As entrepreneurs commercialize “nanomaterials”, occupational safety and health (OSH) agencies and professionals are developing standards to evaluate and manage the associated hazards. These protective efforts cover the full range of OSH agency efforts. The easiest step is to expand application of the Employer’s General Duty to protect workers against workplace hazards to cover nanomaterials –easiest since this Clause requires employers to take steps against “recognized” hazards, and do not bind the agencies to promulgate specific standards (I’ve written about the General Duty Clause here, and about recommendations for comprehensive safety and health programs here). At the other extreme, the Occupational Safety and Health Administration (OSHA) or other OSH agencies can issue enforceable OSH standards –so far there are none exclusively addressed to nanomaterials, although some materials do trigger some standards (see below). Between these extremes, agencies can and do offer non-mandatory but detailed guidelines for some hazards – the National Institute for Occupational Safety and Health (NIOSH) just issued such a guide for nanomaterials, building on similar publications by other agencies. The rest of this blog discusses the new NIOSH guide, “Building a Safety Program to Protect the Nanotechnology Workforce: A Guide for Small to Medium-Sized Enterprises” (NIOSH Guide), and references some of resources used to produce them.
What are Nanomaterials?
The new NIOSH Guide addresses nanomaterials at length, but never defines them. However, NIOSH, OSHA, the Environmental Protection Agency (EPA) and other agencies apply a standard working definition, that nanomaterials and nanotechnology cover “the understanding and control of matter at the nanoscale, at dimensions between approximately 1 and 100 nanometers (nm).”
These and other federal agencies participate in the “National Nanotechnology Initiative,” seeking to characterize and oversee nano-scale activities. As summarized by the Initiative, at this scale “the materials’ properties change significantly from those at larger scales. This is the size scale where so-called quantum effects rule the behavior and properties of particles. Properties of materials are size-dependent in this scale range. Thus, when particle size is made to be nanoscale, properties such as melting point, fluorescence, electrical conductivity, magnetic permeability, and chemical reactivity change as a function of the size of the particle.”
As scientists and businesses discover and apply the beneficial attributes of these materials – both inorganics and organics -- OSH professionals and regulators are seeking to identify and protect against the negative attributes. The NIOSH Guide provides the following illustrations of nanomaterial risks:
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Small particles, on an equal mass basis, can be more hazardous than larger ones.
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Some incidental nanoparticles (e.g., welding and diesel fumes) can be carcinogenic when inhaled.
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Small aerosol pollutants have been linked to respiratory and cardiovascular health effects.
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Certain ‘‘legacy produced’’ nanomaterials, such as ultrafine titanium dioxide, carbon black, and fumed silica, are respiratory hazards.
What Does NIOSH Recommend?
The new NIOSH Guide applies standard OSH approaches to these novel materials. It recommends that enterprises that work with nanomaterials take comprehensive steps to identify and manage hazards. In particular, the Guide includes detailed discussions of the following elements.
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Risk Management – consisting of:
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Hazard identification
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Exposure assessment
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Exposure control (NIOSH recommends a safety and health program, similar to those recommended by OSHA (see above)).
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Prevention Through Design – (adhering to a longstanding NIOSH policy initiative) to ensure that emerging nano-systems and technologies are designed using OSH protections as important criteria.
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Hierarchy of controls - follow the standard OSH hierarchy of controls at each stage in design and implementation (I wrote about this hierarchy in more detail here):
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Elimination of hazard
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Substitution of materials and/or activities to use less-hazardous alternatives
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Engineering controls (NIOSH has published detailed “Current Strategies for Engineering Controls in Nanomaterial Production and Downstream Handling Processes”)
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Administrative controls
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Personal protective equipment (PPE) for workers and consumers
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Verification or controls – that they are incorporated, followed appropriately, and actually effective
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Medical screening and medical surveillance – as appropriate, and monitoring appropriate measures (e.g., respiratory, bloodborne, organ-based, and systemic)
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Emergency preparedness – built around formal scenarios that reflect a range of incidents, with procedures, equipment, and training
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Product stewardship – to ensure that the creators and purveyors of nanotechnologies stay involved in the use and consequences of their products
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Regulatory compliance – which may include:
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OSHA requirements for PPE, respiratory protection, hazard communication (through Hazard Communication Standard, Laboratory Standard, etc., as appropriate), and substance-specific standards (e.g., Cadmium Standard), as well as the General Duty Clause.
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EPA requirements – EPA regulates nanomaterials under the Toxic Substances Control Act (TSCA; I discussed recent revisions to the statute here, here, and here).
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Consumer Product Safety Commission and other agencies.
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In addition to its own 40 pages of discussion, the Guide includes references to resources produced by NIOSH and other entities that provide more detailed guidance.
Self-Evaluation Checklist
Does the organization undertake activities involving nanomaterials – such as production, use, and/or research?
Has the organization assembled information about the potential occupational safety and health hazards of each nanomaterial?
Has the organization assessed how these issues may be create workplace hazards?
Does the organization implement hazard prevention and control activities?
Do control activities consider all the steps in the NIOSH/OSHA hierarchy of controls?
Has the organization implemented these protective measures?
Where Can I Go For More Information?
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NIOSH Nanotechnology webpage
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NIOSH Hierarchy of Controls webpage
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OSHA Safety and Health Program webpage
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OSHA Safety and Health Program Guidelines (2016)
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EPA website describing nanomaterial control under Toxic Substances Control Act (TSCA)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
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OSHA Auditing - Federal Compliance Guide: Facilities: The Complete Safety & Health Audit Checklist
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OSHA Auditing - California Occupational Health and Safety Audit Guide
- Workplace Violence Prevention: A Practical Guide to Security on the Job
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.