BILL ANALYSIS �
SB 623
Page 1
Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
SB 623 (Kehoe) - As Amended: June 21, 2011
SENATE VOTE : 25-13
SUBJECT : Vessels: marine antifouling paint.
SUMMARY : Restricts the use of copper antifouling paint on
recreational vessels. Specifically, this bill :
1)Makes legislative findings and declarations.
2)Defines terms, including:
a) "Antifouling paint" as paint for a vessel's hull that is
a type of pesticide containing registered active
ingredients, biocides, or zinc compounds to prohibit the
attachment and growth of aquatic life.
b) "Low-leach rate copper antifouling paint" as a
copper-containing antifouling paint that has a maximum
leach rate to be established by the Department of Pesticide
Regulation (DPR).
c) "Transient vessel" as a vessel, recreational or
otherwise, that is not or will not be located in the
territorial waters of this state in excess of six months in
any 12-month period, except if the vessel is undergoing
repair, retrofit, or modification.
3)Requires that when a transient vessel ceases to be a transient
vessel, then within 90 days thereafter, the vessel is to be
hauled and all antifouling paint is to be removed.
4)Levies unspecified penalties upon a vessel owner that fails to
remove antifouling paint within 90 days after the vessel
ceases to be a transient vessel or upon vessel owners who
submit fraudulent representations of the transient status of
the vessel.
5)Requires, by January 1, 2014, DPR to determine the maximum
allowable leach rate for low-leach rate copper antifouling
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paints.
6)Prohibits, on and after January 1, 2015, a manufacturer,
wholesaler, retailer, or distributor from selling or offering
for sale a new recreational vessel upon which has been applied
copper-containing antifouling paint that does not meet the
definition of low-leach rate copper antifouling paint.
7)Prohibits, on and after January 1, 2015, the application of
antifouling paint containing copper that does not meet the
definition of low-leach rate copper antifouling paint to a
recreational vessel.
8)Requires, by January 1, 2019, and biennially thereafter, the
State Water Resources Control Board (SWRCB) to determine,
through the assessment of appropriate water quality data and
modeling techniques, whether the use of low-leach rate
copper-containing antifouling paints can result in the
attainment of water quality objectives in California marinas
and harbors. Requires modeling to demonstrate that the trend
line of the measured water quality data points toward
attainment of the dissolved copper water quality objectives
and that the water quality objectives will be met within five
years from the date of the assessment.
9)Prohibits, if on or after January 1, 2019, the SWRCB does not
demonstrate that the trend line of the measured water quality
data points toward attainment of the dissolved copper water
quality objectives in California marinas and harbors, the use
or application of antifouling paint on recreational vessels
one year after the determination.
10)Requires, by January 1, 2013, the Department of Boating and
Waterways to convene an advisory committee, as specified, to
review existing signage programs and other relevant sources of
information to develop a model signage program that lists
prudent guidelines for in-water hull cleaning of vessels.
11)Authorizes marina operators to use signs at their discretion
to encourage the use of proper hull cleaning methods and warn
about the dangers of contaminating the water with leaching
from antifouling paint.
EXISTING LAW :
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Under federal law:
1)Requires, under the federal Clean Water Act (CWA), the state
to identify a list of "impaired" water bodies and develop and
implement Total Maximum Daily Loads (TMDLs) for those water
bodies in order to restore water quality. A TMDL is a
calculation of the maximum amount of a pollutant that a water
body can receive and still safely meet water quality
standards. Requires TMDLs to account for all sources of
pollutants that caused the water to be listed.
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 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
remove fouling organisms.
2)Requires DPR to regulate pesticides, including the use of
antifouling coatings, in California.
3)Establishes the 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, "In
California, copper-based marine anti-fouling paint and other
biocides are currently legal to apply to boats as long as the
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product is registered with the California Department of
Pesticide Regulation (DPR). At the same time, numerous bays and
harbors throughout California have water quality impairments due
to copper, as referenced by the California 2010 303(d) List of
Impaired Water Bodies. Copper is one of the metals listed in
the federal Clean Water Act that California is required to
regulate. As such, measures must be taken to reduce impacts on
aquatic environments by reducing copper loads in these areas.
The use of copper-based marine anti-fouling paints currently on
the market creates an inherent conflict with the need to address
water quality impairments resulting from copper. 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."
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
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 is highly toxic to amphibians, with adverse
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effects in tadpoles and embryos. 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 US EPA, and ultimately
by the Clean Water Act. In California, US EPA has established
water quality standards for California for toxic pollutants,
including copper, in the California Toxics Rule (CTR). Copper
routinely exceeds the CTR criteria and there is a growing
concern over the water quality impacts from 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. There are currently
no bans on the use of copper hull paints in the United States.
DPR, however, recently issued a decision to reevaluate all
registered copper hull paint products because their statewide
study demonstrated that copper antifouling paints can be a
significant source of copper in marina waters; copper
concentrations in many salt and brackish water marinas in
California exceed water quality standards 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.
Copper in California : The SWRCB and the RWQCBs have identified
58 marinas throughout the state that are in waters that are
considered "impaired" for copper. In 1996, the San Diego RWQCB
identified water at the Shelter Island Yacht Basin (SIYB) as
"impaired" due to copper and found that 93 percent of the copper
in the SIYB results from discharges from antifouling paint on
vessel hulls. As a result, the San Diego RWQCB issued a TMDL
that requires a 76 percent reduction of copper loading over 17
years. In addition to the SIYB, seven other San Diego Bay
marina basins (America's Cup Harbor, Coronado Cays, Glorietta
Bay, Harbor Island, Marriott Marina, and Chula Vista Marina)
have been listed to have beneficial use impairments due to
elevated copper levels and are likely to have TMDLs in the
future. Additional TMDLs that deal with copper from antifouling
paint sources have been established for Marina Del Rey and Lower
Newport Bay. A total of 30 marinas are located within the three
water bodies that currently have copper TMDLs. This bill
intends to help the SIYB comply with its copper TMDL and also to
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lower the levels of copper in other "impaired" water bodies in
the San Diego region and throughout the state.
Alternatives to copper antifouling paint : According to the US
EPA, several major paint companies are developing alternatives
to copper paints. Some of these alternatives include zinc-based
paints, organic biocides, other pesticides related compounds, as
well as non-biocide coatings such as epoxies and silicone
coatings. Softer non-biocides utilize a slick or fibrous finish
that inhibits attachment by physical means. Many of these
coatings are advertised as self-cleaning, which means that when
the vessel is underway, the friction caused by boat movement
through the water may be sufficient to prevent or remove hull
fouling. Other formulations use epoxy or a ceramic epoxy to
create an extremely hard protective barrier for the hull. These
require frequent cleaning to continuously remove the fouling
that adheres. Additionally, recent advances in boat hull
coating research and development have led to the development of
other new products and technologies which will require extensive
field testing prior to being available on the market.
Arguments in support : The co-sponsor of the bill, the Port of
San Diego, states that for the past five years, the Port has
been working on multiple fronts to address water quality
problems in the Bay. They say that the Port has resolved that
copper reduction in San Diego Bay is a high priority and has
developed a Copper Reduction Program to reduce copper loading in
the Bay. They argue that the most cost effective way to address
water quality problems is to treat pollutants at their source
and say that as long as copper-containing bottom paints are
legal to use in the State of California, resolving water quality
issues at a local level is not feasible. They argue that the
state-wide transition of hull paints from copper to less toxic
alternatives, as outlined in SB 623, supports the Port's Copper
Reduction Program by addressing the largest source of copper
loading in marina basins. Manufacturers of alternative
anti-fouling paints argue that there are equivalently priced
copper free antifouling paints that have proven effective
against bio-fouling and invasive species. Orange County
Coastkeeper argues that this bill represents an important and
necessary step in addressing a major threat to our coastal
ecosystem.
Arguments in opposition : The California Paint Council and the
American Coatings Association argue that there are currently no
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equivalent coatings to those containing copper. They assert
that the lack of an equivalent non-biocide coating has severe
known environmental consequences, allowing destructive invasive
species to rebound and grow in bay areas, as well as increasing
hull drag that elevates fuel consumption and air pollution, and
impairs craft maneuverability. They contend that the risks with
so-called safe coatings, including biocide-free coatings, on
even a fraction of the vessels are unknown. They contend that a
date-certain ban on the use of copper-containing coatings in
California may also result in unknown environmental damage
caused by the use of untested "safer alternatives." The
Recreational Boaters of California argue that the bill would
penalize boaters, who would be directly and significantly
impacted by its provisions and say that the bill would impose an
estimated average new cost of $5,000 every other year on the
200,000 boaters who use anti-fouling paints to protect their
boats.
Similar legislation : SB 346 (Kehoe) Chapter 307, Statutes of
2010, establishes a phase out of copper in automotive brake
pads.
Issues : This bill is a work in progress. As the author
develops the bill, care should be given to address the following
issues:
1)What is the appropriate standard for low-leach rate copper
antifouling paints ? This bill requires DPR to determine the
maximum allowable leach rate for low-leach rate copper
antifouling paints, but it does not specify the objective of
the standard. Should the standard be set to enable marinas,
impaired water bodies or all water bodies to reach water
quality objectives? Should it be set to minimize impacts on
the aquatic ecosystem? Should it be set to ensure a certain
level of effectiveness for repelling fouling organisms? If
the objective is to set the standard to reach water quality
objectives, is DPR the appropriate agency to be setting the
standard? Since the 58 marinas in impaired water bodies have
widely varying and unique characteristics (including
ecosystems, tidal flushing, copper load, etc.), how will the
responsible agency determine what is the appropriate allowable
level of copper in antifouling paint, statewide?
2)Does this bill target the right vessels ? This bill only sets
antifouling paint requirements for recreational vessels. Will
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setting requirements for recreational vessels, and not for
commercial vessels, make enough of an impact to reach water
quality objectives?
3)How will modeling demonstrate statewide trends ? This bill
requires SWRCB to determine, through the assessment of
appropriate water quality data and modeling techniques,
whether the use of low-leach rate copper-containing
antifouling paints can result in the attainment of water
quality objectives in California marinas and harbors. How
will the SWRCB make a statewide determination, if models show
varied levels of attainment by location (i.e. some trend lines
could show improvement while others could show increased
copper load)?
4)Is it appropriate to ban all antifouling paint ? This bill
prohibits, if the SWRCB does not demonstrate that the trend
line of the measured water quality data points toward
attainment of the dissolved copper water quality objectives,
the use or application of antifouling paint on recreational
vessels. What is the level of attainment that must be met
before antifouling paint is allowed? Is it appropriate to ban
all antifouling paint, not just copper-containing antifouling
paint, if the objective of the legislation is to reduce copper
in California marine environment?
5)Is it appropriate to require the removal of antifouling paint
on previously transient vessels before prohibiting it on other
vessels ? This bill requires that when a transient vessel
ceases to be a transient vessel, then within 90 days
thereafter, the vessel is to be hauled and all antifouling
paint to be removed. It also commences other prohibitions on
copper-containing antifouling paint in 2013 and after. Should
previously transient vessels be required to remove antifouling
paint before other targeted vessels or before the SWRCB
completes its assessment of copper loading in California
marinas and harbors?
6)Who will enforce the provisions of the bill ? This bill
imposes requirements upon vessel owners, vessel masters,
manufacturers, wholesalers, retailers, distributors,
governmental agencies and others. The bill does not, however,
specify enforcement jurisdiction. Which agency is responsible
for enforcing the various provisions of the bill?
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7)What are the appropriate penalties for violations of
provisions of the bill ? This bill levies unspecified
penalties upon a vessel owner who violates provisions of the
bill. What are the appropriate penalties for violations? Who
will levy the penalties?
8)How will the State's requirements be funded ? This bill
requires DPR and the SWRCB to perform specified duties. What
is the funding mechanism to support for the SWRCB and DPR?
REGISTERED SUPPORT / OPPOSITION :
Support:
Port of San Diego (co-sponsor)
San Diego Coastkeeper (co-sponsor)
California Coastkeeper Alliance
Clean Water Action
East Bay Municipal Utilities District
ePaint
Keefe Kaplan Maritime, Inc.
National Marine Fisheries Service
Orange County Coastkeeper
Sierra Club, California
170 individuals
Opposition:
American Coatings Association
California Paint Council
Recreational Boaters of California
San Diego Port Tenants Association
21 individuals
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965