Engineered nanomaterials: employer’s liability risk, REACH & governance

Nanotoxicology in relation to the effects of engineered nanomaterials [ENM] in the occupational setting has largely focused on the inhalation effects of ENM particularly on the respiratory tract. ENM are respirable allowing them to the interstitium of the lung and the blood and can be translocated to other organs. They have also been linked to cardiovascular effects. Carbon nanotubes appear to promote interstitial fibrosis. Multi-walled carbon nanotubes have been shown to promote lung cancer. This has given rise to legitimate fears of the potential for the causation of harm to workers. However, uncertainty still exists in terms of extrapolating the toxicity of studied ENM to all ENM and in translating that knowledge from the laboratory to humans. Epidemiological studies in the ENM context are nascent and logistically challenged. The nanotoxicological research and the potential for the causation of harm to workers has also given rise to fears of latent civil liability claims and parallels have been drawn with the potential for claims on the scale and magnitude of the asbestos litigation. To date there have not been any reported employers’ liability claims arising from exposure to ENM. The risk governance literature has acknowledged the inevitability of latent civil liability claims and the uncertainty of the specific dynamics of this future litigation. But it has not gone beyond that to systematically address legal liability risk. This thesis fills this gulf in the literature. Motivated and guided by the main objectives of the Sustainable Nanotechnologies project [SUN] which are: risk assessment, decision support for industry, regulators and the insurance sector to make informed decisions about nanotechnologies and risk management by designing process changes and technological solutions to reduce hazard and exposure, this thesis contributes to both the objectives and deliverables of the SUN project. Understanding the legal risks of ENM exposure is essential for effective risk governance because it informs legal risk assessment which in turn informs decision making in relation to the design and implementation of risk management strategies. Understanding legal liability risk in the ENM context is also important for decision support for liability risk insurance providers. Effective risk analysis and management which includes legal liability risk will facilitate the realisation of the benefits of ENM while contemporaneously managing the potential risks. Ultimately this contributes to the sustainable development of ENM. This thesis is interdisciplinary. It traverses the disciplines of law, regulation and governance. Following the establishment of the basis for inevitable legal liability in ENM occupational exposure scenarios, the thesis goes further to demonstrate the ineffectiveness of the EUs response to the regulation of ENMs as a risk management measure because its application to ENM essentially amounts to mapping a regulation designed for bulk materials onto the specific contours of ENM. An alternative approach to governance is posited. This approach is innovative because it fits the elements of ENM risk governance. Founded on anticipatory governance it is buttressed by John Rawls’model of wide reflective equilibrium and overlapping consensus. In its totality, this thesis contributes to the contemporary discourse in relation to ENM risk governance which constitutes legal risk, regulatory policy and governance.