“The dirty little secret of the EPA is that almost every pesticide gets put on the market while the agency is looking the other way,” says Michael Hansen, a senior staff scientist at Consumers Union. “That’s not good for consumers, and it’s not the intent of the regulations.”

By law, in order to register and sell a pesticide, companies are supposed to go through a process than can last several years; it includes public comment, reviews of scientific studies, and evaluations by the agency’s in-house science experts. The fast-track conditional registration process was intended to be used only under rare circumstances — when a product is nearly identical to one already on the market, for instance, or when the EPA needs to approve a new pesticide immediately to prevent a disease outbreak or other public health emergency (a new treatment for bedbugs, for example).

No one knew the extent to which the EPA had been abusing the conditional registration rules until 2008, when the Natural Resources Defense Council (which publishes OnEarth) began asking questions about why nanosilver, an antimicrobial made of extremely tiny bits of silver and used to kill bacteria in products such as athletic gear and baby blankets, had been granted conditional registration.

That year, Swiss manufacturer HeiQ had applied to the EPA for permission to use nanosilver in textiles, including clothing and bedsheets. NRDC scientists were concerned that nanosilver might be more toxic than regular silver — which is not very harmful to humans, but toxic and persistent in aquatic environments — because its tiny size allows it to travel into cells, organs, and blood, with potentially dangerous, but poorly understood, health effects. A 2010 internal EPA report on nanosilver notes: “the same property that makes it lethal to bacteria may render it toxic to human cells.”

“Until we understand the risks of nanosilver, we really shouldn’t be wearing it in our clothing and bedding,” says NRDC senior scientist Jennifer Sass. Chemist Martin Mulvihill, the executive director of the Berkeley Center for Brain Chemistry, agrees that more studies are needed, especially because nanosilver is widely used in consumer products. The effects of nanosilver on human health are not well understood, “which is not to say there are no concerns,” says Mulvihill, who adds, “It’s very clear silver is bad for the environment.” Silver bioaccumulates and is toxic to single-celled organisms and aquatic invertebrates; a 2010 study found that runoff containing silver particles dramatically reduced the reproductive capabilities of mollusks in San Francisco Bay. Products like nanosilver washing machines, which kill bacteria with nanosilver ions embedded in the machinery, could also damage water organisms with their runoff.

“Do I really need nanosilver in my jeans or Tupperware?” Mulvihill asks. “I don’t think so. I can just wash them.”

In response to HeiQ’s 2008 request to use nanosilver, the EPA Scientific Advisory Panel recognized that the effects of nanosilver are different from regular silver. The panel said its regulations would require the company to produce numerous studies on the specific health effects of nanosilver before it could be registered for use as a pesticide.

Then the agency went ahead and allowed the company to use nanosilver in its products anyway.

During the course of reviewing the conditional registration of nanosilver, NRDC filed a Freedom of Information Act request seeking the EPA’s database of conditionally registered pesticides. “Their recordkeeping is a mess,” says NRDC’s Sass. After the group’s questions compelled EPA to take a closer look, the agency found that of approximately 16,000 pesticides currently on the market, more than two-thirds were conditionally registered. Even worse, the EPA has no system to track whether the data and studies it asked a company to provide for full registration have ever appeared. And if the data were provided, there’s no way to evaluate how many of those studies were reliably conducted. Nor is there any way for the public to access any of the records on these pesticides.

“Pesticides are harmful chemicals that Congress intended go through a rigorous scientific review process,” Sass says. “Instead, they’re going through a loophole, forcing us to trust the data provided by the pesticide industry.”

The EPA press office says that the agency looked at some of the pesticides approved between 2000 and 2010 and found that, of 544 products conditionally registered during that decade, 533 of them had submitted additional data, and all but 10 of those had been reviewed by the agency. (Recall that there were 16,000 pesticides allowed on the market as of 2010, and 11,000 of those were conditionally registered, according to the EPA’s own report). “For 96 percent of the subset of registrations, all actions intended by the conditional registration have been completed in a timely fashion,” an EPA spokesperson said in response to queries from OnEarth, adding that most of the conditionally registered pesticides were what the EPA calls “me-too” products, which are substantially similar to ones already on the market. EPA also says that it is in the process of improving its procedures for tracking pesticides that have been approved through conditional registration.

Environmental and health advocates believe that such a process is not adequate and insist that the agency immediately cancel all the pesticide registrations that have overdue studies. (How many that would be isn’t clear.) NRDC has specifically asked the EPA to establish a public database on conditional registrations that would make gaps in information and unanswered questions transparent — and to stop using the conditional registration process as a loophole. “It should only be used in very rare circumstances, as Congress intended,” says NRDC staff attorney Mae Wu.

Paul Towers of the Pesticide Action Network, a nonprofit group that advocates to replace harmful pesticides with safer alternatives, says that at the very least, the EPA should put a hold on any new conditional registrations until a better system is put in place. “Then the agency can begin to evaluate each conditional registration as soon as information comes to light about potential harms.”

People connected with the pesticide industry deny that the conditional registration process is being abused. Lynn Bergeson, a Washington, D.C.-based attorney who specializes in helping clients with product regulation and approval, says she doesn’t believe that conditional registrations are “somehow on automatic pilot.” She says the EPA takes the conditions “very seriously … Any initiative to review all 11,000-plus conditional registrations would have a severe adverse effect on EPA given its already strained resources.” And it would harm the industry, she adds, because it would give the impression that the EPA was casting doubts on existing products with conditional registrations.

Environmentalists seem unsympathetic to that particular concern. NRDC, for instance, has sued the EPA to undo the conditional registration of nanosilver; its attorneys argued that the EPA didn’t properly assess the risks of the product, basing its assessments on studies that analyze risks to humans 3 years old and above. But what about infants? “They’re particularly at risk for a pesticide like this because it’s applied to clothing and other fabrics they’re likely to chew on,” says Cassie Rahm, the NRDC attorney who argued the case before the U.S. Court of Appeals for the Ninth Circuit.

As of March 2011, according to the Project on Emerging Technologies, 1,317 consumer products contained nanosilver, including 182 clothing products.

The Government Accountability Office, an investigative arm of Congress, is also getting in the act and preparing a report on the EPA’s conditional registration. Its last such report recommended that the EPA review those registrations, determine what progress was being made in submitting the required data, and take appropriate action, such as suspending or cancelling the pesticide registration in cases where the companies had not made reasonable progress fulfilling their obligations.

That was in 1986. Two years later, the EPA promised to develop a new system to track the data requirements of conditional registrations. An update on the report listed the recommendation as “Closed-Implemented.” Yeah, right.