BILL ANALYSIS Ó
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