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Public Sector Informant : PSI - September
[SEPTEMBER 2010] 22 THE PUBLIC SECTOR INFORMANT [LEGAL A FFAIRS:CHRISTINE P LEVEY &ANDREW L U] Toxic torts bloom from tiny particles Nanomaterials Government agencies should work now to minimise the health and legal risks of this technology Engineered nanomaterials have been around for years, but not long enough to fully evaluate the health consequences of using them. Yet we inhale, ingest, and absorb nanoparticles every day. Few people would consider their mobile phone, sun- screen, easy-to-clean paint or anti-fog glass -- all helpful tools that improve quality of life -- a potential biohazard. Nevertheless, over the past few years, the Federal Government has been considering the hidden implications of a range of new materials and tools to health and safety. Nanomaterials are examples of how citizens of modern society may be regularly exposed to new health risks from handling materials and objects that have become commonplace. Safe Work Australia issued two reports last month on safety standards and options to reduce potential hazards associated with engineered nanomaterials. These reports raise the question of what organisations that are involved in the manufacture, use, development or importation of nano- materials should do now to manage their potential legal risks arising from the use of nanomaterials. If the history of claims relating to asbestos, lead, silica dust and pe- sticides is any guide, government and other organisations will need to stay abreast of research concerning the potentially harmful effects of nanom- aterials as they are published and comply with safety standards as they evolve. The potential for claims Nanomaterials are materials that have been manipulated with the aid of technology, to assume unique and helpful physical or chemical proper- ties at the nanoscale of between 1 and 100 nanometres (a nanometre is the equivalent of a millionth of a milli- metre). Examples include metal ox- ides, metals, carbon nanotubes, quan- tum dots and nanocrystals. The implications of long-term human exposure to nanomaterials are presently unknown. Although engin- eered nanomaterials have been around for a number of years, that relatively brief time horizon is still too short to fully evaluate the actual health consequences of using these tools of modern life. And yet we inhale, ingest, and absorb nanoparti- cles every day of our lives, so the debate and research affects us all. Nevertheless, it is possible to learn from the collective experience gath- ered from toxic tort claims for exposures such as to lead, silica dust and pesticides, and through the current wave of asbestos exposure claims. We have seen that the absence of timely planning in the context of widespread asbestos use --in everything from building insu- lation to placemats in Australian kitchens -- has in part contributed to the scale of mesothelioma claims, which are yet to reach their zenith. The lessons learned from asbestos claims include recognition that the potential health risks of some nano- materials might not manifest for decades. However, if a connection between nanomaterials and adverse health outcomes is ever established, the conduct and liability of potential defendants will be evaluated through the lens of best practice by today's standards. For example, governments have been found legally liable for common law claims by third parties who were exposed to asbestos and sustained damage. Those third parties were owed a duty of care by governments commissioning, funding, managing or superintending projects that used asbestos products at a time when they ought to have been aware of the risks. Governments have also been liable to compensate employees who suffered adverse health consequences from asbestos exposure in the course of employment. Governments also have a respons- ibility as a regulator, employer, funder and developer of policy which will ultimately involve working with industry to develop and agree on safe exposure levels for nanomaterials, based upon the best scientific and medical evidence available. Toxicity issues It is now acknowledged in academic literature as well as the reports commissioned and published by Safe Work Australia last month that the inhalation of carbon nanotubes is hazardous, though the quantity that must be inhaled to present a health hazard is unknown. For example, the common nanom- aterial of silica dust from the cutting of building products such as bricks and concrete can lead to silicosis, a disease that may permanently dam- age the heart and lungs. Silicosis is not a naturally occurring disease process. It is the consequence of an inhalation of foreign particles. Other construction industry products con- tain engineered nanotubes, and some carbon nanotubes have chemical properties that are similar to those of asbestos fibre. Health care is recognised as a growth area for nanotechnology, and is likely to generate great demand for nanotechnology into the future. For example, peptide nanotubes are being used in the next generation of antibiotics which are intended for wide use by consumers. The long- term effects of ingesting peptide nanotubes is presently unknown. The regulatory environment Experts do not agree on safe exposure levels for engineered nanomaterials or even on a uniform methodology for evaluating these levels. Inter- nationally and domestically, efforts are under way to identify and monitor safe limits. Without an understanding of what represents a safe exposure level, it is difficult to develop meaningful guidelines for safe handling and use that protect, for example, employers from potential liability to current and former employees in future. There are currently no specific standards incorporated into Com- monwealth or state laws that impose legal obligations on employers and others to monitor and manage exposure to nanomaterials generally. There are, of course, obligations under existing occupational health and safety legislation and the general law to reduce the risk of injury to workers, contractors and the public through the harmful effects of these products. There are also OH&S regulations for workplace chemicals, hazardous substances, and products that may contain nanomaterials Environmental protection legislation, Therapeutic Goods regulation and Food Safety Australia and New Zealand regulation must also be adhered to. Internationally, the British Stand- ards Institution published the guide Nanotechnologies -- Part 2: Guide to safe handling and disposal of manu- factured nanomaterials in 2007, defining four groups of nanomaterials and recommending a prudent pre- cautionary approach to benchmark exposure levels. Safe Work Australia Speaking in public can be a daunting experience. In fact, it's one of our most common fears. But it's a fear that is easy to overcome. By learning a few key skills, speaking in public can become stress-free and even enjoyable. Regardless of whether you are speaking as a one-off occurrence, regularly as a major part of your role, or preparing for a Job Interview, Speak2us will help you develop your skills as a presenter and leader, so you can speak with confidence and clarity in all settings. Individual sessions or small-group workshops -- the choice is yours. www.speak2us.com.au email@example.com 0433 717 347 Confident public speakers aren't born ... 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PSI - October