Washington Governor Signs Delay of Copper Ban

On March 18, Washington Gov. Jay Inslee (D), signed into law legislation delaying the state ban on the use of copper in antifouling paints until 2026. The measure, Substitute Senate Bill 6210, also directs the state Department of Ecology (DOE) to take further investigative action by completing another study and convening a stakeholder advisory group to review the state of science to fully understand potential alternatives, and examine all environmental impacts from the use of antifouling paints in Washington waters.

SSB 6210 passed in the Washington Senate in February 2020 and in the Washington House of Representatives in early March.

ACA and its members — who manufacture marine coatings, and active ingredient suppliers who sell marine coatings products in the State of Washington — actively supported this course of action.

Throughout the Washington 2019–2020 legislative session, ACA worked closely with DOE, environmental non-profit organizations, and other industry stakeholders to develop a solution on how the state should move forward with potentially restricting the use of copper and other biocides in antifouling paints. Ultimately, all interested parties agreed that further study of the environmental impacts from the use of antifouling paints in the State of Washington was required, and as set out in SSB 6210.

Specifically, the law mandates a DOE-directed scientific study, convening a stakeholder advisory group to review the state of science, fully understand potential alternatives, and examine all environmental impacts from the use of antifouling paints in Washington waters.

ACA looks forward to working with DOE and other interested stakeholders on the development of this new report that will include all available science, environmental modeling, and performance data so that the legislature can eventually make an informed decision that is in the best interests of its constituents.

Background

In 2011, the Washington State Legislature passed RCW 70.300.020 – Restrictions on Sale and Application of Antifouling Paint Containing Copper, to phase out the use of copper-based antifouling paints on recreational boats. A recreational vessel is defined in the law as being no more than 65 feet in length and used primarily for pleasure. The 2011 bill also directed the Washington State Department of Ecology (DOE) to study antifouling paints and report back to the Legislature about its findings in 2017. The first stage of the copper restriction was scheduled to take effect on January 1, 2018.

DOE’s report to the Legislature was completed in 2017 and found that there is not a proven, superior biocide alternative to copper. Thus, DOE recommended that the Legislature delay the ban on copper-based antifouling paints so it could conduct additional research. In response to Ecology’s 2017 report and recommendations, the Legislature passed Substitute House Bill (SHB) 2634 in 2018, which delayed the ban on copper-based antifouling paints until 2021. SHB 2634 provided DOE with ample time to conduct further research and analysis of antifouling paints and their ingredients, including the relative impacts of copper versus non-copper biocides using models based on Washington State data: Puget Sound marina designs and water quality conditions. SHB 2634 also directed Ecology to report back to the Legislature about their review and recommendations for regulatory changes, if any, in 2019.

Pursuant to the Legislature’s directive in SHB 2634, DOE submitted its report and recommendations in December 2019. The department recommended that the Legislature amend RCW 70.300.020 in the following ways during the 2020 legislative session:

  • Delay the existing statutory ban on copper-based antifouling paints until 2026 to allow for more scientific research and information to be developed;
  • Ban the sale and application of antifouling paints containing Cybutryne/Irgarol for recreational vessels in Washington; and
  • Grant Ecology authority to request information from paint manufacturers regarding ingredients, leach rates, and other relevant data.

Substitute and Final Bill

There were many developments during the 2020 legislative session. Based on its recommendations from the 2019 report, DOE submitted two identical bills for consideration by the Washington State Legislature (Senate Bill 6210 and House Bill 2385). As the legislative session progressed, ACA urged lawmakers to amend the bills by adding a requirement that DOE take further investigative action by completing another study and convening a stakeholder advisory committee to review the state of science, fully understand potential alternatives, and examine environmental tradeoffs and any potential unintended impacts of a ban on the use of copper in antifouling paints for recreational vessels.

After much discussion between ACA, industry coalition partners, DOE and environmental group, all parties agreed that the following be included in a substitute bill (SSB 6210):

  • Direct DOE to conduct a review with stakeholder engagement and submit a report to the Legislature by June 30, 2024, 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;
  • Make the 2026 ban on copper-based antifouling paints contingent on a determination by Ecology that safer and effective alternatives to copper-based antifouling paints are feasible, reasonable, and readily available;
  • Require Ecology to conduct a second review and report by June 30, 2029, of relevant studies and information on alternatives to copper-based antifouling paints, if Ecology does not determine by June 30, 2024 that safer and effective alternatives to copper-based antifouling paints are feasible, reasonable, and readily available;
  • Ban the sale and application of antifouling paints containing Cybutryne/Irgarol for recreational vessels in Washington; and
  • Grant Ecology authority to request information from paint manufacturers regarding ingredients, leach rates, and other relevant data.

ACA and its Marine Coatings Council will continue to work with Washington DOE on antifouling marine coating matters.

Contact ACA’s Rhett Cash for more information.

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