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 SB 623 Page 2 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 SB 623 Page 3 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 SB 623 Page 4 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 SB 623 Page 5 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 SB 623 Page 6 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 SB 623 Page 7 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. SB 623 Page 8 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 SB 623 Page 9