Badger State Ban Breakers Face Bigger Bills

Earlier this summer, Dane County, Wisconsin approved tougher fines for violators of their coal tar sealant ban.  The ban in Dane County is the nation's second oldest. 

The bans change the fines are as follows:

• the first violation by a homeowner changes from $25 to $100
• the first violation by a commercial applicator goes from $50 to $500
• the second violation by a commercial applicator increases from $150 to $1000
• the third and subsequent violations by a commerical applicator goes from $300 to $2000

The revisions also add something referred to as "injunctive relief," which, by my understanding, is like a cease-and-desist order that if violated is essentially contempt of court.  In other words if a violator continues to rack up violations, not only would the fines be due, but also penalties for ignoring a court order.  A copy of the newly adopted ban language is included at this link.  Congratulations to the people around Madison for toughening the laws to protect our communities!

 

Today Health Recommendation: Keep Toxins Out of Your House; Stop Using Coal Tar Sealants

In collaboration with Rodale Press, this recommendation comes from the Today Show Health website.  The title of the article is 5 Toxic Chemicals You Should Banish from Your Home by Leah Zerbe states that the problem with coal tar sealants stems from the quantity of toxic polycyclic aromatic hydrocarbons in the material. 

The article goes on to say that Lowes and Home Depot have ceased sales and that alternatives exist either as sealants or a greener alternative, porous pavements.  Some smaller hardware stores and many professional sealcoating companies continue to use coal tar in most of the United States and Canada.

Just the FAQ's Now Available

With a growing site of information about the problem of coal tar sealant pollution, it seemed reasonable to put together an FAQ or "Frequently Asked Questions" section on the topic. The answers have links to sites, posts, or videos that go into more detail. Some references are quoted extensively because they are well-written and succint. The purpose here is to put the information in a single, easy-to-find location.

Just click on the tab above labeled "FAQ" and it will take you to that page.

We will add more as we are available. If you have specific questions or think something is omitted here, feel free to contact us by email by clicking on the "Contact me" button on the upper right hand part of this page.

Here are some initial questions that have been answered:

• What is pavement sealant?
• What is coal tar?
• Where does coal tar for sealant come from?
• What is asphalt?
• What's the problem with coal tar sealants?
• What are PAH's (polycyclic aromatic hydrocarbons)?
• How toxic are coal tar sealants?
• What effect does coal tar sealant have on the environment?
• How does coal tar sealant enter the environment?
• Does product type really matter?
• Is this only a problem outside the home?
• Is this an isolated problem or nationwide?

A Worry-Free Guide to Implementing a Coal Tar Sealant Ban

I've heard a lot of speculation over the last few years about how difficult it is to implement a ban of coal tar sealants.  Most of the time it is from purported experts that are attempting to make it seem "just too hard" or those that are just guessing and haven't done their homework.  No more guessing, this is being written by the person that helped craft the first ban in Austin, worked to get it implemented, and then oversaw the enforcement program for 5 years. 

A coal tar sealant ban can be implemented:

• as part of a community-wide effort to reduce toxins and water pollution
• with minimal additional workload to staff
• with no expensive equipment to buy
• with no fees or costs to applicators (unless they are in violation)
• with no delays to applicators

The key elements to a ban are:

1. Clear Ban Language
2. Communications Plan
3. Enforcement Staff Training
4. Enforcement Strategy

Clear Ban Language

Just like any other ordinance, a ban should seek to encourage compliance without unreasonable consequences.  For example one community passed a ban that had such a low penalty for violations that it didn't discourage applicators from using coal tar sealants.  It was just a cost of doing business.  On the other hand, if the remediation of a violation is so expensive that it will bankrupt the applicator, then that is also a problem.  Let your community attorney give some guidance after you've figured out the going rate for a remedy.

Speaking of remedies, what are you going to do if you do have a violation?  My suggestion is to remove it, if it is anything but a low traffic volume driveway or very small parking lot.  See this reference for information on how to do this.

Communications Plan

Before you start, you'll need to do some homework.  Figure out where or if coal tar is sold retail and where commercial applicators in your area go to get their sealant. 

The best way to ensure a successful, low-cost enforcement program is to communicate with your community.  Use what media you have to put the word out.  Others have used community newsletters.  The City of Austin included a piece in the electric utility's flier as well.

Figure out who the largest users in the area are for sealants.  Typically they are:

• Schools
• Commercial stores
• Industrial sites
• Churches
• Apartments and condominiums
• Hospitals

Send them a letter telling them about your ban a few months before it goes into effect.  Be sure to let them know when it is effective so they don't think you are coming after them for a past sealant job. 

Let your local applicators know by letter as well. 

If the retail sale of coal tar sealant is banned, then contact both the store manager and the regional manager of the store if it is a chain. These folks have thousands of products to juggle and my experience is that it is best to have more than one person in these organizations mindful of your ban.

Now this next recommendation will go a long way to having a successful ban implementation.  Most likely you will have applicators coming a long distance to your community to apply sealant.  They get regional contracts with chain restaurants and big box stores and may travel over a 1000 miles to come to your town.

You need to prevent the application of coal tar by these out-of-town applicators.  The good news is that most often they come to town, fill up at the local distributors of sealants and drive to their jobs.  If you can get the support of these distributors to post signs like "Attention: Coal Tar Sealants Banned in Anywhere, USA", then you can educate them before they make a big mistake.  By the way, the farthest I've seen someone drive in a load of sealant is about 200 miles. 

Enforcement Staff Training

Most likely you will need to find one person that "owns" this, meaning that they are willing to learn something new, have a desire and some experience in regulatory enforcement, and are willing to become somewhat of a content resource in this area.  Some knowledge of construction would also be helpful.

Some communities have offered to train enforcement staff for others.  Austin did this for Washington, D.C..  If you know of a ban near you, contact them and see if your go-to person can "shadow" their enforcement staff for a day or so.  Otherwise, contact this blog for assistance.

Have your staff learn the "coffee-tea test" for the difference between coal tar and asphalt based sealants.  This low-cost, screening technique using materials found in any hardware store is on this website, here.

In other parts of the country, some communities have discussed having one enforcement person for several suburban communities.  This may work if several bans go into effect at about the same time.  For a city the size of Austin though, there is just one part-time enforcement person.  That's for the nation's 16th largest city with a population over 700,000.

Enforcement Strategy

And these leads to the final element, Enforcement Strategy.  Learn the limits of the pavement sealant season in your area.  In southern states in can be more than 9 months out of the year, but in some northern states the season is less than 3 or 4 months.  This will enable your enforcement to be attentive to changes in parking surfaces during this period.

And speaking of attentive, here is another way to broaden your enforcement capabilities.  Train other field staff to recognize the tell tale signs of a new pavement sealant job.  Have them pay particular attention to the largest lots.  Make a list of what they are.

Many governmental workers are in the community as part of their normal job duties.  If they suspect a new sealant job is taking place, then the can contact your key enforcement person.  This way you increase your eyes in the community and increase your chances of success.  Over time you and your staff will learn to differentiate between the compliant sealant companies and those that aren't. 

This post is intended to show that a sealant ban can include these 4 elements of a ban and it can be done with minimal distraction to existing staff, without a regulatory burden on the business community and without raising taxes or fees.  Specific questions or comments are always welcome.

Oh Canada Passes Coal Tar Sealant Ban!

Well sort of. Actually the City of Little Canada's City Council passed a coal tar sealant ban in late July. Little Canada (population about 10,000) becomes the 11th community in Minnesota to pass a ban.  The ban is effective immediately and violators can face fines up to $1,000 and/or a maximum jail sentence up to 90 days in addition to court costs.  Thank you Little Canada!  Now the number of US citizens under a coal tar sealant ban exceeds 10 million.

In a somewhat related item, Environment Canada (the nation of course) and the University of Toronto have completed an analysis of coal tar sealant use in Ontario.  Findings include:

• coal tar sealants (CTS) are available for commerical and retail users
• CTS coverage in the greater Toronto area is nearly 6 square miles (14 km2)!
• sealant scraping concentrations were somewhat lower than published data from Mahler et al. at the USGS (perhaps due to both mislabeling in Canada and non-coal tar lot contamination in the USGS sampling)
• large loss of PAH's due to volatization during drying/curing (see graph below)
• the average annual, estimated PAH load to surface water and soil is more than 7,000 pounds per year in Toronto
•  a presentation of these finds can be found at this link: http://www.epa.gov/greatlakes/bns/integration/Jun2011/Li_6152011.pdf

Perhaps this will lead to legislative efforts in Canada!