RBOC & BoatUS Propose Amendments to Tailor Marine Flare EPR Legislation to Boating

RBOC and our national advocacy partner BoatU.S. continue to advocate in support of amendments to SB 561 [Blakespear], legislation that would establish an extended producer responsibility [EPR] requirement for pyrotechnic marine flares, to enact an effective and efficient requirement for the single manufacturer of marine flares to collect and dispose of the products that it manufactures.

RBOC and BoatU.S. will support the measure with these amendments [disccussed below] and will oppose the measure if the amendments are not made.

Recreational boaters care both about responsible environmental stewardship of the waterways, as well as boater safety on the water. We look forward to the development of more feasible paths for replacement of chemical flares and being able to support a future version of this initiative.

RBOC and BoatU.S. note the good-faith engagement that have been made by Senator Blakespear, her office, Orion Safety Products, National Stewardship Council, Zero Waste Sonoma and other stakeholders during 2024 to understand the objectives of SB 1066, its implementation, impacts and costs. However,... with widely varying estimates of disposal cost and impact, no clarity about substitute safety measures, or the disposition of similar but much larger commercial flares, and no phase-in period or plan for support ... RBOC and BoatU.S. were not able to support SB 1066 as it was presented to the Governor for his consideration. The organization did not, however, request the Governor’s veto of the measure.

Our organizations remain informed by the recreational boating community’s experiences with state and local efforts to facilitate and encourage boaters to voluntarily turn in their marine flares through the past several years, especially thought the California Boating Clean and Green Campaign.

Boaters place a high priority on the importance of marine flares as a mandatory and essential public safety feature. Visual distress signals are an essential part of the safety equipment of a recreational vessel and are required by federal regulations. Alternatives to pyrotechnic flares including electronic beacons are not as effective, especially during daytime hours.

The legislation to-date has focused on a statewide EPR program as the solution to end-of-life management of marine flares to address the toxic metals and potential pollutants. Effective and affordable alternatives to a full-blown extended producer responsibility requirement can address the specific nature of marine flares, their components, and their ultimate disposal or destruction.

So far as we are aware, Orion is the sole producer of pyrotechnic flares for recreational boaters. The absence of a robust, competitive business environment is likely to lead to the new state and industry costs imposed by an EPR requirement being passed on to and borne by the recreational boaters. A significant cost impact on individual boaters could become a disincentive to purchases.

As SB 561 advances to the Assembly Committee on Environmental Safety and Toxic Materials for consideration, RBOC and BoatU.S. have developed and have submitted amendments to the author that would tailor the mandate to the specific situation in California and resolve our concerns.

The amendments would require that the manufacturer collect and dispose of the flares it manufactures. At the same time, the amendments would delete the requirements that:

• The state Department of Toxic Substances Control [DTSC] adopt regulations.

• The manufacturer submit its manufacturer responsibility plan for DTSC consideration, with DTSC then considering and approving the plan.

• A manufacturer responsibility organization be established for multiple manufacturers.

The amendments would also move up the deadline for the manufacturer to create and submit its plan to DTSC by one year, to January 1, 2027.

This program would resolve the critical issues that RBOC, BoatU.S. and others have identified and communicated while last year’s SB 1066 progressed through the legislative process and as SB 561 has been considered this year.

Update on legislation proposing abandoned vessel inventory, authorizing E15 fuel, re-evaluating copper-based anti-fouling paint, mandating marine flare producer take-back program

We have an update on 4 measures in which RBOC is engaged following today's deadline for legislation to pass through the appropriations committees in the Assembly and Senate and move forward to the floors of each house.

Abandoned Vessels Inventory

A proposed requirement that the State Lands Commission inventory all abandoned and derelict commercial and recreational vessels on or in waters within the Sacramento-San Joaquin Delta.

AB 274 [Ransom] was held on suspense in the Assembly Appropriations Committee and will not move forward.

E15 Fuel Authorization

A proposed authorization for the sale of E15 in the state for use as a transportation fuel until both of the following occur:

• CEPC completes its review and publicly posts its findings of the multimedia evaluation (MME) for E15 required pursuant to existing law.

• ARB does either of the following: adopts a regulation establishing a specification for E15 or posts an assessment on its website demonstrating it is not possible for a proposed regulation establishing a specification for E15.

AB 30 [Alvarez] passed the Assembly Appropriations Committee and proceeds to the Assembly Floor [Assembly Third Reading]

Copper-based Anti-fouling Paint Re-evaluation

A proposed requirement that the Department of Pesticide Regulation (DPR) reevaluate copper-based boat antifouling paint (AFP) products and requires the California Environmental Protection Agency (CalEPA), the State Water Resources Control Board (State Water Board), and DPR to determine the best methods to address elevated copper concentrations in marine water bodies.

AB 773 [DIxon] was held on suspense in the Assembly Appropriations Committee and will not move forward.

Distress Flare EPR

A proposed requirement that the producers of marine flares establish an extended producer responsibility (EPR) program for the collection, transportation, recycling, and safe and proper management of marine flares in California.

SB 561 [Blakespear] passed Senate Appropriations Committee and proceeds to the Senate Floor [Senate Third Reading] for consideration.

RBOC Supports Test Program for Pyrotechnic Marine Flare end-of-life management

Recreational Boaters of California [RBOC] and our national advocacy partner BoatU.S. are requesting that amendments be made to SB 1066 [Blakespear], legislation that would establish an extended producer responsibility [EPR] requirement for pyrotechnic marine flares, to incorporate the alternative test program proposal by Orion Safety Products.

Orion is proposing a one year "test program" in which it would participate in pyrotechnic marine flare collection events in California during 2024 and the first six months of 2025 by packaging and arranging for the transportation of all returned "Orion" branded marine flares back to its Indiana manufacturing and distribution facility with all such costs covered by Orion.

This test program would address a number of critical issues that RBOC and others have identified as SB 1066 has progressed through the legislative process. It would:

• Resolve any backlog inventory of outdated pyrotechnic marine flares that are in the possession of boaters.

• Enable all stakeholders to obtain additional information and data that will lead to the development of realistic, reasonable and affordable approaches for the end-of-life management of pyrotechnic marine flares.

• Identify the challenges and opportunities for pyrotechnic marine flares to be transported, managed, re-used, recycled, and destroyed or disposed.

• Accomplish these objectives with no additional state or local government expense.

• Avoid the imposition of significant cost increases in a noncompetitive marketplace to be borne by the many recreational boaters who rely upon pyrotechnic marine flares as the most effective visual distress signal.

RBOC would support SB 1066 if it were to be amended to provide for this test program as an alternative to the imposition of a boilerplate extended producer responsibility requirement.

We would also engage in its implementation as an opportunity to advance environmental stewardship of the state’s waterways in a manner that is tailored to this product and mindful of the importance of boater safety on those waterways.

RBOC emphasizes boater safety as extended producer responsibility is considered for marine flares

RBOC has updated our position on SB 1066 [Blakespear], legislation that would establish an extended producer responsibility [EPR] requirement for marine flares.

This update is informed by the conversations that have been held among the stakeholders, the amendments having been made to the bill on April 18, and the placement of the measure onto suspense in yesterday’s hearing of the Senate Appropriations Committee.

RBOC notes the good-faith engagement that is being made by Senator Blakespear, Orion Safety Products, National Stewardship Council, Zero Waste Sonoma and other stakeholders to understand the objectives of the legislation, its implementation, impacts and costs.

We are also informed by the recreational boating community’s experiences with state and local efforts to facilitate and encourage boaters to voluntarily turn in their marine flares through the past several years, especially thought the California Boating Clean and Green Campaign that receives the financial support of boater fees and taxes.

Boaters place a high priority on the importance of marine flares as a mandatory and essential public safety feature. Visual distress signals are an essential part of the safety equipment of a recreational vessel and are required by federal regulations. Alternatives to pyrotechnic flares including electronic beacons are not as effective, especially during daytime hours.

It therefore remains critical that legislation not have the unintended impact of causing boaters to decide not to purchase incendiary flares. A significant cost increase could have this effect.   The Senate Appropriations Committee analysis identifies a very significant cost:

“Unknown but significant ongoing costs, potentially up to $1 million annually (special fund) for DTSC to develop and administer the marine flare program. DTSC notes that the magnitude of this bill is currently unknown, but the department anticipates it would require additional staff and up to $1 million in permanent and ongoing funding to sufficiently implement this bill as currently written.” 

This is in addition to the costs to the producer to comply with the legislation by registering with a product responsibility organization (PRO), which would be required to develop and implement a producer responsibility plan for the collection, transportation, and the safe and proper management of covered products. The Senate Appropriations Committee analysis identifies a very significant cost here as well:

“According to the Division, it costs approximately $7 to $50 per flare to be properly disposed of at an out-of-state permitted facility. However, Zero Waste Sonoma, in 2023, states it cost an estimated $185 to properly dispose of one unwanted marine flare, when partnering with nearby jurisdictions to help share the cost of transportation.”

 So far as we are aware, Orion is the sole producer of pyrotechnic flares for recreational boaters. The absence of a robust, competitive business environment is likely to lead to the new state and industry costs imposed by SB 1066 being passed on to and borne by the recreational boaters.  A significant cost impact on individual boaters could become a disincentive to purchases.

 The dialogue to-date has focused on a statewide EPR program as the solution to end-of-life management of marine flares to address the toxic metals and potential pollutants. Consideration has not yet been given to exploring the possibility of effective and affordable alternatives that address the specific nature of marine flares, their components, and their ultimate disposal or destruction. This could be helpful.

 RBOC will continue to be engaged on SB 1066.  Recreational boaters care both about responsible environmental stewardship of the waterways, as well as boater safety on the water.  We look forward to the development of more feasible paths for replacement of chemical flares and being able to support a future version of this initiative.  

 However, at this time ... with widely varying estimates of disposal cost and impact, no clarity about substitute safety measures, or the disposition of similar but much larger commercial flares, and no phase-in period or plan for support ... RBOC continues to view SB 1066 as premature and in need of further study, development and refinement before it is enacted. 

RBOC Requesting Resolution of Key Concerns with Marine Flare Legislation

SB 1066 [Blakespear] would establish an extended producer responsibility requirement for marine flares.

RBOC appreciates the conversations we have had to-date with Senator Blakespear and the proponents regarding the provisions and objectives of SB 1066 that would establish an extended producer responsibility requirement for marine flares.

The recreational boating community has been engaged in the state’s efforts to facilitate and encourage boaters to voluntarily turn in their marine flares through the past several years with the California Boating Clean and Green Campaign that receives the financial support of boater fees and taxes.

With SB 1066 scheduled to be heard in the Senate Committee on Environmental Quality on April 3, RBOC has re-confirmed the issues we have identified and their status with the author and committee:

That the bill not propose a ban marine flares.

• RBOC appreciates that the legislation does not propose a ban and that there is no plan to do so.

That there be an effort to work as collaboratively as possible with the marine flare manufacturers.

• It is our understanding that a dialogue has recently occurred, but that so far, that there is no collaboration at this time, and that the leading marine flare manufacturer is opposed to the measure.

That there be a recognition that marine flares are a mandatory and essential public safety feature.

• Visual distress signals are an essential part of the safety equipment of a recreational vessel and are required by federal regulations.

• SB 1066 does not recognize the essential safety function of marine flares. To the contrary, proposed Health and Safety Code Section 25000 states that the purpose of the Marine Flare Producer Responsibility Act of 2024 “is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.”

That there be an acknowledgement that alternatives are not effective during daytime hours.

• The reason flares are mandatory is that they may be the only way for a boater whose craft is disabled to be found by a rescue attempt. This is a health and safety issue itself. If a mayday call is made, the rescuer still must locate the craft; and often that search and rescue operation takes place over large fields of open water in the dark. Many of today's electronic beacons are barely visible in those conditions.

• The legislation is likely to cause boaters to turn to electronic alternatives due to the significant cost increases for traditional flares, even when they are ineffective. The legislation does not address this issue.

That the provisions avoid a significant cost impact on individual boaters that could become a disincentive to purchases.

• The legislation is more than likely to significantly increase the price recreational boaters pay for marine flares:

  • SB 1066 places a financial burden on marine flare producers to create a producer responsibility organization, as well as develop and implement plans for the collection, transportation, and the safe and proper management of the flares including the acceptance and management of all flares at the end of their useful life. We'd like to know more about those costs, but at this stage, it appears that burden might drive effective night flares completely out of the market.

  • Significant funding will also be required for the Department of Toxic Substances Control’s actual and reasonable regulatory costs, which include full personnel costs, the actual regulatory development costs and other startup costs incurred prior to plan submittal and approval.

  • The absence of a robust, competitive business environment is likely to lead to the new costs imposed by SB 1066 being borne by the recreational boaters.

For these reasons, RBOC has adopted an opposition position on the current version of SB 1066. We will remain engaged and look forward to additional discussions.