California led the regulatory charge this past year by proposing a ban on copper in pleasure craft coatings (Senate Bill 623), while simultaneously initiating a re-evaluation of cooper as an approved biocide in antifouling coatings (Department of Pesticide Regulations). In September 2011, the California State Lands Commission (CSLC) released a draft proposal to control biofouling on ships hulls entering California ports. In addition to the regulations coming out of California, this article will also briefly discuss the impact of the Pleasure Craft Control Technique Guidelines (CTG ), as well as the draft 2013 vessel general permit (VGP) and the new small vessel general permit (sVGP).
California Senate Bill 623 proposed to ban the use of copper in antifouling paint for use on pleasure craft. The bill was sponsored by Senator Christine Kehoe (D) and co-sponsored by the Port of San Diego and the San Diego Coast Keeper. Industry had urged proponents, who had acknowledged the litany of technical issues surrounding the measure — including questions of what an alternative product would be like, how much would it cost, and if it would even work as well as copper-based antifouling coatings — to study the issue further and make any decisions based on scientific evidence and technological feasibility. The question “Will it work as well?” is one that should be of primary concern to lawmakers and regulators in California and beyond; they rightly fear that the risks of invasive species will increase if the alternatives are not as effective. SB 623 was dropped by Senator Kehoe on May 30, 2012 after ACA submitted a letter pointing out new evidence that would soon come to light which could change how copper-impaired waters are defined, specifically EPA’s review of the Biotic Ligand Model (BLM) for marine waters and the California Department of Pesticide Regulation’s (DPR) re-evaluation of copper as an approved biocide in antifouling paints. Although the bill was dropped by Senator Kehoe, a similar bill will likely be introduced in the 2013 legislative cycle.
Department of Pesticide Regulation (DPR)
The use of copper in antifouling paints has been targeted by many groups as contributing to adverse water conditions in certain California marinas. In March of last year, manufacturers with affected registrations received a data request from California DPR titled, “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 underwater hull cleaning has on overall copper release from antifouling paint. ACA submitted the “In Water Hull Cleaning and Passive Leaching Study Protocol” to DPR and the study protocol was approved by DPR in June of this year. The study is being conducted by SPAWAR (Space and Naval Warfare Systems Command), a subgroup of the U.S. Navy, and reviewed by a third party — Scripps Institution of Oceanography at the University of California San Diego. The results of this study and the mitigation strategies developed by DPR will not just determine the course for anti-fouling coatings in California, but will likely have global implications.
The California State Lands Commission (CSLC), operating under a statutory directive from the state Legislature to establish regulations “governing the management of hull fouling on vessels arriving at a California port or place” and “based on the best available technology economically achievable,” proposed a biofouling rule for all ships greater than 300 gross tons that carry ballast water entering California ports. Released in September 2011, the proposal mandated “performance standards” with a ranking system to determine if a ship’s hull is clean enough to enter California waters. The CSLC biofouling rule was akin to the International Maritime Organization (IMO) “Guidelines for Control and Management of Ships’ Biofouling to Minimize the Transfer of Invasive Aquatic Species,” which were adopted as an IMO Resolution on July 15, 2011 and were largely supported by the U.S. paint and coatings industry. However, the California proposal deviates significantly from the IMO guidelines in that it mandates the “performance standards” with a ranking system. Because of the difficulty in interpreting such a subjective scale, coupled with the fact that antifouling paints have never been subjected to such a system, the IMO did not incorporate performance standards into the international guidelines. The U.S. marine coatings industry, through ACA, commented on multiple drafts of the proposal, urging CSLC to delete the performance standards from its proposal and, instead, confine its provisions to those in the IMO guidelines. The U.S. marine coatings industry believes that, due to the international nature of shipping and in order to maintain a level playing field in the highly competitive marine industry (in 2010, U.S. shipments of marine coatings, including original equipment manufacturer and refinish applications, totaled 13.9 million gallons valued at $430 million), biofouling standards should be adopted consistently across the globe. The U.S. marine coatings industry maintains that vessels following the IMO guidelines that enter California waters will present a low risk for translocation of invasive species into California waters. California law requires that rules such as the biofouling rule be promulgated within a year. CSLC did not include the issue on the August or October agenda and therefore will need to begin the rulemaking process anew.
Control Technique Guideline (CTG) for Pleasure Craft Coatings
The pleasure craft CTG continues to inhibit the marine coatings industry as it is adopted in a patchwork fashion across the 50 states and local air districts. The PC CTG was finalized by the EPA in 2008 with little- to-no input from industry and is based on the South Coast Air Quality District’s rule 1106.1. Because of the lack of consultation with coatings experts, the VOC levels of certain categories and the definitions provided in the CTG are problematic. Additionally, there is at least one crucial coating category that was not included in the PC CTG. Over the last several years the American Coatings Association has been lobbying individual states to modify their PC CTG (after all, the CTG only offers guidance to the states) to include the more realistic VOC levels, as well as adding the Antifouling Sealer/Tie Coat category, among other things. While some states are amending EPA’s recommendations, others are adopting the CTG “as is.” This is creating confusion not only within the manufacturing world — having to create different formulas for different jurisdictions — but also with customers. This year Maryland adopted a version of the PC CTG and Maine has just begun the rulemaking process to adopt the CTG. New York and Pennsylvania are expected to follow suit in the coming year.
Vessel General Permit (VGP) / Small Vessel General Permit (sVGP)
In November 2011, U.S. EPA issued two draft vessel general permits that would regulate discharges from commercial vessels, excluding military and recreational vessels. The draft Vessel General Permit, which covers commercial vessels greater than 79 feet in length, would replace the current 2008 Vessel General Permit, when it expires in December 2013. VGP is a CWA National Polluant Discharge Elimination System (NPDES) permit that authorizes 27 discharge categories for vessels larger than 79 feet in length. The differences between the 2008 VGP and the new draft VGP include numeric ballast water discharge limits for most vessels and some minor changes to recordkeeping and reporting requirements.
The new draft Small Vessel General Permit would cover vessels smaller than 79 feet in length and would provide such vessels with the Clean Water Act permit coverage they will be required to have as of December 2013. The draft permit specifies best management practices for several broad discharge management categories including fuel management, engine and oil control, solid and liquid maintenance, graywater management, fish hold effluent management and ballast water management. ACA submitted comments to EPA in February 2012 asking that EPA not discourage use of safe, effective biofouling controls.
Forecast and Conclusion
California will continue to set the pace for the domestic and even international marine coating regulations in the coming year. Additionally, Maine, Pennsylvania and New York are expected to adopt the pleasure craft CTG. The VGP and sVGP are expected to go into effect in 2013 and EPA intends to issue the final permits in November 2012. ACA’s Marine Coating Committee and Anti-Fouling Work Group will continue to work to preserve the market for antifouling coating systems, while remaining ever mindful of protecting domestic waters, safeguarding the environment, and promoting the development of safer technologies for marine coatings.
Marie Hobson serves as Counsel in the American Coatings Association's (ACA) Government Affairs Division as well as Counsel to the International Paint and Printing Ink Council (IPPIC). Marie serves as staff to ACA's Marine Coatings Committee and its Antifouling Workgroup, ACA's Auto-refinish Coalition as well as ACA's newly formed International Affairs Committee. Marie graduated from Villanova University with a degree in Political Science before earning a law degree with a focus on environmental law from the Widener University School of Law