EPA Publishes Methyl Bromide 2016 CUE Final Rule

Today the EPA published a final rule in the Federal Register (80 FR 61985-61993) allocating the critical use exemptions for methyl bromide under the Montreal Protocol on Substances that Deplete the Ozone Layer for 2016. This will probably be the last CUE rule that provides for substantial manufacture of methyl bromide as it will be the last year that methyl bromide will be authorized for use as a fumigant in pre-planting for strawberries in California.

In the preamble to this rule the EPA reiterates what I covered in my last blog posting on methyl bromide and the Montreal protocol; California strawberry farmers will have this last year to complete their transition to the use of chloropicrin for pre-plant fumigation. To emphasize this transition, the EPA set a separate CUE for pre-plant use and then prohibited the transfer of any of that pre-plant methyl bromide to subsequent years. Any of the pre-plant authorization that remains after the end of 2016 will have to be destroyed.

The EPA expects that the fumigation of cured hams with methyl bromide will continue at least through 2017. The amounts allocated for production and use reflect this fact and expect that there will be some carryover use of methyl bromide for cured ham use. Methyl bromide produced for pre-plant fumigation will not be allowed to be carried over for this use.

The EPA in this final rule is authorizing the production of 138,592-lbs of methyl bromide for pre-planting fumigation. In comparison it is authorizing the production of only 1,939-lbs for used in post-planting fumigation (cured hams).

The EPA is not including any ‘emergency’ uses of methyl bromide like those that have been authorized by the Department of Agriculture’s Animal and Plant Health and Inspection Service (APHIS) (here, here and here). EPA had asked for comments about such potential uses in the notice of proposed rulemaking for this rule, but it received no responses. 

OMB Approves 2016 Methyl Bromide CUE NPRM

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the EPA’s notice of proposed rulemaking (NPRM) on the setting of critical use exemptions for the use and manufacturing of methyl bromide for 2016. The EPA is obviously trying to continue last year’s trend breaking move of early publication of this NPRM, though they have already slipped two months later than last year.

I will save my typical methyl bromide COI listing rant for when the actual NPRM is published next week.

EPA Sends 2016 Methyl Bromide CUE to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) reported that it had received the 2016 Critical Use Exemption from the Phaseout of Methyl Bromide notice of proposed rulemaking from the EPA. This is almost a full month earlier than last year’s rulemaking on this topic.

NOTE 1: For some reason this annual rulemaking did not make it into the Fall 2014 Unified Agenda.

NOTE 2: I’ll same my standard methyl bromide COI rant until the NPRM is actually published.

OMB Approves 2014-2015 Methyl Bromide Exceptions

The OMB’s Office of Information and Regulatory Affairs (OIRA) announced yesterday that it had approved the EPA’s final rule for the critical use exceptions (CUE) for the continued use of methyl bromide under the Montreal Protocol. Publication of the rule could be seen by the end of the week.

There are a couple of interesting comments in the docket for this rule (here, here and here; PDF download links). What is missing from the docket this year is a copy of the EPA’s letter to users and manufacturers of methyl bromide notifying them that the EPA would take no enforcement action against users and manufacturers for the use of methyl bromide for CUE this year while the EPA got this delayed rule through the publication process.

Once again it is clear that DHS erred in 2007 when it removed methyl bromide from the final version of Appendix a to 6 CFR 27 based upon the EPA’s assurance that methyl bromide was being phased out of use/production. While the use of methyl bromide has certainly decreased it shows no sign of disappearing from the US market place.

Perhaps if manufacturers and distributors were subject to CFATS program security costs, there might have been more of an incentive to phase out this toxic inhalation hazard product.

EPA Sends 2014/2015 Methyl Bromide Final Rule to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received the EPA’s final rule on the 2014/2015 Critical Use Exemptions (CUE) for Methyl Bromide. I discussed the combination of the 2014 and 2015 CUE in an earlier blog post.

One public comment [PDF download link] has been received about this rulemaking. It is a passionate request to stop the continued reauthorization of CUE, but it does exaggerate the length of the phase out program; it started in 1994 so it has ONLY been twenty years not thirty and it has only been 9 years since the CUE program has been in operation.

I expect that it will take a month or so before OMB issues their approval of this final rule.

OOOPS; I almost forgot: INSERT standard methyl bromide – COI list tirade.

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

Supplier	December Letter	NPRM	Final Rule
Great Lakes Chemical	207,122	303,778	341,726
Albemarle Corp	85,174	124,920	140,526
ICL-IP America	47,069	69,034	77,657
TriCal, Inc	1,466	2,149	2,418
Total	340,831	499,882	562,326

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.