U.S. EPA Proposes First-Time Measures to Restrict the use of Coal Tar Sealants

August 23, 2016

Groups call for complete ban on toxic substance that poisons ecosystems nationwide

NEW YORK, NY – August 22, 2016 – Waterkeeper Alliance, Conservation Law Foundation, Our Children’s Earth Foundation, and Puget Soundkeeper commend the Environmental Protection Agency (EPA) for taking the first federal measures to restrict the use of coal tar sealants in the United States. Coal tar sealants are dangerous products that poison ecosystems nationwide, impose billions of dollars in cleanup costs on local governments, and expose infants and children to a high risk of developing cancer. In 2019, EPA will propose that industrial facilities that use coal tar sealants should be ineligible for coverage under the agency’s industrial stormwater multi-sector general permit (MSGP). EPA’s permit covers more than 2,000 federally regulated airports, factories, refineries, and other industrial sites across the country.

EPA’s measures were taken as the result of the settlement of a lawsuit filed by a broad national coalition of environmental organizations, led by Waterkeeper Alliance and represented by Super Law Group, Lawyers for Clean Water, and Conservation Law Foundation.

According to the U.S. Geological Survey, as coal tar sealants applied to driveways and parking lots age, they wear into small particles containing high levels of carcinogenic chemicals called PAHs (polycyclic aromatic hydrocarbons). These small, toxic particles get tracked into homes or incorporated into house dust. This poses a threat to all people, but particularly to children who crawl or play on the floor and put hands and objects in their mouths. A preliminary risk assessment found that exposed children under the age of 6 are at severely increased risk of later developing a PAH-associated cancer. PAHs are associated with lung, skin, bladder, respiratory and other cancers.

In addition to contaminating homes, coal tar sealant particles also wash away during storms. The USGS reports that coal tar sealants are the largest active source of PAHs in urban lakes, and studies from the USGS and other researchers show that these sealants are lethal to several aquatic species and toxic to many others.

Coal tar sealants also impose billions of dollars in liabilities on local governments, which can get stuck with the high costs of disposing of sediments from storm sewers, catch basins, ditches, and ponds that have been contaminated by these toxic sealants. For example, according to the Minnesota Pollution Control Agency, there are an estimated 20,000 stormwater ponds just in Minnesota’s Twin Cities metropolitan area. The state agency and local towns have found that the sediments building up in many ponds are highly contaminated with PAHs, and the state agency determined that coal tar sealants are the major source. Conservative estimates suggest management costs for this set of ponds could reach $1 billion if just 10% of these ponds exceed state PAH guidelines for restricted sediment disposal. The Minnesota Pollution Control Agency also reports that some cities cannot afford those costs and are putting off needed maintenance of their stormwater systems, increasing flood risks to public and private properties.

“EPA deserves everyone’s thanks for taking a small but significant step towards ending the use of a substance that is wreaking havoc with our waters, environment and human health,” said Edan Rotenberg of Super Law Group, who represented the environmental organizations in their settlement with EPA. “At the same time, the EPA is years behind where it should be. EPA has legal authority to stop the sale and use of these sealants. The science shows unequivocally that coal tar sealants pose unacceptable risks to infants, small children, and to the environment. Many industry players have dropped coal tar sealants in favor of much safer and competitively-priced alternatives. And data from cities that banned coal tar sealants years ago show that ending use of coal tar sealants leads to dramatic decreases in PAH levels in urban streams in less than a decade. The benefits of a ban to society are tremendous, the costs are almost non-existent. It is long past time for EPA to ban these dangerous products.”

Coal tar sealants are already banned in 2 states, Washington D.C., and more than 30 cities and counties, where they have been replaced at little or no cost with much less toxic alternatives. Most large retailers, such as Lowe’s and Home Depot, voluntarily stopped selling coal tar sealants years ago.

“The impacts of PAHs from coal tar sealants in our waters is well documented, and this is a problem we and our fellow Waterkeeper organizations have been fighting for years,” said Daniel E. Estrin, General Counsel & Legal Director at Waterkeeper Alliance. “We look forward to working with EPA and our partners to advance more sustainable, affordable, and easily implemented alternatives to coal tar sealants, and to eliminate this toxic threat to our nation’s waterways and aquatic ecosystems.”

“When industrial facilities use coal tar based sealants, they discharge toxic chemicals into our public waters that are proven to increase cancer risks, particularly among children,” said Christopher M. Kilian, Esq., Vice President, Vermont Director and Director of Clean Water and Healthy Forests Program at Conservation Law Foundation. “The time is long overdue to address these discharges in a meaningful and comprehensive way, and we’re optimistic that this settlement will go a long way toward protecting both human health and the health of our environment.”

“This settlement is a win-win for our ecosystems, for local governments’ budgets, and for public health—particularly for infants and small children who are vulnerable to coal tar toxins,” said Tiffany Schauer, Executive Director of Our Children’s Earth Foundation. “By updating the MSGP, EPA will effectively outlaw the use of dangerous coal tar sealants at thousands of covered sites.”

“Toxic coal tar pavement products have been banned in Washington State for nearly 5 years, and nobody misses them! Across the country, our kids, communities and fish deserve much better,” said Chris Wilke, Puget Soundkeeper. “We applaud EPA for stepping up, and urge them now to employ a nationwide ban.”

The groups call on EPA to take further action and ban coal tar sealants entirely. EPA has authority to stop the use and sale of these products under multiple laws, including the newly-reformed Toxic Substances Control Act, the Clean Water Act, and the Resource Conservation and Recovery Act.

About Coal Tar Sealants

• The Pavement Coatings Technology Council, an industry trade group, estimates that 85 million gallons of coal tar sealants are sold nationwide each year. A significant fraction of this sealant is used on pavements at industrial facilities, ranging from airports to trucking centers.

• Over time, coal tar sealants get worn down by exposure to sunlight and vehicle traffic. As the sealant wears away, it releases cancer-causing PAHs. Much of this pollution – amounting to millions of pounds of PAHs every year – is in the form of toxic dust and sediment that is carried into homes on shoes and children’s toys, settles in the soil of nearby lawns, gardens and playgrounds, or washes off during rainstorms into storm sewers and waterways.

• EPA believes that at least six of the PAHs found in coal tar pavement sealants are probable human carcinogens and one PAH – benzo(a)pyrene – is a known carcinogen. In 2013, scientists at the USGS and Baylor University reported that the presence of coal-tar-based sealants is associated with significant increases in estimated excess lifetime cancer risk for nearby residents..

• A 2011 EPA study confirmed the findings of the USGS and others, that coal tar pavement sealants release hundreds of times more PAHs into the environment than other kinds of sealant. And EPA has issued fact sheets urging consumers and businesses to be aware of the risks these sealants pose and to choose safer alternatives. But until now, there has been no federal regulation of coal tar sealants and they are still widely sold and used in 48 states.
• Coal tar sealants are also a major source of PAH emissions to the air. According to the USGS, coal tar sealants releases more airborne PAHs every year than the entire US vehicle fleet.

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