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.

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.

EPA Publishes 2016 Methyl Bromide Critical Use Notice

Today the Environmental Protection Agency (EPA) published a notice in the Federal Register (78 FR 32646-32650) requesting the critical use information from manufacturers, distributors and users of methyl bromide for 2016. This annual requirement is part of the EPA’s ‘phase-out’ of the use of methyl bromide as a fumigant in the agricultural sector under the Montreal Protocol on Substances that Deplete the Ozone Layer.

According to the notice the US recently submitted it recommendations for 2015 critical use exemptions and it “included only three uses (strawberries, fresh dates and dry cured ham)”. This is unusual since just last year the EPA and the Department of Agriculture approved the use of methyl bromide for fumigating imported shipments of cotton seed for cattle feed. That use is not discussed in this notice.

Substitutes

One of the reasons that the EPA has recommended only those three areas, arguably the largest current uses, for the use of methyl bromide is that they have determined that there are substitutes available for other uses. These substitutes include:

• Sulfuryl Flouride – Dried fruit and nuts/flour mills, rice mills and pet food; and

• 1,3-Dichloropropene – Cucurbits, Eggplant, Pepper and Tomato/Orchard Replant/Ornamentals/Nurseries/Golf Courses;

Neither of these substitutes is currently listed as a DHS chemical of interest (COI) for the CFATS program. The manufacturers of these pesticides almost certainly use COI, but this will probably not result in new manufacturing or distribution, just increases in volume.

Applicants can still apply for use of methyl bromide for the above applications, but they must show economic and/or efficacy data that shows that methyl bromide is justified in that use over the substitutes. It will be interesting to see how many such nominations are received or approved.

Methyl Bromide and CFATS

As a toxic inhalation hazard (TIH) chemical, methyl bromide was initially on the proposed DHS list of COI. As part of the rule making process, however, it was removed from the list because the phase out of its use would make it unnecessary. Here it is almost five years later and the use of methyl bromide is still on-going and will continue in at least some limited form for the foreseeable future.

DHS has had on-going conversations with the chemical industry and other interested parties about possible modifications to Appendix A of the CFATS regulations. It seems that these discussions have been sidelined by ISCD efforts to resolve other programmatic problems. If and when such efforts resume, the issue of methyl bromide needs to be readdressed.

NOTE: Last year’s notice for the 2015 critical use submissions was posted on May 18^th; almost two weeks earlier than this post. This program keeps getting further and further behind on all of its administrative actions. This is part of the reason that the EPA keeps having to resort to extralegal actions to authorize legitimate uses of methyl bromide every year. 

EPA Cancels Iodomethane Registration

The Environmental Protection Agency (EPA) published a notice in today’s Federal Register (78 FR 3417-3418) announcing that they had officially ordered the cancelation of the “product registrations and to amend the technical/manufacturing use label” for iodomethane products manufactured by Arysta. The action was taken at the request of the manufacturer.

The EPA announced their intention to cancel the registration back in November. I noted at the time that this action was really a non-issue since Arysta had already stopped selling the product in the United States. The EPA received only one comment on that earlier notice (a complaint that the action will still allow Arysta to manufacture this product line for export use only) that had no effect on this action.

Iodomethane fumigants had been touted as a replacement for the more dangerous (and ozone depleting) methyl bromide fumigants that the EPA has been trying to phase out since 2005 under requirement under the Montreal Protocol on Substances that Deplete the Ozone Layer. Long time readers will no doubt recall that this phase-out was used as justification by DHS for not listing this toxic inhalation hazard (TIH) chemical in the DHS list of chemicals of concern.

Today’s action ensures that the ‘phase-out’ will continue for some in determinant length of time and the continued manufacture, storage and transportation of methyl bromide will continue to put communities at risk of a potential terrorist attack. DHS needs to reconsider their non-listing of methyl bromide.

EPA Submits 2012 Methyl Bromide NPRM to OMB

On Friday the OMB’s Office of Information and Regulatory Affairs (OIRA) published a notice on their web site that the Environmental Protection Agency had submitted a notice of proposed rule making setting out the “2012 Critical Use Exemption from the Phaseout of Methyl Bromide”. As I have noted in many previous posts, the use of methyl bromide is being phased out under the Montreal Protocol as it is considered to be an ozone destroying chemical. This rule will set forth the authorized uses of this fumigant for 2012, including specifying how much may be produced or imported for those uses.

This rule, when it is approved by OMB, will be very similar to the 2011 regulation that I discussed back in March. The main difference is that there will almost certainly be a slight reduction from the 1500 MT production authorized in the previous rule. The big reductions won’t start taking effect until 2014 when more of the current authorized uses are phased out.

The EPA seems to be getting this rule finished earlier this cycle. Publication of the 2011 rule took place in March forcing the EPA to unofficially notify producers and users of the numbers that could be used in the 2011 planting season. Given any kind of reasonable attention to this rule in OMB and then again in the EPA process should allow to them to meet the December 2011 target date set forth in the Unified Agenda for this rule.

I’ll forgo my typical rant about the need for methyl bromide to be included in the DHS list of chemicals of interest (COI) used by the CFATS regulations. Anyone that hasn’t seen it too often can go back and read the section “Methyl Bromide COI Status” section of my blog post on the previous annual exemption rule.