DOT’s asphalt nightmare

Transportation officials scramble to explain reversal that could lead to crumbling roads

State transportation officials are scrambling to justify a potentially costly flip-flop that could end up leaving the state with mile after mile of crumbling roads.

Frank DePaola, the state’s highway administrator and the person who is taking over as transportation secretary next month, overruled his engineers back in July and allowed asphalt with recycled engine oil to be used to resurface the state’s roads. The engineers had been pushing for a ban on the controversial additive until testing proved it safe, but DePaola said he wouldn’t ban the product until he had proof that it was defective. He said the proof would come from extensive, months-long testing to be done at the University of Massachusetts Dartmouth.

Last week, after state engineers had conducted a rudimentary test in less than a day that showed an asphalt test sample containing the additive didn’t stand up to wear, DePaola reversed himself and banned the additive.

DePaola was unavailable for comment, but his spokeswoman said the results from the rudimentary test were so telling that a ban was implemented as soon as possible.

“We were open, no matter which way the test went, we were open to the results,” said Department of Transportation spokeswoman Cyndi Roy-Gonzalez. “We had felt strongly that we wanted to have our tests – not other states, not other countries, but Massachusetts – to see what would happen with our own testing. We found that ingredient in the asphalt was causing it to prematurely crack… This is exactly the approach that government should be taking, requiring, before it costs taxpayer money, requiring evidence-based decisions.”

But Roy-Gonzalez’s explanation doesn’t fully square with the facts. She claimed the rudimentary test showed that the asphalt ingredient was causing pavement to prematurely crack, but the test only measures the durability of a patch of asphalt and doesn’t reach any conclusions about what is defective about the asphalt. In fact, the Asphalt Institute, a trade association, stated in a report that the test “does not identify mixtures that are susceptible to cracking.”

Her argument about evidence-based decisions is also exactly the argument that DePaola’s own engineers made to him this summer when they pressed for the ban. They said the standard industry practice is to test a product thoroughly before it is laid down to avoid defects that could end up costing taxpayers millions of dollars to repair.

Most other states adopted the test-first, use-later approach favored by the Massachusetts engineers, with all the states banning the additive until conclusive tests are completed by UMass Dartmouth. All of the New England states except for Connecticut have either banned or are in the process of banning the additive. But DePaola stood by the additive, which is produced by a subsidiary of a company called Clean Harbors based in Norwood.

“I suspect they needed a way out to go with the pack because the other states have put their foot down [by banning recycled engine oil] and they didn’t want to see all the modified asphalt that couldn’t be used elsewhere come to Massachusetts,” said Simon A.M. Hesp, a chemistry professor at Queen’s University in Ontario whose research starting in 2009 has found alarming problems with asphalt containing recycled engine oil. “Just one test doesn’t mean too much… In the end it’s a political decision.”

Roy-Gonzalez has denied that politics played any role in the decision to cancel the proposed ban in July or the decision last week to institute a ban.

The decision to ban was announced last Thursday at the end of a conference of asphalt users and producers in Framingham where engineers from across the region raised concerns about the additive, which is called recycled engine oil bottoms and commonly referred to in the industry as REOB.

State transportation officials called for the ban after seeing the results of a test conducted by a state engineer who – on his own initiative and without the knowledge of administrators, according to sources-took a sample to the UMass Dartmouth lab for the so-called “Hamburg wheel test.” That test is frequently done to determine if a particular mix of asphalt can withstand decades of cars running over it 24 hours a day. It is not a test to determine aging, durability, or chemical composition, say experts. An email obtained by CommonWealth to industry representatives said the testing was stopped a little more than halfway through because the asphalt clearly could not hold up.

CommonWealth recently reported on the growing controversy among engineers and the asphalt industry over the use of recycled engine oil. The story reported that Bitumar, a Montreal-based asphalt producer, had been supplying REOB-infused asphalt around New England for the last five to seven years – and at least since 2013 in Massachusetts – without telling anyone.

In Vermont and Maine, transportation officials had noticed premature cracking and failure on pavement that was relatively new. After testing, they discovered metals that indicated the presence of used engine oil, which Bitumar later admitted was present. Bitumar refused to cease using the additive, saying the product was safe and could reduce costs. The additive is made by Safety-Kleen, a Texas company owned by Clean Harbor.

Engineers from around New England and industry representatives met in June at UMass Dartmouth to hear a presentation by Safety-Kleen experts as well as a plea from Bitumar officials who said any move to prohibit the use of recycled engine oil could cost the company $30 million or more because of asphalt that had already been blended and stored in tanks around the region.

But Massachusetts, Maine, New Hampshire, and Vermont instituted a ban anyway, though DePaola rescinded it in the Bay State just before it was due to take effect, calling the engineers’ decision “arbitrary” and claiming the additive would be okay to use while the lengthy testing began at UMass.

DePaola’s decision had a trickle-down effect on cities and towns, who are required to use any product that passes state specifications. After DePaola approved the use of asphalt with REOB in July, local highway departments laid down tens of thousands of tons of the asphalt on road projects this past summer.

Roy-Gonzalez said the REOB ban will remain in effect until the results of more extensive testing at UMass Dartmouth is completed. The tests could take a year to complete. The testing was delayed in part because of a dispute over funding. MassDOT administrators accepted an offer by representatives from Safety-Kleen to pay for the testing, but the officials later changed their mind and said the state would providing the funding, which some sources estimate will cost more than $200,000.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

Bitumar officials declined comment on the new ban or whether they will try to overturn it in court. When Maine, New Hampshire, Vermont, and Massachusetts announced their previous ban, Bitumar went to court to block the action. A Vermont judge issued a temporary injunction, which still stands, while courts in Maine and New Hampshire upheld the bans.

DePaolo sidestepped a court battle by rescinding the ban. A note on the docket says the parties agreed to a settlement, though both sides disputed that. Roy-Gonzalez said she has not heard whether Bitumar will renew its request for an injunction in Massachusetts.