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Carbon Nanotubes Targeted in California’s First Mandatory Information Call-In for Nanomaterials

Beveridge & Diamond, P.C. - Client Alert, December 5, 2008

The California Department of Toxic Substances Control (“DTSC”) has announced that it will use California’s new Chemical Information Call-In law, California Health and Safety Code, Chapter 699, sections 57018-57020, to request information on carbon nanotubes (“CNT”) in the “chemical form.”  DTSC will issue the request to “manufacturers” – businesses located in California that produce CNTs or import CNTs for sale in California, as well as businesses located outside of the state who export CNTs for sale in California.  These manufacturers will have one year to respond to DTSC with the requested information.  DTSC has initially excluded from the reporting obligations “product” manufacturers who import products containing CNTs, but the agency may elect to include them later. 

Through this information call-in, DTSC intends to develop the existing body of information on CNTs and to identify information gaps that could be filled to better protect human health and the environment.  DTSC identified CNTs for this initial call-in because these nanomaterials are used commercially but there is said to be limited information available on analytical methods, toxicity, physicochemical properties, or fate and transport.  Thus, DTSC will request from the selected manufacturers information regarding analytical test methods and fate and transport in the environment. 

DTSC has already formulated a list of preliminary questions for the manufacturers, which the agency may include in the information request.  The questions cover such topics as:

  • identifying the “value chain” for each CNT manufacturer, including identification of the industries that are customers of the CNT manufacturer, as well as the types of products in which the customers are using the CNTs and the quantities of CNTs that they are using;
  • identifying sampling, detection and measurement methods that each manufacturer is using to monitor the presence of CNTs in the workplace and environment, including the full Quality Assurance/Quality Control protocol;
  • determining each manufacturer’s knowledge regarding the current and projected presence of their CNTs in the environment resulting from manufacturing, distribution, use, and end-of-life disposal;  
  • determining each manufacturer’s knowledge regarding the safety of their CNTs in terms of occupational safety, public health, and the environment;
  • identifying the methods the each manufacturer uses to protect workers in the research and development, and the manufacturing environment; and
  • evaluating the waste handling practices of each manufacturer, including whether the wastes materials or disposed CNTs are classified as a hazardous waste under California law when released or discarded.

DTSC intends to work with and consult manufacturers to determine additional information associated with CNTs that needs to be developed and to evaluate the technical feasibility of obtaining such information.


If a manufacturer subject to this request believes the information it provides to DTSC involves the release of a trade secret, the manufacturer must notify DTSC in writing as well as submit documentation supporting its claim.  DTSC is then obligated to protect the information from disclosure.  However, if DTSC receives a request for the release of protected trade secret information to the public, it will notify the CNT manufacturer of the request.  Unless the manufacturer obtains a declaratory judgment or preliminary injunction from a California court within 30 days of DTSC’s notice of the request, DTSC will release the information to the public.

Interested parties are invited to submit comments to DTSC on the proposed questions.  DTSC is accepting comments until December 19, 2008.   Manufacturers of CNTs, as well as manufacturers of products containing CNTs, may wish to submit comments on DTSC’s proposal, including the agency’s statutory authority to request the specific information that it is seeking.  Because DTSC has already identified unspecified “nanometals” as the target of future information call-ins, companies manufacturing or importing such materials may also wish to submit comments on the scope of DTSC’ current request since it is likely to inform the scope of future information call-ins for nanomaterials.

Key documents can be found at http://www.dtsc.ca.gov/TechnologyDevelopment/Nanotechnology/
index.cfm

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For more information, please contact Nicole Leonard at ( 415) 262-4029 (nleonard@bdlaw.com), Laura Duncan at (415) 262-4003 (lduncan@bdlaw.com) or Phil Moffat at (202) 789-6027 (pmoffat@bdlaw.com).

This alert was prepared with the assistance of Ryan Tacorda.

For a printable PDF of this alert, please click here.