Feds Propose First-Ever Workplace Safety Rules for Nanotechnology

Implications could extend to product liability arena

By Richard Voigt & Tiffany Hubbard

For the last several years, researchers have raised a number of questions regarding the potential dangers of exposure to nanoparticles: the tiny substances developed using nanotechnology. Due to limited toxicological data, however, the federal government had not issued any exposure guidelines until recently.

On Dec. 2, 2010, the National Institute for Occupational Safety and Health (NIOSH) released for public comment its first-ever recommendations regarding workplace exposure to carbon nanotubes and nanofibers.

Nanotechnology involves the manipulation of matter at the molecular level on a scale of one to a few nanometers. (A nanometer is one-billionth of a meter, or one millionth of a millimeter.) Used in an increasing variety of applications, nanotechnology promises unique benefits in areas such as special protective coatings, special material strengthening, special conductivity, among many other things.

Exposure Limit

NIOSH has recommended a workplace airborne exposure limit of seven micrograms of fiber per cubic meter of air (calculated as an eight-hour, time-weighted average). NIOSH chose that limit because seven micrograms is the smallest concentration that can be reliably measured.

NIOSH’s goal is to establish an exposure limit “that would eliminate any potential risk for developing respiratory disease.” The agency acknowledges, however, that the toxicity of exposure to nanotubes and nanofibers is still being studied and that its recommended exposure limit “may not be completely health protective, but its use should help to lower the risk for developing lung disease and assist employers in establishing an occupational health surveillance program.”

In addition to setting a recommended exposure limit, NIOSH also advises that employers implement other health and safety measures, including the substitution of less hazardous materials if feasible, continuous sampling of exposure, medical monitoring, determinations regarding personal protective equipment needs (for example, gloves, respirators, and clothing), the use of light-colored clothing and work surfaces for better visibility of dark fibers, cleanup procedures, hand-washing facilities, shower and changing facilities, and employee education.

Implications for Employers

While the NIOSH recommendation on exposure levels would have a clear impact on an employer’s expected workplace practices, it may also have implications in a product liability context. Assuming that product liability litigation is somewhere on the horizon, plaintiffs’ attorneys will undoubtedly rely on the NIOSH recommendation and any failure to comply with it to support their liability and causation theories: a strategy similar to that adopted in nationwide asbestos litigation. By setting the exposure standard, NIOSH would, in essence, create a benchmark against which a manufacturer’s conduct could be evaluated once a product makes its way to consumers. Consequently, the NIOSH proposal may have an impact far beyond workplace practices.

NIOSH is accepting public comments until Feb. 18, 2011. To view the draft proposal and submit comments via email or online form, click here.

Richard Voigt is a partner in the law firm of McCarter & English in Hartford and a member of the firm’s nanotechnology team. He can be reached at rvoigt@mccarter.com.

Tiffany Hubbard is an associate at McCarter & English in Hartford and is also a member of the nanotechnology team. She can be reached at thubbard@mccarter.com.