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Gov. Brown Enacts ACA-Supported California AB 425, Antifouling Paint Registration and Mitigation

Contact: John Hopewell Tuesday, October 15, 2013

On Oct. 5, California Gov. Jerry Brown signed into law California AB 425, Antifouling Paint Registration and Mitigation. It was passed by the California Assembly on Sept. 6 with a unanimous vote of 73-0 to concur with the minor amendment taken in the Senate (to add a co-author).

The ACA-supported legislation, introduced in February, relates to antifouling paint registration and mitigation in California. On June 20, the bill passed the Senate Environmental Quality Committee by unanimous vote. The bill’s sponsor, California Assemblywoman Toni Atkins (D-78), and her staff had addressed ACA concerns in the latest proposal by keeping the text of the legislation concise and allowing the California Department of Pesticide Regulation (DPR) the flexibility to make recommendations for other mitigation measures.

The new law will require that DPR determine, no later than Feb. 1, 2014, a leach rate for copper-based antifouling paint used on recreational vessels and make recommendations for appropriate mitigation measures that may be implemented to address the protection of aquatic environments from the effects of exposure to that paint. The direction to DPR will ensure that the DPR registration for low-leach-rate, copper-based antifouling paint is completed by a date certain, and provide DPR the flexibility to consider all available mechanisms to achieve mitigation. ACA will continue to work closely with the author, staff, and sponsors of the bill as well as DPR to ensure fair treatment for effective antifouling coatings in California.

The use of copper in antifouling paints has been targeted by many groups as contributing to adverse water conditions in certain California marinas. Existing California law requires every manufacturer of, importer of, or dealer in any pesticide, except a person that sells any pesticide that has been registered by the manufacturer or wholesaler, to obtain a certificate of registration from DPR before the pesticide is offered for sale. California SB 623, introduced in a prior legislative session and dropped in June 2012, proposed to ban the use of copper in antifouling paint for use on pleasure craft.

ACA and its Antifouling Workgroup (AFWG), working with ACA’s California Paint Council, successfully advocated against SB 623. The proposed measure mandated the outright ban of these coatings for recreational vessels after 2019, if the low-leach-rate coatings did not appear to be reducing copper in marinas with Total Maximum Daily Loads (TMDL) for copper that must be met by 2022. SB 623 would have required manufacturers to use the least toxic alternative when replacing the copper in marine antifouling paint, even though such alternatives are not defined, and have not been proven as effective or as safe as the current copper-containing coatings. ACA’s efforts were successful in staving off a ban and deferring the legislation, pending the results of ongoing scientific reviews on the impact of copper.

The legislation’s sponsor dropped the bill after ACA submitted a letter underscoring new evidence that could change how copper-impaired waters are defined. Specifically, the letter referenced EPA’s review of the Biotic Ligand Model (BLM) for marine waters and DPR’s reevaluation of copper as an approved biocide in antifouling paints. ACA believes that EPA’s BLM may well show that the copper threat to water bodies has been overstated. The BLM is a much more recent method of calculating metal toxicity, using 10 water chemistry parameters.

ACA and its AFWG contend that antifouling paints release copper at a controlled rate and that excessive underwater hull cleaning practices contribute a high percentage of the release of copper into marinas. Further, modern antifouling copper-based coatings are designed to be effective without frequent cleaning, and cleaning schedules should follow manufacturers’ recommendations.

In March 2011, members of the AFWG and other affected registrants received a data request from the California Department of Pesticides Regulation (DPR), “Clarification of Leach Rate Determination, Notice of Additional Data Requirements and Meeting Regarding the Reevaluation of Copper Based Anti-fouling Paint Pesticides.” The data requirement called for, among other things, a protocol to accurately determine the impact of underwater hull cleaning on overall copper release from antifouling paint.

In June 2012, ACA’s AFWG developed and submitted the “In Water Hull Cleaning and Passive Leaching Study Protocol” to DPR and coordinated the funding of the study among copper suppliers and copper-based antifouling registrants in California. The purpose of this study is to ascertain the effect of underwater hull cleaning methods on various types of antifouling paints and to quantify the amount of copper that enters the water column from passive leaching. The study will test the most contemporary antifouling paints used in Shelter Island yacht basin. This includes ablative coatings, which were not properly addressed in prior studies. ACA contracted with the Space and Naval Warfare Systems Command (SPAWAR), a subgroup of the U.S. Navy, and Scripps Institution of Oceanography and appointed a study overseer to visit the site and ensure adherence to the protocol. The study commenced on Aug. 13, 2012, and the final manuscript was issued to DPR in September 2013. The final report will be published in the peer-reviewed publication, Biofouling, and DPR will use the results of the study to inform the development of mitigation strategies.

The results of the study and the mitigation strategies developed by DPR will not just determine the course for antifouling coatings in California, but will also have global implications.

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