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Bill banning certain driveway, pavement sealants to take effect this July

Photo by Parker Michels-Boyce for the Virginia Mercury
Photo by Parker Michels-Boyce for the Virginia Mercury

After attempting to ban the products in previous sessions, the Democratic legislature passed a bill Republican Gov. Glenn Younkgin signed that bans the sale of pavement sealant containing a set of chemicals environmental groups say seep into the environment, causing health issues for wildlife and humans. The ban begins July 1.

This story was reported and written by our media partner The Virginia Mercury

House Bill 985 prohibits the sale of the sealant used for driveways and parking lots that use certain concentrations of Polycyclic Aromatic Hydrocarbons, or PAHs, chemicals commonly found in coal tar. 

“PAHs are definitely toxic. There really isn’t a question about that,” said Joe Wood, senior scientist with the Chesapeake Bay Foundation, a major backer of the bill. “When organisms — whether oysters, mice, or fish — are exposed to these products in research studies, they have caused negative health effects.” 

But groups that use the pavement sealers, primarily the Pavement Coating Technology Council, pushed back against the bill during the session saying they shouldn’t be stopped from using the PAH-heavy sealants because there are other sources of the chemicals releasing them into the environment.

“We’re concerned that small businesses across Virginia will get snarled by these violations and penalties and not have anywhere to turn to remedy that situation,” said Alex Thorup, a lobbyist on behalf of the PCTC.

Other sealers felt differently. Michael Jones, owner of Jones Striping and Sealcoating LLC, said the PAH ban shouldn’t be a problem, given the health benefits his employees experienced after switching to an alternative material, and the fact that his company has still been able to find work.

“We learned, of course first hand, that [the coal tar] is toxic, and it does burn the skin also,” Jones said in Feb. 27 committee testimony. “We [switched] because of the health of our clients’ employees and of course protecting the environment.”

The chemicals and how often they are used

The PAH chemicals naturally occur in coal, crude oil and gasoline. The PAHs in pavement sealants come from coal tar, a byproduct of coking, or heating up coal to make it a higher quality.

The pavement sealant uses the coal tar to fill cracks and provide a smooth finish on top of asphalt. From there, the pavement’s dust is kicked up into the air by the wind, washed away by stormwater runoff or knocked loose from abrasive tires on roadways.

A study from the U.S. Geological Survey found that house dust in areas around where coal tar sealcoating was used had a PAH concentration of 129 milligrams per kilogram. The sealcoat itself had a concentration of up to almost double that, the equivalence of 20 to 35% of the product.

Conversely, non-coal tar sealants — such as asphalt emulsion, usually made up of asphalt water and soap — produced lower PAH concentrations in house dust, as little as 5 milligrams per kilogram. The asphalt emulsion product itself typically has concentrations of 50 milligrams per kilogram.

“Asphalt and asphalt-based sealcoat products have much lower concentrations of PAHs,” USGS stated.

The environmental, health harm

Several different research papers point to the chemicals causing harm to ecosystems, though some of the research is disputed.

The USGS research found that people living near coal tar sealants were 38 times more likely to have an “extra risk” of developing cancer than those living near unsealed pavement. In the Elizabeth River, the PAH chemicals from a nearby wood treatment plant were found to be a “plausible link” to cancer in killifish.

The presence of PAH from leaking petroleum storage tanks in Lewis Creek led the Department of Environmental Quality to create a total daily maximum load limit, or  TMDL, in 2006 to reduce the amount of pollution runoff.

“With successful completion of implementation plans, Virginia will be well on the way to restoring impaired waters and enhancing the value of this important resource,” the TMDL plan stated.

But the Pavement Coating Technology Council has pointed to errors in the USGS research, stating invalid modeling was used. The group also called out PAH pollution research done in Austin, Texas, which has waterways with more of a rock-based bottom that soil washes away from, instead of East Coast waterways with dirt bottoms that collect soil overtime. 

The Austin research sampled soils in the waterway in 2005, 2008, and 2023, and didn’t find an accumulation of PAH chemicals, said Robert DeMott, a toxicologist with environmental engineering firm Ramboll, in Feb. 27 committee testimony.

“We found that the ban did not yield a noticeable reduction in PAH levels across all of those creek systems,” said DeMott. “A narrowly targeted approach of focusing on only one source is unlikely to yield a substantial change to the environment at large.”

DEQ Director Michael Rolband added testimony on the bill saying the PAH chemicals are toxic, but linking their presence in the environment with pavement sealants was questionable.

A 2018 DEQ report summarizing research on the topic stated: “Land-use analyses have found that PAH concentrations do not correlate well with impervious surfaces if roadways are included. However, if roadways are separated out, PAH concentration continues to correlate weakly with roadways and much more strongly with other types of impervious surface (i.e., parking lots).”

What the bill does

The bill creates a new section under the Environmental Emergency Response Fund statute, which is used for cleaning up environment hazards.

The legislation from Del. Kathy Tran, D-Fairfax County, sets a ban on selling pavement sealers with a PAH concentration of more than 1% of the product weight after July 1.

There’s also a provision that lets businesses in Virginia who have the product in stock sell the inventory they have, but no one will be able to use it afterJuly 1 of next year. Violations to the bans would result in a $250 penalty; those funds would then be deposited into the Environmental Emergency Response Fund.

The changes shouldn’t be a problem, Tran testified in committee testimony, considering most large retailers that were selling gallon buckets of the sealant for homeowners to use on driveways no longer are doing so.

Jones, whose business deals with practical aspects of the product including applying it to the ground, added compliance also shouldn’t pose a challenge, considering his business transitioned away from the coal tar product years ago. 

The change may have resulted in a 5 to 10% cost increase for him, but his company’s portfolio of smaller projects is still active, evidenced by a 450 square foot parking lot he recently did in downtown Richmond, which used 350 gallons of low-PAH sealant for the job. 

“The quality is the same if not better,” Jones said, adding that his work is “a drop in the bucket,” compared to the size and number of projects going on in the rest of the state.

National distributors of the sealant, like SealMaster, which has several locations in Virginia, have  endorsed the pivot away from coal-tar sealant with higher PAH concentrations in favor of “environmentally friendly” sealers. 

For Jones, the health and safety of his workers outweigh any cost increases from the alternative sealants he uses now.

“They were coming [to work], but they weren’t as happy,” Jones said of his employees who may have been injured by coal tar sealant and previously had to wear long sleeves and facemasks in the outdoor heat as a precaution.