Sealant Worker Safety Myth in Jeopardy

The sealer industry is fond of saying how safe their product is for worker safety. No evidence, no claims, no one harmed.

Even during this spring’s legislative season, the statements have continued. Our position has been that it is faulty logic to claim a statement as true without any comprehensive analysis to support it. Until now.

Last week a law firm from Buffalo, New York dispelled that myth in their quarterly newsletter. The firm garnered a “substantial settlement” for the heirs of a man who worked for 34 years making coal tar containing pavement products. He died a year after discovering he had lung cancer.

The source of his ailment according to his attorneys: coal tar fumes. Part of his career he drove shipments of coal tar and at other times he received shipments of hot tar. It was reported that the fumes were so strong from the coal tar that it would “take your breath away.” It is pasted below for your review since it is no longer on the web.

The settlement was reached in October of 2013. Did the captains of the coal tar industry know this before they wrote press releases and legislative challenges stating the contrary? Why would they continue to make these statements after the settlement? Perhaps some day we’ll know.

Here are some examples of worker safety claims made by industry:

“Despite unsupported innuendo to the contrary, RT-sealers have been used safely for more than half a century without any evidence of chronic health effects such as cancer.”

from Forensic Experts’ Paper Disputes Refined Tar Sealer Research, January 16, 2014; see For Construction Pros website.

“There is no record that PAHs from these pavement sealers have ever caused harm to anyone. Ready-to-use pavement sealers (both refined coal tar and asphalt based) have never been cited for a claim of bad health due to the use of its sealers. Not even the proponents of this legislation can show that it has ever harmed anyone.
from Illinois Coal Tar Sealer Ban Opposition flyer, March 2014.

“Are pavement sealers hazardous?
No, air sampling studies showed refined coal tar based sealers pose no inhalation risk to applicators, manufacturers or the general public. Research with insurance carriers (both in liability and workers comp) have supported the FACTS of no claim history.”

From the website of a firm supplying sealant in many Great Lakes states, March 2014.

Here’s the newsletter article in its entirety in case it is taken down from the web:

Blacktop Worker Receives Substantial Settlement

In October 2013, Lipsitz & Ponterio reached a sizeable settlement for the family of a long-time employee of a local blacktop manufacturer. This case illustrates the hazards of working with coal tar, a by-product of the coking process.

The client and his wife were childhood sweethearts. They married in 1962 while the client was on a brief leave from military service. After his discharge, the couple returned to live on the Erie County farm where he grew up. Three years later, he took a job at a small plant making and selling pavement sealer. He worked there until the business closed, approximately 34 years later. Because he was only 61 years old at that time, and still strong and energetic, he continued to work at various jobs. Even after he fully retired eight years later, he stayed active, mowing the grass on dozens of acres of the family farm, fishing and tinkering with small engines.

Despite having quit smoking cigarettes at age 25, our client was diagnosed with lung cancer in early 2011, and he died one year later. What caused this hard-working, quiet and careful man to die of lung cancer at age 74? Over the entire course of his 34 years making blacktop, he was exposed to the fumes of coal tar, the main ingredient in blacktop.

During the first several years of his employment, he hauled shipments of already made blacktop from a plant in New Jersey to his employer’s factory in Western New York. He made the trip twice a week. Once his employer decided to manufacture the material, he was put in charge of receiving shipments of hot coal tar, which came in from outside companies three or four times each week. Each time a new shipment arrived, he had to oversee the process of unloading the hot coal tar into holding tanks and monitoring these holding tanks throughout the week. He had daily exposure to coal tar fumes that were so strong they would “take your breath away.”

There were three companies that made the coal tar and sold it to our client’s employer. These large companies employed thousands of workers in coal tar distilleries throughout North America, and they knew for many years, by 1965 or even earlier, that exposure to coal tar fumes caused lung cancer in humans. These companies never had the common decency to warn the end users of the coal tar, which they sold to businesses all around the country. Had he been warned, our client would have taken measures to protect himself or, as he testified in this case, he would have looked for work elsewhere. The large companies that distilled and sold the coal tar to our client’s employer had their own industrial hygienists on staff. They had their own corporate medical directors. They conducted research on animals. They even took measures to protect their own workers by enclosing their production systems.

How did these companies defend themselves in this case? They blamed the client’s doctor for not detecting the lung cancer at an earlier stage. They subjected him to a full day of testimony. But the doctor was blameless. His records were thorough, and nothing in them indicated the slightest evidence of neglect. When the cancer was detected, the doctor sent our client directly to Roswell, where he received compassionate care.

When they realized that they could not place the blame on the doctor, they made the argument that coal tar fumes do not cause lung cancer in humans. This, however, was belied by earlier studies of their own tar distillery workers who were developing lung cancer at significantly increased rates. They also tried to blame our client’s employer for failing to tell him about the hazard of developing lung cancer, a hazard that these companies studiously avoided communicating to their customers. And, finally, they tried to blame our client, whose formal schooling ended in the tenth grade.

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