Methyl Bromide Final Rule 2010

Well, the EPA is a couple of days late on my earlier prediction, but they are publishing the final rule for the methyl bromide ‘exception’ in Monday’s Federal Register (actually published on-line on Saturday, but the official date is May 3rd). I’ll leave the detailed discussion of the environmental implications of the continued use of methyl bromide as a fumigant for the OSHA and EPA bloggers. I’ll just hit upon the chemical security implications one last time for this year (actually I expect that the next NPRM will be issued sometime in October for the 2011 exception that almost certainly will come). This rule authorizes industry to use up to 2.0 million kilograms of methyl bromide (75 FR 23180) over the remainder of this year. This will come in-part from new production and importation as well as from current (as of January 2010) stockpiles of 3.0 million kilograms of methyl bromide (75 FR 23181) currently held in the United States. While methyl bromide is a toxic inhalation hazard chemical, much like chlorine or anhydrous ammonia, it is not a DHS chemical of interest (COI). DHS elected not to include methyl bromide in their Appendix A to the CFATS regulations because the EPA was ‘phasing out’ methyl bromide. Obviously, DHS misunderstood what EPA means by ‘phasing out’. In any case, none of the facilities holding the current inventory are required by CFATS to have security measures to protect them against terrorist attack. I am sure that there are security measures in place protect these stocks, but there is no federal requirement for the security measures nor is there any check of the adequacy of the existing security measures. One last time (until the next NPRM, of course) I urge DHS to reconsider their decision not to list methyl bromide (and while I’m at it chloropicrin, another TIH chemical being ‘phased out’ by EPA) in Appendix A.

Update on Methyl Bromide Rule

This is just a quick update on the methyl bromide rule from the EPA that I have been following over the last 9 months or so. On Friday the Office of Management and Budget approved the Final Rule. This means that the polished version may be published later this week or next in the Federal Register. Actually the just published EPA Regulatory Agenda for the Spring of 2010 shows the final rule being issued this month; which means this week. From an environmental view point this only means that the phase out continues to be stretched well beyond the original 2005 target. Actually there isn’t any real end in site because of the lack of an adequate substitute in certain agricultural applications. The uses and inventories will continue to get smaller, but it looks like these annual regulations will continue for some time. From a chemical facility security point of view, it continues to point out the flaw in the reasoning of DHS when they excluded both methyl bromide and chloropicrin from Appendix A when that was adopted in 2007. I’m not faulting the DHS regulation writers; they were just taking the EPA information at face value. At this point I think that DHS just needs to bite the bullet and add these two chemicals to the release-toxic hazard list in Appendix A.

Methyl Bromide and Chloropicrin

When DHS published the final rule on Appendix A to 6 CFR Part 27, they removed methyl bromide and chloropicrin from the list of COI. Both chemicals were included on the draft COI list released in April of 2007; methyl bromide as a Theft/Diversion Weapon of Mass Effect COI and chloropicrin as a Theft/Diversion Chemical Warfare/Precursor COI (chloropicrin is a Schedule 3 chemical under the Chemical Warfare Convention). In the preamble to the final rule DHS noted that (72 FR 65404):

“In addition, the Department no longer includes methyl bromide on the list of chemicals, because it is being phased out of domestic manufacture and use under Clean Air Act regulations implementing the United State’s obligations as a signatory to the Montreal Protocol on Substances that Deplete the Ozone Layer. Thus, given the limited and decreasing availability of methyl bromide, the Department does not believe that the potential consequences of an attack warrant inclusion of that chemical on the list of chemicals in Appendix A.”

This sounds good until I read an article on SantaCruizSentinel.com about the continued use of both methyl bromide and chloropicrin as a soil fumigant for the strawberry crops in California. The article quotes a County Agriculture Commissioner as saying that: “More than 70 percent of strawberry cropland is fumigated with a methyl bromide chloropicrin combination.” They further quote statistics from the California Department of Pesticide Regulations that in 2007 6.4 million pounds of methyl bromide was used in the State of California with more than 650,000 lbs used in Santa Cruz County alone. And the article notes that there is still ‘no viable alternative available’ and “year after year, California berry growers receive [EPA] exemptions to the [Montreal] protocol and continue using methyl bromide”. DHS needs to re-look at their rationale for not including these two chemicals on their list of DHS Chemicals of Interest.