Berkeley, California, Local Regulatory Efforts

In December 2006, the City of Berkeley, California, approved the Manufactured Nanoscale Materials Health and Safety Disclosure Ordinance (Berkeley Nanomaterials Ordinance, BNO), requiring facilities within city limits to report on nanomaterials being produced, handled or manufactured, known data on potential toxicity, and measures taken to contain potential risks. It was the first law passed in the United States that obligated reporting of nanomaterial use from the time of arrival up to the safe disposal of any wastes. Advocates for the law intended it to (1) encourage state and federal agencies to adopt safety laws; (2) demonstrate that existing government authority could be extended to nanomaterials; (3) raise awareness of the environmental and health concerns and gaps in knowledge surrounding nanomaterials; and (4) generate useful information to contribute to the broader debate on nano-regulation. The experience also illustrates some of the difficulties of implementing disclosure laws regulating novel materials.

[Page 46]The BNO extends the legal framework of California's hazardous materials business plan (HMBP) requirements by declaring nanomaterials can be treated as hazardous materials as defined by California law. Ch. 6.95 Div 20 California Health and Safety Code states: “any material that because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or the environment if released into the workplace or the environment.” The BNO defines the nanomaterials subject to reporting as “manufactured nanomaterials that are engineered and which have a dimension less than 100 nanometers.”

Starting in June 2007, facilities using nanomaterials are required to submit a yearly report using an open questionnaire format based on the standard HMBP. The text of the BNO proposes a matrix combining toxicity and risk of exposure to guide decisions on how to manage classes of nanomaterials. Each material is classified into one of four control bands ranging from low risk (low toxicity, no exposure) to high risk (high or unknown toxicity, high exposure). The objective was to define classes of materials that could be subject to different management standards and reduce reporting burdens.