BILL ANALYSIS Ó
AB 425
Page 1
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
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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.
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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.
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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