Sunday, July 21, 2013

EPA Publishes Methyl Bromide 2013 Exemption Final Rule

The Environmental Protections Agency (EPA) published a final rule in the Monday Federal Register (available on-line Saturday, 78 FR 43797-43801) for authorizing uses that qualify for the 2013 critical use exemption (CUE) to the Montreal Protocol on Substances that Deplete the Ozone Layer and specifying the amount of methyl bromide that may be produced or imported for those uses.

Methyl Bromide CUE

While this final rule is being published more than halfway through the year in which it is effective, and the greatest amount of CUEs cover pre-planting activities, the current users, producers and distributors of methyl bromide were notified last December that the EPA would “not enforce restrictions on methyl bromide production and import found at 40 CFR §82.4 until such time as the EPA’s Office of Air and Radiation issues a final rule that authorizes the production  and import of methyl bromide for critical uses in 2013”.

The Table below shows the amounts authorized for production and/or import in the December non-enforcement letter, subsequent NPRM (77 FR 74435-74449) and the amounts authorized under this final rule. The amounts include both preplant and post-harvest uses. Weights are expressed in kilograms. According to the Preamble to this Rule, Decision XXIII/4 of the Parties to the Montreal Protocol allows the United States to manufacture or import a maximum of 562,326 Kg for US critical uses

December Letter
Final Rule
Great Lakes Chemical
Albemarle Corp
ICL-IP America
TriCal, Inc
Authorized Production and/or Import of Methyl Bromide

The pre-planting amount in made available in the final rule is larger than the total amount authorized in the December letter and the NPRM. I would assume that, since there has been no general outcry about a shortage of methyl bromide, the producers/importers produced more than would have been authorized by the NPRM or the December letter.

What is not clear in the published rule is how the EPA came to the final figures for the CUE. Could it be somehow related to the actual production of methyl bromide manufactured to support the pre-plant activities for the authorized uses?

It is interesting to note that the EPA reports that over 90% of the critical uses for methyl bromide are found in California. Georgia and Florida would account for most of the remaining uses of methyl bromide. Thus we can expect that about 1.1 million pounds of methyl bromide (a toxic inhalation hazard – TIH – chemical) is stored, transported and used in the most populous state in the country.

Immediately Effective

The effective date for this rule is the date of publication, 7-22-13. They typical 30-day effective date rule does not apply in this case because the EPA views this not as a regulatory action but relief from the prohibition on the use of methyl bromide. It really doesn’t matter since the EPA made it clear that it wasn’t going to enforce any numbers until the final rule was published.

Methyl Bromide and CFATS

Methyl bromide is a TIH chemical. As such one would expect that it would have been included on the DHS chemicals of interest (COI) list (Appendix A to 6 CFR Part 27) with a screening threshold quantity (STQ) of 10,000 lbs like other TIH chemicals. It was, in fact, included on the initial COI list but was removed before the final list was published because of the ‘phase out’ of the use of methyl bromide under the Montreal Protocol.

This rule makes it clear that the current authorized CUE is about 2% of the 1991 methyl bromide consumption in the United States. That is certainly a good thing for the environment given the way that methyl bromide reacts with ozone layer. Still 1.2 million pounds of annual production, storage, transportation and use in 2013 is still a significant amount of a chemical that is a potential terrorist WMD.

As I normally do, I urge DHS to reconsider the ‘phase out’ COI exemption given to methyl bromide. There are already rules in place to provide relief to organizations that reduce or remove COI from their facilities. Those should be used to address the ‘phase out’ issue, not an exemption from coverage.

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