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Coating Makers Win Antifouling Delay

Monday, November 5, 2012

More items for Environmental Controls

For the fourth time, coatings makers have beaten back a California push for performance standards that would establish a ranking system to determine if a ship’s hull is “clean” enough to enter state waters.

The American Coatings Association’s Anti-Fouling Work Group has been working with the California State Lands Commission (CSLC) on proposed amendments to Article 4.8 Biofouling Management Regulations for Vessels Operating in California Waters.

But because the groups have been unable to reach an agreement on the measure, it will not take effect Jan. 1, 2013, ACA has announced.

Standards or Subjective Rankings?

CSLC wants to establish performance standards that would apply to new vessels delivered on or after Jan. 1, 2014, and to existing vessels after completion of their first out-of-water maintenance on or after Jan. 1, 2014.

American Coatings Association

California officials are under a statutory directive to establish regulations on managing hull fouling. Coating makers called proposed performance standards "subjective."

The commission is working under a statutory directive from the State Legislature to establish regulations by January 2012 "governing the management of hull fouling on vessels arriving at a California port or place." The regulations are to be “based on the best available technology economically achievable"—language similar to that used in another unpopular regulation that coating makers were unable to stop this year.

ACA submitted its first round of comments on the draft document in August 2011 and its fourth round in June 2012. The coating manufacturers' group also testified before the commission at public hearings in November 2011 and in January 2012, and representatives met with various commissioners to present the industry’s objections to what the ACA calls "the subjective ranking system."

"Before announcing that the regulation would not go into effect by Jan. 1, 2013, and despite four iterations of proposed amendments and consistent and repeated comments by ACA and other industry stakeholders, the CSLC staff remained tied to an unworkable and scientifically unsupportable idea of numeric performance standards," ACA said in a release.

Proposed Requirements

The proposed standards would apply to all vessels carrying or capable of carrying ballast water operating in the water of California. Among the draft requirements:

• Niche areas of a vessel (areas more susceptible to biofouling, such as sea-chests and sea-chest gratings, bow and stern thrusters, fin stabilizers, propellers and propeller shafts, rudders, and out-of-water block marks) must not be “significantly in excess” of 5 percent macrofouling. (Macrofouling is defined as large, distinct multicellular organisms visible to the human eye such as barnacles, tubeworms, or fronds of algae.)

• All other wetted portions of the hull must not be “significantly in excess” of 1 percent macrofouling.

Coating Maker Objections

The coating industry has urged the commission to delete the performance standards from the proposed regulation and confine its provisions to those in the IMO Guidelines for Control and Management of Ships’ Biofouling to Minimize the Transfer of Invasive Aquatic Species. In response, the commission included an alternative “presumed compliance” provision, meaning that compliance with the regulation would be presumed by demonstrating that the ship complies with various biofouling management plan elements.

ACA called the “presumed compliance” provision "a good start toward a workable and appropriate means of biofouling management."

"However," it added, "the addition of the alternative compliance provision does not make the performance standards any more supportable." The association noted this from its fourth round of comments:

"There remains no evidence in the docket that the percentage cover proscribed by the performance standards is derived from an analysis that associates a given level of risk of invasion with the specific fouling percentage cover contained in the performance standards. The assessment of a hull will rely on the subjective judgment of divers and enforcement officials.

"As such, an accurate assessment and uniform enforcement will be impractical, and will add a significant burden of uncertainty to ship-operators entering California waters.”

ACA has also repeatedly raised its concern that the mandatory cleaning schedules (every 6–12 months) could prematurely deplete the biocide in the antifouling coatings and therefore degrade the performance and lifespan of the coating. “Mandatory cleaning cycles could create the perverse effect of actually increasing the chance of fouling and the spread of invasive species.”

Comment from Tom Schwerdt, (11/6/2012, 8:49 AM)

Why the heck do you put "significantly in excess of" in a phrasing for a legal maximum of anything? That will keep lawyers busy arguing "significant" for decades! If you want under 5%, say "Under 5%" - if you want under 10%, say "Under 10%"! Anyone have a rational explanation for this approach?