BILL ANALYSIS                                                                                                                                                                                                    



                                                                AB 425
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Jerry Hill, Chair
                              2013-2014 Regular Session
                                           
           BILL NO:    AB 425
           AUTHOR:     Atkins
           AMENDED:    April 9, 2013
           FISCAL:     Yes               HEARING DATE:     June 19, 2013
           URGENCY:    No                CONSULTANT:       Laura  
           Feinstein
            
           SUBJECT  :    PESTICIDES: COPPER-BASED ANTIFOULING PAINT

            SUMMARY  :    
           
            Existing federal law, under the Clean Water Act (CWA)  :

           1) Requires the state to identify a list of impaired water  
              bodies and develop and implement Total Maximum Daily Loads  
              (TMDLs) for impaired water bodies. (United States Code  
              Title 33 1313(d)(1)). 

           2) Gives the United States Environmental Protection Agency (US  
              EPA) authority to administer the CWA (USC Title 33  
              1251(d)). 

              a)    US EPA's regulations on Water Quality Standards  
                 establish 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 (Code  
                 of Federal Regulations Title 40, Part 131).

              b)    US EPA's California Toxics Rule establishes numeric  
                 water quality criteria for priority toxic pollutants and  
                 other provisions for water quality standards to be  
                 applied to waters in the State of California (40 CFR  
                 Part 131).

           Existing state law  :










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

           2) 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  
              regularly to remove fouling organisms. (Public Resources  
              Code 71200 et seq.).

           3) Under California's Porter Cologne Water Quality Control Act  
              (Porter-Cologne):

              a)    Provides the State Water Resources Control Board  
                 (SWRCB) authority over state water rights and water  
                 quality policy.

              b)    Establishes eight Regional Water Quality Control  
                 Boards (regional boards) to oversee water quality at the  
                 local/regional level.

              c)    Gives the state and regional boards responsibility  
                 for granting National Pollutant Discharge Elimination  
                 System (NPDES) permits for certain point-source  
                 discharges (Water Code 13000 et seq.).

              d)    Regulates industrial discharges, discharges through  
                 the municipal storm drain systems, and discharges of  
                 pollutants in stormwater and urban runoff  through the  
                 NPDES.

            This bill  sets a deadline of February 1, 2014 for the  
           California Department of Pesticide Regulation (DPR) to  
           determine a leach rate for copper-based antifouling paint  
           (AFP) and makes recommendations for appropriate mitigation  
           measures to protect aquatic environments from the effect of  
           exposure to copper-based AFPs.

            COMMENTS :









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            1) Purpose of the bill  .  According to the author, AB 425 sets  
              a deadline for DPR to determine a leach rate for  
              copper-based antifouling paint and makes appropriate  
              mitigation recommendations. 

           DPR is in the process of making the findings required by the  
              bill. However, the author is concerned that there is no  
              official deadline by which DPR must report its findings.

           The author states that DPR has been re-evaluating copper  
              antifouling paints for many years, and that it is time to  
              complete the re-evaluation and develop a mitigation  
              strategy to improve water quality.  The author believes  
              that AB 425 will provide the impetus to complete the  
              scientific analyses needed to formulate a sound  
              environmental policy that is least burdensome to  
              recreational boat owners.

            2) Arguments in support  .  Supporters argue that finalizing  
              DPR's re-evaluation and mitigation strategy for  
              copper-based hull paints is urgent for restoring the health  
              of marinas across the state and meeting regulations for  
              water quality.  They note that a number of marina basins  
              throughout the state are listed as impaired for copper by  
              the State Water Resources Control Board.  The regional  
              water boards will require listed basins to reduce their  
              copper loading to meet TMDL limits in upcoming years; the  
              issuance of DPR's re-evaluation findings is a necessary  
              step in the process of compliance.

            3) Hull fouling  .  According to the San Diego Regional Water  
              Quality Control Board's report, Safer Alternatives to  
              Copper Antifouling Paints for Marine Vessels, boat hulls  
              are prone to damage from saltwater and marine organisms  
              because they are continuously underwater. Marine organisms  
              such as barnacles, algae, and sponges that attach to  
              underwater objects such as boat hulls are commonly referred  
              to as "fouling."  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 strain on engines.  For  
              these reasons, it is important for boat owners to limit the  









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              amount of fouling that grows on their boat hulls. 

              There are approximately one million recreational boats  
              registered in California. Some boat owners choose an AFP to  
              prevent fouling.  Most of these AFPs 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.

            4) Copper toxicity  .  Copper is the most commonly used biocide  
              in AFPs because of its known toxicity to marine aquatic  
              life.  At relatively low concentrations, copper is toxic to  
              aquatic organisms.  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. 

            5) Copper pollution in California water bodies  .  According to  
              the DPR, 89 of the 243 coastal marinas in California (37%)  
              are located in one of the 84 California water bodies that  
              are impaired for copper.  The US EPA has established or  
              approved 13 TMDLs addressing copper in 34 of these water  
              bodies.

           The vast majority of copper in salt and brackish waters  
              originates from copper-based AFPs.  Most of that is due to  
              passive leaching, with the remainder emitted during  
              periodic hull cleanings. The San Diego RWQCB in their  
              report, Safer Alternatives to Copper Antifouling Paints for  
              Marine Vessels, found that approximately 98% of total  
              copper loading to the San Diego Yacht Basin originated from  
              copper-based AFPs applied to the hulls of recreational  
              vessels.  The Southern California Coastal Water Research  
              Project released a study entitled Copper Emissions From  









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              Antifouling Paint On Recreational Vessels in which they  
              reported that 95% of the copper released from AFPs was  
              attributable to passive leaching.  The remaining 5% was  
              emitted during periodic underwater hull cleaning of those  
              vessels at the marinas.

            6) DPR reevaluation.   In June 2010, DPR called for a  
              reevaluation of copper-based AFPs based on findings from a  
              June 2009 DPR report entitled Monitoring for Indicators of  
              Antifouling Paint Pollution in California Marinas.  The  
              report indicated 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 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.

              Pursuant to this reevaluation, registrants of copper-based  
              AFP pesticides were required to provide 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 was received by DPR by August 2012 and is under  
              review. 

              In March 2011, copper AFP registrants were notified of an  
              additional data requirement intended to determine the  
              impact of underwater hull cleaning activities on copper  
              concentrations in California marinas. DPR is awaiting the  
              results of the study.  Based on the information obtained,  
              DPR will issue new regulations on a maximum safe leaching  
              rate for copper-based AFPs. These rules will affect newly  
              manufactured paint, but will not affect existing paint. 

            7) Total Maximum Daily Loads  .  The regional water boards have  
              the authority to enforce TMDLs.  TMDLs set compliance dates  
              by which pollution reduction goals must be met and allocate  
              responsibilities for pollutants.  The responsible parties  
              named in a TMDL are accountable for meeting the compliance  









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              schedule.  DPR's new requirements for copper-based AFPs  
              will likely reduce copper loading significantly in marinas.  
              If the reductions are insufficient to meet the TMDL  
              compliance dates, responsible parties will have to take  
              additional measures to reduce copper concentrations.  They  
              could potentially address issues outside the jurisdiction  
              of DPR, such as hull cleaning methods and the copper-based  
              AFPs applied to boat hulls before the new standards were  
              issued.

            8) San Diego Regional Water Quality Control Board (RWQCB)  .  In  
              San Diego Bay, approximately 322 acres of the bay are  
              listed as impaired for dissolved copper. A TMDL for  
              dissolved copper was adopted by the Regional Board and  
              approved by US EPA in 2006 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.

            9) SWRCB Proposed Coastal Marinas Permit  .  Due to increasing  
              impairment of coastal marinas from a variety of pollutants  
              including copper, the SWRCB proposed a statewide Coastal  
              Marinas Permit in 2009.  As of July 2010, SWRCB  
              indefinitely suspended its work on the proposed permit in  
              order to gather more information and further its work with  
              stakeholders.

            10)Co-author addition  .  Senator Hannah-Beth Jackson would like  
              to be added as a co-author.  
               
            11)Related legislation  .  SB 623 (Kehoe) of 2011 would have  
              phased out copper-based AFPs for recreational vessels by  
              January 1, 2019.  The bill passed out of the Senate  
              Environmental Quality Committee on a 5-1 vote, and passed  
              the Senate floor on a 25-13 vote, but was amended in the  
              Assembly into a different policy area.  
            
            SOURCE  :        San Diego Unified Port District  

           SUPPORT  :       American Coatings Association 
                          California Coastkeeper Alliance









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                          California Paint Council
                          San Diego Coastkeeper
                          San Diego Port Tenants Association
                          Sierra Club California  

           OPPOSITION  :    None on file