BILL ANALYSIS �
AB 1704
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Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
AB 1704 (Huffman) - As Introduced: February 15, 2012
SUBJECT : Coal tar pavement sealants.
SUMMARY : Prohibits the selling or applying of coal tar
pavement sealant products. Specifically, this bill :
1. Makes legislative findings concerning stormwater
contamination and the environmental and public health risk
from coal tar sealants and the polycyclic aromatic
hydrocarbons (PAHs) contained in coal tars.
2. Prohibits, beginning January 1, 2013 a person shall not
sell in this state a material that contains coal tar that
is intended for use as a pavement sealant.
3. Prohibits, beginning July 1, 2013, a person from
applying a material that contains coal tar that is intended
for use as a pavement sealant on a driveway, parking area,
airport runway or playground.
4. Authorizes the Department of Toxic Substance Control
(DTSC) to issue a notice of corrective action to a person
in violation of the coal tar sale and use prohibition.
5. Authorizes a city or county to adopt an ordinance
providing for enforcement of the requirements of the coal
tar pavement sale and use prohibition. The enforcement of
the local ordinance will be concurrent with DTSC's to
enforce this section.
EXISTING LAW:
1. Under the Safe Drinking Water and Toxic Enforcement Act
of 1986 (commonly known as Proposition 65), requires the
Governor to revise and publish a list of chemicals that
have been scientifically proven to cause cancer or
reproductive toxicity each year.
2. Prohibits any person in the course of doing business in
California from knowingly exposing any individual to a
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chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning,
and prohibits such chemicals from being discharged into the
drinking water.
3. Authorizes the California Air Resources Board (CARB) to
control air pollution and to control criteria pollutant
emissions from specific source categories, including from
consumer products.
4. Authorizes CARB to regulate the emission of "toxic air
contaminants," defined as an air pollutant that may cause
or contribute to an increase in mortality or in serious
illness, or that may pose a present or potential hazard to
human health (Health and Safety Code �39655).
5. Requires CARB to adopt regulations to achieve the
maximum feasible reductions in volatile organic compounds
(VOCs) emitted by consumer products (Health and Safety Code
�41712(b)).
6. Requires the DTSC to adopt regulations to establish a
process to identify and prioritize chemicals or chemical
ingredients in consumer products that may be considered a
"chemical of concern," in accordance with a review process,
as specified.
7. Requires DTSC to adopt regulations to establish a
process to evaluate chemicals of concern, and their
potential alternatives, in consumer products in order to
determine how best to limit exposure or to reduce the level
of hazard posed by a chemical of concern, as specified.
FISCAL EFFECT : Not Known
COMMENTS :
Need for the bill: According to the author, "This bill is
proposing to ban the sale and use of coal tar sealants in
California due to their toxicity, carcinogenicity, and ability
to imperil watersheds, aquatic species, and contribution to
noxious indoor air quality in homes and buildings near coal tar
paved parking lots, driveways and playgrounds. Under current
law, coal tar sealant is permissible to use in California. Coal
tar sealants are not a necessity for public safety or public
health. Cost comparable alternatives - asphalt sealants - are
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available and widely used in California. Austin, TX, Washington
State, Washington DC, and two counties in Wisconsin have all
enacted bans, and federal legislation, HR 4166, has been
introduced to enact a nation-wide ban."
Coal tar sealant . Coal tar is used as a sealant and is applied
on top of asphalt in parking lots, pavements, driveways, airport
runways, playgrounds, roads and other applications. According
to the United States Environmental Protection Agency (US/EPA),
there are two types of sealcoats generally used in the U.S.
today: asphalt emulsion and coal tar emulsion. Coal tar has
been shown to have a detrimental effect on the overall health of
a variety of aquatic organisms. Recent literature has suggested
that coal tar-based asphalt sealants have impacted survival and
development of amphibians, embryo and larval mortality in fish,
and growth and biodiversity of macro invertebrates and benthic
phytoplankton. The primary components of coal tar that are
presumably responsible for these toxic effects are PAHs.<1>
Coal tar based pavement sealant (also known as sealcoat) is
widely used in the central and eastern U.S. and, to a lesser
extent, in the western U.S., where use of asphalt-based sealant
products is more common. An estimated 320 million liters (85
million gallons) of coal-tar-based sealant use annually in the
United States has been reported.<2>
A limited number of PAHs have been listed as chemicals known to
the State to cause cancer under the Safe Drinking Water and
Toxic Enforcement Act of 1986 (Proposition 65, California Health
and Safety Code Section 25249.5 et seq.). PAHs are generated by
combustion or pyrolysis of organic materials, and occur widely
as environmental pollutants, food contaminants (especially of
smoked or grilled food) and components of soots, tars and other
wastes and by-products of industrial processes. They are found
in the particulate fractions of engine exhausts and other
emissions from mobile or stationary combustion sources. PAHs
also occur in materials such as crude oil, coal, carbon blacks,
coal tar, and in some mineral oils.
Coal tar sealant use in California. There is no data provided
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<1> U.S. Environmental Protection Agency, Assessment of Water
Quality of Runoff from Sealed Asphalt Surfaces, September 2011.
<2> Peter C. Van Metre, et al., "PAH volatilization following
application of coal-tar-based pavement sealant", Atmospheric
Environment, 13 January 2012.
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on the use of coal tar sealant in California. The author has
not been able to identify any specific use of or applications of
coal tar sealants in California, nor is there evidence of coal
tar related PAHs discharge or exposure. One potential reason
for this lack of evidence may be the state's strict air quality
standards for consumer products and the likelihood that most
coal tar sealants fail to meet the VOC standards.
According to the South Coast Air Quality Management District
(SCAQMD) no coal tar containing pavement sealers (parking lots
and roadways) are sold for use in the SCAQMD. The VOC limit of
100g/l limits for waterproofing sealers and traffic coatings
limits coal tar formulations.
The SCAQMD has also reported that here was a negligible amount
of industrial maintenance coating reported in 2010 by one
manufacturer that includes coal tar (total of 1,379 gallons or
0.004% of the gallons sold in 2010), comprised of coal tar epoxy
resin technology. This high performance use of the coal tar
does not result in the type of leaching into the environment
that occurs from the coal tar asphalt sealers.
State and federal legislation on coal tar sealants . In 2011 the
state of Washington adopted a ban on the sale and use of coal
tar sealants on driveway or parking areas containing levels of
PAHs in excess of 10,000 mg/kg. On March 8, 2012 HR. 4166 -
Coal Tar Sealants Reduction Act of 2012 was introduced in
congress to prohibit the manufacture, processing, distribution
in commerce, and use of coal tar sealants and to provide a
nationwide ban on coal tar pavement sealant use by 2015.
ISSUES OF CONCERN:
California's Green Chemistry Initiative : In 2008, the Governor
signed AB 1879 and SB 509 into law, which enacted California
Green Chemistry Initiative. AB 1879 (Feuer and Huffman) Chapter
559, Statutes of 2008, requires DTSC to adopt regulations to
identify and prioritize chemicals of concern, to evaluate
alternatives, and to specify regulatory responses where
chemicals of concern are found in consumer products. SB 509
(Simitian) Chapter 560, Statutes of 2008, requires DTSC to
establish an online, public Toxics Information Clearinghouse
that includes science-based information on the toxicity and
hazard traits of chemicals used in daily life.
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The Green Chemistry program should yield a comprehensive process
to identify and manage chemicals of concern and their
alternatives. The provisions of AB 1704 would pre-empt the
authority of the DTSC to take additional actions under the Green
Chemistry Program.
Regrettable Substitutions : When a specific product or substance
is banned, the alternative may result in even more severe public
health and environmental consequences than were brought about by
the original substance. To avoid this problem, alternatives to
coal tar sealants should be analyzed to limit exposure and to
reduce the level of hazard they may pose. The experience with
lead jewelry and MTBE has shown the potential or unanticipated
adverse effects of replacement or substitutions. Such a process
is delineated in the Green Chemistry Initiative, but is lacking
from AB 1704.
The penalties for violating the law lack enforcement . AB 1704
provides that the DTSC may seek a corrective action order in the
event that the prohibition on sale or use of coal tar sealants
is violated. The provisions of Health and Safety Code section
25187 allows DTSC to issue orders to require a person take
corrective action with respect to the release of hazardous waste
or constituents, abate the effects thereof, and take any other
necessary remedial action. This limited action would not
include penalties or fines for the sale of coal tar sealants and
would be limited to requiring corrective actions in cases where
coal tar sealants have been applied.
REGISTERED SUPPORT / OPPOSITION :
Support
Breast Cancer Fund
California Coastal Alliance
Clean Water Action
Clean Water Network
Environment California
Environmental Defense Fund
Environmental Working Group
San Francisco Bay Keeper
Santa Clara Valley Water District
Save the Bay
Sierra Club California
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Surfrider Foundation
The Help Group
Opposition
None on file
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965