Domestic Marine Coatings Regulatory Update

environment

Background

 

ACA’s Marine Coatings Council continues to engage in several issues relating to marine coatings at federal, state, and local levels in the United States.

Initiatives at the Federal Level

At the federal level, ACA has been involved in U.S. EPA’s review of various registered biocides (copper, tralopyril, cybutryne, zinc pyrithione, copper pyrithione, etc.) to ensure that the antifouling coatings industry has many safe and effective active ingredients to choose from.

ACA recently received an inquiry from U.S. EPA regarding registration review mitigation for zinc pyrithione. In its Registration Review Draft Risk Assessment, the agency identified risks of concern for humans and the environment that result from ZnPT’s various uses (including antifouling coatings). EPA summarized these risks and asked specific questions about risk mitigation measures, including questions related specifically to antifouling coatings.

Initiatives at the State and Local Levels

Marine and pleasure craft coatings are subject to state and local VOC regulations. U.S. EPA also developed a Control Technique Guideline (CTG) for pleasure craft coatings. Numerous states and local air districts that need additional VOC reductions to meet their state implementation plan (SIP) requirements have continued to adopt lower VOC limits for this source category. States and local air districts can go beyond EPA’s CTG recommendations and vary their regulations on key administrative requirements. Recently, Nevada’s Clark County Department of Environment and Sustainability (DES) proposed a pleasure craft coatings rule. The proposal largely aligns with U.S. EPA’s CTG.

In Washington, the Department of Ecology (DOE) developed a report to the legislature on the use of antifouling coatings and their ingredients in the state. If you recall, the Washington Legislature passed Substitute Senate Bill (SSB) 6210 in 2020. Notably, SSB 6210 delayed a ban on copper-based antifouling paints in the state. SSB 6210 also directed WA DOE to conduct a review with stakeholder engagement on information about antifouling paints and ingredients; the feasibility of best management practices and nonbiocidal antifouling alternatives; and any additional relevant scientific or technical information and submit a report to the legislature by June 30, 2024 (among others).

In Oregon, the Department of Environmental Quality (DEQ) initiated a rulemaking to update its Aquatic Life Water Quality Criteria for Toxic Pollutants. In March 2024, DEQ issued a proposal to adopt new criteria for acrolein, aluminum, carbaryl, and diazinon, and update the state’s aquatic life criteria for cadmium and tributyltin (TBT) based on U.S. EPA’s most recent recommendations. These numeric criteria values will be used in DEQ’s water quality programs (assessment, permitting, TMDL, etc.) to determine waterbody impairment, pollution control measures, and permit limits. As such, there may be an impact on the use of these chemicals in antifouling coatings in Oregon.

Lastly, in April 2024, California’s Water Quality Control Board for the Los Angeles Region issued proposed amendments to its Water Quality Control Plan. Notably, the Los Angeles Water Board plans to incorporate a water effects ratio for copper and revise the toxic pollutants TMDL for Marina del Rey Harbor. The revised Marina del Rey Harbor Toxic Pollutants TMDL will extend the compliance deadline for copper discharges from antifouling coatings from March 22, 2024, to March 26, 2026.

 

ACA Action

Initiatives at the Federal Level

At the federal level, ACA submitted comments to U.S. EPA regarding potential risk mitigation measures that may be imposed for zinc pyrithione (ZnPT) used in antifouling coatings. ACA responded to the agency’s questions and advised them that appropriate PPE and handling recommendations could mitigate any inhalation or dermal risks of concern. Future action is still pending.

Initiatives at State and Local Levels

In Nevada, ACA submitted brief comments in support of Clark County DES’ proposed marine and pleasure craft coatings rule. ACA encouraged the department align its rule with EPA’s CTG to ensure consistency with similar rules in neighboring jurisdictions (e.g., Maricopa County, Arizona).

In Washington, ACA has been heavily involved in DOE’s antifouling coatings effort. In December 2023, WA DOE published its third Draft Report to the Legislature on Antifouling Paints in Washington. This draft report summarizes the results of Ecology’s scientific review of biocidal and non-biocidal antifouling paints and ingredients. It also provides the following preliminary recommendation to the Washington legislature:

Ecology is not able to determine “that safer and effective alternatives to copper-based antifouling paints are feasible, reasonable, and readily available” pursuant to RCW 70A.445.020. As a result, the potential restrictions on copper-based paints in RCW 70A.445.020(3)(a)-(c) will not take effect and Ecology will conduct a second review of relevant studies and information. A follow-up report will be submitted to the Legislature by June 30, 2029.

WA DOE also reviewed non-biocidal paints and other non-copper biocidal ingredients that are registered for use in Washington, including tralopyril, zinc pyrithione, and DCOIT. ACA submitted comments in support of DOE’s recommendation to delay the ban on copper-based antifouling paint and conduct another review of relevant studies and information for inclusion in a follow-up report that will be submitted to the legislature by June 30, 2029. However, ACA asked for additional clarification in the draft report related to the studies referenced regarding salmon in freshwater environments. ACA also encouraged DOE to clarify that U.S. EPA’s maximum allowable leach rate for antifouling paint that contains copper (9.5 µg/cm2/per day) only applies to coatings used on recreational vessels. ACA will continue to engage with the department as it finalizes this report to the legislature.

In Oregon, ACA has engaged in DEQ’s rulemaking to update the state’s aquatic life water quality criteria for toxic pollutants. ACA will continue to participate in rulemaking advisory committee meetings throughout the next few months to gather information and provide relevant input. The department plans to finalize the criteria and present the rulemaking package to the Environmental Quality Commission for adoption in mid-2024. If adopted, U.S. EPA must approve the criteria before they are effective for Clean Water Act purposes.

Lastly, ACA will participate in the Los Angeles Water Board’s rulemaking effort to amend the Water Quality Control Plan. The Los Angeles Water Board is holding a public hearing on June 27 at 9:00 AM PT. The Los Angeles Water Board plans to incorporate a water effects ratio for copper and revise the toxic pollutants TMDL for Marina del Rey Harbor. The revised Marina del Rey Harbor Toxic Pollutants TMDL will extend the compliance deadline for copper discharges from antifouling coatings from March 22, 2024, to March 26, 2026. This will accommodate the development of a regulatory order to implement the TMDL. The Los Angeles Water Board is expected to act on the proposed order after hearing staff’s presentation and public comments during the public hearing on June 27. ACA is coordinating comments with its Marine Coatings Council.

ACA will continue to monitor other marine coatings VOC/HAP proposals and participate whenever necessary to ensure the regulations are fair and based on sound science.

 

ACA Staff

Rhett Cash
Counsel, Government Affairs