full letter here - Pavement Coatings Technology Council

Pavement Coatings
Technology Council
WWW.PAVEMENTCOUNCIL.ORG
January 21, 2014
Al Innes
Minnesota Pollution Control Agency
Pollution Prevention Program
520 Lafayette Rd.
St Paul, Minnesota 55155
e-mail: [email protected]
Susan Hedman
U.S. EPA Region 5
Great Lakes National Program Office
77 W. Jackson Boulevard (Mail Code: G-17J)
Chicago, IL 60604-3511
e-mail: [email protected]
David S. Liebl
Solid & Hazardous Waste Education Center
University of Wisconsin-Extension
432 North Lake Street, Rm 311
Madison, WI 53706
e-mail: [email protected]
Chris Korleski
U.S. EPA Region 5
Great Lakes National Program Office
77 West Jackson Boulevard, Mail Code: G-17J
Chicago, IL 60604-3507
e-mail: [email protected]
Chris Affeldt
Michigan Department of Environmental
Quality
Pollution Prevention Program
Constitution Hall
525 W Allegan Street
Lansing, MI 48933-1502
e-mail: [email protected]
Laura Barnes
Executive Director
Great Lakes Regional Pollution Prevention
Roundtable
One East Hazelwood Drive;
Champaign, IL 61820
e-mail: [email protected]
Subject:
The Great Lakes Coal Tar Sealcoat PAH Reduction Project
Comments and Recommendations of the Pavement Coatings Technology Council
We do not believe any group of men adequate enough or wise enough to operate
without scrutiny or without criticism. We know that the only way to avoid error is
to detect it, that the only way to detect it is to be free to inquire. We know that in
secrecy error undetected will flourish and subvert. – J. Robert Oppenheimer
2308 Mount Vernon Avenue, Suite 134 Alexandria Virginia 22301 Phone: +1 (703) 299‐8470 Fax: +1 (703) 842‐8850 [email protected] The Great Lakes Coal Tar Sealcoat PAH Reduction Project
January 21, 2014
Dear Project Collaborators:
The Pavement Coatings Technology Council (PCTC) endeavors to ensure that accurate, balanced
and scientifically sound information is being disseminated to the general public and consumers
when it comes to refined tar-based pavement sealcoat (RTS). In that spirit, PCTC is providing
the attached comments and recommendations to the Great Lakes Coal Tar Sealcoat PAH
Reduction Project (“Project”) addressed to persons identified as affiliated with the Project
according to Project informational materials. According to its website, the Project originated in
the Great Lakes area via a U.S. EPA Great Lakes Restoration Initiative grant. Currently the
Project is led by the Minnesota Pollution Control Agency (MPCA) in “collaboration” with the
Michigan Department of Environmental Quality, the University of Wisconsin-Extension Solid
and Hazardous Waste Education Center, the Great Lakes Regional Pollution Prevention
Roundtable, and the U.S. Environmental Protection Agency. PCTC’s comments are addressed to
all of these organizations. The attached detailed comments and recommendations are
summarized in this cover letter.
The MPCA and the rest of the Project Collaborators are not being paid by the EPA grant to
determine whether coal tar sealants should be replaced with asphalt sealants. Apparently, that
determination has already made by someone or a group of people at EPA Region 5 whose
identities are unknown. What those people at the EPA relied upon in arriving at their
determination is also unknown. What is known is that neither the PCTC nor any other trade
organization or stakeholder representing the RTS industry had an opportunity to present its
position to the EPA. There was no hearing, no solicitation of comments, and no draft proposal.
Just a determination that coal tar sealants should be replaced and a group of willing Project
Collaborators who have agreed to accept tax dollars to pursue this agenda. With the usual
avenues for comment and interaction with government agencies thus closed, PCTC submits
comments to the Project organizers and the public at large.
The Project has used a multimedia approach to accomplish the task at hand. In addition to
creation of a website which provides numerous links to articles and publications that support the
phase-out of RTS, the Project has also engaged in widespread email, direct mail and telephone
campaigns to “educate” consumers, municipalities, contractors and other states about the alleged
environmental, ecological and human hazards of RTS, and of the alleged need to transition to
asphalt sealants. All of this has been done without any reference to or citation of peer reviewed
research that has called into question the very foundation of the conclusions offered by the
Project.
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The Project also presented three webinars at the end of 2013 that were geared solely toward
achieving the goal of eliminating the use of RTS throughout the Midwest. The PCTC was not
invited to participate, nor were invitations extended to the scientists who have questioned the
Project’s findings and conclusions. Thus, instead of educating consumers and the public about
RTS in a balanced manner, the Project has morphed into a campaign of unwarranted product deselection and advocacy, all at taxpayer expense.
Generally speaking, the process of banning a product or chemical from the marketplace is
complex, and it should be. All relevant research and data should be considered, and any
industry, manufacturer or business which is being impacted should have the right to defend its
product against unwarranted attacks and misinformation. Not only due process, but also the
development of sound policy demands nothing less.
Federal statutes incorporate extensive frameworks for evaluating the safety, efficacy, and/or
environmental impact of products and chemicals. Facts, research, policy and opinions are all
discussed in an open forum through the use of hearings, public comment opportunities and
Science Advisory Panels. All sides of the issues are explored, including the impact a product or
chemical ban will have on the economy and local workers. All of this due process is necessary
to ensure that such bans on the federal level are premised on solid science and policy and are not
based on unproven personal beliefs and emotional rhetoric.
In contrast, the Project has pursued its goal of RTS product de-selection by not only excluding
the PCTC from its webinars and other forms of public discourse, but by also omitting from its
website any reference whatsoever to peer reviewed RTS research that happens to be funded in
whole or in part by the PCTC. In doing so, the Project has failed to abide by the basic standards
of data collection, research and stakeholder input that form the foundation of product substitution
and pollution prevention programs authorized by federal statute.
Ideally, proposed product bans at the state level would follow the lead of federal statutes in
mandating openness and inclusion of all stakeholders. Unfortunately, for reasons that are not
entirely clear, the ban of RTS in Minnesota was rushed through as an addition to a bill that had
nothing to do with RTS, and was done without giving the PCTC or any other stakeholder an
opportunity to be heard on that bill before it was passed.
During the first Project webinar held on October 29, 2013, a theme repeatedly asserted was that
no further research was needed because the United States Geological Survey (USGS)
purportedly has proven that 1) 50 million of pounds of PAHs are being released yearly as “toxic
waste” into the environment as a result of RTS; 2) high concentrations of PAHs are found in
sediment in the eastern half of the United States, where RTS is used; 3) chemical fingerprinting
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establishes that elevated levels of PAHs in sediment are attributable largely to RTS; and 4) PAHs
in RTS create significant cancer risks and ecological harm.
Certainly, if all of these assertions were true, then one might be able to argue, as a Project
Collaborator has asserted, that “the case for prevention has been made.” Unfortunately,
however, it would appear that the Project Collaborators want to believe what the USGS is telling
them and therefore have fallen into the trap of accepting the USGS’ findings without conducting
a critical assessment of the USGS’ underlying data, methodology and reasoning.
For years, the PCTC has been attempting to access the USGS’ underlying data and details
concerning its methodologies through Freedom of Information Act (FOIA) requests since much
of this information is not published. PCTC has also sought the assistance of recognized experts
in the field of PAH source identification and apportionment in order to critically assess the
research and claims being made by the USGS. As it turns out, the four points mentioned above
have not been proven. The most significant flaws with respect to each point are touched upon
below and discussed in detail in the attached comments and recommendations.
RTS Is Not a Hazardous Waste
As described in the Resource Conservation and Recovery Act (RCRA) a material can be
designated as “hazardous” waste in one of three ways: 1) the material is a listed waste by EPA
(RTS is not so listed); 2) by certain properties, for example the material is radioactive,
flammable etc. (RTS is not hazardous based on its properties) or 3) by the Toxicity Characteristic
Leaching Procedure (TCLP).
Some sealcoat may indeed end up in storm water detention ponds, along with used motor oil, tire
rubber, wood smoke particles, particulate matter from air pollution and vehicle exhaust,
pesticides from agriculture and lawn applications, heavy metals from coal fired power plant
emissions, animal waste and whatever may be dumped down drains and into the sewer. Many of
these substances contain PAHs. Detention ponds, of course, have been designed to trap these
contaminants, thereby protecting rivers and lakes further downstream. The primary function of a
detention pond has never been one of a wildlife preserve or aquatic sanctuary. That being said,
most PAHs are not water soluble, which means that they do not adversely impact water quality.
If PAHs are going to be found in a detention pond, it will be in the sediment.
The standard method of determining whether materials such as dredged sediment can be
disposed in a non-hazardous waste land fill is TCLP. Different brands of sealcoat tested at
different times in different labs have all “passed” TCLP, indicating disposal in non-hazardous
waste landfills is appropriate. Therefore it is highly unlikely that any amount of RTS in dredged
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sediment would cause the sediment to fail TCLP and be classified as “hazardous” under well
recognized federal standards.
Sealant and Data Maps
According to representations made on Project webinars and by the USGS, coal tar and RTS are
mostly produced and used in the eastern half of the country. If, as the USGS reports, the central
and eastern portions of the country have higher concentrations of PAHs in sediment than the
West Coast, then, according to Project representatives and the USGS, RTS must be the cause.
That type of thinking, however, is flawed. It is a basic principle of science that the concepts of
association, correlation and similarity alone are insufficient to be equated with causation.
The problem with the simplistic analysis described above is made evident by comparing Project
maps of coal tar and RTS production and use in the United States with maps of many other
features said to contribute to PAHs in sediments, such as maps of the locations of pre-emission
controlled coal-fired power plants or maps of the distribution of particulate matter in the
atmosphere that is typically attributed to vehicle emissions.
The USGS PAH Fingerprinting Model is Flawed
How can a convincing argument be made that RTS is the primary source of PAH contamination
in sediment in the eastern half of the U.S., thereby providing justification for the Project’s
campaign to phase out RTS from the marketplace with support from taxpayer dollars? The focal
point of Project’s argument is the chemical fingerprinting that has been performed by the USGS.
Several articles and comments have been published in peer reviewed science journals that call
into question the precise source identification analysis offered by the USGS researchers on
whom the Project Collaborators rely. In addition, PCTC has filed three Data Quality Act (DQA)
challenges to the USGS, one of which is a detailed challenge of the many flaws in the USGS
source identification and apportionment methodology. At no place on the Project website are any
of these issues discussed, nor are publications with specific opposing point of view mentioned.
Instead, the public has been given assurances by the Project Collaborators that no further
research needs to be done.
It is possible that the reason opposing points of view are not mentioned by the Project is lack of
awareness, facilitated by the refusal of the USGS to acknowledge any conflicting opinions,
research or studies on their coal tar sealant websites or within their presentations and press
releases. MPCA seems to be following the USGS lead in ignoring science that fails to support
its preferred policy of removing RTS from the marketplace. Although Minnesota may have
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instituted a ban on RTS, it is not based on sound science. If other scientists outside of the USGS
continue to use the same flawed modeling techniques and inputs, inaccurate results and
conclusions will continue to emerge and officials in other jurisdictions may be misled.
RTS Bans Have Not Been Shown to Reduce PAHs in Sediment
PAH concentrations were measured in stream sediments collected before and after the municipal
ban on the use of coal-tar-based pavement sealers in Austin, Texas. Samples were collected in
October 2005 and again in April, 2008, approximately 2.5 years after the ban. Differences in
total PAH concentrations between samples collected before and after the ban showed no net
change in PAH levels in Austin stream sediments. Results of chemical fingerprinting revealed
subtle differences in PAH profiles that appeared to reflect the effects of weathering rather than a
change in PAH sources. Indeed, further source identification evaluations of sediment data from
Austin have indicated that RTS was not an identifiable source of PAHs in Austin sediments
before or after the ban.
Misleading Claims Regarding Ecological Harm
PAHs are generally insoluble and do not directly affect water quality. PAHs sink to the bottom
of storm water detention ponds along with many other substances found in urban and suburban
storm water. Recently, the Department of Defense (DoD) studied the impact of PAHs on benthic
life in rivers and streams because several military facilities, located in the area of the Anacostia
River near Washington D.C., had released large quantities of PAHs into these waterways over
many decades. Unlike storm water detention ponds, these rivers and streams are considered to
be natural resources where wildlife and fish can hopefully proliferate. Results of the DoD study
found that the commonly cited ecological Probable Effects Concentration (PEC) of 23 ppm, the
value used by MPCA, for PAHs in sediment was actually well below the level at which toxic
effects to benthic organisms were observed to occur. Similar results have been reported by other
researchers, such as Neuhauser and others who also found that certain types of benthic organisms
experience virtually no toxicity at PAH concentrations much greater than the PEC value of 23
ppm. The Project overlooked recent MPCA research findings that PAH concentrations in
residential detention ponds in the Minneapolis area were all less than 23 ppm.
The point to be made is that there is no reason for any other state or municipality to consider or
treat storm water detention pond sediment generally as hazardous waste absent test results to the
contrary. Furthermore, even if RTS contributes some percentage of PAHs to detention pond
sediment along with a plethora of other urban sources such as vehicle exhaust, power plant
emissions, backyard barrel burning soot and industrial particulate matter, the detention pond is
serving its design function and does not provide justification for the Project's stated goal of
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targeting RTS as a product to be removed from the marketplace, and in using tax dollars to
effectuate this change.
Misleading Claims Regarding Human Health Risks
Coal tar is listed by the Food and Drug Administration as “Generally Recognized as Safe and
Effective” for use as an over-the-counter medication for skin ailments such as acne, psoriasis and
dandruff. Because of this medicinal use, refined coal tar pharmaceuticals have been the subject
of many clinical studies. None of these studies have found any chronic illness, including cancer,
in large numbers of patients applying refined coal tar directly on their skin. The alleged health
risks attributed to RTS arise primarily from a "risk assessment" that was conducted by the USGS
along with a toxicologist from Baylor University at the end of 2012. A detailed review of this
risk assessment found that the risk calculation were flawed and exaggerated.
The PCTC is not aware of any reports which link RTS with cancer or other chronic disease.
Recommendations and Conclusions
From the PCTC’s perspective, the Project is a classic example of putting the cart before the
horse. At most, the USGS has offered questionable hypotheses concerning the use of RTS. A
significant amount of peer reviewed research has been conducted which demonstrates that the
USGS hypotheses are incorrect and that RTS has not been shown to adversely affect the
environment or the health of people using this product. Given these circumstances, it is at the
least premature for the Project to nevertheless move forward with its aggressive agenda of
phasing out the use of RTS, much less at taxpayer expense.
One obvious solution is to shut down or suspend the Project and its website until such time as the
science shows that the Project’s goals are warranted. Unfortunately, shutting down the Project
may be difficult to do since many government researchers and regulators who have dealt with
this issue now have a great deal of "skin in the game." They have committed themselves to the
Project’s agenda to such an extent that for many, their reputations are now tied to how this issue
is resolved. The PCTC fears that White Hat Bias (which has been defined in the scientific
literature as “bias leading to the distortion of information in the service of what may be perceived
to be righteous ends.”) has crept in to what should be a reasoned, open and inclusive process.
How else can anyone explain the refusal of the USGS to even acknowledge that significant
differences of opinion exist, not only amongst well qualified scientists, but in the peer reviewed
science literature as well?
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At the very least, if the Project is unable or not permitted to take down the Project website, then
the website must be amended to include all of the RTS science that exists, and provide links to
the articles and DQA challenges that go to the very heart of the case for the Project's agenda to
phase out RTS sealcoating. That would include providing a link to PCTC’s full comment and
recommendation letter and attachment so that the interested public, including legislators from
other states, can make informed decisions. Unbiased science demands nothing less, especially
when tax payer dollars are at play. The PCTC stands ready to assist in amending the Project
website in this manner.
Yours truly,
Anne P. LeHuray
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