BILL ANALYSIS �
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
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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
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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
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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
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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
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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
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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.
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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
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