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.
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