Antifouling Coatings in Murky Waters: How EPA’s VIDA Regulations Leave Industry Uncertain

Regulations promulgated by EPA in response to the 2018 Vessel Incidental Discharge Act (“VIDA”) are sounding alarm bells for producers of antifouling coatings, as well as vessel operators across the country who rely on these products for their vital biofouling prevention properties. EPA’s new regulations require that coating ingredients, both active and inert, meet “biodegradable” standards that may be difficult to meet, particularly for copper-based antifouling coatings.

Most antifouling coatings are biocides, and it is estimated that there are currently hundreds of these products registered with EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Biocidal antifouling coatings impede biofouling on ships, which can significantly reduce fuel efficiency, elevate carbon emissions, and lead to the spreading of invasive aquatic species. Copper-based antifouling coatings account for 90% of product sales and have been used on vessels for over a century due to their effectiveness against biofouling, long-lasting properties, and cost efficiency. Given the lack of affordable, effective alternatives to copper-based antifouling coatings, the discontinuance of these products on large commercial vessels could have devastating impacts on producers, vessel owners or operators, as well as the environment. Yet, EPA’s VIDA regulations stand to drastically impact the future use of these products.

What is VIDA, and what does it cover?

Signed into law on December 4, 2018, VIDA amends the Clean Water Act by adding a subsection on standards for discharges incidental to the operation of vessels. VIDA applies to incidental discharges of large commercial vessels (79 ft. in length and above) into waters of the United States and excepts vessels of the Armed Forces, recreational vessels, floating craft that are permanently moored to a pier, and fishing vessels. The law further directs EPA, within two years of the date of enactment, to develop national standards for commercial vessel discharges that are to be enforced by the U.S. Coast Guard.

In October 2024, EPA published a final rule, Vessel Incidental Discharge National Standards of Performance, in response to VIDA. Among numerous other requirements, EPA’s final rule establishes stringent standards for antifouling coatings applied to covered vessels, including a requirement that these products contain components that are biodegradable once separated from the vessel surface. EPA defines “biodegradable” in the context of biocides (including copper-based antifouling coatings) as, “[a] compound or mixture that, within 28 days, demonstrates removal of at least 70% of dissolved organic carbon (DOC) and production of at least 60% of the theoretical carbon dioxide.”

While the Agency does not define “components” and does not explain the meaning of “once separated from the vessel surface,” the plain meaning of the rule indicates that all ingredients, both inerts and the active ingredient, that release from the vessel must be biodegradable. If this is the case, it would appear that many copper-based antifouling coatings on the market would likely fail EPA’s biodegradable standard. Thus, it is not clear how most copper-based antifouling coatings could continue to be used on covered vessels once EPA’s requirements are enforced. To date, EPA’s Office of Pesticide Programs (“OPP”) has not publicly addressed the potential impact of these requirements on FIFRA-registered biocidal antifouling coatings.

Further, and importantly, the Coast Guard has yet to propose or finalize standards for the testing, monitoring, compliance, and enforcement of EPA’s standards (despite VIDA requiring the agency do so within two years of EPA’s final rule). As a result, EPA’s regulations are not currently enforceable, and it remains unclear how the Coast Guard will ensure the antifouling coating requirements are met.

So, what should industry do to prepare?

First, producers of antifouling coatings should take stock of their products now to determine whether they measure up to EPA’s biodegradable requirement. Although EPA’s final rule does not provide examples of appropriate test methods to measure biodegradability, Test Guideline OPPTS 835.3110 (concerning ready biodegradability), provides a method to measure biodegradability that appears to align with EPA’s definition.

Second, producers of antifouling coatings, as well as owners and operators of covered vessels who rely on these products, should keep a close eye out for the Coast Guard’s proposed regulations for enforcement of EPA’s VIDA standards. Submitting public comments on the Coast Guard’s proposed regulations could be the final chance to protect these products, and industry should prepare to advocate for their continued use.

Finally, producers should continue to be transparent with customers and downstream suppliers while acknowledging the uncertainty posed by EPA’s VIDA regulations. In communicating with any concerned customers, it is imperative to note that antifouling coatings can continue to be applied to VIDA-covered vessels in accordance with the FIFRA label until EPA’s standards are enforceable.

Are you a concerned producer of antifouling coatings or the ingredients that are intended to be used in such products? Want to know more about EPA’s VIDA regulations? Contact David Fischer (fischer@khlaw.com), Michael Novak (novak@khlaw.com), or Allison Payne (payne@khlaw.com).