Relying officially on nothing more than its belief that the use of toxic “chat” in road construction would be safe for roadway repair and maintenance workers, the Environmental Protection Agency (EPA) has proposed a rule to allow chat use in Kansas, Missouri and Oklahoma.

Chat is waste material left over after rock is milled to extract most of its lead and zinc. The leftover particles vary in size; some of it is minute, soluble and breathable. When exposed to wind and rain, the particles can re-enter the soil and contaminate ground water. Indeed, because of this reality, the area to which the proposed EPA rule would apply includes the Tar Creek Superfund site, a region that became contaminated in an earlier era when chat waste maintenance was unregulated.

Today, chat is managed and its environmental impacts are controlled. However, the new rule would allow the waste to be used as the granular material in the production of asphalt or Portland cement concrete for road construction.

Once used in this fashion, road repair crews could encounter emission problems during repairs or every 15 years or so when the roads are milled and resurfaced. For those doing such work on a full-time basis, the exposures would be continuous.

While the EPA cites a number of studies that suggest that the use of chat in this manner has minimal environmental impact, it acknowledges that it “has found no emissions data during demolition and resurfacing of asphalt (or concrete) roads to evaluate potential exposures to workers.” It goes on to say that it “does not believe this potential exposure poses a significant risk…,” yet it offers no rationale for this “belief.”

Responding on May 6, 2006, to the EPA’s request for comments, LHSFNA Director of Occupational Safety and Health Scott Schneider expressed “grave concern about the proposed rule.” He wrote, “We cannot judge or comment on the claims EPA makes that this use of the ‘chat’ is environmentally sound, but the claims that it will be safe are completely unsubstantiated.”

He pointed out that in the rule’s preamble, the EPA acknowledges potential risks with the “release of fine particles, principally into the air, during road resurfacing and replacement operations.” Though the EPA claims such risks would be “limited to on-site workers,” it asserts that “these potential sources are adequately regulated by the States or by OSHA.”

However, Schneider wrote, “the claims of the adequacy of OSHA/NIOSH standards or of regulation by OSHA or the States are completely unfounded.” He noted that OSHA standards are mostly based on exposure limits that are more than 30 years old and that the OSHA lead standard, itself, is over ten years old. “Since that time, we have learned a considerable amount about the toxicity of lead and recognize that the OSHA standard is probably not sufficiently protective.”

Schneider also noted that “OSHA health standards are rarely enforced, especially in construction and particularly in road construction.” Further, he noted that the states in question do not have state OSHAs, and federal OSHA does not cover state employees, such as those that work for the departments of transportation (DOTs) in these states. Finally, Schneider pointed out that NIOSH recommendations to lower exposure limits generally are not adopted by OSHA (for instance, a proposal to lower the silica occupational exposure limit for silica – another exposure risk for road workers – has languished since 1974), and OSHA has not indicated any intention to develop a standard to protect workers against the risk of chat exposure.

On behalf of the LHSFNA, Schneider concluded that “we see no rationale for concluding that worker health will be protected by the proposal.” He recommended that the EPA commission a study to monitor exposures and recommend protections, including the use of ventilation controls or wet methods in cutting and milling operations and the marking of pavement constructed of chat concrete so that contractors and workers will be warned when resurfacing or repairing the road in the future.

Until such study is done, the LHSFNA and the Laborers’ International Union of North America (LIUNA) will oppose the use of chat in road construction.

More information about lead, silica and other roadwork hazards is available on the OSH Division web pages.