HR 1891 Introduced – Methyl Bromide

Earlier this month Rep. LaMalfa (R,CA) introduced HR 1891, the Safe Agriculture Production Act of 2017. The bill would authorize the continued use of methyl bromide as a pesticide and/or fungicide for certain emergency uses. The bill is essentially identical to HR 3710 from the 114^th Congress. That earlier bill saw no action.

LeMalfa and his 10 cosponsors (9 Republicans and 1 Democrat) are all from agricultural districts that were presumably affected by the phase out of methyl bromide under the Montreal Protocol to Protect the Ozone Layer as enforced by 40 CFR Part 82. 2017 is the first year that there are no authorized essential uses for methyl bromide and its manufacture, importation or use in the United States is generally outlawed.

As I outlined in my blog post about HR 3710, the bill would amend 7 USC 7719 concerning the agricultural uses of methyl bromide. The amendment is in effect a complete re-write of §7719. Something that I failed to mention in that earlier post is an important provision of §7719 that was not included in the new rewrite in this (or the earlier) bill. That provision was found at §7719(d)(2):

“Nothing in this section shall be construed to alter or modify the authority of the Administrator of the Environmental Protection Agency or to provide any authority to the Secretary of Agriculture under the Clean Air Act (42 U.S.C. 7401 et seq.) [link added] or regulations promulgated under the Clean Air Act.”

This type verbiage is typically added when there is a conflict between the authorities and responsibilities of two different sections of the Executive Branch. The removal of this language in the rewrite of §7719 and the inclusion of the “Notwithstanding any other provision of law…” verbiage in the new §7719(f) is effectively intended to remove the EPA from any regulation of methyl bromide in the ‘emergency’ situations broadly outlined in the bill.

The lack of any action in the last session on the previous version of this bill is a pretty good indicator that bill is unlikely to be considered in this session. There is, however, more incentive for the sponsors of this bill to push for action since methyl bromide use is completely disallowed for the first time this year. The replacement chemicals are not as effective as methyl bromide and many farmers and agricultural importers are going to be bothering these representatives for some sort of relief.

Even given that, I see little chance that this bill will make it through the legislative process. Passage may be possible in the House, but the bill would never make it to the floor in the Senate. The only chance that I see this making it into law is if it was included in the agriculture authorization bill, and that chance is fairly remote seeing that Rep. Conaway (R,TX; the Chair of the House Agriculture Committee) did not allow any action on the previous version of the bill in his Committee in the 114^th Congress.

As always, my concern with this bill lies in the failure of DHS to include methyl bromide (a toxic inhalation hazard chemical) in its list of chemicals that would trigger a Top Screen reporting requirement under the Chemical Facility Anti-Terrorism Standards (CFATS) program. This is the only TIH chemical not on that list and it was specifically removed because it was being phased out by Montreal Protocol.

Bills Introduced – 04-04-17

Yesterday with the House and Senate in session there were 67 bills introduced. Of those one may be of specific interest to readers of this blog:

HR 1891 To amend the Plant Protection Act with respect to authorized uses of methyl bromide, and for other purposes. Rep. LaMalfa, Doug [R-CA-1]

It will be interesting to see how this bill would get around the current prohibitions against the production or use of methyl bromide under the Montreal Protocol on Substances that Deplete the Ozone Layer.

Justice Dept Announces Methyl Bromide Exposure Settlement

Today the US Department of Justice announced a settlement agreement in a methyl bromide exposure incident from last year. The press release reports that TERMINIX International Company and its Virgin Island subsidiary will pay $10 Million in criminal fines, community service and restitution payments. The company also agreed to come to a separate medical restitution agreement with the NJ family that was affected by the incident.

The press release also provides some additional information about the incident. The unit fumigated was a ground floor unit and the family occupied an upper floor of the same building. It is almost certain that there would not have been a reasonable method of sealing the lower level from the upper level to prevent migration of the methyl bromide into the occupied unit.

HR 3710 Introduced – Methyl Bromide

Earlier this month Rep. LaMalfa (R,CA) introduced HR 3710, the Safe Agriculture Production Act of 2015. The bill would allow State, local and tribal officials to authorize the use of methyl bromide as a fumigant to respond to an emergency event without regard to EPA restrictions on the use of methyl bromide. The bill would completely rewrite the language of 7 USC 7719.

Authorization to Use Methyl Bromide

The new paragraph (a) in the bill would allow an undefined State, local or tribal authority to authorize the use of methyl bromide (subject to objection by the Secretary of Agriculture) “the use of methyl bromide for a qualified use if the authority determines the use is required to respond to an emergency event”. The authorizing authority would have 5 days to notify the Secretary and the Secretary would then have 5 additional days to object to the use.

Paragraph (h)(1) provides the definition of an ‘emergency event’ as a situation:

• That occurs at a location on which a plant or commodity is grown or produced or a facility providing for the storage of, or other services with respect to, a plant or commodity;

• For which the lack of availability of methyl bromide for a particular use would result in significant economic loss to the owner, lessee, or operator of such a location or facility or the owner, grower, or purchaser of such a plant or commodity; and

• That, in light of the specific agricultural, meteorological, or other conditions presented, requires the use of methyl bromide to control a pest or disease in such location or fa-cility because there are no technically or economically feasible alternatives to methyl bromide easily accessible by the owner, lessee, or operator at the time and location of the event.

The bill specifically allows the use of methyl bromide for the ‘emergency event’ “regardless of whether the intended use is registered and included in the label approved for the product by the Administrator of the Environmental Protection Agency under such Act” {revised §7719(d)}. Under the authority of this new language, such ‘emergency event’ authorization “shall be deemed an authorized production, distribution, sale, shipment, application, or use of such product under the Federal Insecticide, Fungicide, and Rodenticide Act”.

Limitations on the Use of Methyl Bromide

The only limitations on the use of methyl bromide beyond the definition of an ‘emergency event’ are that a maximum of 20 metric tons per event can be used at a specific location {revised §7719(e)(1)}, and no more than 150,000 metric tons can be used in the United States in a given year {revised §7719(e)(2)}. That second figure was based upon the critical use exception (CUE) amount set for 2011 by the EPA under the Montreal Protocol on Substances that Deplete the Ozone Layer and 40 CFR Part 82. For comparison the CUE recently set for 2016 is less than 1% of that amount (141 MT).

In order to ensure that there could be enough methyl bromide available for ‘emergency event’ use that is not covered by the current CUE authorization the bill would exempt methyl bromide from the current CUE limitations by stating:

“Notwithstanding any other provision of law [emphasis added], it shall not be unlawful for any person or entity to produce or import methyl bromide, or otherwise supply methyl bromide from inventories (produced or imported pursuant to the Clean Air Act for other purposes) in response to an emergency event in accordance with subsection (a).” {revised §7719(f)}

Moving Forward

LeMalfa and five of his cosponsors are members of the House Agriculture Committee to which this bill has been referred. The sole Democratic cosponsor, Rep. Costa (D,CA) is the Ranking Member of the Livestock and Foreign Agriculture Subcommittee. There may be enough political pull to get this bill considered by the Committee.

There will be internal political issues with getting this bill to the floor of the House. The EPA’s regulation of methyl bromide was not specifically addressed in the bill, so it was not referred to the Energy and Commerce Committee. I do suspect, however, that that Committee may have objections to this bill moving forward because they were not asked to review it. It will be interesting to see if Ag Chairman Conway (R,TX) will get behind this bill to move it forward.

The environmental lobby will definitely work hard against this bill because methyl bromide is a chemical known to have effects on the ozone layer. That lobby would not be able to stop the House from passing the bill if it gets to the floor, but they would certainly be able to convince Senate Democrats from allowing the bill to be considered on the floor of the Senate.

The only way that this bill has any chance of getting through the Senate is if it were included in either the agriculture spending or authorization bills.

Commentary

 This is an interesting attempt by the agriculture lobby to get around the phase out of the use of methyl bromide. It is an excellent pre-plant fumigant for ridding the soil of pests that can destroy crops. The number of crops, however, on which the EPA has continued to allow the use of methyl bromide has continued to dwindle until next year it will only be allowed on strawberries and that will cease for 2017. Food and feed importers also have a long history of using methyl bromide to kill off pests in imported products and the EPA has reduced those uses until now the only post planting application with an approved CUE is cured bacon.

The Department of Agriculture’s Animal and Plant Health and Inspection Service (APHIS) service has a long history of approving the use of methyl bromide (here, here and here) for incoming agriculture product fumigation. And they have continued to essentially ignore the EPA’s efforts to eradicate the use of methyl bromide.

The most recent CUE notice, however, made it clear that after 2016 there will not be large stocks of methyl bromide left in inventory after the pre-plant season is over that can be pulled for uses approved by APHIS. In fact, at the end of 2016 the methyl bromide producers and distributors will be required to destroy any methyl bromide left over from the pre-plant authorization.

The other methyl bromide problem is that the California strawberry growers (and a number of other crop growers across the nation that have already been phased out of methyl bromide use by the EPA) are not in complete agreement with EPA that chloropicrin is going to be an effective replacement for methyl bromide in preparing their fields for planting. While they have lost the argument with the EPA and the Montreal Protocol folks, this bill was almost certainly drawn with the intent of allowing them to go around the EPA restrictions.

The 20 metric ton per location limit in the bill was not aimed at any APHIS importation fumigation use. It was clearly aimed at pre-plant use as was the 150 MT annual use limit. But how do they expect to be able to get around the emergency event restrictions? Actually and quite simply, there is no requirement for an emergency in the ‘emergency event’ definition. All that is really required is for a determination to be made (by the field owner) that “there are no technically or economically feasible alternatives to methyl bromide”.

One other thing that needs to be considered with this bill is the status of methyl bromide vis-à-vis the Chemical Facility Anti-Terrorism Standards (CFATS) program. Methyl bromide was on the original proposed list of DHS chemicals of interest (COI) that trigger the requirement for filing a Top Screen data submission to DHS to determine if a facility was covered by the CFATS program. It was removed in the final rule due to the ‘fact’ that it was being phased out by the EPA. The current EPA plan is to have the national inventory down to less than 2 metric tons by 2017; an amount that is not much more than DHS would consider an actionable amount for a single facility.

Opening methyl bromide use back up to pre-plant activities (which is clearly the unwritten intent of this bill) would force DHS to reconsider their failure to list methyl bromide as a COI. This would very likely cause a number of new facilities and distributors to come under the purview of the CFATS program.

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. 

Bills Introduced – 10-08-15

With both the House and Senate in session yesterday (Note: Yesterday was the last day in session for the Senate before the Columbus Day recess next week) there were 53 bills introduced. Of those there was only one that may be of specific interest to readers of this blog.

HR 3710 To amend the Plant Protection Act with respect to authorized uses of methyl bromide, and for other purposes. Rep. LaMalfa, Doug [R-CA-1]

I suspect that this bill would authorize the continued use of methyl bromide as a fumigant for strawberry fields. This use has effectively been phased out under the requirements of the Montreal Protocol to Protect the Ozone Layer, but strawberry growers maintain that there is no other effective fumigant to allow them to continue to economically grow strawberries.

Long time readers will probably fear (grin) that passage of this bill will require me to resume my campaign to have DHS add methyl bromide, a recognized toxic inhalation hazard (TIH) chemical, to the list of DHS chemicals of concern.

EPA Requests Methyl Bromide CUE Applications for 2018

Today the EPA published a notice in the Federal Register (80 FR 37611-37615) requesting that persons who would need to use methyl bromide as a fumigant in 2018 submit information to support the designation of that need as a Critical Use Exemption (CUE) to the Montreal Protocol on Substances that Deplete the Ozone Layer. This is an annual exercise in the continued justification of limited uses of methyl bromide as a fumigant.

Background

Since 1995 the signatories of the Montreal Protocol have been trying to eliminate the use of methyl bromide as they had concluded that the release of methyl bromide to the atmosphere was one of the contributing factors in the observed depletion of the ozone layer. The signatories realize, however, that methyl bromide is a very effective fumigant, and for a number of particular application (particularly protecting strawberry fields, see this C&EN article). With that in mind they authorize the use, and limited production to support that use, for applications where there is not currently an effective substitute.

Each year the EPA will request CUE applications, review those applications and prepare a nation CUE application for submission to the United Nations Environment Programme Ozone Secretariat. Last year the UNEPOS approved the following CUE’s for 2016 (in metric tons):

Australia	29.760
Canada	5.261
USA	234.78

2016 CUE Approvals

In previous years the EPA and UNEPOS had considered the following uses for methyl bromide to be uses that would justify a critical use exemption:

∙ Commodities such as dried fruit and nuts;

∙ Dried cured pork;

∙ Cucurbits, eggplant, pepper, and tomato;

∙ Strawberry fruit;

∙ Orchard replant;

∙ Ornamentals;

∙ Nurseries; and

∙ Golf courses

On-going research programs have developed acceptable alternatives to methyl bromide for most of those applications. For the last couple of years the only CUEs approved have been for strawberries and cured pork. Last year the EPA did not submit a critical use nomination (CUN) for strawberry fields when they completed the submission process for 2017.

Application Process

Information that the EPA is requesting to support a CUE applications can be found in the Montreal Protocol's Technical and Economic Assessment Panel (TEAP) Handbook. Applications must be submitted by September 15^th, 2015 so that the EPA can finalize their CUN application.

Commentary

The C&EN article I reference earlier made a closing comment that “the exemptions will end completely after 2016”. This reflects the fact that the EPA did not submit a CUN last year (see page 10 Evaluation of 2015 Critical Use Nominations for Methyl Bromide - .DOC Download) for 2017 CUE’s. According to the notice it appears that the dried cured pork application is the only one for which the EPA is currently considering a CUN submission.

CUE applications are being accepted for the other methyl bromide applications, but it would appear that a much higher standard of need will be needed to overcome the EPA’s conclusion that viable alternatives for methyl bromide do exist.

I am not an agricultural chemist and I certainly do not have the information necessary to evaluate whether or not there are viable alternatives to methyl bromide for pre-planting fumigation of strawberry fields. My concern in this blog with methyl bromide has mainly been with its potential use (as a toxic inhalation hazard chemical) as terrorist weapon.

I have been lambasting DHS for their removing the methyl bromide from the proposed list of DHS chemicals of interest (COI) when the list was finalized in 2007. Based upon the continued use of methyl bromide as a fumigant I have obsessively recommended that DHS add the chemical to the COI list at the soonest opportunity.

With the small amount of methyl bromide that will be used on dried cured pork (3.2 metric tons approved for use in 2016), I think that my obsession should be allowed to die. I will continue to monitor methyl bromide use and abuse, but David Wulf, Director of ISCD, will no longer have to cringe when I write a blog post about the chemical.

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.

Methyl Bromide Incident

Long time readers of this blog will undoubtedly know about my campaign (some would call it periodic rants) to get DHS to list methyl bromide as a DHS chemical of interest (COI) for the CFATS program. An incident that occurred last month in the US Virgin Islands illustrates how easily it would be to use methyl bromide (or most toxic inhalation, TIH, chemicals for that matter) as a terrorist weapon. Thanks to a long term reader, Dr. David Grisenti, for pointing me at the story.

It appears that on the 18^th of last month a local subsidiary of Terminix used methyl bromide to rid a luxury condominium of some sort of pest infestation; methyl bromide is very effective on just about any type of pest. Apparently, appropriate controls (there are no acceptable controls for this situation as methyl bromide has been outlawed in the United States and its possessions for this type of application) were not put into place to stop the migration of methyl bromide into at least one other villa in the immediate area. A family of four from Delaware was hospitalized for methyl bromide exposure.

According to at least one report, as of Saturday the mother had been released from the hospital, the father had regained consciousness, but the two teenage boys were still in a coma. The different responses could be due to the amount of methyl bromide each inhaled, individual body chemistry or a combination of the two.

As readers of this blog are painfully aware, the US EPA has been phasing out the use of methyl bromide since 2005 under provisions of the Montreal Protocol on Substances that Deplete the Ozone Layer. Only a very limited number of critical use exemptions (CUE) are approved every year. Their approval is based upon demonstrated facts that there are no other fumigants available to replace the use of methyl bromide for that application. Currently the CUE’s are all for agricultural applications.

One news story has provided the name of the actual product used in the fumigation of the condo; Meth-O-Gas. If that is true, it is a registered Canadian fumigant produced by Great Lakes Solutions, an authorized American manufacturer of methyl bromide fumigants. While the Canadian government also limits this product to agricultural uses, the existing registered label for the product contains very detailed instructions for how the product is to be used to fumigate enclosed structures. Because of the injuries to the Delaware family, it is fairly obvious that the use instructions were not completely followed.

The Chemtura (parent company of Great Lakes Solutions) MSDS reports that methyl bromide is a colorless odorless gas. Its boiling point is 38.5° F so it is actually stored in pressure cylinders as a liquid, but it evaporates almost as soon as it is released.  The acceptable time weighted average (TWA) exposure limit is 1 ppm. OSHA requires the use of supplied air respirators at concentrations above 3 ppm. The current OSHA PEL is 20 ppm and it is considered immediately dangerous to life or health (IDLH) at 2,000 ppm.

Someone who steals a cylinder of methyl bromide like that use in the fumigation incident in the Virgin Islands has an ideal weapon with which to attack targets in a relatively closed building. Since methyl bromide is significantly heavier than air it will settle to lower floors in a multistory building or it will be at higher concentrations near the floor in large contained open spaces such as a church. At exposure levels well below the IDLH there are no immediate signs of exposure that would cause people to leave an exposed area.

As I have mentioned numerous times DHS originally had listed methyl bromide in their initially published list of COI included in the original CFATS rule. DHS removed methyl bromide from the final approved Appendix A listing based upon the EPA assertion that methyl bromide was being phased out of use and thus did not need to be regulated under CFATS. Here about 7 and a half years later we have a family being injured in a methyl bromide incident far away from any approved, limited use of that chemical.

DHS needs to take immediate action to ensure that the security of methyl bromide production and storage facilities is regulated under the CFATS program by adding methyl bromide back to the listing of COI before any terrorist organization learns the very public lessons of this particular incident.

APHIS Adds New Methyl Bromide Treatment Schedule

Today the Animal and Plant Health and Inspection Service (APHIS) published a notice of availability in today’s Federal Register (80 FR 10661-10662) concerning a new treatment schedule for the use of methyl bromide as a fumigant on imported figs for external pests.

This new treatment regime adds another to the critical uses of methyl bromide that will be another block to its elimination from use under the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol) and the Clean Air Act (CAA). It was the promise by the EPA of the elimination of the use of this toxic inhalation hazard chemical that lead the Department of Homeland Security to remove methyl bromide from their draft list of DHS chemicals of interest (COI) under the CFATS program.

While the use of methyl bromide has certainly diminished greatly since the 2007 COI draft it has not been eliminated. It is still manufactured, transported and used in the United States. And, as this notice indicates, its efficacy as a fumigant almost certainly insures that it will not be eliminated from commerce in the foreseeable future.

DHS needs to reconsider its delisting of methyl bromide as a release toxic chemical on its CFATS COI list.

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.

EPA Publishes 60-Day ICR for Methyl Bromide Program

Today the EPA published a 60-day information collection request (ICR) renewal notice in the Federal Register (79 FR 78425-78427) to support its program for the phase out of methyl bromide under the Clean Air Act and the Montreal Protocol on Substances that Deplete the Ozone Layer.

This notice reports a significant reduction in the reporting and record keeping burden imposed by this program due to the continuing reduction in the number of affected parties as the number of critical use exemptions to the phase out of methyl bromide continues to decrease. The table below shows that reduction since the latest version of this ICR was approved in 2011.

Affected Parties	Previous ICR	This ICR
Producers	4	4
Distributors	75	50
End Users	1800	1000

Long time readers of this blog will no doubt remember that I have long complained about the fact that methyl bromide was not included in the list of DHS chemicals of interest (COI) under the CFATS program even though it is a toxic inhalation hazard (TIH) chemical and thus potentially an improvised chemical weapon that could be used by terrorists. DHS initially included it in its proposed COI list but removed it from the final version because the EPA was phasing out the authorized use of this chemical and it would thus disappear from the potential list of industrial chemicals that terrorists could use as a chemical weapon.

The table above shows that there are potentially 1,054 entities that could have as much as 2,000 pounds of methyl bromide (the quantity that would require Top Screen reporting for similar TIH chemicals) in their possession at various times during the year. While some of these facilities may already be CFATS covered facilities (almost certainly the four producers are) due to the presence of other COI, many of the distributors and most of the end users would not be.

If DHS had included methyl bromide in their COI list they would have been able to assess the potential risk of theft and diversion of methyl bromide from these ‘other’ facilities. Because they incorrectly assumed that EPA was quickly phasing out methyl bromide, DHS has effectively ignored the potential threat of the use of methyl bromide as a terrorist weapon.

Unfortunately, when HR 4007 was passed by Congress, there was no specific requirement for DHS to review the current list of COI. Because DHS will be working hard on meeting the time tables for the implementation of HR 4007 I really doubt that we will see any real attempt to modify the list of COI any time in the near future. This is one of the incremental changes in the Chemical Facility Anti-Terrorism Standards that the new Congress ought to take a look at.

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 Extends Use of Methyl Bromide Product

Today the Environmental Protection Agency (EPA) published a notice in the Federal Register (79 FR 22669 – 22670) amending a pesticide cancellation order from May 20^th, 2011 (76 FR 29238 – 29240) allowing for the use of existing stocks of two methyl bromide products on golf courses. The products were produced by Cardinal Professional Products and Trical, Inc; both of Hollister, CA.

Golf Course Soil Fumigant

The original order allowed for the use of existing stocks through December 31^st, 2013. In January these two manufacturers notified the EPA that they still had stocks of the material and requested an extension of the allowed sale and allowed use dates. Neither of the two letters is currently posted to the docket at www.Regulations.gov (Docket # EPA-HQ-OPP-2005-0123) so it is not clear how much of the two products is actually still available for use.

In today’s modification of that order the EPA allows:

• The sale and distribution of existing stocks of the affected products until November 30, 2014;

• The use of existing stocks of the products purchased prior to April 30, 2014 according to the directions on the label for the product until those stocks are exhausted; and

• The use of existing stocks that were purchased after April 30, 2014 only on golf courses according to the directions for that use on the label for the product until those stocks are exhausted.

Methyl Bromide and CFATS

Insert standard diatribe about methyl bromide being removed from list of DHS chemicals of interest (COI) because methyl bromide was ‘being phased out by EPA’.

It is not clear if this order revision would have any practical effect on chemical security rules under the CFATS program. Since we don’t currently know how much of the products the two organizations have on hand we don’t know if they would have enough (10,000 lb minimum if the standard toxic release chemical standard was used) to be required to submit a Top Screen to DHS. Certainly if they are currently covered under the CFATS program because of the possession of other, actually listed COI, this order will not affect their status.

Golf courses that use these two products will almost certainly not have anywhere near 10,000 lbs of this material on hand, so they would not have (if methyl bromide were a listed COI) to be concerned with CFATS reporting requirements.

EPA Publishes Very Late NPRM for 2014 Methyl Bromide CUE

Last Friday the Environmental Protection Agency (EPA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 13006-13017) for the 2014 and 2015 critical use exemptions (CUE) for the use of Methyl Bromide.

Critical Use Exemptions

In the past these CUE rules have been done on an annual basis, but the EPA has been getting later and later in introducing the NPRM and publishing the final rule for this recurring action. The 2013 NPRM, for instance was published in December 2012 with the subsequent final rule being published in July 2013. Friday’s publication of the NPRM for the 2014 use of methyl bromide means that the final rule won’t be published until almost all of the approved uses of methyl bromide have been completed for the year. Including the 2015 CUE in this NPRM means that for the first time in years, producers and users of methyl bromide will have their legal authorization to produce and use the material before they actually do so.

Last year, EPA included in the public docket for the final rule a copy of the letter that it sent to users and producers of methyl bromide in December of 2012 notifying them that while the rulemaking process was underway for the 2013 CUE that EPA would take no regulatory action against users and producers that were listed in the NPRM for the use or production of the listed amounts of methyl bromide. I am relatively certain that a similar letter was sent for this year’s CUE, though it is not yet in the public record. With the 2015 CUE being included in this NPRM, perhaps the EPA will not be forced to take such extra-legal actions for the 2015 growing season.

The table below lists the approved producers/importers of methyl bromide and the amounts (in pounds) that they will be authorized to produce/import during 2014 and 2015 along with the number’s from last year’s rule.

	2013 CUE	2014 CUE	2015 CUE
Great Lakes Chemical	765,466	602,130	513,054
Albemarle Corp	314,778	247,609	210,981
ICL-IP America	173,952	136,835	116,590
TriCal Inc	5,146	4,260	3,361
Total	1,259,610	979,635	844,256

Methyl Bromide Phase Out

It is obvious that while the phase out of methyl bromide continues it will continue to be used and produced in this country for the foreseeable future. Thus (here it comes), the DHS basis for not including this toxic inhalation hazard chemical in the DHS list of chemicals of interest (COI) is still questionable. DHS should take steps to add this chemical to the list of chemicals that could require facilities to report under the Top Screen provisions of the CFATS regulations.

Public Comments

The EPA is soliciting public comments on this proposed rule. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OAR-2014-0065). Comments should be submitted by April 21^st, 2014.

Another New Use for Methyl Bromide

Today the Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register (79 FR 4867-4868) proposing to add another use of methyl bromide to their current Plant Protection and Quarantine (PPQ) Treatment Manual under the immediate need provisions of 7 CFR §305.3. This time it is for the treatment of kumquats for fruit fly infestations.

The new treatment schedule, T101-n-3, has been added to the PPQ subject to revision or removal based upon comments received per this notice. Public comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # APHIS-2013-0095). A copy of the Treatment Evaluation Document (TED) supporting this adoption may be found in that docket.

STANDARD RANT

Once again the folly of excluding methyl bromide from the list of DHS chemicals of interest (COI)  for the CFATS program based upon the putative ‘phasing out’ of the chemical by EPA is exposed. While greatly reduced, the use of methyl bromide will continue for the foreseeable future as it is an effective pesticide that is readily adaptable to treatment of new pests.

Since this is a toxic inhalation hazard (TIH) chemical (which is why it is such an effective pesticide) it should be included in the CFATS list of COI that trigger reporting to DHS. 

OMB Approves Methyl Bromide 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) for the 2014 Critical Use Exemptions to the phase out of the use of methyl bromide under the Montreal Protocol for the Protection of Atmospheric Ozone. This annual rule making exercise is proceeding slower and slower; this approval comes one month later than did the 2013 OMB approval.

The OIRA notice states that the NPRM was approved ‘consistent with change’. Presumably this means that they are requiring EPA to make some relatively minor changes to the draft NPRM that had been submitted for approval. This means that we probably won’t see publication of the NPRM until the first week in February.

As I noted last May when EPA submitted the final rule for the 2013 Critical Use Exemption, because of this delayed rulemaking process EPA must provide extralegal assurances that it will not take actions against producers, dealers and users of methyl bromide for the production, importation or use of methyl bromide this year while the rulemaking process proceeds.

According to the 2014 CUE web page, the NPRM should be authorizing the use of methyl bromide for the following uses; Commodities (740 kg), Food Facilities (22,800 kg), Ham (3,730 kg), and Strawberries (415,067 kg). No mention is made of the various emergency use approvals that EPA and the Department of Agriculture (eg: Cotton Seed and Blueberries) have approved since the 2014 CUE list was submitted to the UN for approval in January of 212.

Standard Rant Warning

As always, I will take this opportunity again to argue that the removal of methyl bromide, a toxic inhalation hazard chemical, from the final Appendix A, 6 CFR Part 27 list of DHS chemical of interest because methyl bromide use was being phased out was ill-advised and contrary to the congressional intent to have DHS regulate dangerous chemicals that could be used by terrorists in a weapons of mass destruction attack within the United States. Methyl bromide should be added back to the COI list post-haste.

EPA Sends Methyl Bromide 2014 Critical Exception NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received EPA’s draft NPRM for Protection of Stratospheric Ozone: The 2014 Critical Use Exemption From the Phaseout of Methyl Bromide, This rule is an annual requirement to authorize the production and importation of methyl bromide for use as a fumigant.

With the NPRM just now going to OMB it will be some time next summer when the EPA final rule will actually be published allowing the 2014 production or importation of  methyl bromide for use in areas where there is no suitable substitute. This means that EPA will again have to issue an extra-legal written authorization for such production or importation pending the publication of the final rule.

Another New Authorized Use of Methyl Bromide Fumigant

Yesterday the Animal Plant Health Inspection Service (APHIS) published a notice in the Federal Register (78 FR 68021-68022) announcing that a treatment schedule for methyl bromide fumigation of blueberries for Mediterranean fruit fly and South American fruit fly to the Plant Protection and Quarantine (PPQ) Treatment Manual. This completes their action on this treatment proposal initiated in June.

The wording of the notice would seem to indicate that the EPA will now have to consider this a new critical use of methyl bromide that would be an exempted use under the Montreal Protocol on Substances that Deplete the Ozone Layer. This would potentially extend the period under which organizations could produce or import methyl bromide in the United States under the phase out of methyl bromide.

Once again (I know, I do harp on this subject) this calls into question the DHS decision to remove methyl bromide (a toxic inhalation hazard chemical) from the CFATS list of DHS chemicals of interest (COI; Note: It was on the draft list but was not included on the final list). As usual, I urge DHS to reconsider their failure to include methyl bromide in Appendix A, 6 CFR 20.