Comment submitted by Neal Blossom, American Chemet

Oral Presentation to US EPA Hearing in Seattle, Washington January 21, 2010 Regarding CWA-FIFRA Common Effects Characterization Methodology Docket ID No. EPA-HQ-OPP-2009-0773. I am Neal Blossom, Director of Environmental Affairs for American Chemet, a US manufacturer of cuprous oxide that is used in various antimicrobials including marine antifouling coatings, pressure treated lumber, roofing shingles and agricultural fungicides. American Chemet is also a member of the American Chemistry Council’s Copper Antimicrobial Task Force and the National Paint and Coatings Association Marine Antifouling Task Force of which I am the founding chairman. I want to thank you, the members of the US EPA Office of Pesticide Programs, Office of Water and Office of Research and Development, for giving us the opportunity to work with you on establishing consistency between the OPP and the OW on evaluating the effects of pesticides on aquatic life. I will briefly present to you today our desire to have the marine Biotic Ligand Model , BLM, validated and implemented by the Office of Water to revise the saltwater Ambient Water Quality Criteria, AWQC, for copper, so that there is consistency in the application of the BLM between the OPP and OW. Last week you heard several presentations from other members of our groups and they submitted their testimony and additional information into the docket for these hearings. Their presentations, and in particular the presentation in Chicago by Bill Shropshire, president of American Chemet, dealt with the entire breadth of the bioavailability issue with Cu and current regulatory issues and specifically with the BLM. In a few minutes you will hear from Bob Dwyer, from the Copper Development Association, regarding the current status of the water quality standards based on bioavailability models like the BLM in this country and worldwide. Rather than repeat those presentations I will share a brief example of how the disconnect between the OPP and the OW on this issue causes problems at the state level where the pesticides are used and water quality must be regulated. I have been working with an issue in California for nearly a decade where the lack of a federal accepted marine BLM compounds an already difficult situation. There are a number of marinas in California where the copper concentration is above the chronic Clean Water Act, CWA, standard of 3.1 ug/L. One of the primary sources of these exceedences is copper leaching from marine antifouling coatings. These products are registered at the federal level through OPP with the consideration of bioavailability. In fact we are going through the reregistration eligibility decision, RED, now for copper antimicrobials, one of which is antifouling coatings; and the OPP has stated that they will consider the Biotic Ligand Model, BLM, in that decision. However, the OW has yet to validate the BLM and use the model as the basis for revising the recommended saltwater AWQC for copper. California, because of the lack of a federal approved BLM for saltwater AWQC for copper, also has a similar disconnect. The California Department of Pesticide Regulation bases its regulatory response to environmental impact on significant adverse effects and therefore considers the toxicity or lack thereof predicted by the BLM while the State and Regional Water Quality Control Boards base their regulations on the California Toxics Rule whose language comes directly from current salt water criteria. The adoption of the salt water BLM into the federal criteria could help facilitate a revision of the CTR in CA. It's not automatic, however, and a lot of work has to be done at the state level to get the Water Boards to consider changing the CTR to incorporate both the fresh and salt water BLM. Therefore getting this process started soon is important. In its monitoring study of marinas across California the DPR collected data to analyze actual toxicity and to use the BLM to calculate toxicity. Sixteen of seventeen salt water marinas had exceedences of the present saltwater AWQC for Cu of 3.1 ug/L. The DPR then measured actual toxicity in a small subset of the hundreds of samples they collected and found that only 8 of 47 samples or 17% exhibited statistically significant toxicity when measuring the development of blue mussel embryos and this toxicity was determined to be due to copper. When these same 47 samples were evaluated using the BLM, the BLM predicted toxicity was nearly identical to the measured results. The DPR’s conclusion in their own words: the “Salt Water BLM is a reliable predictor of Cu toxicity.” It” accounts for site specific bioavailability”. It “consistently predicted the outcome.” However, when I have discussed the application of bioavailability and the BLM with California Regional Water Quality Control Board members, at public hearings in California and with the EPA in California I have heard comments to the effect that the BLM would be a relaxation of the standard or that the antidegradation policy in California will not allow it and that the BLM costs too much. There is not the understanding and acceptance that the BLM is protective and that the BLM in some instances can actually lower the site specific Cu water quality standard if bioavailability is increased due to water chemistry at that site. In regard to the subject of cost, the BLM is an order if not two orders of magnitude less expensive than the current laboratory-based water effects ratio method allowed in the Clean Water Act. An example of the very high cost of the water effects ratio is a WER performed in San Jose. This WER was not conducted due to pesticides but due to copper and nickel exceedances from municipal waste water in San Francisco Bay. The city of San Jose spent approximately $2.5 million on a WER to avoid spending nearly $100 million on a water treatment facility. Joe Gorsuch, Manager of Health and Environmental Sciences for the Copper Development Association, estimated the cost using the BLM would have been less than $100,000. Again let me quote the final report from the California Department of Pesticide Regulation monitoring study. It states the BLM is an “inexpensive way of gauging toxicity”. A marine BLM-based AWQC validated and implemented by the Office of Water could save considerable limited resources on both state and federal levels. Until the marine BLM is accepted scientifically as a robust basis for the saltwater AWQC by the Office of Water on a federal level there will be skepticism and reluctance to apply it on a state level even though pesticides are approved using it. In summary, one immediate action to achieve consistent analysis of the effects on aquatic life from pesticides between the Office of Pesticides Program and the Office of Water would be the validation and implementation of a revision of the saltwater AWQC for copper based on the marine Biotic Ligand Model by the Office of Water. Again thank you for this opportunity to participate with you in this important effort.