By Jared Burden
As of June 6, 2011, the EPA began enforcing a
significant new use rule for the chemical substance
generically known as multi-walled carbon nanotubes
(“MWCNT”). This new regulation is limited to those
nanotubes which were the subject of premanufacture
notice P-08-199. The EPA has cited concerns that
this particular substance is hazardous to human
health as justification for instituting this rule. This
new rule will affect several industries, including
chemical manufacturing and petroleum refining.
The new use rule requires manufacturers,
importers or processors of this variety of MWCNT
to provide the EPA with at least 90 days notice
before engaging in any use of the substance that
is considered a significant new use pursuant to
EPA guidelines. The EPA will then determine
whether the proposed new use is permissible and
will institute any limitations or prohibitions before
the activity commences. New uses include utilizing
the substance without complying with stringent
workplace protection regulations which require the
utilization of certain equipment and procedures
when handling the substance. A new use may also
arise where the substance is used outside of its site
of manufacture or import. The 
requirements of
this rule do not apply to quantities of the chemical
substance after it has been completely reacted
(cured), incorporated or embedded into a polymer
matrix that itself has been reacted (cured), or
embedded in a permanent solid polymer form not
intended to undergo further processing except for
mechanical processing. For a complete list of uses
which are the subject of this new rule, see Title 40
of the Code of Federal Regulations, Part 721.10183.
The rule was published on May 6, 2011. In order
to prevent industries from taking advantage of
the window between the publication and effective
dates of the rule, the EPA will consider a significant
new use to have occurred if it happens any time
after the publication date. An industry will not
be exempt from the requirements of the rule if
they have engaged in the new use between the
publication and effective date of the regulation.
Moreover, a significant new use of MWCNT will
also trigger certain record retention requirements.
A manufacturer, importer or processor of MWCNT
must keep documents indicating the volume, origin
and destination of the substance as well as records
documenting the establishment of safety programs
and the content of labels.