting voluntary environmental programs (VEPs), arguing that this is the only viable proportional option for the time being. It is estimated that there are some 300 VEPs in the European Union and over 200 in the United States, dealing with matters such as climate change, energy, waste, water, toxic materials, agriculture, manufacturing, mining, forestry, hotels, hospitals, and financial institutions. If these voluntary programs work is subject to debate - some apparently do, some less so. In the case of manufactured nanomaterials, the risk properties remain largely unknown and it is unclear what exactly should be regulated.
For the VEPs that are in place for nanomaterials, governments are urging companies to submit health and safety information on the nanomaterials they produce or commercialize. In order to investigate whether voluntary government programs will be sufficient to ensure the safety of manufactured nanomaterials, researchers have analyzed a sampling of voluntary programs in the fields of environmental health and safety in the United States over the past 20 years, with a view towards their applicability in the case of manufactured nanomaterials.
"The number of VEPs has increased dramatically over the last twenty years as a supplement or even as a replacement for traditional command-and-control regulation" Steffen Foss Hansen tells Nanowerk. "These VEPs are now viewed by several governments as a favored approach to fill in the current gaps of knowledge about the health and environmental impacts of nanomaterials."
Public voluntary schemes developed by governments who define the rules (such as the already implemented UK's Defra Voluntary Reporting Scheme or the EPA's proposed Nanoscale Materials Stewardship Program)
Negotiated agreements between governments and industry
Unilateral commitments designated by firms and their associates (such as the DuPont/Environmental Defense Nano Risk Framework)
Private agreements between firms and affected communities
It has been argued that the current general political climate of de-regulation, combined with the lack of sufficient government agency funding to take on another complex, time- and resource-demanding task,makes VEPs very attractive, says Hansen. "VEPs can be used to investigate and promote innovative environmental policy ideas. Further, when political resistance prevents the adoption of more powerful mandatory programs agencies may rely on VEPs as an attainable, though weaker, instrument."
VEPs are attractive for businesses because they offer
an opportunity to get hands-on experience without the straightjacket of regulations
a chance to enhance their reputation with government, investors, customers, employees etc.
an opportunity to stave off more constraining mandatory regulation
On the other hand, VEPs are also attractive to governments because they are
faster and cheaper control measures
a chance to gain experiences with new problems and industries
a way to control pollutants that have not yet been regulated and which jurisdiction may be difficult to obtain
In their paper, Hansen and Tickner point out that there are also a number of arguments for and against VEPs that are specific to the field of nanomaterials. For instance, the lack of a firm definition of nanomaterials would provide a shaky basis for regulation. Several commentators have argued that, due to insufficient quantitative data, it is too early to have a mandatory approach because there would be, "additional costs and burdens on Government and industry when there is presently no evidence of risk or certainty of what data is required to assess potential risks posed by nanoscale materials."
By analyzing a sample of the over 200 VEPs in the United States, Hansen and Tickner identified the key elements in successful programs from the past 20 years. The key lessons learned are:
1) Clear incentives to participate for various stakeholders (reduced costs, high publicity, agency guidance and technical assistance); 2) Signed commitments and periodical reporting; 3) Quality of information; 4) Transparency in design, reporting and evaluation (e.g. a clear baseline to measure development against; stakeholder involvement; public access to information to enhance their overall legitimacy); 5) Regulatory threat (threatening a harsher outcome, such as legislation, if a voluntary agreement is not reached).
"We found that in past VEPs, the threat of regulatory intervention used in combination with unbiased technical- and non-technical information support, progress reports, and favorable publicity combined to be outstanding incentives for participants" Hansen sums up the key lessons.
While looking good on paper, voluntary schemes are only as good as the commitment of the parties concerned. For instance, the purpose of the UK's Defra scheme is to develop better understanding of 1) what types of nanomaterials produced in the UK and 2) manufactured nanomaterials' properties. The 2-year program is asking companies to submit existing data on manufactured nanomaterials' characteristics, hazard, use, exposure, and risk management practices. The UK Department of Trade and Industry estimates that there are 372 organizations involved in micro- and nanomanufacturing in the UK. One year into the program, Defra has received 9 submissions – 2 from academia.
Hansen points out that the key lessons learned form past VEPs, and the experience with current programs such as Defra's, raises two questions: "1) To what extent are these elements included in current VEPs on nanomaterials, and 2) the more forward-looking and important question, how to implement these lessons in practice in future or revised VEPs on nanomaterials?"
"With regard to the first question, participation of various stakeholders was included in the design of the voluntary reporting scheme on nanomaterials implemented by Defra, although many of the incentives or benefits and disincentives that have attracted participants in the past do not seem to be in place such as for instance technical assistance and favorable publicity" says Hansen. "There are no signed commitments or periodical reporting, and there are no measures in place to ensure the quality of information. Although the structure of the reporting scheme is very transparent, all of the information submitted is confidential."
Hansen and Tickner believe that with regard to the VEPs proposed by EPA and Environmental Defense/DuPont it is harder to make any final observations since there are still some outstanding issues to be clarified and the programs have yet to be implemented. "Besides the value of being reflected on as a 'responsible' company and the potential of information exchange, the program proposed by Environmental Defense and DuPont does not really provide any incentives to participate" says Hansen. "On the other hand the program provides a lot of guidance on various elements of risk assessment and management, and communication."
Overall, the two scientists conclude that the three current VEPs on manufactured nanomaterials that they looked at have serious limitations and that the key lessons from past experiences have not been incorporated:
Have lessons learned been implemented in VEPs on nanomaterials?
"We conclude that relying solely on the VEPs will not be sufficient to ensure the generating of health and safety information on the hazardous properties of nanomaterials to support informed proactive risk management" says Hansen. "We recommend that an increased effort be made by government agencies to provide guidance on reporting, technical support, public recognition, and that any voluntary program on nanomaterials be made mandatory after no more than three years which would allow companies to adapt and develop methodologies for generating health and safety information with increasing information exchange with regulators.
"While drafting a new regulatory framework for nanomaterials, regulators should help, discuss, and learn from various companies? experiences and facilitate learning within and between companies. After this period of time the voluntary reporting schemes should be revised to reflect the current state of knowledge and should be made mandatory before permission to commercialize nanomaterials is given."