BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                SB 623
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2011-2012 Regular Session
                                           
           BILL NO:    SB 623
           AUTHOR:     Kehoe
           AMENDED:    April 25, 2011
           FISCAL:     Yes               HEARING DATE:     May 2, 2011
           URGENCY:    No                CONSULTANT:       Caroll 
           Mortensen
            
           SUBJECT  :    ANTI-FOULING PAINT: COPPER

            SUMMARY  :    
           
            Existing law  :


           1) Under the federal Clean Water Act requires the state to 
              identify a list of impaired water bodies and develop and 
              implement Total Maximum Daily Loads (TMDLs) for impaired 
              water bodies. (33 U.S.C. §1313(d)(1)). 


           2) Under Title 40, Code of Federal Regulations Part 131, 
              establishes numeric aquatic life criteria for 23 priority 
              toxic pollutants; numeric human health criteria for 57 
              priority toxic pollutants; and a compliance schedule 
              provision which authorizes the state to issue schedules of 
              compliance for new or revised National Pollutant Discharge 
              Elimination System (NPDES) permit limits.

           3) Under California's Porter Cologne Water Quality Control 
              Act, regulates discharges of pollutants in stormwater and 
              urban runoff by regulating, through the NPDES industrial 
              discharges and discharges through the municipal storm drain 
              systems.  (Water Code §13000 et seq.). 

           4) Under the Marine Invasive Species Act, imposes requirements 
              on the master, owner, operator, or person in charge of a 
              vessel, as defined, to minimize the uptake and release of 
              nonindigenous species, including the removal of hull 
              fouling organisms and cleaning of the ballast tanks 









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              regularly to remove fouling organisms.  (Public Resources 
              Code §71200 et seq.):

           5) Food and Agricultural Code §11501 requires the Department 
              of Pesticide Regulation to protect the environment from 
              environmentally harmful pesticides by prohibiting, 
              regulating, or ensuring proper stewardship of those 
              pesticides (§11501).

           6) Pursuant to Harbors and Navigation Code, grants the 
              Director of the Department of Boating and Waterways 
              specified responsibilities related to public access and 
              safety on California's waterways.

            This bill  :  

           1) Defines "alternative paint" to mean paint that does not 
              contain any biocide compounds. Alternative paint acts to 
              protect the integrity of a vessel's hull by creating a hard 
              barrier or by creating a slick finish to aid in 
              foul-release properties.

           2) Defines "antifouling paint" to mean paint for a vessel's 
              hull containing compounds to prohibit the attachment and 
              growth of aquatic life.

           3) Defines "recreational vessel" to mean a vessel that is 
              either manufactured or used primarily for pleasure or 
              leased, rented, or chartered to a person for the pleasure 
              of that person.  A recreational vessel is not a vessel that 
              is subject to United States Coast Guard inspection and is 
              engaged in commercial use or carries paying passengers.

           4) Prohibits, on or after January 1, 2015, a manufacturer, 
              wholesaler, retailer or distributor from selling or 
              offering for sale in California any new recreational vessel 
              containing antifouling paint that contains copper.

           5) Prohibits, on or after January 1, 2019, the use or 
              application of antifouling paint containing copper to any 
              recreational vessel.

           6) Authorizes the Director of the Department of Boating and 









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              Waterways, if the director determines that there are no 
              effective, available, and affordable alternative paints, 
              taking into account durability, lifespan, and cleaning, 
              available by January 1, 2019, to delay implementation of 
              this article by one year. 



            COMMENTS  :

            1) Purpose of Bill  .  According to the author, SB 623 
              represents a significant and targeted step forward in 
              reducing copper in marine basins, while recognizing the 
              continued need for marine hull paints that control fouling 
              growth.  It provides paint manufacturers with a reasonable 
              timeframe to research, develop, and manufacture more 
              alternative paints.  It also provides recreational boat 
              owners a reasonable time to transition to the alternative 
              paints.  This bill also will give local jurisdictions 
              facing regulatory water quality requirements now and in the 
              future the ability to demonstrate that they are doing 
              everything they can do to meet those requirements related 
              to copper.  Finally, it will help remove a serious threat 
              to aquatic organisms in California waters to ensure a 
              healthy marine environment by making significant 
              improvements for the enjoyment of recreational boaters and 
              the public.

            2) Background  . 

              a)    Hull fouling.  According to the US Environmental 
                 Protection Agency's funded report, "Safer Alternatives 
                 to Copper Antifouling Paints for Marine Vessels," boat 
                 hulls are especially prone to damage from saltwater and 
                 marine organisms because they are continuously under the 
                 water.  Marine organisms such as barnacles, algae, and 
                 sponges (commonly referred to as "fouling") exist by 
                 attaching to stationary objects underwater.  The wide, 
                 smooth surfaces of boat hulls are ideal surfaces for the 
                 accumulation of fouling growth.  Excessive fouling on 
                 boat hulls creates serious problems for boat owners.  
                 The growth of these organisms leads to loss of speed and 
                 maneuverability.  It also increases fuel consumption and 









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                 strain on engines.  For these reasons, it's important 
                 for boat owners to limit the amount of fouling that 
                 grows on their boat hulls. 

                 There are currently approximately 1 million recreational 
                 boats registered in California.  Some boat owners choose 
                 an antifouling hull paint to prevent fouling.  Most of 
                 these paints are made with copper, which keeps boat 
                 hulls clean because the metal is undesirable to fouling 
                 organisms.  While these paints are an effective method 
                 to control fouling, they have been discovered to be the 
                 root cause of a significant pollution problem in marina 
                 basins statewide.  Over time, the copper dissolves out 
                 of the paint and pollutes the water quality.


              b)    Copper toxicity.  Copper is used as the biocide in 
                 antifouling paints because of its known toxicity to 
                 marine aquatic life.  At relatively low concentrations, 
                 copper is toxic to aquatic organisms.  Copper toxicity 
                 to aquatic life varies between species and individual 
                 species life stages.  Elevated levels of copper are 
                 toxic in aquatic environments and may adversely affect 
                 fish, invertebrates, plants, and amphibians.  Acute 
                 toxic effects may include mortality of organisms; 
                 chronic toxicity can result in reductions in survival, 
                 reproduction, and growth.  The early life stages of 
                 fish, bivalves, and echinoderms are especially 
                 vulnerable to copper contamination.  Copper tends to 
                 accumulate in sediment threatening aquatic life.  Copper 
                 in the sediment often needs to be removed through 
                 dredging which can be very costly.  

            3) State efforts  . 

              a)    The Copper Antifouling Paint Sub-Workgroup of the 
                 Non-Point Source Interagency Coordinating Committee 
                 Marinas and Recreational Boating Workgroup.  Department 
                 of Pesticide Regulation is this workgroup's lead agency. 
                  The goal of the workgroup is to assess the degree and 
                 geographical distribution of copper pollution caused by 
                 copper antifouling paint (AFP) pesticides in 
                 California's aquatic environments. In 2009, the 









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                 workgroup changed its name to the Antifouling Strategy 
                 Workgroup to encompass a broader workgroup scope.  This 
                 workgroup has been meeting since 2004 and includes the 
                 State Water Resources Control Board (SWRCB), regional 
                 water quality control boards (RWQCBs), and various 
                 stakeholder groups. 

              b)    DPR.  In June 2010, DPR called for a reevaluation of 
                 copper- based AFPs on findings from a June 2009 DPR 
                 report titled, "Monitoring for Indicators of Antifouling 
                 Paint Pollution in California Marinas."  The report 
                 indicates that dissolved copper concentrations in more 
                 than half the water samples taken from salt and brackish 
                 water marinas exceeded the limits under Title 40, Code 
                 of Federal Regulations Part 131, or the California 
                 Toxics Rule (CTR) chronic water quality standard for 
                 copper.  Dissolved copper concentrations in about a 
                 third of the water samples in these marinas also 
                 exceeded the acute standard.  Several other marina 
                 surveys of Southern California coastal marinas produced 
                 similar findings. 

                 Pursuant to this reevaluation, registrants with 
                 copper-based AFP pesticides are required to provide the 
                 specified information to DPR including the type of 
                 paint, the product's copper release (leach) rate;  and 
                 include specific mitigation strategies on pesticide use 
                 or reformulation that will reduce dissolved copper 
                 concentrations in California salt and brackish water 
                 marinas.  This information is required to be remitted to 
                 DPR within six months.  After the information is 
                 submitted and reviewed, DPR will work with registrants 
                 on their mitigation strategies to determine their 
                 implementation.  

              c)    SWRCB Proposed General Coastal Marina Permit.  Due to 
                 increasing impairment of coastal marinas from petroleum 
                 hydrocarbon discharges, trash, and emissions from copper 
                 AFPs from boat hulls, the SWRCB was developing Waste 
                 Discharge Requirements for marinas (General Coastal 
                 Permit).  Statewide, there are more than 218 marinas and 
                 mooring fields (marinas) in saline or brackish waters 
                 along coastal regions, bays and estuaries of California 









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                 that contain slips or mooring locations for 10 or more 
                 boats.  Statewide, at least 99 marinas (45%) are in 
                 water bodies that are listed on the Clean Water Act 
                 (CWA) Section 303(d) List of Water Quality Limited Water 
                 Bodies as impaired for indicator bacteria or pathogens.  
                 In addition, at least 80 marinas (37%) are located in 
                 water bodies that are listed as impaired for copper, and 
                 a minimum of 44 marinas (20%) are located in water 
                 bodies that are on the CWA Section 303(d) list as 
                 impaired for zinc.  Statewide, there are six pathogen 
                 TMDLs and three metals TMDLs in which marinas are listed 
                 as sources.

                 With several RWQCBs adopting TMDLs, SWRCB identified a 
                 need for statewide consistency in regulation and 
                 implementation that resulted in the initiation of 
                 statewide Waste Discharge Requirements for marinas. US 
                 EPA supports the General Permit for implementation of 
                 TMDLs and as a tool to address nonpoint source 
                 pollutants associated with marinas.  The intent of a 
                 statewide Coastal Marinas General Permit is threefold:  
                 (i) to be the regulatory means to require implementation 
                 of TMDLs that have marinas listed as likely sources of 
                 impairment; (ii) to control pollutants generated by 
                 marina activities by implementing appropriate best 
                 management practices; and (iii) to prevent pollution 
                 generated by marina activities from potentially 
                 impacting high quality waters. While a General Permit 
                 establishes minimum statewide requirements, a RWQCB 
                 could establish more stringent and/or more specific 
                 requirements appropriate for specific marinas.

                 Currently, SWRCB suspended its work and the release of a 
                 draft Coastal Marinas Permit in order to further its 
                 work with stakeholders on marina and coastal waters 
                 issues. SWRCB, with the cooperation of stakeholders and 
                 other agencies is gathering additional facts and 
                 information on these issues, and is exploring both 
                 regulatory and nonregulatory solutions along with 
                 stakeholders on how to preserve the beneficial uses of 
                 coastal waters.  In terms of information gathering, the 
                 SWRCB anticipated the findings of a $727,000 federal 
                 grant funded study conducted by the Unified Port of San 









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                 Diego to test safe alternatives to copper-based AFP. 
                 This report, "Safer Alternatives to Copper Antifouling 
                 Paints for Marine Vessels" was released in January 2011. 
                  It discussed many findings and recommendations.  One of 
                 particular interest is that there are alternatives to 
                 copper AFPs that exist and are available for purchase, 
                 and research and development is ongoing to examine other 
                 alternatives.  

              d)    San Diego Regional Water Quality Control Board.  
                 According to the regional board, approximately 98 
                 percent of total copper loading to the San Diego Yacht 
                 Basin originates from copper-based AFPs applied to the 
                 hulls of recreational vessels. Of this total, 93 percent 
                 is attributable to copper entering the water column 
                 through passive leaching of copper from AFPs.  The 
                 remaining 5 percent enters the water column during 
                 periodic underwater hull cleaning of those vessels at 
                 the marinas.  

                 In San Diego Bay, approximately 322 acres of the bay are 
                 listed as impaired for dissolved copper.  In 2003, the 
                 RWQCB considered a NPDES permit to address discharges in 
                 marinas in the San Diego Region.  A TMDL for dissolved 
                 copper was adopted by the Regional Board and approved by 
                 US EPA in 2005 for the Shelter Island Yacht Basin that 
                 requires a 76% reduction in copper loading into the 
                 basin by 2022.  In 2007, the RWQCB initiated stakeholder 
                 workshops on a regional NPDES permit to protect high 
                 quality waters, control discharges of pollutants, and 
                 implement TMDLs adopted by the RWQCB. 

            4) Previous legislation  .  SB 346 (Kehoe) Chapter 307, Statutes 
              of 2010, established a phase out of copper in automotive 
              brakepads.

            5) Other states  .  In Washington, SB 5436, initiated by the 
              Northwest Marine Trade Association, prohibits new boats 
              with copper-based bottom paint from being sold after 
              January 1, 2018.  The sale of AFPs containing more than 0.5 
              percent copper would be banned starting in 2020.  The bill 
              would be enforced by the state Department of Ecology, and 
              boaters would face fines of up to $10,000 for violations.  









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              This bill is on the Governor's desk.

            6) Opposition Concerns  .  Generally there is concern about the 
              uncertainty surrounding alternative AFPs.  It is important 
              that alternatives are not just available, but equivalent in 
              performance.  Also, that the bill does not take into 
              account the work being done by DPR and the SWRCB on this 
              issue and there are other methods and options that could be 
              looked at to reduce copper releases.  
                  
               The author is working with the opposition groups, as well 
              as the California Association of Harbor Masters and Port 
              Captains, California Marine Parks and Harbors Association, 
              Marina Recreation Association Northern California Marina 
              Association, California Yacht Brokers Association, and the 
              Western Boaters Safety Group who indicate a support if 
              amended position on the measure.  They indicate they 
              support the general direction of SB 623, but believe the 
              bill needs some amendments.  The author is continuing 
              conversations with all groups to address this complex 
              issue.

            SOURCE  :        Port of San Diego
                          San Diego Coastkeepers
            
           SUPPORT  :       Apex Group
                          California Coastkeeper Alliance
                          East Bay Municipal Utility District
                          Environmental Health Coalition
                          Food and Water Watch
                          Orange County Coastkeeper
                          Sierra Club California
                          137 Individuals  

           OPPOSITION  :    American Coatings Association
                          California Paint Council
                          Recreational Boaters of California
                                
               













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