BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 425
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          Date of Hearing:   April 16, 2013

           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
                                  Luis Alejo, Chair
                     AB 425 (Atkins) - As Amended:  April 9, 2013
           
          SUBJECT  :   Pesticide:  antifouling paint: pesticide  
          registration: evaluation.

           SUMMARY  :   Requires, no later than February 1, 2014, the  
          Department of Pesticide Regulation (DPR) to determine a leach  
          rate for copper-based antifouling paint used on recreational  
          vessels and make recommendations for appropriate mitigation  
          measures to address the protection of aquatic environments from  
          the effects of exposure to that paint.

           EXISTING LAW  :

           Under federal law:

           1)Requires, under the federal Clean Water Act (CWA) section  
            303(d), states to identify waters that do not meet, or are not  
            expected to meet by the next listing cycle, applicable water  
            quality standards after the application of certain  
            technology-based controls and to schedule such waters for the  
            development of a Total Maximum Daily Load (TMDL).  A TMDL is a  
            calculation of the maximum amount of a pollutant that a water  
            body can receive and still meet water quality standards.

          2)Provides, under the Federal Insecticide, Fungicide, and  
            Rodenticide Act (FIFRA), for federal regulation of pesticide  
            distribution, sale, and use.  Requires all pesticides  
            distributed or sold in the United States to be registered  
            (licensed) by the United States Environmental Protection  
            Agency (US EPA).  Requires the approval of antifouling paints  
            by the US EPA before application or sale within the United  
            States.

           Under state law:

           1)Imposes, under the Marine Invasive Species Act, 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 regularly to  








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            remove fouling organisms.

          2)Requires DPR to regulate pesticides, including the use of  
            antifouling coatings, in California.

          3)Establishes the State Water Resources Control Board (SWRCB)  
            and the Regional Water Quality Control Boards (RWQCBs) to  
            preserve, enhance and restore the quality of California's  
            water resources, and ensure their proper allocation and  
            efficient use for the benefit of present and future  
            generations.  Requires the SWRCB and the RWQCBs to implement  
            the federal CWA in California.

           FISCAL EFFECT  :   Unknown.

           COMMENTS  :

           Need for the bill:   According to the author's office, "AB 425  
          follows previous work by the Legislature, SB 623 (Kehoe),  
          introduced in 2011 but suspended in 2012 pending the results of  
          state and federal studies that would help address the growing  
          problem of toxic copper pollution in our state's waterways.   
          Dissolved copper concentrations in multiple water bodies exceed  
          the copper criterion established in the California Toxics Rule  
          (CTR) by the United States Environmental Protection Agency  
          (EPA).  Water bodies that exceed the CTR copper criterion are  
          placed on EPA's 303d list and a Total Maximum Daily Load (TMDL)  
          is developed for these water bodies.  Copper pollution from  
          copper antifouling paints is a statewide problem; therefore,  
          statewide legislation is appropriate rather than having  
          individual Regional Water Quality Control Boards establish their  
          own regulations."
           
          Biofouling  :  The US EPA reports that 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.   
          Excessive fouling on boat hulls leads to loss of speed and  
          maneuverability, increases fuel consumption and strains on  
          engines.

           Controlling biofouling  :  Most boat owners choose an antifouling  
          hull paint to limit the amount of fouling that grows on their  
          boat hulls.  Antifouling coatings work by either delivering a  








                                                                  AB 425
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          controlled, steady release of biocide from the paint surface  
          into the surrounding water next to the hull or by ablation.  The  
          more biocide that is released, either through passive leaching  
          or ablation, the more effective the paint is at inhibiting  
          fouling.  It is this layer of biocide that stops the fouling  
          from settling.  Most antifouling coatings are made with copper,  
          which keeps boat hulls clean because the metal is undesirable to  
          fouling organisms.

           Environmental impacts of copper  :  Copper loading in the marine  
          environment comes from two major antifouling coating sources:   
          1) the passive leaching of copper from the coatings; and 2) hull  
          cleaning of the vessels by divers using abrasive tools.  In  
          recent years, copper used as an antifoulant has been found to  
          have negative environmental impacts.  Copper is highly toxic in  
          aquatic environments and has effects in fish, invertebrates, and  
          amphibians, with all three groups equally sensitive to chronic  
          toxicity.  Copper will bioconcentrate in many different organs  
          in fish and mollusks.

           Regulation of copper in the marine environment  :  Pollutant  
          concentrations in surface waters and pollutant discharges are  
          regulated by the state water agencies and by the US EPA under  
          the CWA.  In 2000, US EPA found that California's water quality  
          standards did not meet the requirements of the CWA, and  
          subsequently promulgated federal numeric water quality criteria  
          for priority toxic pollutants for inland surface waters and  
          enclosed bays and estuaries in California.  This regulation is  
          known as the California Toxics Rule (CTR).  These water quality  
          criteria became the approved water quality criteria for toxic  
          pollutants for all purposes and programs under the CWA (40 CFR  
          131.38).  Copper routinely exceeds the CTR criteria and there is  
          a growing concern over the water quality impacts of copper.

          Since antifouling boat paints are considered to be biocides,  
          they are regulated by pesticide agencies.  In California, DPR  
          regulates the use of antifouling coatings.

          Copper in California water bodies  :  According to the SWRCB,  
          there are currently 84 water bodies throughout the state listed  
          on the CWA 303(d) list as "impaired" water bodies due to copper  
          concentrations.  Thirteen of those water bodies have established  
          TMDLs addressing copper concentrations, primarily in the Los  
          Angeles area.









                                                                  AB 425
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          In 2010, DPR issued a decision to reevaluate all registered  
          copper hull paint products because its 2009 statewide study,  
          "Monitoring for Indicators of Antifouling Paint Pollution in  
          California Marinas," indicated that copper antifouling paints  
          can be a significant source of copper in marina waters; copper  
          concentrations in many salt and brackish water marinas exceeded  
          the CTR chronic water quality standard for copper; the use of  
          copper antifouling paints contributes to this exceedance; and  
          copper antifouling paint pollution is a multi-regional issue in  
          California.  This reevaluation is ongoing and there is no  
          targeted finalization date.

          According to the author, the intent of this bill is to, "Provide  
          the impetus to complete the scientific analyses needed to  
          formulate sound environmental policy that protects our water  
          quality and marine life in a way that is least burdensome to  
          recreational boat owners."

           Alternatives to copper antifouling paint  :  According to US EPA,  
          to find and promote the use of safer alternatives to copper  
          antifouling coatings on marine vessels, US EPA awarded the San  
          Diego Unified Port District with $190,000 in grant funding to  
          test a variety of new non-copper hull paints in San Diego.  The  
          project occurred from January 2008 through December 2010.  Some  
          of the newly tested paints were, like copper, biocides such as  
          zinc and organic biocide paints.  Alternative biocides have  
          unknown environmental and health effects, but it is likely that  
          the buildup of zinc would also cause negative impacts to the  
          aquatic environment.  Non-biocide coatings were also tested.   
          These were found to cause no harm to marine life or their  
          aquatic environment, nor did they put human health at risk.

          In addition to their environmentally-friendly qualities, the  
          preferred non-biocide paints demonstrated cost-effectiveness due  
          to their longevity (15+ years) and cleaning frequency similar to  
          copper-based paints.  Non-biocide coatings show particular  
          promise due their ability to provide anti-fouling protection  
          while ensuring the well-being of aquatic life and human health.

           Recent related legislation  :  SB 623 (Kehoe, 2011).  Would have  
          restricted the use of copper antifouling paint on recreational  
          vessels.  This bill passed out of the Assembly ETSM Committee on  
          a 5 - 1 vote, but was later amended to reflect policy related to  
          aspiration abortions.









                                                                  AB 425
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           REGISTERED SUPPORT / OPPOSITION  :
           
          Support:
           
          San Diego Unified Port District (sponsor)
          American Coatings Association 
          California Paint Council 
          Sierra Club California
           
          Opposition:
           
          None received.
           

          Analysis Prepared by :    Shannon McKinney / E.S. & T.M. / (916)  
          319-3965