WA Legislature: Let's become first state to ban toxic asphalt sealants

The Washington House of Representatives this week passed and sent to Gov. Christine Gregoire legislation to make Washington the first state in the nation to ban toxic asphalt sealants that are ending up in people’s homes as well as polluting stormwater runoff and waterways.

Meanwhile, a federal scientist on Thursday briefed Congressional aides and others about threats to the environment and public health from sealing of driveways, parking lots and playgrounds with coaltar, a byproduct of steelmaking. The briefing was co-sponsored by U.S. Rep. Lloyd Doggett, D-Texas, who is seeking a nationwide ban on the toxic sealants.

The Washington State legislation and Doggett’s drive for a nationwide ban flowed from studies by the U.S. Geological Survey, which showed that constituents of the toxic sealants are increasing in many waterways, while levels of most pollutants are declining.

A 2009 Geological Survey study identified chemicals associated with the coaltar sealants in house dust at levels that worried researchers because they could contribute to longterm cancer risks, especially in young children who crawl around in – and accidentally ingest – the toxic dust.

InvestigateWest and msnbc.com partnered last year to publish the first major national story examining the toxic sealants.

Washington’s move follows earlier bans. The first was in Austin, Texas, site of the discovery of the link between toxic parking-lot sealants and waterway pollution.  Subsequent bans followed in Washington, D.C., and in Madison and surrounding Dane County, Wisconsin. In the 14 months since the InvestigateWest/msnbc.com story, bans or restrictions on the use of the sealants have been adopted in several towns, mostly in the Midwest.

Passage of the Washington State legislation was unusual because the bill was filed by a freshman House member, and no Senate companion bill was introduced. In that circumstance it can often take two to three years to pass legislation. The fact that a second kind of asphalt sealant without coaltar is widely available helped gain support, said state Rep. David Frockt, D-Seattle, sponsor of the measure (ESHB 1721). 

“When I started to understand the science, I concluded there is no reason to have this stuff,” Frockt said shortly after the bill was sent to Washington Gov. Christine Gregoire late Wednesday. “Nobody felt their business was going to be impacted if they had to go to the (other) sealants.”

In the end, though, “the human health aspect is what really hit home,” Frockt said.

The Pavement Coatings Technology Council, a Washington, D.C.,-area lobbying group representing companies that paint or spray on the deep black coaltar-based sealants, in the last year has launched scientific attacks on coaltar research that started at the U.S. Geological Survey in the 1990s.

The pavement council hired a Bellevue-based scientist and consultant who told Washington legislators he found flaws in the methods used by government researchers to produce a “chemical fingerprint.” The Geological Survey researchers say those chemical fingerprints implicate the parking-lot sealants as the largest source in many urban lakes of a class of toxic chemicals known as “polycyclic aromatic hydrocarbons,” or PAHs.

The government research “is demonstrably incorrect,” said Anne LeHuray, executive director of the pavement council. “It doesn’t do what it’s purported to do.”

She also attacked the Geological Survey:  “In my mind the story here is a U.S. government agency conducting advocacy, which is beyond the scope of their brief. They are supposed to be a science agency, not a regulatory agency and certainly not an advocacy agency.”

In their appearances in Olympia last month and in Washington, D.C., this week, Geological Survey scientists said that they are only offering information about their findings, not advocating for a ban on the toxic sealants or any other policy change.

However, the federal scientists presented compelling evidence that won the day in Olympia, said Mo McBroom, a lobbyist for the Washington Environmental Council who brought the issue to Frockt’s attention based on the InvesigateWest/msnbc.com story.

“It is a real step forward with regard to protecting public health and cleaning up stormwater,” McBroom said. “It’s not the be-all and end-all. We need a comprehensive toxics policy to think about these issues and have a more complete approach, but until then tackling these toxics issues one by one is the prudent thing to do.”

The sealants are applied to prevent asphalt underneath from wearing out as quickly, and to give parking lots and driveways a deep, rich black color. The sealants usually are not applied to public streets.

The alternative to coaltar-based sealants is a class of asphalt-based sealants. Dust on parking lots using the coaltar sealants can contain hundreds or sometimes even thousands of times the concentration of toxic chemicals as dust from parking lots using the asphalt-based products.

The coaltar-based sealants typically are used more heavily in the East, in part because coaltar is a waste product of the steelmaking industry that was traditionally based in the Rust Belt. A majority of coaltar used in this country is now imported. Both coaltar- and asphalt-based sealants are used in all 50 states.

Coal tar is a known human carcinogen. It caused scrotal cancer in London chimney sweeps in the 1700s and skin cancer in creosote workers in this country about a century ago. Seven of coaltar’s constituents are classified by the U.S. Environmental Protection Agency as probable human carcinogens, based on studies involving laboratory animals. It’s those individual PAH chemicals that the Geological Survey scientists track.

Children exposed to these chemicals in the womb may be more prone to asthma and other health problems and may suffered from lowered IQs, emerging scientific evidence suggests. In men they can harm sperm and in pregnant women they can cause damage to the umbilical cord.

In streams, the chemicals have been shown to kill tadpoles, cause tumors on fish, cause stunted growth of aquatic creatures and reduce the number of species able to live in a waterway.

At the Congressional briefing in Washington, D.C., Geological Survey scientist Barbara Mahler told Congressional aides and others about recent research by the University of New Hampshire, which showed that snowplows scrape the sealants off parking lots, and that wind moves the material around.

 The University of Illinois, working with the Geological Survey, examined dust and soil and lake bottom material under a microscope to show that the chemicals are being transported off parking lots and into nearby soils, streams, lakes and hard surfaces, including adjacent parking lots that were not treated with the coaltar sealants.

Industry officials’ main defense is that the PAH chemicals can come from a variety of sources other than the coaltar sealants.

Using an EPA-approved method, though, the Geological Survey scientists examined dozens of lakes across the country and found that in those where the coaltar sealants are used nearby, the concentrations of the chemicals in question are much higher in the lake bottoms. Referring to the result for Lake Anne, near Washington, D.C., Mahler said of the chemicals’ sources:

“Some of it is coming from wood burning. Some of it is coming from vehicles. Some of it is coming from coal burning. But most of it is coming from coaltar-based sealcoat and that is what is causing the increasing concentrations of (the chemicals) in this lake.”

The same goes for many other lakes in the study, Mahler said in an interview.  In many cases the chemicals are present in concentrations that scientists are pretty sure can harm stream-dwelling creatures such as crayfish, small shrimp and worms.

LeHuray, the industry representative, appeared at the Washington D.C. briefing and noted that Pavement Council had not been allowed to present its scientific findings. She challenged the scientific basis of the Geological Survey’s work.

Mahler pointed out that the methods the government scientists used had been approved by the EPA and concluded: “We are very confident that the results of the modeling are strong. We used a very rigorous approach. The results are consistent with the multiple lines of evidence.”

(Audio of the briefing is here.)