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95–458PDF 2004

METHYL BROMIDE: UPDATE ON ACHIEVING THE

REQUIREMENTS OF THE CLEAN AIR ACT AND

THE MONTREAL PROTOCOL

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY AND AIR QUALITY

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JULY 21, 2004

Serial No. 108–118

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

COMMITTEE ON ENERGY AND COMMERCE

JOE BARTON, Texas, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

RALPH M. HALL, Texas

MICHAEL BILIRAKIS, Florida

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi, Vice Chairman

VITO FOSSELLA, New York

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

DARRELL E. ISSA, California

C.L. ‘‘BUTCH’’ OTTER, Idaho

JOHN SULLIVAN, Oklahoma

JOHN D. DINGELL, Michigan

Ranking Member

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

CHRISTOPHER JOHN, Louisiana

TOM ALLEN, Maine

JIM DAVIS, Florida

JANICE D. SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

BUD ALBRIGHT, Staff Director

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON ENERGY AND AIR QUALITY

RALPH M. HALL, Texas, Chairman

CHRISTOPHER COX, California

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

JOHN SHIMKUS, Illinois

Vice Chairman

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

GEORGE RADANOVICH, California

MARY BONO, California

GREG WALDEN, Oregon

MIKE ROGERS, Michigan

DARRELL E. ISSA, California

C.L. ‘‘BUTCH’’ OTTER, Idaho

JOHN SULLIVAN, Oklahoma

JOE BARTON, Texas,

(Ex Officio)

RICK BOUCHER, Virginia

(Ranking Member)

TOM ALLEN, Maine

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

LOIS CAPPS, California

MIKE DOYLE, Pennsylvania

CHRIS JOHN, Louisiana

JIM DAVIS, Florida

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

C O N T E N T S

Page

Testimony of:

Bair, James A., Vice President, North American Millers’ Association ........ 30

Bogenholm, Vanessa, Owner, VB Farms, Chair, Board California Certified Organic Farmers ................................................................................. 59

Brown, Reginald L., Executive Vice President, Florida Tomato Committee ............................................................................................................. 33

Doniger, David, Policy Director, Climate Center, Natural Resources Defense Council ................................................................................................. 54

McMurray, Claudia, Deputy Assistant Secretary for Environment, Bureau of Oceans and International Environmental and Scientific Affairs,

Department of State; accompanied by Hon. Jeffrey R. Holmstead, Assistant Administrator for Air and Radiation, Environmental Protection

Agency; Rodney J. Brown, Deputy Under Secretary for Research, Education and Economics, Department of Agriculture; and Burleson Smith,

Director, Pest Management Policy, Department of Agriculture ............... 12

Mellano, H. Michael, Senior Vice President, Mellano & Company .............. 37

Mueller, David, President, Insects Limited, Incorporated ............................ 48

Wenger, Paul, Second Vice President, California Farm Bureau Federation ................................................................................................................. 43

Wolf, James, Vice President, Trane Corporation ........................................... 62

Additional material submitted for the record:

Sprenkel, Reid, Global Business Leader-Fumigants, Dow AgroSciences:

Letter dated August 2, 2004, to Hon. Ralph M. Hall ............................. 83

Letter dated August 27, 2004, to Hon. Ralph M. Hall ........................... 88

(III)

(1)

METHYL BROMIDE: UPDATE ON ACHIEVING

THE REQUIREMENTS OF THE CLEAN AIR

ACT AND THE MONTREAL PROTOCOL

WEDNESDAY, JULY 21, 2004

HOUSE OF REPRESENTATIVES,

COMMITTEE ON ENERGY AND COMMERCE,

SUBCOMMITTEE ON ENERGY AND AIR QUALITY,

Washington, DC.

The subcommittee met, pursuant to notice, at 11 a.m., in room

2322, Rayburn House Office Building, Hon. Ralph M. Hall (chairman) presiding.

Members present: Representatives Hall, Whitfield, Norwood,

Shimkus, Radanovich, Bono, Issa, Otter, Allen, Waxman, Capps,

and Davis.

Also present: Representative Foley.

Staff present: Mark Menezes, majority counsel; Bob Rainey, fellow; Kurt Bilas, majority counsel; Margaret Caravelli, majority

counsel; Michael Goo, minority counsel; and Bruce Harris, minority

counsel.

Mr. HALL. The subcommittee will please come to order. Without

objection, the subcommittee will proceed pursuant to Committee

Rule 4(e), which governs opening statements by members and the

opportunity to defer them for extra questioning time.

Hearing no objection, prior to the recognition of the first witness

for testimony, any member, when recognized for an opening statement, may defer his or her 3-minute opening statement and instead have 3 additional minutes during the initial round of witness

questioning. It is not out of reason that you would get those 3 minutes anyway, if you wanted them. We appreciate you being here.

These meetings usually are limited to just a few members because it is near the end of the last week for a month and a half,

and they have a lot of other committees to attend. So, I recognize

myself for an opening statement.

I want to welcome all of our witnesses here today, and thank

them for taking the time out of their busy schedules to testify before this subcommittee. I would like to recognize and welcome Congressman Foley—is he here? Congressman Foley will be here, from

Florida. He has requested the opportunity to sit in on the hearing.

With that, I will waive my opening and we will get underway, and

recognize Mr. Allen for his opening statement.

Mr. ALLEN. Thank you. Thank you, Mr. Chairman, for holding

this hearing. I appreciate the chairman’s efforts to bring a balanced

panel here today. Our witnesses represent agricultural interests,

2

the Federal Government, the environmental community, and industry. I understand from the majority that all the witnesses will remain here until they are dismissed by the chairman. In the recent

past, witnesses left the subcommittee before responding to questions from members, and I trust that all witnesses will respond to

questions from all members that wish to ask them.

Is there an international treaty the Bush Administration likes?

The Montreal Protocol is one of the most successful international

environmental regimes ever created. The treaty, negotiated by the

Reagan Administration, phases out the use of chemicals that damage the ozone layer. It has markedly slowed the depletion of earth’s

stratospheric protective shield, however, we are by no means out

of the woods.

NASA, NOAA, and the Naval Research Laboratory report that

last year’s ozone hole grew to 10.9 million square miles, an area

larger than all of North America and the second largest ever reported.

The Montreal Protocol depends on its 187 ratifying countries to

comply with mandatory phaseouts of ozone-depleting substances.

With little enforcement mechanism, if any single Party fails to

comply with the regime, the regime may fail. The treaty allows for

exemptions to its chemical use bans in situations where the chemicals are considered to be of critical use. Clearly, it makes sense to

allow some exemptions to an all-out ban, but exemptions have the

potential to be abused, defeating the effectiveness of the entire regime. Methyl bromide is a powerful ozone-depleting gas and we

should be working to minimize its use.

In February, the United States was one of 12 nations to demand

and receive a 1-year critical use exemption for methyl bromide

from the limits in the Montreal Protocol. According to the U.N. environmental program, the exemptions for the 12 nations total

13,438 metric tons. The U.S. allowance of 8,942 metric tons is

about twice that of all the 11 other countries combined, but the administration wants a larger exemption. For 2006, the Bush Administration seeks to increase our waiver from 35 percent to 37 percent

of the methyl bromide the Nation used in 1981. Some accounts suggest that 37 percent exceeds our current level of use, permitting

this country to actually increase emissions.

Why does the United States need to increase its allowable methyl

bromide use above the 35 percent of the 1991 baseline level that

it agreed to in February? What possible economic interest can be

more important than getting rid of ozone-depleting substances? We

need the best information these panelists can give us.

The threat of ozone depletion is known, it is real, and we must

uphold our commitment to address it. We need to meet the deadline set within the Montreal Protocol, and encourage other countries to do the same.

I thank all of the witnesses for being here. I look forward to your

testimony and, with that, Mr. Chairman, I yield back.

Mr. RADANOVICH [presiding]. Thank you, Mr. Allen. I want to

make a brief opening statement, then I will allow the others to do

it as well.

I want to thank in particular Chairman Hall for calling this most

important hearing. And I want to first welcome my constituent,

3

Paul Wenger, of Stanislaus County. Paul is a walnut and almond

farmer in my district, and I look forward to his testimony. Welcome, Paul.

The hearing today is about the process taking place within the

Montreal Protocol with respect to the critical use exemptions, or

CUEs, from methyl bromide. Many of us were here last year when

we discussed the uses of methyl bromide, and we learned about

what to expect during the critical use exemptions process at the

Montreal Protocol. Now that the process is underway, I have some

serious doubts with the direction that it is headed.

First, I fear the process has become extremely politicized, and

that Protocol is moving away from science-based decisions given

some statements to that effect in the February 2004 T-Report. Additionally, I’ve heard some comments from folks from the U.S., who

have been at these Montreal Protocol meetings, who say that International Delegation members have said point blank that they are

awaiting the election of a new U.S. President in order to achieve

their agenda within the Protocol.

I am also disturbed that the goalpost seems to be moving at the

Protocol. At the most recent meeting of the Protocol, a consumption

and production limit for methyl bromide was set. This was disconcerting because the Protocol itself states CUEs should be granted according to consumption and not production. So, it doesn’t

make sense to me for the Protocol to address this issue that is outside the terms of the treaty.

Furthermore, I want to encourage our negotiators to continue to

fight for a multiple-year CUE. Farmers in the U.S. need more certainty and reliability until a reasonable substitute can be found

than the 1-year CUE that was granted recently in Montreal.

Finally, as many of you know, I have sponsored H.R. 3403, which

is a bill to ensure the critical uses of methyl bromide, as approved

by the EPA, are available in the United States after the 2005

phaseout of the chemical, regardless of what the Protocol decides.

I want to make it clear that I am open to suggestions and comments regarding my legislation. It certainly is not a perfect solution to our CUE concerns, but I still believe it opens the discussion

to address the difficulties for the United States and what it faces

at the Montreal Protocol.

Again, I want to thank Chairman Hall, and will recognize Ms.

Capps from California.

Ms. CAPPS. Thank you, Mr. Chairman. I understand the difficulty facing our growing and farming communities with the

phaseout of methyl bromide. It is important for the production of

many important farm products, including strawberries and cut

flowers, both important in my district in California. But as a public

health nurse, I do worry about methyl bromide’s highly toxic nature and the harmful effects its continued use poses to our ozone

layer.

Methyl bromide is designated a Class I acute toxin by the EPA,

and is known to be hazardous to the health of farm workers who

work in the fields where it is applied. In fact, last year, in a troubling report, the National Cancer Institute linked methyl bromide

to increased rates of prostate cancer in product handlers. In addition to those directly involved with this application, the pesticide

4

is often used in fields that are near homes and schools, exposing

school children and families through air and water pollution, and

causing eye and skin irritations, dizziness, headaches, and other

health-related problems. This is an immediate concern for the

health of my constituents, many of whom live in close proximity to

the fields where methyl bromide is still in current use.

In addition to endangering human health, methyl bromide is the

most powerful ozone-depleting chemical still in use. Its continued

use will widen the hole in the ozone layer, increasing ultraviolet radiation and potentially causing an increase in skin cancer and

other serious illnesses.

Fortunately, over the past decade, great progress has been made

under the Clean Air Act and the Montreal Protocol to phaseout

production of methyl bromide. Production has been cut 70 percent

in industrialized countries since 1999 under the Treaty’s timetable.

Unfortunately, the administration’s recent proposal for critical use

exemptions would reduce these gains and cause methyl bromide

production and use to start rising again.

The administration’s most recent request totaling 39 percent

greatly exceeds the limits now allowable under the Treaty. Importantly, it is far beyond what is actually being consumed by methyl

bromide users in this country today. According to EPA’s own data,

methyl bromide consumption in 2003 was just 25 percent of 1991

baseline levels, even though the Treaty and the Clean Air Act permit up to 30 percent. In other words, Mr. Chairman, methyl bromide users do not even consume as much methyl bromide as this

administration is seeking for them, and that is why this request for

increase is so troubling. The Bush Administration is again undermining a successful international environmental treaty. It also continues to punish responsible users in this country who have invested time and money into adopting safer alternatives, and the

administration’s actions encourage growers and others to continue

to use this dangerous pesticide instead of prompting them to find

safer alternatives.

Mr. Chairman, since coming to Congress, I have worked to find

a balance between the needs of growers in my district and public

health concerns. I have assisted farm groups and key stakeholders

with their transition away from methyl bromide. In California,

these growers are employing crop management techniques and

using other fumigants. More specifically, organic growers have

proven that fruits and vegetables can be grown without pesticides,

and that consumers will rush to purchase them. From the point of

view of protecting communities, farm workers and the atmosphere,

the only acceptable plan should be to continue the phaseout of

methyl bromide with all deliberate speed. Under no circumstances

should we adopt legislation that prevents us from achieving such

a goal.

Thank you again for holding this hearing, and I do look forward

to hearing our witnesses.

Mr. RADANOVICH. Thank you, Ms. Capps. The Chair recognizes

Mr. Otter from Idaho.

Mr. OTTER. Mr. Chairman, I am going to submit my formal statement for the record, and ask that it be included, and just use my

time to make a couple of observations, and one of them would be

5

that you can’t have it both ways. We can’t be complaining 1 day

about all the outsourcing that is going on in the United States, all

the food processors that happen to be moving to Canada and Mexico and other places, and then turn around in the same week but

a day later and complain about some of the tools that our farmers

and our producers most effectively use, and I suspect that even the

outsourcing could be handled for flowers and strawberries, and I

suspect that they would be eventually.

So, I would hope that we would try to be a little bit consistent

with a national view and a broader view of what it needs to make

this country go. And with that, Mr. Chairman, I yield back my

time.

[The prepared statement of Hon. C.L. ‘‘Butch’’ Otter follows:]

PREPARED STATEMENT OF HON. C.L. ‘‘BUTCH’’ OTTER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF IDAHO

Thank you, Mr. Chairman, for holding this hearing today. I am glad the committee has taken this opportunity to get an update on the international discussions

regarding the use of methyl bromide. This is a timely hearing on an issue that could

have a significant impact on agriculture production in the United States.

About this time last year the committee held a hearing on the issues associated

with methyl bromide. We talked about the importance of methyl bromide to many

agriculture producers and food processors. The importance of this fumigant remains

the same, so I won’t restate my earlier comments. However, I continue to have concerns that American efforts to comply with the Montreal Protocol will remove a valuable tool for our farmers.

I said this last year but I will repeat it again. The United States enjoys a safe

and relatively cheap food supply. If we want to maintain that safe and cheap supply, we cannot institute policies that drive American producers out of business.

I remain concerned with the trade and international agreements that the United

States has signed which allow foreign competitors to use products that are disallowed in this country. There is a competitive advantage for farmers in countries

where methyl bromide is allowed. It is unfair to ask our farmers to compete with

producers in those countries. My concerns with the implementation of existing

agreements make it very difficult for me to support future agreements that this administration is asking the committee to consider.

Mr. Chairman, I look forward to the testimony from the witnesses. I also would

like to work with the Committee to find a solution to the situation in which the

Montreal Protocol has placed American farmers.

Mr. RADANOVICH. Thank you, Mr. Otter. Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman. On April 5, 1988, President Ronald Reagan signed the Montreal Protocol on substances

that deplete the ozone layer. On October 26, 1990, the House of

Representatives voted 401 to 25 to pass the Clean Air Act and implement the Montreal Protocol. And then in 1990, on November 15,

President George H.W. Bush signed into law the implementing legislation for the Montreal Protocol. It is a remarkable story of bipartisan achievement and environmental victory. The United States

demonstrated that we were able to work together and with the

international community to answer an environmental problem that

threatened the entire planet, and for 15 years this bipartisan approach has been working to phaseout ozone-depleting chemicals

and to protect and restore the ozone layer, but now we are told

that could change.

At this subcommittee’s hearing on methyl bromide last year, we

first learned that the Montreal Protocol might be under threat by

the House Republican leadership. Chairman Barton issued what

amounted to an ultimatum to the international community. He

6

suggested that if these exemptions were not issued, this subcommittee would move legislation to grant exemptions presumably

even if it takes the United States out of compliance with the Montreal Protocol. This didn’t appear to be an idle threat.

On October 29, 2003, Representative Radanovich introduced legislation which would authorize methyl bromide use regardless of

the Montreal Protocol. This Protocol has the flexibility necessary to

address appropriate needs for methyl bromide until alternatives

are identified. We have every reason to believe that the exemption

process works. After all, the United States was a leader in developing and drafting every detail of the Protocol. Moreover, it appears that the administration has been using questionable numbers to advance its case for exemption, and I hope this committee

will get the facts straight.

Today, we are going to hear from David Doniger of the Natural

Resources Defense Council. Mr. Doniger will testify that actual

methyl bromide use is far below what industry and the administration have insisted they need.

I want to put into the record, Mr. Chairman, if I might, a letter

from Senators Jeffords, Sarbanes, Lautenberg, and Lieberman, on

this important issue.

Mr. RADANOVICH. Without objection, so ordered.

[The information referred to follows:]

7

8

Mr. WAXMAN. I hope this hearing will demonstrate how unwise

this approach would be, and will lead members who support violating the Montreal Protocol to rethink their position. Thank you,

Mr. Chairman.

Mr. RADANOVICH. Thank you, Mr. Waxman. Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman. I will waive my opening

statement in the hope that I get more time for questioning.

Mr. RADANOVICH. Certainly. Thank you very much. Mr.

Whitfield.

Mr. WHITFIELD. I will waive my opening statement.

Mr. RADANOVICH. Thank you. Anybody else wanting to do an

opening statement? Mr. Norwood.

Mr. NORWOOD. Thank you very much, Mr. Chairman. I appreciate your holding this important hearing today. I obviously take

great interest in today’s subject for all the farmers of the Ninth

District of Georgia, and that is my responsibility as well as what

is in the best interest of this country. I would put at the very end

of my priority list the prosperity of farmers in developing countries

who are getting a helping hand from the Montreal Protocol in

phasing out their use of methyl bromide to the detriment of all of

our farmers.

I would like to remind everyone here that the use of methyl bromide has already been reduced by approximately 60 to 70 percent

from the 1991 base levels, but we have still not put a finger on

good economic alternatives for our farmers.

In reading through the testimony for today’s hearing, I noticed

an excellent statement by Mr. Bair, where he said, ‘‘If agriculture

improved processing use of methyl bromide are very harmful to the

environment, that it should be banned globally on the same date.’’

And I couldn’t agree with Mr. Bair more, it is simply not fair to

put pressure on our farmers to cutoff their use of methyl bromide

earlier than their competitors in the developing countries.

I am pleased to be a co-sponsor of H.R. 3403, sponsored by my

friend from California, Mr. Radanovich. This bill restores some sovereignty to the U.S. and our farmers, by authorizing the production

of methyl bromide in the same amount requested by the United

States under the critical use exemption process of the Montreal

Protocol, even if the Parties to the Protocol do not approve of the

entire amount.

9

Today, I encourage my colleagues on the subcommittee to listen

very closely to how our farmers, American farmers and growers are

being treated by the Montreal Protocol. If they are being treated

as I suspect, it is time we get out of this agreement.

Thank you, Mr. Chairman, and I yield back what time I have.

Mr. HALL. The Chair recognizes the gentleman from California,

Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman. Thank you for holding this

hearing. I will put most of my formal opening statement in the

record, to save time, but I would like to note that on the second

panel, Dr. Michael Mellano will be testifying, and he has been a

key resource for those of us who need to learn more about agriculture. It is the largest part of my district. Dr. Mellano not only

operates 625 acres in Southern California, most of it in my district,

but the type of area he is in, the nursery business and the like, is

California’s fourth largest industry, and it is the largest agricultural producer in my district. And as we all agree that methyl bromide does need to be phased out, I want to join with the other

members of the subcommittee in recognizing that it should have

been, and should be done, at a single time, and it should be done

when science permits alternatives, something that I think all of us

on this panel can agree with. And with that, I yield back, and put

the rest in the record.

Mr. HALL. Thank you. I recognize myself for as much time as I

may require, and I will not require too much.

The issue of methyl bromide is, of course, obviously very important to many members of the committee and to many members of

the House. This is the second hearing we have had on this issue

in a year, which I think attests to the importance. And I want to

thank Ranking Member Boucher, and the entire staff over there,

for their good assistance and cooperation, which speaks, I think, to

the bipartisan nature of the issue that we are discussing.

We need to gain a fuller understanding of the current status of

methyl bromide under the Montreal Protocol and the Clean Air

Act. We also need to understand the progress being made to develop effective and economically competitive alternatives to methyl

bromide.

The use of methyl bromide is critically important to many of our

farmers and others involved in the Nation’s agricultural businesses. This is due to its superiority to existing alternatives, and

many applications and lack of alternatives are a substitute for

many of these applications.

As we on this committee are already keenly aware, the Montreal

Protocol requires the phaseout of methyl bromide by 2005, except

for certain critical uses. It is on the critical use exemptions under

the Protocol that we will focus much of our attention here today,

however, we are just as keenly interested in the progress being

made to provide effective and economically competitive alternatives

to methyl bromide, and want to hear what the witnesses have to

say about them.

We asked representatives of the administration to come here

today to provide an update on the activities under the Protocol

with regard to methyl bromide. I understand members are very interested in how the administration developed the recommendation

10

for the critical use exemption for 2005. Members want to know how

and why the United States’ request was scaled back. We are also

asking these witnesses to report on the current status of international negotiations under the Protocol, the results of the meetings in Geneva last week in preparing for the meeting of the parties, and to brief us on the status of the upcoming meeting of the

Parties to the Montreal Protocol scheduled for this fall. As well, we

are interested in learning more about the use of methyl bromide

outside the United States. It is obvious that the uncertainty over

future availability of methyl bromide has caused great concern.

Therefore, as you give your oral testimony and answer our questions from both sides, please consider ways that this committee

might help. We need your help to ensure that the U.S. obtains an

adequate critical use exemption under the Protocol. That is the reason we have you here, you men and women who know more about

this than we do. That is the way we write legislation, and you are

giving us a base to go to when we get ready to try to get to the

finality of it.

After today’s hearing, I fully expect that my colleagues and myself will have additional questions, and it is my intention to leave

the record open for a record period of time, to accommodate the

sending and receiving of questions and answers, as well as other

information and testimony that the subcommittee may receive. So,

you all probably will be getting other letters, and we ask you to expedite the return of them, if you possibly can. It would be very

helpful.

As was emphasized in last year’s hearing on methyl bromide, we

need to let the facts tell the story, and let any policy judgments

flow from accurate information. Any additional action by the committee will be based to a large part on the information we hear

today and from the follow-up information we receive from witnesses. In the House of Representatives, the matter of the Montreal Protocol in Title 6 of the Clean Air Act is within the sole jurisdiction of the Energy and Commerce Committee, and this subcommittee in particular.

So, we are all aware that the Montreal Protocol is an international treaty that was ratified by the Senate in 1986 and 1988.

This Treaty has been amended two times and ratified by the Senate in 1991 and 1994. Protection of our Nation’s agricultural business is serious business. You can be assured that the subcommittee

is going to approach this issue and any other issue respecting the

Treaty signed by President Reagan and by President Bush Sr.

With that, I will yield back whatever time I had, and we will now

go to our distinguished witnesses.

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. STEVE BUYER, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF INDIANA

In 1987 President Ronald Reagan signed the Montreal Protocol, an international

treaty designed to eliminate the production of ozone-depleting substances. The implementation of the Protocol has maintained a delicate balance between the need

to phase out substances, such as methyl bromide, which are harmful to the environment while protecting the agricultural communities of the signatory nations by identifying critical use exemptions from phase-outs where adequate substitutes do not

yet exist. This process melds environmental and economic factors in order to cost

11

effectively manage our way towards feasible solutions. The current process works

and has been successful for the past 20 years.

I commend my colleagues on the Committee for maintaining careful oversight of

this process. It is important that we ensure that our farm community is protected

and that adequate supplies of compounds for fumigation of crops, milling and storage be available. In addition, it is also important that we fairly apply the laws we

have adopted, whether it be the Montreal Protocol, or the domestic implementation

laws under the Clean Air Act, so that those industries who have invested in these

new technologies have the opportunity to earn a return on their investment.

Over the last 20 years, U.S. businesses, including some in my district, have invested billions of dollars to develop environmentally acceptable alternatives to the

ozone-depleting substances regulated by the Protocol, including methyl bromide.

The US has shown a strong commitment to the success of the Montreal Protocol.

The committee should stay focused on ensuring that the U.S. remains in compliance

with the Protocol so as not to jeopardize billions of dollars in past investments and

discourage additional investments in the future. It is possible for the U.S. to protect

agricultural interests while maintaining the success of other key industries within

the context of the Montreal Protocol provisions.

Here at home, the committee should also ensure that our government agencies,

including the Department of Agriculture and the Environmental Protection Agency,

are doing all they can to assist those reliant on methyl bromide to make significant

progress in identifying alternatives to this compound by providing transition assistance, such as education, and, in the case of EPA, completing its allocation rule on

these critical use exemptions.

With the help of this committee, I believe we can achieve significant reductions

in methyl bromide use while protecting the interests of our agriculture community.

Thank you Mr. Chairman

PREPARED STATEMENT OF HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY

AND COMMERCE

I want to welcome our witnesses today and thank Chairman Ralph Hall for conducting this follow-up hearing concerning the legal status of methyl bromide.

I also want to acknowledge the strong interest of several members of this Committee in having today’s hearing. I understand that many of my colleagues have

constituents who have used methyl bromide in farming and other agricultural uses

for many years and who are greatly concerned with the phase-out of this broad-spectrum fumigant under the Montreal Protocol and the Clean Air Act.

The roots of this situation extend back to 1986 when the United States ratified

the Vienna Convention. This action was followed by ratification of the Montreal Protocol in 1988 and enactment of Title VI of the Clean Air Act in 1990. These actions

set the legal table, so to speak, for subsequent decisions and actions relating to

methyl bromide. This committee has sole jurisdiction over this matter in the House

of Representatives and it takes that responsibility seriously. We are responsible for

providing oversight to ensure that the integrity of the Montreal Protocol and the

Clean Air Act are preserved and these laws are appropriately implemented. However, this committee is also obligated to make sure that our farmers and others in

agriculture have the tools necessary to protect their crops and maintain their domestic and international competitiveness. This includes making sure that they have

sufficient access to methyl bromide and to alternatives that are adequate and cost

effective as substitutes prior to reducing our dependence on methyl bromide. We understand that EPA is currently working on registering several products that may

help replace methyl bromide in some applications. We are anxious to get a progress

report on these alternatives and to learn from the agriculture community their experiences with these products as they become available.

We are well aware that upcoming decisions may be critical regarding methyl bromide use in this country. So now is the time to ask questions and to probe deeply.

We need to get all the facts on the table and to hear from our Administration and

a variety of perspectives in the private sector. I look forward to the testimony of

our witnesses.

Mr. HALL. We have with us Claudia McMurray, Deputy Assistant Secretary for Environment, Bureau of Oceans and International Environmental and Scientific Affairs, of the State Department. We thank you and those over at the State Department for

your time here today.

12

We have the Honorable Jeffrey R. Holmstead, Assistant Administrator for Air and Radiation, Environmental Protection Agency, an

important witness and important testimony here, and Dr. Rodney

J. Brown, Deputy Under Secretary for Research, Education and Economics, accompanied by Mr. Burleson Smith, Director, Pest Management Policy, Department of Agriculture.

With that, I want to start out and recognize Ms. McMurray for,

we hope, 5 minutes, but just stay as close as you can to what you

really need to get your word over to us, and then we will open up

and have a chance to answer more fully when questions come your

way. Ms. McMurray.

STATEMENTS OF CLAUDIA McMURRAY, DEPUTY ASSISTANT

SECRETARY FOR ENVIRONMENT, BUREAU OF OCEANS AND

INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS, DEPARTMENT OF STATE; ACCOMPANIED BY HON.

JEFFREY R. HOLMSTEAD, ASSISTANT ADMINISTRATOR FOR

AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY; RODNEY J. BROWN, DEPUTY UNDER SECRETARY FOR

RESEARCH, EDUCATION AND ECONOMICS, DEPARTMENT OF

AGRICULTURE; AND BURLESON SMITH, DIRECTOR, PEST

MANAGEMENT POLICY, DEPARTMENT OF AGRICULTURE

Ms. MCMURRAY. Thank you, Mr. Chairman. If the subcommittee

would permit, before I start my opening statement, there was mention made of a witness leaving a subcommittee hearing of this committee early last week. It was me. And just to underscore the importance of the Montreal Protocol to this administration, I was trying to catch a plane to go to the meeting of the Montreal Protocol.

So, my apologies. I have no plane to catch today.

Mr. Chairman, members of the subcommittee, thank you for the

opportunity to deliver this statement to update the subcommittee

concerning the phaseout of methyl bromide under the Montreal

Protocol.

Mr. Chairman, as you know, I make this statement on behalf of

the Department of State, Department of Agriculture, and the Environmental Protection Agency. I have a longer statement that I

would like to submit for the record, with your permission.

Mr. Chairman, before I discuss the specifics of our activities concerning methyl bromide, I would like to spend a moment reviewing

the broader progress the United States and its global partners are

making to repair the stratospheric ozone layer. Some of that has

already been mentioned in opening statements here today.

I do this because the global phaseout of ozone-depleting chemicals under the Montreal Protocol is seen around the world as an

unparalleled triumph of sound science, economics, and diplomacy.

Actions we are taking in the United States and that are also taking

place worldwide serve to protect human health, while still seeking

to meet critical needs that the Protocol recognizes.

The United States continues not only to meet all of its obligations under the Montreal Protocol, but also to exert strong leadership in phasing out all ozone-depleting substances. In fact, in the

United States, we have already phased out nearly 97 percent of all

ozone-depleting substances controlled by the Protocol.

13

We were ahead of the curve globally in negotiating the original

Montreal Protocol under President Reagan. President George H.W.

Bush continued these efforts in 1991 and 1992 by accelerating the

phaseout of ozone-depleting substances. During his administration,

the list of regulated substances was expanded to include a number

of newly identified ozone-depleters, including methyl bromide.

President George W. Bush has maintained the legacy of strong U.S.

support for the Protocol, the goal of which is to protect public

health. On that score, we are clearly moving in the right direction.

An evaluation required by legislation estimated that full implementation of the Montreal Protocol will save 6.3 million U.S. lives

from skin cancer between 1990 and the year 2165. Skin cancer is

a preventable disease that kills one American every hour. The

Montreal Protocol has helped us make great strides in combatting

this threat to health by controlling the chemicals that damage

stratospheric ozone.

Methyl bromide, as you have heard, is one of those chemicals. As

the world’s largest producer and consumer of this substance, the

United States has seen its wide use for decades. It has also been

widely used around the world. Growers and other users find it efficacious and are now using it efficiently.

While there are alternatives available today for many uses in

particular situations, there is no alternative that can operate as effectively as methyl bromide for all crops in all situations on which

methyl bromide is used. Nevertheless, the U.S. has made tremendous progress over the last decade by phasing out over 60 percent

of our consumption of methyl bromide. We have achieved these reductions through action on several fronts. USDA has spent approximately $150 million in an aggressive research program to find alternatives to this chemical. The private sector is actively conducting research as well. Finally, since 1997, EPA has expedited

review of methyl bromide alternatives, and has registered a number of chemical and use combinations to effect that change.

While we continue our domestic programs aimed at facilitating

the phaseout of methyl bromide, the international process has recognized that there is a profound difference between it, methyl bromide, and other industrial chemicals that have been controlled in

the past under the Montreal Protocol. Accordingly, the Parties created three types of exemptions to acknowledge the challenges that

methyl bromide presents. We need not discuss the first two today.

One is for emergencies, one is for quarantine and pre-shipment of

goods in trade. At this hearing we focus our efforts on the critical

use exemption, or CUE, which is in some ways similar to a safety

valve that is available for chlorofluorocarbons, or CFCs, under the

Protocol, and that exemption is called the essential use exemption.

The Protocol’s criteria allow any developed country that is a

Party to the Protocol to seek an exemption from the 2005 phaseout,

if it determines that the absence of methyl bromide would cause a

significant market disruption. The Parties must agree that the

nominating Party has demonstrated that there are no technically

or economically viable alternatives for the use in the context of the

application, and that the Party continues to make efforts to find alternatives for the use and to limit emissions.

14

The United States was one of 13 countries that submitted nominations for a critical use exemption for the year 2005. The amount

of methyl bromide nominated by the United States was 39 percent

of our 1991 baseline for 2005, plus a supplemental request of 2 percent. For 2006, we have submitted a request of 37 percent of the

baseline.

I am happy to report that for the first year following the phaseout—that is, 2005—the U.S. request for critical uses met with success. At an Extraordinary Meeting of the Parties to the Montreal

Protocol held in Montreal in March 2004, the Parties granted nearly 90 percent of the U.S. request, and will consider our request for

the additional 2 percent supplemental request for use in 2005.

Under the agreement reached earlier this year, U.S. growers will

have access to 35 percent of the 1991 baseline use amount in 2005,

with up to 30 percent coming from new production and the remainder coming from inventories.

This agreement on critical use exemptions for 2005 was the result of a concerted U.S. effort, including extensive diplomatic outreach at the highest levels of the State Department to gain support

from the other Montreal Protocol Parties for our request. This was

by no means an easy process. In fact, the Parties could not agree

on CUEs at their regular annual meeting in November 2003, and

had to, for the first time, hold what is called an Extraordinary

Meeting to resolve the issue.

We are now working actively with other countries on the U.S. request for 2006 and our supplemental request for 2005, both of

which will be considered at the next meeting of the Parties in November 2004, in Prague. Last week, I led the U.S. delegation to the

meeting of the Montreal Protocol Open-Ended Working Group in

Geneva, a meeting that was designed to allow an exchange of views

on all issues in preparation for the November meeting of the Parties. From our perspective, the Open-Ended Working Group meeting was successful, and gave us the opportunity to begin building

support for our CUE request, and for improvements in the process

by which the Montreal Protocol’s technical body, the Methyl Bromide Technical Options Committee, or MBTOC, reviews CUE

nominations.

Mr. Chairman, I would now like to draw the subcommittee’s attention to the groundbreaking aspect of the decision we reached at

the Extraordinary Meeting of the Parties in Montreal earlier this

year.

As I mentioned earlier, the Montreal Protocol Parties have already agreed to a U.S. critical use exemption for 2005 amounting

to 35 percent of the 1991 baseline level. Up to 30 percent can come

from new production, with the remainder coming from existing inventories. This new approach is important because it limits the

new manufacture of this ozone-depleter for the very first time, and

it calls also for a drawdown in inventory to assure adequate supply

for our farmers.

EPA is currently in the final stages of preparing a proposal to

allocate these amounts so that through the Notice and Comment

rulemaking process, we will be able to engage stakeholders in designing a workable and fair approach to allocation. The use of inventories will be factored into this allocation process.

15

Mr. Chairman and members of the subcommittee, in conclusion,

my testimony should indicate the level of importance the administration places on taking action on methyl bromide in a manner that

protects public health while still meeting the needs of our farmers.

We have done this without doing harm to the unqualified success

story of the Montreal Protocol.

One delegate at our Geneva meeting last week recognized this by

saying, despite our recent difficulties, ‘‘the Protocol is, indeed, alive

and well.’’ I believe that our efforts to work with other countries

to solve this problem have helped make that statement a reality.

I also believe that through continued work with other Protocol Parties, we will achieve an outcome on methyl bromide at the upcoming Meeting of the Parties that is consistent with the Protocol’s

overall goal, while still ensuring that critical needs are met.

I thank you for this opportunity to testify before the subcommittee on behalf of these three Agencies, and I would be happy

to answer any of your questions, as would my colleagues. Thank

you.

[The prepared statement of Claudia McMurray follows:]

PREPARED STATEMENT OF CLAUDIA MCMURRAY, DEPUTY ASSISTANT SECRETARY FOR

ENVIRONMENT, BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCI- ENTIFIC AFFAIRS, DEPARTMENT OF STATE

Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to

deliver this methyl bromide statement on behalf of three federal agencies—the Department of State, the Department of Agriculture, and the Environmental Protection Agency. We realize that methyl bromide, and its phase out under the Clean

Air Act and Montreal Protocol are issues of great importance to many of you and

your constituents. While the focus of the statement is on methyl bromide, I would

like to begin by providing a brief overview of our ongoing efforts to protect the ozone

layer under the Clean Air Act (CAA) and the Montreal Protocol.

The global phase out of ozone-depleting chemicals is an unparalleled triumph of

sound science, economics, and diplomacy. It rests on an overwhelming consensus

within the world science community, and enjoys near universal participation. One

hundred and eighty-seven developed and developing nations are now Parties to the

Montreal Protocol and have committed to measurable targets and timetables for the

complete phase out of chemicals that damage the ozone layer.

Since the Montreal Protocol’s inception in 1987, the United States has exerted

strong leadership in phasing out all ozone depleting substances. The United States

continues not only to meet all of its obligations under the Montreal Protocol, but,

in fact, has already phased out the consumption of nearly 97% of all ozone-depleting

substances controlled by the Montreal Protocol.

From the beginning, the establishment of clear targets for all countries, and the

flexibility allowed in implementation, have helped create broad bipartisan support

at home for the Montreal Protocol’s mission to protect the ozone layer. The United

States was an active participant in negotiating the original Montreal Protocol under

President Ronald Reagan. President George H. W. Bush continued these efforts in

1991 and 1992 by accelerating the phase out of ozone-depleting substances. During

his Administration, the list of regulated substances was expanded to include a number of newly-identified ozone depleters, including methyl bromide. President George

W. Bush has maintained the legacy of strong U.S. support for the Protocol.

The goal of the Montreal Protocol and the Clean Air Act is to protect public health

from harmful UV radiation. On that score, we are clearly moving in the right direction. In fact, the legislative evaluation required by the Clean Air Act’s section 812

estimated that full implementation of the Montreal Protocol will save 6.3 million

U.S. lives from skin cancer between 1990 and 2165. And, we are working with

groups like the American Academy of Dermatology and the National Council for

Skin Cancer Prevention in education programs like SunWise Schools to further reduce risks of skin cancer, especially for kids. EPA’s sun safety programs were recognized in October 2003 by the Cancer Research and Prevention Foundation’s Congressional Families Action for Cancer Awareness. Because skin cancer is a preventable disease that kills one American every hour, it is the government’s obligation

16

to provide people with the information they need to mitigate the impacts of exposure

to the sun, in addition to controlling the chemicals that damage stratospheric ozone.

Our successes so far do not mean that our task is done. In fact, the 2002 Scientific

Assessment of Ozone Depletion, a comprehensive overview of the state of the ozone

layer involving the work of hundreds of atmospheric scientists, life scientists, and

researchers worldwide, with significant U.S. participation, found that the ozone

layer is susceptible to damage because stratospheric concentrations of ozone-depleting chlorine is at or near its peak, while bromine, although still increasing, may

peak over the next several years. In addition, seasonal damage to the ozone layer

resulting in the ‘‘ozone hole’’ in the Antarctic continues; in the 2003 season the hole

reached its second largest extent, covering an area roughly the size of North America. Ultimate recovery of the ozone layer—and the consolidation of all the gains

made so far—depends on our will, and that of the global community of Parties, to

finish the job.

Staying the course matters to public health and to the ozone layer, but it also

matters to the many businesses who took the risk of investing heavily in alternatives that do not damage the ozone layer. A recent letter to EPA from companies

making this choice have built a $10 billion dollar business in trade with ozone-safe

American products and technologies that could be at risk if the United States were

to take action inconsistent with its commitments under the Montreal Protocol. For

all these reasons, this Administration remains committed to finishing the job of protecting the ozone layer started by President Ronald Reagan.

That brings us to the topic of today’s hearing, methyl bromide. We know a number of things about this chemical. First, it is a broad-spectrum restricted use biocide

that is highly effective in killing pests that are of concern to U.S. agriculture. Second, the United States has been the world’s largest producer and consumer of this

substance. Third, methyl bromide has been in wide use in the United States for decades, and users find it efficacious and are using it efficiently. Fourth, while there

are alternatives available today for many uses in many situations, there is no alternative that can operate as effectively as methyl bromide in all the crop situations

on which methyl bromide is used.

As to methyl bromide’s current regulatory status under the Clean Air Act, a little

history is vital to understanding where we are now. The 1990 Clean Air Act required EPA to phase out the production and import of any newly identified substance with a significant potential to damage ozone within seven years of listing,

without exceptions or exemptions. In 1991, the EPA received a petition to take this

action with respect to methyl bromide and promulgated a rule which established a

phase out date of 2001 in the United States. In an effort to address both the environmental concern and an agricultural concern that a unilateral U.S. phaseout in

2001 would put the United States at a disadvantage among other developed nations

that are agricultural competitors of the U.S., successive U.S. delegations to the Montreal Protocol pushed the global community to adopt the U.S. phase out date of

2001. In 1997, the United States succeeded in moving developed countries from

their initial position of only a freeze in production and import at historic levels to

a phase out of methyl bromide in 2005 with interim reductions in 1999, 2001 and

2003. Given that progress, and the desirability of ensuring harmonized requirements, Congress moved to amend the CAA in 1998 to conform the U.S. phase out

schedule with that faced by other developed country Parties to the Montreal Protocol, resulting in the phase out schedule we have today. This schedule called for

a freeze in methyl bromide production and consumption for developed countries in

1995, a 25% reduction by 1999, a 50% reduction by 2001, a 70% reduction by 2003,

and a full phaseout by 2005, subject to certain exemptions.

Users have and are continuing to make progress in reducing the use of methyl

bromide, in fulfillment of our obligations under the Montreal Protocol, by using

newly approved substitutes and implementing innovative new technologies and

practices. Under the U.S. Department of Agriculture’s (USDA) Methyl Bromide Alternatives Program (Methyl Bromide Alternatives at http://www.nps.ars.usda.gov),

agricultural and forestry leaders from private industry, academia, state, and federal

agencies have come together to develop viable alternatives to methyl bromide. This

research program has taken into account input from federal agencies as well as extensive private sector research and trial demonstrations of alternatives to assess the

problem, formulate priorities, and implement state-of-the-art research.

Over a period of 10 years, through 2003, the USDA Agricultural Research Service

has spent approximately $150 million in an aggressive research program to find alternatives to methyl bromide. Through the Cooperative State Research, Education,

and Extension Service, USDA has provided an additional $15.8 million since 1993

to state universities for methyl bromide replacement research and education. These

17

federally supported research activities are in addition to extensive private sector efforts.

Nearly 80 percent of pre-plant methyl bromide soil fumigation use is in a limited

number of crops. Much of the federal government’s pre-plant effort has focused on

strawberries, tomatoes, ornamentals, peppers, and nursery crops, (forest, ornamental, strawberry, pepper, tree, and vine), with special emphasis on tomatoes in

Florida and strawberries in California as model crops. Methyl bromide users have

contributed field plots, plant material, and equipment for research trials on potential alternatives.

At the same time, innovative U.S. technologies and practices allow our growers

to make the methyl bromide we do use go as far as possible toward controlling key

pests. The reductions in U.S. consumption over the past few years have been successfully accomplished in part because manufacturers and users have found that it

is possible to dilute methyl bromide with other pest-control compounds, like

chloropicrin, and still maintain the pest control effectiveness of the material. Further, highly effective application technologies, involving the deep injection of gaseous methyl bromide into cultivated soil, mean that more methyl bromide remains

in the ground for a longer period of time, where it can do its important work of pest

control.

Another important area of emphasis is our responsibility to help identify, register,

and implement safe and effective alternatives. Understanding the importance of this

in the phase out of methyl bromide, EPA has since 1997 made the registration of

alternatives to methyl bromide its highest registration priority. Even under the new

‘‘fee-for-service’’ system, EPA is committed to giving methyl bromide alternatives

priority. As one incentive for the pesticide industry to develop alternatives to methyl

bromide, EPA has worked to reduce the burden of data generation to the extent feasible while still ensuring that the Agency’s registration decisions meet Federal safety standards. Where appropriate from a scientific standpoint, EPA has refined the

data requirements for a given pesticide application, thus facilitating the research

and development process for methyl bromide alternatives. Furthermore, EPA scientists routinely meet with prospective methyl bromide alternative applicants, counseling them through the pre-registration process to increase the probability that the

data are done right the first time, thus minimizing delays.

Our efforts have paid off in some areas. Since 1997, EPA has registered a number

of chemical/use combinations as part of its commitment to expedite the review of

methyl bromide alternatives. While there is no silver bullet among them, they are

nonetheless an important part of our overall methyl bromide strategy. They include:

2000: Phosphine to control insects in stored commodities;

2001: Indian Meal Moth Granulosis Virus to control Indian meal moth in stored

grains

2001: Terrazole to control pathogens in tobacco float beds

2001: Telone applied through drip irrigation—all crops

2002: Halosulfuron-methyl to control weeds in melons and tomatoes

2003: Trifloxysulfuron sodium as an herbicide for tomato transplants in Florida and

Georgia

2004: Fosthiazate as a pre-plant nematocide for tomatoes

2004: Sulfuryl fluoride as a post-harvest fumigant for stored commodities

In addition, EPA is currently reviewing several applications for registration as

methyl bromide alternatives, including iodomethane as a pre-plant soil fumigant for

various crops, and dazomet as a pre-plant soil fumigant for strawberries and tomatoes. While these activities are promising, environmental and health issues with alternatives must be carefully considered to ensure we are not just trading one environmental problem for another. As required by the Food Quality Protection Act,

EPA is currently conducting a tolerance reassessment and reregistration of methyl

bromide to ensure that its registered uses meet today’s health and safety standards.

To facilitate this review, EPA expects to release the preliminary risk assessment for

methyl bromide and other soil fumigants this fall for public review and comment.

EPA is also conducting a cluster assessment of a group of pesticides known as soil

fumigants, to include methyl bromide. Because soil fumigants are used in similar

ways and present potential risks from similar paths of exposure, it makes sense to

review the fumigants together rather than on separate time schedules. To address

this, we are taking a comprehensive approach.

In that regard, ongoing research on alternate fumigants is evaluating ways to reduce emission under various application regimes and examining whether commonly

used agrochemicals, such as fertilizers and nitrification inhibitors, could be used to

rapidly degrade soil fumigants. In addition, EPA has adopted a comprehensive approach to evaluating the currently registered and pending soil fumigants. A preliminary risk assessment which includes all of the current and pending soil fumigants

18

is expected to be released this Fall for public comment with stakeholder discussion

of the potential risk management options to occur during 2005. This process will assure a balanced, comprehensive and transparent evaluation of the risks and benefits

of all fumigation options.

While we continue our domestic programs to facilitate the phase-out of methyl

bromide, the Parties to the Montreal Protocol recognized that widespread use and

elusive feasible alternatives to methyl bromide made its phase-out more difficult

than other chemicals controlled in the past under the Montreal Protocol. Accordingly, the Parties to the Montreal Protocol created three types of exemptions for

methyl bromide.

First, the Parties recognized that methyl bromide is vitally needed in trade to ensure that shipments do not contain harmful and invasive pests that could be transported with commodities and introduced into new areas. Thus, they provided an exemption for quarantine and preshipment uses. As a consequence, while countries

have committed to find alternatives and to limit the emissions and use of methyl

bromide to those applications where its use is necessary, the production and import

for these uses can continue during and after the phase out. On January 2, 2003,

EPA published the Final Rule fully activating this exemption.

The second methyl bromide exemption, covering emergency situations, is an exemption from the phase out for the production or import of 20 tonnes of methyl bromide per event. This exemption can be activated by a Party to address what it considers to be an emergency. The real possibility of emergency needs that cannot be

anticipated, like anthrax contamination, makes it especially vital for countries to

have the flexibility to make methyl bromide rapidly available for such needs.

Third, the Parties created the critical use exemption (CUE), which is in some

ways similar to the other safety valve available under the Montreal Protocol for

CFCs, the essential use exemption. The Protocol’s criteria allow any developed country that is a Party to the Protocol to seek an exemption from the 2005 phase out

if it determines that the absence of methyl bromide would cause a significant market disruption. The Parties must agree that the nominating Party has demonstrated

that there are no technically or economically feasible alternatives for the use in the

context of the application and that the Party continues to make efforts to find alternatives for the use and to limit emissions. I want to focus on this exemption today,

because 2005 will be the first year that the U.S. and other countries will make use

of this provision.

The United States was one of 13 countries that submitted nominations for a critical use exemption for the year 2005. Some national requests were very small, covering only one use, and some were large, covering 10 or more uses. The U.S. nominated the following 16 crops and uses: tomatoes, commodity storage, cucurbit, eggplant, food processing, forest tree seedling nursery, ginger, orchard nursery, orchard

replant, ornamental nursery, pepper, strawberry, strawberry nursery, sweet potato,

nursery seed bed trays, and turf grass. The amount of methyl bromide nominated

by the United States for these uses was 9,920,965 kilograms for 2005, and 9,722,546

kilograms for 2006—this translates into 39% and 37% of our 1991 baseline level for

methyl bromide uses.

I am happy to report that for the first year following the phase out, 2005, the U.S.

request for critical uses met with success. At an Extraordinary Meeting of the Parties to the Montreal Protocol, held in Montreal in March 2004, the Parties granted

nearly 90% of the U.S. request, and will consider a supplemental request for an additional 2% of our baseline for use in 2005. Under the agreement reached earlier

this year, U.S. growers and others with critical uses will have access to at least 35%

of the 1991 baseline use amount in 2005, with up to 30% coming from new production and importation and the remainder from existing inventories. I will discuss the

issue of inventories in greater detail later in this testimony.

This agreement on critical use exemptions for 2005 was the result of a concerted

U.S. effort to gain support from the other Montreal Protocol Parties for our request.

This was by no means an easy process. In fact, the Parties could not agree on CUEs

at their regular annual meeting in November 2003 and had to for the first time in

the Protocol’s history set up an Extraordinary Meeting of Parties (EMOP) to resolve

this issue.

In the months leading up to the Extraordinary Meeting, the Department of State

coordinated a diplomatic outreach effort to ensure that other Parties recognized the

importance of this issue to the United States. We held bilateral meetings with key

countries involved in the CUE process and, through our Embassies, made

demarches on this issue to nearly 50 Montreal Protocol Parties. At our request, an

ad hoc meeting of a small number of Parties was held in Buenos Aires in February

2004 to informally consider ways to resolve the impasse. This extensive outreach

19

was successful in making clear the technical and economic basis for the U.S. CUE

request and in gaining the support of many countries at the March 2004 EMOP.

We are now working actively with other countries on the U.S. CUE request for

2006 and our supplemental request for 2005, which will be considered at the next

Meeting of Parties in November 2004 in Prague. Last week, I led the U.S. delegation to the meeting of the Montreal Protocol Open-Ended Working Group (OEWG),

which was held in Geneva from July 13-16. This meeting is an interim session that

allows for an exchange of views on all issues in preparation for the November meeting. From our perspective, the OEWG meeting was successful and allowed us to

begin building support for our current CUE requests and for our efforts to improve

the process by which the Montreal Protocol’s technical body, the Methyl Bromide

Technical Options Committee (MBTOC), reviews CUE nominations.

The meeting provided a good opportunity to explain to other Parties and to the

MBTOC the economic and technical rationale for our CUE request. During formal

and informal sessions, the U.S. delegation highlighted the extensive process through

which we developed our CUE request in compliance with Montreal Protocol criteria.

I believe this exchange on extremely technical issues will provide dividends as other

countries and the MBTOC continue to review our CUE nominations.

—

We also made major progress at the OEWG on the important issue of improving

the future operations of the MBTOC. During extensive discussions on this issue,

which included a three-day ad hoc meeting prior to the start of the OEWG, the U.S.

delegation pressed for improvements in MBTOC’s procedures and practices. We

made proposals to enhance transparency in the Committee’s proceedings, and to

allow for improved communication between the MBTOC and a nominating Party.

Similarly, we proposed ways to ensure that the Committee adopts sound procedures

for considering the technical and economic merits of CUE nominations and takes

into account the specific circumstances faced by each user. While these discussions

were fruitful, there is still a considerable amount of work to be done to put reforms

in place at the November meeting.

Finally, last week the U.S. delegation put forward a draft decision on ways in

which the Parties could consider and approve CUE nominations for more than one

year at a time. We believe a so-called multi-year approach would provide benefits

in terms of time savings for the MBTOC and the Montreal Protocol Parties reviewing CUE nominations and for the Parties that have to develop them. A multi-year

approach would also provide greater predictability for the user community. The delegates to the OEWG discussed, in detail, the U.S. proposal in Geneva. It will be a

key issue on the agenda for the November meeting in Prague.

—Mr. Chairman, I would now like to return to the issue of methyl bromide inventories. As I mentioned earlier, the Montreal Protocol Parties have already agreed

to a U.S. CUE for 2005 amounting to 35% of the 1991 baseline level. Up to 30%

of the baseline level can come from new production and importation, with the remainder coming from existing inventories. EPA is currently in the final stages of

preparing a proposal to allocate these amounts, so that through the notice and comment rulemaking process, we will be able to engage stakeholders in designing a

workable and fair approach to allocation. The use of inventories will be factored into

this allocation process, with at least 5% of the methyl bromide coming from the inventories.

It must be noted, however, that this inventory does not in any sense belong to

the U.S. government, nor do we have any direct control over its disposition. Because

methyl bromide in existing inventories was manufactured under prior years’ allocations, and fully within the compliance schedule for the United States under the

Montreal Protocol, it belongs to the U.S. manufacturers, distributors and importers

who now hold it. The United States has historically exported a portion of its annual

production, and there is no reason to believe that this will not continue. However,

because it is also true that the United States has historically been the largest consumer of methyl bromide in the world, it is likely that some portion of this inventory will be made available for use here.

Mr. Chairman, my testimony should indicate the level of importance the Administration places on taking action on methyl bromide in a manner that protects public

health, while still ensuring the critical needs of our farmers are met. The Montreal

Protocol has been an unqualified success story. As one delegate put it at our Geneva

meeting, despite recent difficulties, ‘‘the Protocol is indeed alive and well.’’ I believe

that our recent efforts to work hard with other countries to solve this problem have

helped make that statement a reality. I believe that, through continued work with

other Protocol Parties, we will achieve a good outcome on methyl bromide at the

upcoming Meeting of Parties that is consistent with the Protocol’s overall goals.

20

I thank you for this opportunity to testify before this Committee on behalf of the

Department of State, the Department of Agriculture and the Environmental Protection Agency. My colleagues and I would be pleased to answer any questions you may

have.

Mr. HALL. All right. It is my understanding, Ms. McMurray, that

you will be the only one giving testimony for the entire group, is

that correct? We thank you for your explanation for yesterday, and

we understand your need for copious use of the airways in today’s

world. So, we will get underway with some questions.

While I review these, let me recognize Mr. Allen. Go ahead, Mr.

Allen, if you would, with some questions.

Mr. ALLEN. Thank you very much for that presentation. I would

say I appreciate the explanation for your need to leave. I think I

wouldn’t have made the comment if we had been informed of exactly what you were doing and why you had to leave, but we did

not know that.

I wanted to ask, Ms. McMurray, both you and Mr. Holmstead,

some questions about the inventories and how—what we really

know about inventories and the use, the level of use in the United

States, and I will address this to both of you. You can take turns.

As I understand it, the U.S. is requesting a critical use exemption for more methyl bromide, 37 percent of the 1991 baseline, than

we reportedly used in recent years. I understand there are reports

that we have been using around 30 percent of the baseline, but

Adam Sharp, EPA’s Associate Assistant Administrator, told the

Washington Post that EPA’s figures on methyl bromide consumption are only an estimate, and actual use may be well above the

30 percent of baseline levels that are reported. So, I would like

your help with this.

Has EPA been underreporting the methyl bromide consumption

in the country? If 100 percent consumption is not reported, does

EPA know or does it not know if total consumption since 2003 exceeded 35 percent of baseline in any given year? I guess since it

is an EPA question, maybe, Mr. Holmstead, you could help with

that. How good are our numbers, in particular, and the specific

question is, do we know or not know if total consumption since

2003 has exceeded 35 percent of the baseline?

Mr. HOLMSTEAD. Our numbers are very good, but I think that

some of the confusion here is that what we are required to report

under the Protocol is a defined term called ‘‘consumption.’’ And

what consumption, in this defined term is, it is the amount produced in the United States plus the amount imported minus the

amount exported. So, that is a defined term that isn’t the same as

how much as is actually used. So, again, remember that what we

report every year under the Protocol is the amount produced in this

country plus the amount imported into the country minus the

amount exported.

We don’t know exactly how much was used because there are existing inventories that are held throughout the supply chain that

may be held at producers, that may be held at distributors, that

may be held at importers, that may be held by individual farmers.

So what we report as consumption and what we are required to report, we are very confident about. And I think that is where the

21

confusion is, is there is a difference between what we report as consumption and what people estimate is used.

Mr. ALLEN. Another way of saying that is what you report as

consumption is a production number plus imports minus exports,

so it is not a consumption number in the ordinary sense of the

word. So, I take it, if I understand, that you really don’t know

whether consumption, actual use in the United States of methyl

bromide, was above 35 percent or below 35 percent, or am I going

too far, you don’t know what it was?

Mr. HOLMSTEAD. That is absolutely right. We don’t know—and I

like to use the term ‘‘consumption’’ versus ‘‘use’—in terms of knowing exactly how much methyl bromide our farmers used in 2003.

We have several estimates, and we have tried to estimate that by

doing an estimate of how much was used out of inventory. That is

this one number that I know Mr. Doniger has focused on, and we

think that is an important number to look at. But there are other

estimates that we look at. There is actually a proprietary service

that we subscribe to, that has another estimate. The State of California, where a great deal of it is used, does their own estimate.

And so we believe that actual use in 2003 was in the neighborhood

of somewhere between 35 and 50 percent, but we don’t know exactly what that number is.

Mr. ALLEN. Mr. Holmstead, I am looking here at a document provided by EPA—you will have to help me—it is headed ‘‘U.S. Inventory of Methyl Bromide As Of December 31, 2003,’’ and it has baseline consumption inventory held, which is extracted by U.S. companies as of a couple of dates, drawdown, and then it has actual consumption—and let us stay with this, whatever that means at the

moment. U.S. consumption limit, actual 2003 is 6500 metric tons.

And it says then, 25 percent plus a drawdown, and then it has the

word ‘‘use 30.06 percent.’’ I take this to mean—help me if I am

wrong—that at least this document suggests that actual use in the

field of methyl bromide is 30 percent of the 1991 baseline, is that

right?

Mr. HOLMSTEAD. That is one of several estimates that we have.

You asked whether we are meeting our obligations under the Protocol to report, and what we report is not that 30.06 number, it is

the 25 percent number.

Mr. ALLEN. I understand that, but my question is about how

much methyl bromide is actually being used. That is the number

I am trying to get to because if, in fact, we are only using 30 percent of the 1991 baseline, why on earth are we then asking for 37

percent, for an allowance of 37 percent? That is the underlying

problem I have.

Mr. HOLMSTEAD. I understand the question, and I think it is an

excellent question, and I think we have been looking forward to

trying to explain this. We don’t have any way of knowing exactly

how much was used last year or the year before.

The document you have is one estimate that takes this consumption number that we do report, and then is an attempt to estimate

how much drawdown at inventory occurred. So, that is one estimate.

Mr. ALLEN. Do you have other estimates?

Mr. HOLMSTEAD. Yes, we do.

22

Mr. ALLEN. May we see them?

Mr. HOLMSTEAD. We would be happy to provide those to you, yes.

I think a number of us, in response to this, have said we have several different estimates, and they range from that one up to about

50 percent, and we think it is somewhere—in 2003, we think it was

somewhere from the low 30’s up to 50 percent of the 1991 baseline.

Mr. ALLEN. How big a variation is that in terms of metric tons,

do you know?

Mr. HOLMSTEAD. We could certainly calculate it.

Mr. ALLEN. If you could get that in to us.

Mr. HOLMSTEAD. Yes.

Mr. ALLEN. The chairman has informed me that I have used my

time, his time, and so I think that is a signal it is time for someone

else. Thank you.

Ms. MCMURRAY. Mr. Chairman, I wanted to just add a little bit

to the answer there.

Mr. HALL. I noticed that you probably wanted to get in there.

You go ahead, and I will yield some more of my time for you to answer.

Ms. MCMURRAY. Thank you. I think it is important to realize

that, first of all, when we prepared our numbers for 2005, it was

quite some time ago, before any of the figures that you have been

referring to were even available. So, 2005 is not even a relevant

discussion. You are talking now about the 37 percent number for

2006, and Jeff has already pointed out that there are a number of

different figures that we look at kind of from the top down. We also

ask for numbers from the bottom up, from the farmers, and say,

‘‘What do you need?’’ Now, we don’t just take that on face value,

we actually go through—and it is the EPA who does this calculation—a look at where is there double-counting, where are there alternatives that are available that really ought to come into play

here, and the number comes way down from there. So, we have

that number and all the other numbers that EPA has already referred to in the answer to your question.

The other part of it is we have to leave a little bit of a margin

of error in our negotiation—we don’t want to leave our farmers

high and dry—so that has to factor into it as well. So there are a

number of different things that we look at before we actually take

a negotiating position in an international body. Thank you.

Mr. HALL. My time is almost gone, but recalling whatever time

I may have, Mr. Holmstead, let me ask you this question. I understand that a chemical called methyl iodide is a promising alternative to methyl bromide in pre-plant application for some highvalue crops, and I guess that is a good statement?

Mr. HOLMSTEAD. It looks very promising, and the Agency is moving very quickly through the registration process, so that we hope

that that would be——

Mr. HALL. Tell us what effort EPA is making to expedite registration of this, or any other promising alternative, briefly.

Mr. HOLMSTEAD. For a number of years, the Agency has had a

policy of fast-tracking alternatives to methyl bromide, and there

are several new pesticides that have been registered under this

process. So, essentially, they will move to the head of the line. We

will go through the scientific studies as quickly as we can. And this

23

one that you mentioned looks to be a pretty promising alternative,

but it is not yet registered.

Mr. HALL. All right. I will get to Mr. Brown, then. Are you familiar with any product that is as effective and affordable as methyl

bromide for the wide range of uses that methyl bromide is used for

and, if so, what are they and how do they compare for effectiveness

and cost, in about three words?

Dr. BROWN. I think I know the words you would like to hear.

Mr. HALL. I don’t know.

Dr. BROWN. It is a little more complicated than that because

methyl bromide has such a broad spectrum of uses with regard to

climate, soil, crops, and so on, that the question really is, do we

have replacements for each of these combinations of conditions that

add up to the use of methyl bromide.

Mr. HALL. I am going to—Mr. Foley has, like all the rest of us,

other needs, and he has arrived. I would like to ask unanimous

consent for him to be allowed to sit on this committee. And we

have a vote, and four votes to follow it, and we have 15 minutes

to vote, and how many minutes are gone.

Ms. CAPPS. We have 10 minutes left.

Mr. HALL. We have 10 minutes left.

Mr. SHIMKUS. Mr. Chairman, could you just allow Dr. Brown to

follow up on the question that he, in essence, asked us, as whether

there was the product that would meet all the various spectrum of

the need for methyl bromide in every category now?

Dr. BROWN. Well, no, that is why we have exemptions.

Mr. SHIMKUS. That is all I need to know. Thank you.

Mr. HALL. That is in one word, easy—‘‘no.’’ I guess we ought to

recess for 30 minutes. Four votes is 20 minutes. We had an abstractor in Rockwell, Texas, named Rollie Steiger, that used to

have a sign on his door that said ‘‘Gone for coffee, be gone 5 minutes, been gone 3.’’ He just couldn’t afford to miss any business. I

ask the witnesses, if they would, to remain. We will be at parade

rest for about 35 or 40 minutes. We will be back as quickly as we

can get back.

[Brief recess.]

Mr. HALL. We will come to order, and the Chair recognizes Ms.

Capps.

Ms. CAPPS. Thank you, Mr. Chairman. I want to try to do in a

very short time ask questions of three people—Mr. Holmstead, Ms.

McMurray, and Mr. Smith. So, I hope we can kind of do ‘‘yes’’ and

‘‘no’’ in very brief because this is all the time I have, and you can

tell I am out of breath already.

To continue with the topic of the stockpile, how big is it? Is the

information submitted in response to last year’s hearing still accurate? Start with that.

Mr. HOLMSTEAD. Just quickly, there is no such thing as a stockpile. We have some estimates about the inventory that are being

held by the major distributor——

Ms. CAPPS. Okay, call it ‘‘inventory.’’

Mr. HOLMSTEAD. The issue with the inventory is that is considered to be confidential business information.

Ms. CAPPS. Can you answer why it is, briefly?

24

Mr. HOLMSTEAD. Yes. There are a very small number of major

producers and importers, and if we were to release the aggregate

number of what our estimates are, then that would essentially tell

the competitors how much their competitors have, and the

concern——

Ms. CAPPS. Our competitors in our country?

Mr. HOLMSTEAD. Yes. The way our CBI statute works, if it would

give someone a competitive advantage, then that is something that

we consider to be CBI.

Ms. CAPPS. So it is for business reasons.

Mr. HOLMSTEAD. Yes.

Ms. CAPPS. Are we still increasing our inventory? Is it being increased currently?

Mr. HOLMSTEAD. I think our most recent estimate is, no, it is actually coming down, that we are eating into the inventory.

Ms. CAPPS. Could I ask one guess on your part, just an estimate,

could it be in the area of 22 million pounds?

Mr. HOLMSTEAD. I think even if I knew the answer, I wouldn’t

be able to—I don’t know what that number is, but I think, again,

we consider the size to be CBI.

Ms. CAPPS. Thank you. I want to ask you, Ms. McMurray—and

just, again, very briefly—some of the witnesses’ testimony that we

have seen in writing, that are on the next panel, suggest that the

CUE process is broken, that the expertise of the Government, including the EPA, is not being considered in the process, and our

sovereignty is therefor being jeopardized.

Would you say yes or no to that?

Ms. MCMURRAY. If I had to answer yes or no, I would say, no,

it is not broken, but I would like to add a sentence to that, if I

could, which is, this is the first year that we have gone through the

critical use exemption process, and I think all the Parties, including the United States, acknowledge that were a lot of problems

with it, and that we are now attempting to solve them so that we

can work within the process.

Ms. CAPPS. So you are not giving up. If it is the case, and I am

assuming that that is what the intention of the second panel is,

that some of the members on the panel are saying it is broken, you

would disagree?

Ms. MCMURRAY. I would.

Ms. CAPPS. Because I would think that your job is to make sure

that it isn’t broken.

Ms. MCMURRAY. You bet.

Ms. CAPPS. And, finally, Mr. Smith, I have asked this question

as long as I have been in Congress and been aware of the situation

with respect to methyl bromide. We have spent nearly $150 million

on alternatives, it is my understanding. Could you briefly, in whatever—I guess I have a minute left—explain what the status of that

is, of that research into alternatives?

Mr. SMITH. The research that is being performed through the

auspices of the Department of Agriculture is continuing. We look

at the opportunity to continue to search for alternatives until such

time that our grower constituents feel that their needs are being

met.

25

Ms. CAPPS. Everyone touts methyl bromide, it is so cheap, it does

everything for everybody, and yet such a toxic substance to both

our ozone layer and the people exposed to it. Why, in the past 10

years, has there not been more progress made in alternatives?

Mr. SMITH. Well, I would say that because the U.S. has phased

out successfully over 50 percent of the use so far, that those alternatives that are successful have been adopted. The difficulty is

under the critical use exemption process, we recognize that there

are still instances where there are not technically and economically

feasible alternatives for those remaining uses.

Ms. CAPPS. So you are saying that there has been progress in alternatives, given the fact that we have reduced our usage, which

then, to me, flies in the face of the fact that we are asking for higher amounts to be allowed because part of it is, would you agree, the

incentive to use alternatives as well? We are going to have to use

alternatives that are going to be a little more complicated, perhaps

involve more retraining, or maybe you would like to go into that,

in whatever seconds I have left, and say also when can we expect

to see this research result in widespread alternative use?

Mr. SMITH. Again, I would characterize it as a continuum. We

have made certainly the easy substitutions that were available. WE

continue to go through those that are more difficult, but we have

some that will continue to be vexing to our efforts to substitute

methyl bromide uses, according to the terms of the Protocol, which

are technically and economically feasible.

Ms. CAPPS. And some of your mission then is also to make those

alternatives widely available, or the knowledge of them, and encourage and incentivize farmers to use alternatives.

Mr. SMITH. Most all of the alternatives have been commercially

available for some time. There are some that are still awaiting further registration action by EPA.

Ms. CAPPS. Oh, EPA needs to register some of them? Are they

in the pipeline?

Mr. SMITH. They have certainly been——

Ms. CAPPS. Is there any time line for how soon they could be registered? I would turn to someone else and ask, is there a holdup

for registering alternatives?

Mr. HOLMSTEAD. Again, there is no silver bullet. These have

moved to the head of the queue, and there is this one in particular

that I think the chairman mentioned, iodomethane, which is nearing the end of the registration process. I can’t give you an exact

date, but it is in the relatively near future that a decision will be

made on that product.

Ms. CAPPS. I know I am borrowing on time, but once that does

receive acceptance, can you estimate how quickly it could impact

the amount of methyl bromide being used? I understand this is

speculation in a way.

Ms. MCMURRAY. I think it varies chemical by chemical, crop by

crop, but at a minimum, 6 months to a year sometimes it takes to

fold it into the growing process. Now, the Agriculture Department

may have more precise figures than that. But if I could also add,

part of what the EPA looks at in their registration process of these

new chemicals is the environmental impact of those chemicals, and

if they have a problem, groundwater contamination problem, or

26

some other problem, we don’t want to just trade one problem for

another, in other words. So, those are the risks that have to be balanced in the re-registration process.

Ms. CAPPS. I guess my final concern is that given this interest

in alternatives, that we are working against it perhaps to some degree, by asking for an increase in use, consumption and manufacturing more methyl bromide.

Ms. MCMURRAY. Well, in response to that, I would say that we

are asking, in our opinion, for nothing that is not justified under

the exemption process, which means it has to be technically and

economically infeasible to use anything else but methyl bromide.

And so that is the criteria we use when we prepare our application.

Ms. CAPPS. Even though its use is down.

Ms. MCMURRAY. Well, as the discussion went this morning, there

are several numbers that we are looking at that reflect use, and

not all of them are below the number that we have asked for, there

is a range. And, therefore, we have to take all that into account

when we prepare our request.

Ms. CAPPS. Thank you. Thank you, Mr. Chairman.

Mr. HALL. Thank the lady. The Chair recognizes the gentleman

from Florida, Mr. Davis.

Mr. DAVIS. Thank you, Mr. Chairman. And I would ask the witnesses please to correct me if I am covering matters that have been

covered extensively in the past.

One of the things I think everybody can agree upon here today

is the level of uncertainty is pretty maddening and remarkably

prevalent.

I understand that if things continue on their current course—and

I think Representative Capps has covered the research issue which

I would have covered—there will probably be an application submitted for 2006 by the United States, to get further relief under

the critical use exemption. And if it is not too premature to talk

about that, since we are all trying to look ahead here, is that in

fact the case? Will the process be dramatically different than what

was just experienced in 2005? It will be tougher? Will the issues

change?

Ms. MCMURRAY. Mr. Davis, I think, if I understand your question, are we going to prepare a supplemental request to our 2006

request, we have already got a 2006 request that is pending with

the Technical Committees. And I will just run through quickly

what the process is. It is the same as last year. We had one review

by the Technical Committees already. We have had a number of

questions asked about our numbers that we are now in the process

of responding to, and I think we will have that complete by the

middle of August. And then the final decision gets made in November.

If there is a 2006 supplemental request, which is allowed under

the Protocol, that would come later this year. That decision probably wouldn’t be made for another 8 to 10 months finally by the

Parties, as to whether or not that would be approved.

Mr. DAVIS. Are you willing to speculate on the outcome of the

2006 request, or any supplement to it?

Ms. MCMURRAY. I think it is too early to tell right now. We have

so many questions of a technical nature that have to be answered

27

about our request, that I can’t predict the outcome. I am hopeful

that we will have a similar result to what we had for the 2005 request, in that we, I think, made our case that our numbers were

technically justified, and I hope we can do the same thing for 2006.

Mr. DAVIS. I suppose that there is a committee with other countries who review and vote to approve or disapprove our application

in this process.

Ms. MCMURRAY. There are two Technical Committees, and they

are broadly representative of not every Party to the Montreal Protocol, but a range of Parties, including good representation from

the United States.

Mr. DAVIS. Over the last couple of years or so, have you all seen

any dramatic changes in the attitude or receptivity that these

countries have had to our applications? Is it getting tougher, are

people losing patience, or do people seem to tend to believe the

facts are essentially the same and it is not a big change?

Ms. MCMURRAY. I think I can give you two answers to that. First

of all, the process really only began about a year ago, maybe a little

bit longer than that, for the first set of exemptions that were requested. And I think at that point there was a great deal of opposition to our application. I think it stemmed from the fact that there

wasn’t good understanding of what we were asking for, and why.

And we spent a good amount of time, either through diplomatic

channels or through our technical experts at the U.S. Department

of Agriculture and the Environmental Protection Agency, in explaining exactly how we got to the numbers we did. So, it took us

maybe 7 or 8 months, but I feel like we made a good case, and that

finally there is an understanding of what our numbers represent.

But I should add that there is an impatience. There are a number of countries who want to get to zero, and they don’t understand

why our numbers aren’t close to zero. So, we are going to have to

make the case again, it is not going to be easy. Whether the standards will be tougher this year or not is unclear. That we will know

probably in the next 2 or 3 months.

Mr. DAVIS. One of the arguments that is obviously made by a

number of people in the agriculture community, including from my

State, Florida, is that there are no effective alternatives available

yet. Are the Parties that judge our application in disagreement

with those facts and, if so, what is their view of the facts in that

regard?

Ms. MCMURRAY. I think one of the things we have been struggling with with the Technical Committee is an inclination on their

part to look at an alternative and assume that it is able to be used

in every part of the world, on any crop, rather than taking into account specific circumstances—either climate, or soil, or whatever it

might be—in the United States, or in Italy, or whatever country

might have a different case.

I think we are finally getting over that hurdle, and it is not an

automatic reaction now when they look at alternatives. We can

come back to them and explain why it doesn’t work in one place.

Mr. DAVIS. If any of the other witnesses would like to comment

on any of these matters.

[No response.]

Thank you, Mr. Chairman. Return my 30 seconds—25 seconds.

28

Mr. HALL. I thank the gentleman. I understand Ms. Capps has

further questions. Would you like to ask them at this time?

Ms. CAPPS. If you would be so kind, I have been waiting a long

time, and I will try to not take the whole 5 minutes.

Mr. HALL. I gave away most of my time earlier this morning.

Ms. CAPPS. You can’t give me anymore?

Mr. HALL. I will yield to you what I have left.

Ms. CAPPS. You are a good friend. Thank you very much.

Mr. Holmstead, getting back into this topic a little more, it just

means a lot to me to get some more information from you. You

have testified that the estimates of methyl bromide use range from

30 to 50 percent of the 1991 level, correct? I wonder if there are

other estimates from EPA beside this 30 percent figure?

Mr. HOLMSTEAD. The only estimate we have done is the one that

I explained to you before, and that looks at 2003 usage, and the

estimates are in that range. It is really important, I think, to get

a sense of how much work goes into——

Ms. CAPPS. That is what I am trying to get a handle on. Where

do these estimates come from? Are they confidential, the sources,

or how do you arrive at that percentage?

Mr. HOLMSTEAD. We would be happy probably just to send you

a document that has all of the different sources, that would probably be the easiest.

Ms. CAPPS. I would appreciate that.

Mr. HOLMSTEAD. The other thing—and Ms. McMurray mentioned

this before, too—is the amount of work that goes into the CUE

process. We have literally dozens of people from EPA, from USDA,

Ph.D. agricultural scientists who work with State people in Florida,

California, Georgia, Michigan, throughout the country where methyl bromide is used, to really understand where it is necessary,

given the soil conditions. And so when we come up with this estimate of a critical use need for 2005 of 37 percent, it is based on

an awful lot of work by a lot people looking at the best available

data.

Ms. CAPPS. I am sure that you have worked hard for this. Because our panels aren’t all at the table at the same time, I want

to just quote from someone who is going to speak at the next panel,

Mr. Brown, farmer, Executive Vice President of the Florida Tomato

Exchange, from page 3 of his testimony. He says, ‘‘The USDA and

EPA aren’t substantiating their alternatives, their numbers, but we

can substantiate that substantial progress has been made in identifying alternatives for a number of uses. This has resulted in a 60

to 70 percent reduction in the amount of methyl bromide used in

the United States using 1991 as the baseline year.’’ Where is that

in the mix of things, and perhaps others, too, who would have similar kinds of estimates, how does this square with the statements

that you are making of use that could be as high as 50 percent,

if they are reducing by 60 percent in the field? And that is why I

am just wondering how credible this 50 percent could be.

Mr. HOLMSTEAD. Again, I don’t know how that number was derived, but it falls within our range. I mean, if he is saying we have

reduced by 60 to 70 percent, that means the remaining use would

be 30 to 40 percent, and that is within the range that we are already talking about.

29

So, I think all these numbers are——

Ms. CAPPS. They are estimates, I understand, but let us take the

high of his, 70 percent reduction, and you are saying the range

could be as much as 50 percent.

Mr. HOLMSTEAD. Right, but we are saying it could be as low as

the low 30’s, which is consistent with what he estimates—I think

we are saying exactly the same thing. And I don’t know if he—I

am not quite sure how he would know about——

Ms. CAPPS. Well, he will explain it when he testifies.

Mr. HOLMSTEAD. Because he may know a lot about tomatoes in

Florida, but I don’t know if he has the kind of information we have

about total usage and total consumption of methyl bromide.

Ms. CAPPS. He is talking about the whole United States.

Mr. HOLMSTEAD. Well, I should let him speak for himself.

Ms. CAPPS. And I should, too.

Mr. HOLMSTEAD. I would just point out that it is consistent with

our estimates. We have looked at a number of different ways of

doing this, and it is somewhere between 30 and 50 percent, and he

is saying, well, we reduced 60 to 70 percent. That falls right within

our range—unless my math is wrong.

Ms. CAPPS. I guess there is about a 10 percent discrepancy. I

guess I would like to urge us paying attention to that part.

Mr. HOLMSTEAD. This is something that obviously is important

to everyone.

Ms. CAPPS. Thank you. I think I have used way more than the

time that I should. Thank you.

Mr. HALL. Mr. Davis, do you have additional questions?

Mr. DAVIS. No, Mr. Chairman.

Mr. HALL. All right. We want to thank this panel, appreciate

your patience in allowing us to go vote not once, but I think five

times, and during that time they passed my resolution lauding the

Apollo astronauts, so you have been part of the process. We thank

you for your time and thank you for your assistance, and thank you

for what you have done, are doing, and will do for us. Thank you.

I want to thank the second panel also because while those who

were sitting at the table, you were also waiting.

All right. We thank this Panel No. 2, Mr. James A. Bair, Vice

President, North American Millers’ Association; Mr. Reginald

Brown, Executive Vice President, Florida Tomato Committee—and

you can expect some questions, Mr. Brown, and I think that one

of your Members of Congress has been here off and on, waiting to

try to make some inquiries. Congressman Foley, Mark Foley, has

an interest in this, but he is one of the busier Members of Congress, he’s on several very important committees, and we were trying to leave on Friday, now I think we’re trying to leave on Thursday, and it is to your benefit if we leave on Wednesday, so we are

trying to get out of here.

We have Dr. Michael Mellano, Senior Vice President, Mellano &

Company; Mr. Paul Wenger, Second Vice President, California

Farm Bureau Federation; Mr. David Doniger, Policy Director, Climate Center, Natural Resources Defense Council; Dr. David K.

Mueller, President, Insects Limited, Incorporated; Ms. Vanessa

Bogenholm, Owner, VB Farms, Chair, Board California Certified

30

Organic Farmers, and Mr. James Wolf, Vice President of the Trane

Corporation.

At this time, recognize Mr. Bair, ask you to stay within about 5

minutes, if you can, but cover your subject adequately, and we

won’t be tough on you about time. Thank you.

STATEMENTS OF JAMES A. BAIR, VICE PRESIDENT, NORTH

AMERICAN MILLERS’ ASSOCIATION; REGINALD L. BROWN,

EXECUTIVE VICE PRESIDENT, FLORIDA TOMATO COMMITTEE; H. MICHAEL MELLANO, SENIOR VICE PRESIDENT,

MELLANO & COMPANY; PAUL WENGER, SECOND VICE PRESIDENT, CALIFORNIA FARM BUREAU FEDERATION; DAVID

MUELLER, PRESIDENT, INSECTS LIMITED, INCORPORATED;

DAVID DONIGER, POLICY DIRECTOR, CLIMATE CENTER,

NATURAL RESOURCES DEFENSE COUNCIL; VANESSA

BOGENHOLM, OWNER, VB FARMS, CHAIR, BOARD CALIFORNIA CERTIFIED ORGANIC FARMERS; AND JAMES WOLF,

VICE PRESIDENT, TRANE CORPORATION

Mr. BAIR. I will be brief. Thank you, Mr. Chairman and members

of the subcommittee. To your point about Mr. Brown’s Congressman, I would just say that every member of the subcommittee that

has been here today has a flour mill either in their State or in their

specific district. Some of you have many flour mills in your district.

My name is Jim Bair. I am Vice President of the North American

Millers’ Association. We represent the U.S. wheat, corn and oat

milling industry, which is comprised of 46 companies that operate

169 mills and collectively produce more than 160 million pounds of

milled grain products every day, and that is more than 95 percent

of the industry total.

You have heard us in previous hearings and briefings over the

years, talk about the importance of methyl bromide for sanitation,

but today I am going to focus on the Montreal Protocol itself.

As you have heard from multiple witnesses already, talking

about the reductions that have already been made, and likewise we

have also reduced our reliance on methyl bromide by more than 60

percent over the last decade. And, in fact, as you have also heard,

as all industries and as a country, we have reduced our reliance

on all those ozone-depleting substances by 97 percent.

Well, I would say, as with any problem, the closer you get to the

goal, the more difficulty incremental gains become, and I think

that eliminating that last 3 percent is going to be obviously the

most difficult to reduce.

We believe that the Montreal Protocol process is flawed, and we

seriously doubt whether we can ever expect a fair shake from it,

and I would like to cite just a few examples. For example, one of

the Technical Committees that Assistant Secretary McMurray referred to, in the Spring of 2003, they reviewed our critical use exemption application and gave it a ‘‘recommended’’ status for consideration by the Parties to the Treaty. But then several months later,

last fall, a new report came out and said that it had slipped from

being ‘‘recommended’’ to merely ‘‘noted,’’ which, by the way, wasn’t

even an option available to them, but they said it is now in this

netherworld of being just ‘‘noted,’’ neither ‘‘recommended’’ or ‘‘not

recommended,’’ just noted.

31

Well, nothing had changed between the spring and the fall. No

new chemicals had been registered. No new alternatives had been

made available. But, yet, somehow this group of individuals

changed its recommendation. Didn’t talk to us. Didn’t tour any

mills. Didn’t send us a letter, or ask us any questions. How does

that happen? How do these decisions get made? Frankly, the committees are made up of just individuals. Many of them are consultants who are beholden to not even their own countries, maybe just

their own clients, and who knows who they are. So, we doubt the

sanctity of that process.

Another example, in February of this year, one of the technical

committees issued another report, and Representative Issa referenced science—well, this Montreal Protocol committee, in its report of just February, said that they had recommended CUEs, but

they recommended more liberally than would be recommended in

the future. Well, if they are making decisions based on sound

science, how can they say today that ‘‘we were too liberal in our

review of your CUEs, and we are going to be tougher in the future,’’ rather than say, ‘‘sound science will prevail, we will review

the data, and we will make our decisions when they are presented

to us,’’ but they are announcing in advance that they are going to

be more strict.

I would say that the Montreal Protocol that Mr. Waxman referred to, that was passed when the Clean Air Act was amended

to put the U.S. on the same phaseout schedule, that is a different

Montreal Protocol than we are seeing today. There have been many

changes, significant changes that have affected the intent and the

operation of how the Protocol works.

Another example, in my own industry, our critical use exemption

application, the amount of methyl bromide we had requested was

cut by this technical committee, but yet our competitor industries

in, say, the U.K. and Canada, same milling equipment, same operations, received no cut. How would that decision be made? How is

it that would happen?

I want to point out at this juncture that we have a great deal

of respect for Assistant Secretary McMurray and her people, and

she is, I think, an eternal optimist and probably wouldn’t give you

the same sense of frustration perhaps that the rest of us who are

sitting at this table, who have been to these Montreal Protocol

meetings. I have been there multiple times, and I have seen the

way the parties from other countries disrespect the U.S. negotiators, ignore our requests. It, frankly, is very frustrating.

I have been forced to leave meetings. We wanted to just sit in

and observe the process, and were told, ‘‘No, you can’t even sit in

the back row of this gigantic auditorium and listen to the deliberations of the parties, this is a closed meeting.’’ So, these are people

who are making decisions that affect industries of strategic national importance to the U.S., and we are not even allowed to be

in the room to observe.

In 1900, the largest industry in the United States was the flour

milling industry, my point being this is a very mature business. We

have squeezed out all the inefficiencies that we can. We are the opposite of high-tech or dot.com. Our margins are razor-thin or nonexistent. So, when people talk about alternatives—and you hear a

32

lot about alternatives—I am happy to debate those alternatives

here or in any other forum, but when the alternatives add cost to

the business like they do, that is something that is not an attractive proposition for us. We have nowhere else to squeeze inefficiencies out of our business.

In summary, I would just say that we agree with the chairman

and Mr. Radanovich and 42 other Members of Congress, who are

co-sponsors of H.R. 3403. We think that the decisionmaking authority ought to be returned to the U.S. EPA. It was hardly in our

back pocket. These are people that ask tough questions, give thorough analysis and review, and we think that the authority for

granting or denying critical use exemption applications ought to remain with the U.S. EPA and not with bureaucrats from countries

who, frankly, may be competitors or antagonistic toward us. Thank

you, Mr. Chairman.

[The prepared statement of James A. Bair follows:]

PREPARED STATEMENT OF JAMES A. BAIR, VICE PRESIDENT, NORTH AMERICAN

MILLERS’ ASSOCIATION

Thank you Mr. Chairman and members of the Subcommittee. I am Jim Bair, vice

president of the North American Millers’ Association. NAMA is the trade association

representing 46 companies that operate 169 wheat, oat and corn mills in 38 states.

Their collective production capacity exceeds 160 million pounds of product each day,

more than 95 percent of the total industry production.

In Congressional hearings and briefings over the years, grain milling executives

have discussed with you how methyl bromide is used to meet government regulations, and consumers’ expectations, for clean and wholesome food.

They have testified that methyl bromide is easily the most technically and economically effective tool available to protect grain processing facilities and the food

produced in them against insect pests.

They have described how, even in advance of the Montreal Protocol phase-out, the

industry cut its usage of methyl bromide by more than 60 percent over the last decade.

You have also heard that food and agricultural uses of methyl bromide are of little

environmental significance since, according to the Environmental Protection Agency

(EPA), ‘‘Anthropogenic (man-made) methyl bromide has contributed a total of about

4% to ozone depletion over the past 20 years. Of this, about 2.5% can be attributed

to agricultural fumigation activities.’’

But there is another point upon which I will focus my remarks today. It is this:

The Montreal Protocol process to eliminate methyl bromide is broken. Its penchant

for secrecy and undemocratic decision-making is irrational and unfair to U.S. farmers and food processors.

Congress ratified the Montreal Protocol treaty with an understanding about the

details of the agreement. Yet, year after year, Montreal Protocol committees have

acted to change the rules, significantly altering the original intent of the treaty.

When Montreal Protocol changes are debated, the debates usually take place in

secret meetings. There is no chance for affected parties to even sit and observe.

When changes are adopted, the changes are never voted upon. The chairman simply declares that there is, in his view, a consensus and he declares the outcome.

When the U.S. attempts to suggest changes to make the Protocol better, developing nations rise in protest. Why? Because the Protocol allows them an additional

10 years to comply with it, an advantage of huge economic value. Those countries,

the U.S. agricultural competitors, have made it abundantly clear that their first objective is maintaining an ill-gotten economic advantage, not in fine-tuning a treaty

to address an environmental goal.

When the U.S. asked for a simple accounting of the many millions of dollars,

much of it from U.S. taxpayers, spent in developing countries for demonstration

projects, there was outright refusal and indignation.

Is Congress willing to sit by and watch U.S. sovereignty be diminished by bureaucrats at the Montreal Protocol and competing nations?

American agriculture is justifiably skeptical about fair treatment from the United

Nations. The Montreal Protocol approval process is agenda-driven and highly politicized. Ultimately, the fate of the U.S. Critical Use Exemption (CUE) applications

33

that are recommended to the parties of the Montreal Protocol are determined by a

handful of individuals unaccountable to U.S. taxpayers, behind closed doors, despite

the hours and expertise EPA committed to this process.

Some of the U.S. critics in the Montreal Protocol negotiations are from countries

that have no significant agriculture or food processing industries and therefore

never used much methyl bromide to begin with. So it’s easy for them to say it ought

to be banned.

Others are from countries that are agricultural competitors of the U.S., and they

are unlikely to surrender the competitive advantage that has been handed to them.

If agriculture and food processing uses of methyl bromide are very harmful to the

environment, then it should be banned globally on the same date, and the sooner

the better. But banning methyl bromide in the U.S. while allowing our competitors

to continue using it merely shifts jobs and economic activity to those competitors

with no real gain to the environment. That is a false choice and the U.S. should

not be pressured to make that choice.

It is our view that rule changes implemented since Congress ratified the treaty

have drastically changed the intent and operation of the treaty. It is further our

view that there is no chance of reforming it to return it to its original intent. Therefore, we endorse the bill HR 3403 introduced by Representative Radanovich and cosponsored by Chairman Hall and 42 other Members of Congress. The bill, if passed,

would simply recognize the expertise of the EPA in granting or denying exemption

applications, and thereby return to the U.S. the sovereignty to make decisions affecting the viability of an industry of strategic national importance.

That concludes my testimony, Mr. Chairman. I would be happy to answer any

questions you or other committee members may have.

Mr. HALL. Thank you.

The Chair recognizes Mr. Brown.

STATEMENT OF REGINALD L. BROWN

Mr. BROWN. Good morning, Mr. Chairman and members of the

committee. We appreciate this opportunity to discuss the dilemma

that we are in relative to methyl bromide phaseout under the Montreal Protocol.

I represent the tomato industry in Florida, which is the largest

tomato production system for fresh tomatoes in the country, and I

am also currently the Chairman and President of the Crop Protection Coalition, which represents food and agricultural industries,

including nurseries and horticultural industries that rely on methyl

bromide to produce, store, handle, and ship a number of agricultural products in the U.S. The Coalition is made up of about 30 agricultural organizations that represent thousands of farmers, processors, and shippers, and billions of dollars of agricultural production, with employment running into the hundreds of thousands.

We are very concerned that we have a situation that does not

give us stability in planning and security of supply of a compound

that is extremely critical to these enterprises. We have been very

active in the process of trying to procure dollars for research for alternatives. All these industries have been engaged in finding resources for alternatives, and have been testing resources for alternatives and, as a testament to that, many of the phaseouts have

been a result of those industries adopting alternatives that research has found and that they have been able to bring into their

own individual enterprises.

The U.S. use of methyl bromide is down by anywhere from 60 to

70 percent of what its 1991 number was. Now, there is no absolute

guarantee what that number is because no one has the ultimate

record. But when you review the applications for CUEs and you

look at the numbers that were reviewed by the EPA and deemed

to be critical uses in the U.S., and you weigh that against the cost

34

of methyl bromide, which is not cheap—it is used because it is a

compound that is effective, far from being cheap—that equates to

a use number that the industry is going to as quickly as they can,

provided they don’t risk their individual enterprises.

Now, every CUE request that came in 2003 for 2005, and the

current 2004 requests going in for 2006, were monumental tasks

for the industries that made those applications. The applications

from Florida alone, if you included the reference material, would

have been in excess of 3,000 pages. The EPA-USDA review team

had in excess of 40 Ph.D.s, and they spent many, many man-days

reviewing these requests from all the parties that made critical use

applications in the U.S. They reduced the gross critical use application requests from around 60 percent down to the 37-38 percent

range, with that review process. Then that application goes forward

to the MBTOC TEAP process, and it gets further reviewed by a

group with international authority for a period of 3 days, when

they are looking at 116 different applications from around the

world, and they further want to cut it again. The review process

in the U.S. alone, the application review process, is burdensome to

the industry, and it is probably receiving the best science review,

with the most knowledgeable scientists that exist in the world. And

then we go on to the Montreal Protocol.

Now, if you had to risk your individual enterprise on the basis

of when you would have electricity in your home to operate your

calculators and your computers today, and you might not have it

tomorrow, how would you feel? Methyl bromide is an essential of

the enterprises that are making these critical use applications to

the process.

You go to the Montreal Protocol, I have been to two of the meetings in the last year, and you sit there as a non-diplomat, looking

at the process, and you listen to the conversation on the floor

among the delegates, there are parties in those rooms that are basically receiving monies indirectly from the U.S., for a phaseout of

methyl bromide. There are parties in there making accusations

that those industries in the U.S. that want to use methyl bromide

are subsidized and should get more subsidies so that they don’t

have to continue to use methyl bromide. And I will attest to you

that our industry and most of the horticultural industries in this

country that I am aware of receive no government subsidies whatsoever.

We are basically bearing the cost and paying the cost of making

that change for the betterment of the ozone layer. But when you

get us down to the point we don’t have anywhere else to go but out

of business, it becomes a very unfair and impractical process. Even

our own U.S. delegation pled with the group in Geneva just last

week for a measure of reasonableness in the evaluation of CUEs

and reasonableness in the evaluation and modifications of the

MBTOC process, as opposed to an air of suspicion or distrust,

which basically is, from a non-diplomatic point of view, what we

are seeing.

Then we see countries that manage to coalesce together to look

at the U.S. market and say, ‘‘Ah, here is an opportunity for us to

export.’’ Simple solution to that is keep U.S. producers from proVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 95458.TXT HCOM1 PsN: HCOM1
35

ducing. We have an opportunity here, don’t we, from their perspective. And we do this by consensus.

Now, would you like to risk your farm to an enterprise in a system operated in this fashion that is absolutely nontransparent, not

open, no recorded vote, obviously not having a very high scientific

standard—because I would venture to say the science standard of

the review process here in the U.S. is probably better than any in

the world, as a credit to our EPA-USDA and State Department

staff as they have looked at the proposals of the U.S. industries,

and then we go on among our friends to have them make a decision

about our future. Don’t you know we feel real comfortable being in

that position. And, unfortunately, there are not many ways out of

it, as we currently see it.

We are going to live day-to-day, year-to-year, in an effort that we

have undertaken in good faith to phaseout methyl bromide to get

us down to the last gasp, the last ounce, and there are forces out

there that would just as soon have the solution for getting us down

to that last ounce, to let us go out of business because the critical

use process was put in the Montreal Protocol to ensure that the

process of phasing out methyl bromide and other compounds under

the Protocol didn’t put people out of business, but yet the process

is being subjected to manipulation where we run the risk of going

out of business, and that is American jobs and American farms.

And I appreciate the opportunity to be here with you this morning.

[The prepared statement of Reginald L. Brown follows:]

PREPARED STATEMENT OF REGINALD L. BROWN, EXECUTIVE VICE PRESIDENT, FLORIDA TOMATO EXCHANGE

Good morning Mr. Chairman, I am Reggie Brown, Executive Vice President of the

Florida Tomato Exchange. On behalf of the tomato growers of Florida, I thank you

for holding this hearing on a subject of critical interest to the industry. Florida Tomato growers produce the largest volume of fresh tomatoes in the United States.

Prior to working for the industry, I was employed as a County Extension Agent in

Southwest Florida where many of Florida’s winter vegetable are grown. I grew up

in the vegetable business in North Florida and my family continues to operate a

family farm in that area. Methyl bromide is a key component in the production systems for of tomatoes, strawberries, bell pepper and other vegetables.

I am also President of the Crop Protection Coalition (CPC). The CPC represents

food and agricultural industries, including nursery and horticultural industries that

rely on methyl bromide to help produce, store, handle or ship foods or other agricultural products. The Coalition is comprised of 35 agricultural organizations in the

United States representing thousands of American farmers, processors and shippers

of billions of dollars of agricultural production and employing hundreds of thousands

of people. Our commodities, farms and the economic contribution they make are an

extremely important economic factor in many communities in the United States.

While the crops we produce or handle are diverse, we share a common concern

about the potential loss of an important crop protection tool—methyl bromide. Consequently, we are very interested in assuring that adequate tools are available to

address the plant pest and disease problems confronting our members.

Since the early 1990’s, members of the CPC have been actively engaged in addressing the issues raised by the phase-out of methyl bromide. These include, for

example, supporting the increased and targeted investment in research to find alternatives to methyl bromide, working on changes to reduce the potential for emissions

from the application of methyl bromide and working with both international bodies

as well as our own government on the development of a phase-out policy for methyl

bromide.

CPC wishes we could tell the Subcommittee today that viable alternatives to

methyl bromide have been found for the remaining uses of methyl bromide. We cannot. The USDA and EPA cannot either. We can state that substantial progress has

been made in identifying alternatives for a number of uses. This has resulted in a

60-70% reduction in the amount of methyl bromide used in the United States, using

36

1991 as the baseline year. All of this was fully documented in the extensive hearing

held in June of last year by this Subcommittee to consider methyl bromide and the

Critical Use Exemption (CUE) process. The hearing record developed at that time

reflects excellent information on the continued need for methyl bromide as well as

efforts that had been made to identify and implement potential methyl bromide replacement products by the American agricultural industry and government. CPC

was pleased to also hear statements from the Subcommittee making it clear that

if the then upcoming First Extraordinary Meeting of the Parties to the Montreal

Protocol scheduled for Montreal in March 2004, did not resolve the material substantive issues confronting American agriculture, legislation from this Subcommittee would be forthcoming.

In the opinion of the CPC, despite the excellent, persistent efforts of the U.S. delegation to the Montreal meeting, they were not successful in having the U.S. issues

appropriately addressed, particularly on a long-term basis. Rather, we are left with

having to run the CUE gauntlet each and every year. This is both frustrating and

unfair. I would like to examine the shortfalls of the process relied on by the Parties

to the Montreal Protocol using the First Extraordinary Meeting of the Parties in

Montreal, the Nairobi and recent Geneva Open-Ended Working Group meetings as

a backdrop.

Briefly stated, there appears to be a lack of due process under the Montreal Protocol. Decisions are often not scientifically based. The scientific review of CUE nominations of individual countries appears to be both irrational and extremely weak.

Deliberations and discussions on substantive issues are conducted in secret. There

are no recorded votes on issues. Rather, the Chair of the meeting apparently exercises discretion to determine how and if particular issues are addressed. Then Subcommittee Chairman Barton and now full Committee Chair, described this very well

in the last hearing when he said: ‘‘If you have never taken a vote, I think touchy

feely is a pretty good definition of how it works. It is not hanky panky. But we have

got a problem here in that I am going to stipulate that we are really trying to come

up with alternatives that the Bush administration, previous Clinton administration

really wants to take methyl bromide off the market so that we can stop the ozone

depletion, but it apparently is really difficult to do so. We have these 183 parties

who signed the Protocol, but only two countries make methyl bromide and only 5

or 6 really use much of it. So you got 183 decision-makers, but you don’t have that

many really vested sufferers if it is taken off the market.’’ In short, there appears

to be a lack of accountability for persons involved in the decision-making process

under the Protocol, particularly co-chairman of Protocol committees such as the

Technology and Economic Assessment Panel.

Having attended most of these meetings, I continue to be amazed over how much

the views of other countries towards U.S. proposals appear to be influenced more

by those countries’ feelings towards the foreign policy initiatives of our country rather than the logic or science surrounding the U.S. delegation’s proposal. Based on our

understanding from our Nation’s negotiators, even simple attempts to reduce the

burden of the CUE process for applicants, nominating countries and the Parties are

not given fair consideration. From the developing nations’ perspective, some of

whom the U.S. agricultural industry have to compete in the marketplace, the most

important thing in the methyl bromide debate appears to be their continued ability

to gain access to the Multilateral Fund, a significant part of which is funded by the

United States. Our Nation’s farmers and processors do not have access to the Multilateral Fund. Therefore, in the U.S. methyl bromide transition costs must be absorbed by the particular commodity involved. The ability to pass these costs onto

consumers is next to impossible.

What is particularly frustrating is the attitude of the Parties towards CUE nominations. For example, the 2005 U.S. nomination for CUEs was based in large measure on applications submitted by the various affected sectors. In a number of instances, the applications included hundreds and even thousands of pages of supporting material. These were then carefully subjected to critical review by over 40

scientists from the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA). From these applications, the U.S. government developed the amount of methyl bromide and the uses involved that it wanted to

nominate for CUE consideration by the Parties under the Protocol.

After this extensive effort, an advisory group to the Protocol reviewed all the U.S.

nominations as well as those of the rest of the world in just under 3 days. Initially

it appeared that the advisory group was not going to recommend approval for over

60% of the U.S. nominations. However, they subsequently changed their mind but

advised that since this was the first CUE nomination, they were being ‘‘liberal’’ in

their review of the nomination requests. In the future, the reviews would be more

37

demanding and rigorous. The clear message was that they can appease the U.S. for

one year, but thereafter they don’t have to worry about the U.S.

CPC members were struck by this attitude. It reflected a certain arrogance as

well as a decision making process that was not based upon demonstrated need. No

one from the advisory committee bothered to call me to request to tour our productions area and see how we use methyl bromide and have utilized alternatives where

possible. What we have been told is that the attitude under the Protocol is there

is no God given right to grow any crop in the United States if it can’t be grown

without methyl bromide. Rather, production areas simply have to shift to other

areas if the chemical is needed, or in their view, have our U.S. consumers be more

dependent on imports. In other words, communities must be uprooted to eliminate

this chemical regardless of the impact from such disruption.

Something must be done to fix this process because it simply does not work for

methyl bromide. U.S. agriculture is clearly transitioning away from methyl bromide.

It continues to need time to help make that transition without unnecessarily disrupting people’s jobs, their homes or their communities.

I appreciate this opportunity to provide this testimony. We certainly look forward

to Congressional action including the action of your Subcommittee to help resolve

our problem. Congressman Hall clearly annunciated an approach at the last hearing

that we would support and recommend to this Subcommittee for action, namely:

‘‘But they ought to renegotiate, the United Nations, for our people, the Montreal

Protocol that allowed the United States more time beyond 2005, because it was

pushed on us by developing countries such as Mexico and China and others that

have the chemical available at least until 2015. To our detriment, a lot of them in

northern Europe, those countries led the effort in the Montreal Protocol to eliminate

the product, but these nations have a very little need for it because of favorable climatic conditions. And if they can’t do that, then we ought to have the courage to

put some legislation on the books to amend the U.S. Law to a phase-out level of

50 percent that was in effect prior to 2003. I think we owe that.’’ Certainly the legislation authorized by Congressman Radanovich (H.R.3403) provides another opportunity for this Subcommittee to exercise leadership on this issue.

Mr. HALL. Thank you, sir. The Chair recognizes Mr. Issa to introduce Mr. Mellano.

Mr. ISSA. From the great State of California. Dr. Mellano is a

major employer in my district, and happens to be involved in what

my district is best known for, which is the nursery production industry. Among other things, we are called the ‘‘Flower Capital of

America,’’ at least by ourselves. Thank you, Mr. Chairman.

Mr. HALL. And your Congressman is a major part of this committee. He attends most of the meetings, asks very good questions,

and always stands up for California, especially against Texas.

Mr. ISSA. As best I can, Mr. Chairman.

STATEMENT OF H. MICHAEL MELLANO

Mr. MELLANO. My Congressman is a good guy. We appreciate

him.

Mr. Chairman and members of the committee, we appreciate the

opportunity to testify. I am here for the Society of American Florists, the American Nursery and Landscape Association, and the

California Cut Flower Commission.

As you now know, I am a cut flower and foliage grower, and we

also produce bulb crops in Southern California, in San Diego County.

With your permission, I submit my written testimony, and I will

summarize it here. Before I start that, I would like to remind you

that our crops represent 11 percent of the value of the U.S. agricultural crops, and we are the No. 3 crop in the United States, after

corn and soybeans.

I think the main point I want to make today is that our industry,

the flower and nursery industry, we have met our obligations

38

under the terms of the Protocol. The Protocol calls for us to do research to find alternatives, and actually we have been doing that

at our company for 40 years because we are looking for a cheaper

way to go than methyl bromide, and we have invested hundreds of

thousands of dollars in the last few years, to come into compliance

with the Protocol. And we are using the alternatives that are technically and economically feasible. We are using all of them in some

way. However, in some of our cases, the reduced productivity and

the increased production costs don’t allow us to switch to methyl

bromide. In addition, many at the United Nations recommended alternatives that don’t work in our operation, and I don’t believe the

Protocol calls for us to use somebody else’s data.

Now, the Treaty specifically says that until technically and economically feasible alternatives are available, we are entitled to an

exemption. But we, as cut flower growers, have very little confidence that we are really going to get what we are entitled to, and

it is going to be very difficult for us to remain competitive without

the use of methyl bromide, for the reasons that have already been

mentioned.

Now, my written testimony talks about alternatives in detail,

and I won’t go over that, but if there are questions, I will be glad

to answer them.

In addition to that, I brought along a copy of our CUE application for 2006, and this is it. And I would like to turn it in because

it gives the details of some of the research that we have done.

Mr. HALL. You are going to put it into the record?

Mr. MELLANO. I would like to, if that is possible.

Mr. HALL. Is there objection? The Chair hears none. It will be admitted.

[The information referred to is retained in subcommittee files.]

Mr. MELLANO. Now, based on our research results, and we are

prepared to stand on our results—we have the data, we are entitled to a CUE, but we are afraid we are not going to get it from

the United Nations, that is our concern, same as the previous people.

Now, I attended the meeting in Montreal, and to me the process

is not science-based. It is very, very political. In my personal opinion, it is not working because several countries have an underlying

agenda, and that agenda is to undermine U.S. businesses. It is very

obvious when you are there. They ignore the data. They say what

they want to say. They quote data that has not been made public,

and I don’t see how you can do that.

Now, I will give an example of what I think is wrong. I will just

give one, and I think that example is China. China is not a party

to the Protocol. China is producing and marketing methyl bromide

on a worldwide basis. And China is rapidly expanding their horticulture business for export. So, because they are not a party to the

Protocol, they don’t have to abide by it. But they are arguing in

favor of banning methyl bromide, even though they themselves

don’t have to comply. Now, that just doesn’t seem fair to me. That

is not the system I am used to.

Now, it is clear to me that the EPA is doing a good job, but I

don’t think the U.N. decision-makers want to listen to us, and their

rulings as to feasible alternatives just don’t work all the time here.

39

So, in closing, I appreciate your time, and we appreciate all the

help you are giving us. And we ask you to support Radanovich’s

bill, H.R. 3403, because that is going to guarantee that we get a

fair shake, and that is all we want, and a fair shake based on the

science. That is what we want. Thank you.

[The prepared statement of H. Michael Mellano follows:]

PREPARED STATEMENT OF H. MICHAEL MELLANO, SENIOR VICE PRESIDENT, MELLANO

& COMPANY ON BEHALF OF THE SOCIETY OF AMERICAN FLORISTS AND THE CALIFORNIA CUT FLOWER COMMISSION

Chairman Hall, Ranking Member Boucher, and Members of the Committee, we

are grateful for the opportunity to present joint testimony on behalf of the nursery,

landscape and floriculture industry of the U.S. The topic of continued availability

of methyl bromide to U.S. nursery and floriculture growers is of huge importance

to our industry.

The Society of American Florists (SAF) is the national trade association representing the entire floriculture industry, a $19 billion component of the U.S. economy. Membership includes about 14,000 small businesses, including growers, wholesalers, retailers, importers and related organizations, located in communities nationwide and abroad. The industry produces and sells cut flowers and foliage, foliage

plants, potted flowering plants, and bedding plants.

The California Cut Flower Commission (CCFC) is a non-profit public corporation

formed in October 1990 by and for growers, under the laws of the State of California. Its mission is to provide a unified effort by growers to enhance the performance of the California cut flower and greens industry, by providing promotion, marketing, government education, and research on behalf of the industry. It was voted

into being by a referendum of cut flower growers and is financially supported by

grower assessments on the sales of fresh cut flowers and cut greens.

In crop value, nursery and greenhouse crops have surpassed wheat, cotton, and

tobacco and are now the third largest plant crop—behind only corn and soybeans.

Nursery and greenhouse crop production now ranks among the top five agricultural

commodities in 24 states, and among the top 10 in 40 states. Growers produce

THOUSANDS of varieties of cultivated nursery, bedding, foliage and potted flowering plants in a wide array of different forms and sizes on 1,305,052 acres of open

ground and 1,799 million square feet under the protective cover of permanent or

temporary greenhouses.

I. THE MONTREAL PROTOCOL CRITICAL USE EXEMPTION (CUE) PROCESS IS SIMPLY NOT

WORKING, AND CONGRESS MUST ACT TO PROTECT U.S. GROWERS.

The Montreal Protocol, to which the United States is a signatory, clearly sets out

a Critical Use Exemption process. If practicable and economical alternatives are

NOT available, then growers are to be allowed to continue use of methyl bromide.

This concept is not complex, and its intent is clear. If growers have made an effort

to find alternatives that work, and have failed to do so, they should not be put out

of business because of the requirements of the treaty.

Yet growers being put out of business is exactly what we are facing today, because

the Critical Use Exemption (CUE) process is not functioning as it should.

U.S. growers can—and will—comply with the terms of the Montreal Protocol.

When we have economical and practical alternatives to methyl bromide, we will use

them. We have made our best efforts, and invested hundreds of thousands of dollars

in research to find workable alternatives. But today, we remain without those alternatives—and we are faced with the January 1, 2005 deadline, after which the future

is unknown.

This testimony will outline the difficulties faced by the floriculture and nursery

industry in what has become a very dire situation. We will first discuss how methyl

bromide is used, and the complexity of the industry. Secondly, we will discuss the

alternatives available to ornamental growers, and why we still require methyl bromide in order to remain competitive. Finally, we will focus on the current CUE process, and why it is not functioning as was intended by the signatories to the treaty.

In summary, it is imperative that this Congress move to fix the currently broken

process. We support the legislation (H.R. 3403), introduced by Representative

George Radanovich, or similar legislation, which we believe will protect U.S. interests without abrogating our international treaty responsibilities.

40

II. METHYL BROMIDE USE IN THE FLORICULTURE AND NURSERY INDUSTRY

Methyl bromide is a critically important part of ornamental production in many

areas of the U.S. Field-grown cut flowers, shade house production of some flowers

in the ground, caladiums and even treatment of dried flowers and materials such

as tree fern totems (used for some vining foliage plants), are key uses in ornamental

production.

The diversity and intensity of cropping systems in ornamental production greatly

aggravates the issue of the pending loss of methyl bromide, especially when our main

competitors in third-world countries will continue to be able to use methyl bromide

well beyond the U.S. phase-out, giving them a strong competitive advantage.

Our industry must survive in an international market, with competitors who will

have the advantage of being able to continue to use methyl bromide.

When ornamental crops are produced in open fields, space and timing are key

issues. Think of a patchwork ‘‘crazy quilt’’—with small fields containing different

types of flowers or foliage, planted at different times, with different pest control and

other growing requirements. Flexibility and adaptability to the needs of each specific type of crop are key factors in pest control. As discussed below, for example,

simply applying an herbicide to one plot of land could mean that that land becomes

unusable for crops for a time of at least several months. We cannot afford to let our

land lie idle, with no crops growing on it, for those several months. Yet that is what

the CUE process, as it now stands, would force us to do. We cannot remain competitive, in an international market, without being able to use methyl bromide—until

economic and practical alternatives are found.

At Mellano & Company, in southern California, we produce over 50 different crops

with upwards of 20 different varieties within a crop. New crops are our lifeblood

and are being introduced annually at an extremely rapid pace, often with only a few

years of market appeal. Without methyl bromide, we will not be able to respond to

these rapidly changing market trends. The cost of establishing ornamental crops is

extremely high—in some crops, costs can exceed $50,000 -$60,000 per acre. Methyl

bromide helps insure that our investment isn’t decimated by plant diseases.

Similarly, for Florida growers, methyl bromide has been one of the most crucial

tools used by the flower industry. Due to the Florida climate, without using a sufficiently clean soil to plant into, growers could not compete in the world flower industry. Growing any crop is difficult due to a variety of challenges growers deal with

every day from cold to heat to rain to drought. Florida growers have stated that,

if they lost methyl bromide tomorrow, they would have to shut down a large portion

of their businesses, due to the fact that there are no practical chemical alternatives.

Despite the fact that the whole agriculture sector, along with the USDA, have been

looking for a substitute for years, no suitable substitute has been endorsed by anyone involved with that effort.

We submit, for the hearing record, a copy of the Critical Use Exemption Request

For Methyl Bromide Use In Cut Flowers And Field-Grown Bulbs, prepared by Dr.

A. R. Chase on behalf of U.S. flower and foliage growers, as their CUE exemption

request for the years 2005-2006. That report gives an excellent summary of the industry’s need for methyl bromide.

III. ALTERNATIVES

Our industry, and the U.S. government, have spent hundreds of thousands of dollars on research for methyl bromide alternatives over the past 20 years—yet no single alternative has yet been found which will allow growers to economically and

practically replace the use of methyl bromide in their complex and ever-changing

growing operations. Thus, under the terms of the Montreal Protocol, we must still

be allowed to use methyl bromide. However, it does not appear at this point that

we will be allowed to do so.

During the 1960s, as a graduate student at the University of California-Riverside,

I worked for five years in the laboratory of Dr. Don Munnecke, one of the world’s

leading researchers on methyl bromide and methyl bromide alternatives. During

that time, we were working on many of the alternatives that are still being considered today—solarization, steam, and alternative fumigants, trying to find alternatives from a production and economic point of view. Despite the fact that 40 years

have intervened, we still have not found alternatives that are economically viable,

or effective from a production point of view.

In the early 1990s, the California Cut Flower Commission (CCFC) took the lead

in funding research on methyl bromide alternatives in floriculture, by providing

$150,000 to begin research projects. Since then, CCFC has continued grants over

the past 12 years, with hundreds of thousands of private industry funds invested

in research on alternatives. Research has involved everything from alternative fumiVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 95458.TXT HCOM1 PsN: HCOM1
41

gants, solarization, treatment of soil with steam, microwave or UV, soil fertility and

amendment with green manures and biological agents. The current alternatives include fumigants such as 1, 3-D (Telone), chloropicrin, Dazomet (Basamid) and

metam sodium (Vapam) applied alone and in various combinations. Those are discussed in more detail below. In each case, it should be noted that the Montreal Protocol requirements of ‘‘practical and economic’’ are not met. Nor do combinations of

these alternatives meet those requirements, at this point in time.

Chloropicrin. The efficacy of this chemical is very good on diseases and some weeds.

The problem is that it does not work in all cases, nor for all floral crops, so even

if we can use it in part, or in specific places, it will not replace methyl bromide.

It will simply supplement our use of methyl bromide. It is also extremely

toxic—chloropicrin is ‘‘tear gas.’’

Telone. Again, the efficacy is very good on nematodes. However, Telone also does

not fulfill all our needs, and it has very high toxicity.

Vapam (metam sodium). Metam sodium also has a high efficacy—but it does not

work reliably under each our production regimes. Its toxicity is extremely

high—and at this point, it is uncertain whether the U.S. Environmental Protection Agency (EPA) will renew the registration, so that it cannot be considered

for long-term availability.

Methyl iodide. This chemical is new, and while it has very good potential, it is not

yet registered by EPA. Its toxicity is likely to be high.

Herbicides. Various herbicides are available on the market, many of which are very

effective. The problems are, again, that if a crop is grown for two or three

months in one spot in a field, then to use herbicides on that spot might make

it unusable again for growing for several months to several years, depending

upon the particular herbicide and the soil conditions. Obviously, that makes reliance on herbicides uneconomic. Again, toxicity is high.

Solarization. This method, which is widely touted by countries arguing against the

U.S. exemptions, has only very limited geographic potential use in the U. S.

ornamentals industry. When it works, it works well. However, it only works

when the soil and climate conditions are just right, so it cannot be considered

an alternative.

Steam. Again, the efficacy of steam is good. However, it is technically not feasible

at present for field applications. It requires an enormous investment in terms

of capital and research costs as to the specific site of use. To install steam at

our own operations in California would make our crops uneconomic. Of course,

it also requires the use of fossil fuels, with subsequent environmental consequences.

New Application Technologies (various mulches, various formulations). While eventually, sophisticated application and cropping technologies may become usable,

they are not yet technically feasible. In any event, most, if not all, application

technologies will continue to require the use of methyl bromide as one component.

Crop rotation. Of course, the efficacy is good. However, it requires greatly increased

acreage to maintain production. This significant increase in investment makes

it impossible to grow the crops we now grow and sell, relying simply on this

tool.

Various organic practices. Again, the efficacy can be good, depending upon the specific practice. However, the problem, as with crop rotation, is in the practicability. Organic practices are being integrated more and more into crop production—but, among other things, they usually require a significant increase in

labor or other costs, making them uneconomic as well as, at this point, not practical.

Plant breeding/genetic engineering. This alternative is a very good future alternative. Again, however, it will not work in all cases. Moreover, the resistance

to acceptance by the general population of genetic engineering makes this alternative extremely unusable at any time in the near future.

None of these alternatives can give the control of the pests that methyl bromide

can. They very often require use of additional pesticides to improve efficacy. This

use of additional pesticides results in an increased load on the environment over the

current scenario. There are, of course, no guarantees that these materials will remain available in the future—many alternatives being considered today would have

to go through a lengthy EPA registration process before they were commercially usable. In some cases, the alternatives are much more toxic—both to the environment

and to workers and perhaps even to consumers—than methyl bromide. Our day-today workers, for example, could be exposed throughout the whole crop cycle.

Economics: The combination of increased land required for production,

costs of materials, reduced production, and reduced quality makes all of

42

the above alternatives economically infeasible at present. Some of these

materials are very good alternatives to methyl bromide, and are indeed

being used and have allowed us to reduce our use of methyl bromide, floral

and foliage growers in the U.S. still require methyl bromide in order to remain internationally competitive.

It must be noted that our CUE application, as submitted through the

process to EPA and the MBTOC, takes all of these into account in the

amounts requested. Our industry is not simply relying on methyl bromide.

The ornamentals industry is making efforts to move forward into the use

of alternatives. However, it is not yet economically or technically practical

for us to do so. Therefore, under the terms of the Montreal Protocol itself,

our CUE application should be approved.

The use of chemicals in our industry, in California, in Florida, and in other parts

of the U.S., is the subject of much research, both publicly and privately funded, as

growers attempt to move toward more environmentally and worker-friendly chemicals and toward integrated pest management (IPM) practices, which also reduces

our production costs. Yet in the case of methyl bromide, our industry is being

pushed to rely on those more toxic, more harmful chemicals, which runs counter to

all of the public policy concerns we are discussing and which our industry is investing in and is attempting to embrace.

IV. THE CRITICAL USE EXEMPTION PROCESS

Perhaps the most troublesome aspect of the methyl bromide story involves the application for a ‘‘critical use exemption.’’ The process is extremely costly and burdensome, and there are no guarantees that an exemption will get through U.S. EPA,

let alone that the exemption will be gathered by the international review panel. Our

major competitors in third-world countries, however, will continue to have methyl

bromide available for their usage for several years beyond the U.S. phaseout.

The Society of American Florists joined with the California Cut Flower Commission and with Florida growers to file a joint application, covering uses by

ornamentals growers in both California and Florida, for the years 2005 and 2006.

The application (submitted for the hearing record as a part of this testimony) summarized thousands of pages of data and research into about 100 pages of ‘‘proof’’

that the growers represented continue to require methyl bromide.

The application was submitted to EPA on time, and we understand that EPA forwarded some version of that application on to the MBTOC. However, we do not

know what EPA’s ‘‘summary of our summary’’ contained—or whether EPA’s summary adequately states our case. We have received follow-up questions from

MBTOC that clearly demonstrate that the complexity of the floral industry is not

understood either by EPA or by MBTOC, despite EPA’s very diligent efforts to do

a good job of presenting our application.

V. THE CUE PROCESS SHOULD WORK TO ALLOW U.S. GROWERS TO CONTINUE TO USE

METHYL BROMIDE—BUT IT IS NOT DOING SO. WHY SHOULD THE FLORAL INDUSTRY

CONTINUE TO HAVE A CUE?

The U.S. industry has fulfilled the terms of the Montreal Protocol:

1. It has done and continues to do research to find alternatives, as called for in the

treaty.

2. It has reduced and will continue to reduce its use of methyl bromide, as economically and technically feasible alternatives become available—as called for in the

treaty.

The Montreal Protocol requires that, where economic and technical alternatives

are not available, the industry must be allowed to continue to use methyl bromide.

Our industry does not have economic and technically feasible alternatives at this

time—therefore, our industry should be granted the CUE as requested.

The fact is that decisions are being made by the international treaty

body, not based on the complexity of our industry or on the full information we have provided in the CUE application, but on a very minimal understanding and on a predetermined goal of ‘‘getting us to zero use.’’ Getting U.S. agriculture to ‘‘zero use’’ is not required by the Montreal Protocol.

All that compliance with this treaty requires is that the industry be without economic and practical alternatives. We believe that we have well-stated that case—yet our hopes for obtaining an exemption, at this point, are

not high.

The bottom line is that the decision will be made on our application for 2005-2006,

at the Prague meeting of the treaty parties—which takes place in November, 2004.

We will not know until after that meeting (if then, since the Nairobi meeting proVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 95458.TXT HCOM1 PsN: HCOM1
43

duced no decisions), whether or not U.S. growers will have methyl bromide available

for crops that need to be planted early in 2005. No industry can afford to live with

that kind of economic uncertainty—nor should it be required to do so.

VI. WHAT IS HAPPENING AT THE INTERNATIONAL LEVEL THAT MAKES THE CUE PROCESS,

WHICH IS MANDATED BY THE MONTREAL PROTOCOL ITSELF, BREAK DOWN?

The discussion and stated agenda at the international meetings (the Nairobi

meeting last year, the Montreal meeting this spring, the most recent Vienna meeting, and most likely the Prague meeting in November) is the CUE process. However,

the underlying agenda, for many of the participants, is completely different—and

has nothing to do with the Montreal Protocol treaty.

Two examples:

Europe. Several northern European countries have banned the use of methyl

bromide. Thus, crops which still require methyl bromide have moved into southern Europe or into third-world countries. Even if the product is produced in a

third-world country on a farm owned, from a distance, by a European company,

that third-world country can continue to use methyl bromide until 2015. Thus,

the U.S. grower who wants to keep production in the U.S. is at a competitive

disadvantage. Northern European countries are arguing vigorously against U.S.

applications for methyl bromide use—based, in many cases, on their own ability

to obtain a competitive advantage by doing so.

China: China is on record as being in favor of barring the production of methyl bromide. However, because China is not a party to the treaty, it can continue

to produce the chemical—so if production is stopped, it helps them on the world

market. It should be noted that China is also moving toward becoming a major

producer of horticultural crops—and they will continue to use, and increase

their use of, methyl bromide.

CONCLUSION

As a witness, I testified at the June, 2003 hearing before this Committee. Many

members strongly stated at that hearing that, if the international process does not

work, this Committee would consider legislation. Mr. Chairman, and Members of

the Committee, we are at that point. The CUE process is not working, and U.S. industry is in danger of becoming uncompetitive as a result. The Montreal Protocol

itself provides that growers must be allowed exemptions if economic and practical

alternatives are not available. We have shown that those alternatives are not available to us. Yet we are NOT receiving the exemptions we need. It is time for this

Committee to provide legislative insistence that will support U.S. growers.

The United States government must support the U.S. agricultural economy in ensuring that methyl bromide remains available to growers, until suitable alternatives

are found and can be implemented. We cannot simply bow to decisions which appear

to be predetermined and which will put our agricultural sector at a very significant

competitive disadvantage with growers in third-world countries. The phaseout of

methyl bromide is a critical issue for U.S. agriculture, and we respectfully request

this Committee for support and assistance in reaching a reasonable solution to what

is rapidly becoming a crisis for many producers, and the workers they employ across

the United States.

[Additional materiial submitted is retained in subcommittee files.]

Mr. HALL. That is not asking for too much. Thank you.

Dr. Wenger.

STATEMENT OF PAUL WENGER

Mr. WENGER. Thank you, Chairman Hall, members of the committee, for taking the time today for this very important topic. My

name is Paul Wenger. I am a third-generation farmer from Modesto, California. My family grows almonds and walnuts. And I

also currently serve as the Second Vice President of the California

Farm Bureau Federation.

Last year, Bill Pauly, our Farm Bureau President, was before the

same committee to testify about the many benefits that methyl bromide provide to our agricultural producers, as well as the consumers who depend upon us for a safe and reliable food supply. So,

44

today I would like to focus not so much on those as the CUE process and what Congress should do to help solve those problems.

At the aforementioned hearing before this subcommittee last

summer, committee members voiced concerns about the international treatment of and fairness toward the U.S. critical use exemption requests. Then Chairman Barton went on to suggest that

if the Montreal Protocol process of granting CUEs was not improved, the committee would be willing to take legislative action.

Regrettably, circumstances have not improved for U.S. users who

have no other choice than to depend on methyl bromide. We hope

this subcommittee remains open to taking legislative action on our

behalf.

The CUE process is designed to provide leave for the most critical uses. Producer needs are well documented by the great efforts

of both the USDA and the EPA. We thank the administration for

their work. USDA, EPA and the State Department have put in tremendous efforts in pursuit of a reasonable outcome.

The 2005 U.S. CUE nomination requested a consumption allowance of 39 percent of the 1991 established baseline. This spring,

the parties allowed the United States only a 35 percent CUE based

on consumption baselines, and then added a requirement that domestic production be capped at 30 percent. Nowhere in the Protocol

is there any mention of direct limitation solely on production. The

parties created a new requirement. Unfortunately, because U.S.

farmers need to have an approved CUE percentage to prepare for

the 2005 planting season, our delegation was effectively forced to

accept the objectionable terms.

China and developing nations such as Chile and Mexico will have

access to methyl bromide until 2015, while the U.S. phaseout starts

in just a few months. Coincidentally, many of these developing nations and China are major competitors with U.S. producers in specialty crop markets.

Many individuals and groups have questioned the legitimacy and

objectivity of the CUE process. The actions of the parties since last

summer, most recently in the Working Group meetings in Geneva,

again confirmed that the international process is not objective,

transparent, or science-based.

The Farm Bureau strongly believes that the obstructionist actions of some of the international community translate to other

countries making planting decisions for our U.S. farmers, and

threatening our competitiveness and economy.

We have seen and experienced enough of the Montreal Protocol

process to be convinced that the CUE process, as it currently exists, cannot be relied on to fairly evaluate U.S. agriculture’s legitimate methyl bromide needs.

The Farm Bureau joins others who believe that improvements

must be made to the Montreal Protocol CUE process. Specifically,

first, the CUE process must be science-based and fair to all participants. We believe the U.S. Government clearly laid out the necessary information to prove that the requirements for granting a

CUE under the Montreal Protocol were met. Unless there is a legitimate scientific question, CUE approval should not be open to

political negotiation.

45

Second, future CUE negotiations should not include additional

limits or reductions to production. The terms of the Montreal Protocol intended for CUE to be granted based on consumption, not

production. Unfortunately, the parties created new Treaty terms by

limiting U.S. production of methyl bromide to 30 percent of the

baseline production. The United States has complied with the

terms of the Protocol. We believe it is only fair the parties do the

same by not including production limits in the CUE.

And, third, the international process should allow for multi-year

CUE requests. U.S. negotiators have proposed this concept to the

Parties, but so far it has been rejected with little debate on its

merit. We support a multi-year CUE because it would streamline

the application process and relieve yearly burden on the applicants

and agencies. Most importantly, a multi-year CUE would allow for

better planning among users. Better planning leads to more flexibility, and more flexibility could lead to further reductions in the

need for methyl bromide. We have seen and experienced enough of

the Montreal Protocol to be convinced that there is little hope that

the CUE process, as it currently exists, can be relied on to fairly

evaluate American agriculture’s legitimate methyl bromide needs.

The Farm Bureau supports H.R. 3403, sponsored by yourself, Mr.

Chairman, and Congressman Radanovich and 42 other sponsors.

The legislation would allow use of methyl bromide, as approved by

the EPA, in accordance with international standards. H.R. 3403

provides an incentive for the Parties to the Protocol to fairly consider future U.S. CUE requests.

We respectfully request Congress’ formal consideration of H.R.

3403 to provide fairness and certainty to domestic users depending

on critical uses of methyl bromide. Further, we encourage Congress

to support and continue to oversee the administration’s ongoing efforts to reform the CUE process as soon as possible.

While American farmers have made great strides in achieving reduction in methyl bromide, other countries, some Parties to the

Protocol and some not, continue increasing their usage and production of methyl bromide. Despite our best efforts, American agriculture has come to a breaking point on further compliance with

the phaseout. Unfortunately, the actions of some in the international community clearly illustrate that the Protocol is no longer

about ozone protection.

I thank you for the opportunity, and look forward to any questions you may have. Thank you.

[The prepared statement of Paul Wenger follows:]

PREPARED STATEMENT OF PAUL WENGER, SECOND VICE PRESIDENT, CALIFORNIA

FARM BUREAU FEDERATION ON BEHALF OF THE AMERICAN FARM BUREAU FEDERA- TION

Good morning Mr. Chairman, members of the Committee. My name is Paul

Wenger; I farm in California’s Stanislaus County producing walnuts and almonds.

I am second vice president of the California Farm Bureau Federation. On behalf of

the thousands of Farm Bureau members across the nation who depend on methyl

bromide, I thank you for the opportunity to address you today regarding our increasing concern about the critical use exemption process under the Montreal Protocol.

Methyl bromide is an indispensable pest control tool used in crop production,

grain storage, food processing and general pest management. For some agricultural

users, its availability is essential to providing consumers a safe and reliable food

supply. As you are aware, non-critical use of methyl bromide in this country will

46

be phased-out starting in January of next year, in compliance with the Montreal

Protocol as incorporated in the federal Clean Air Act.

I am here to make three points:

1. Securing the continued, adequate availability of methyl bromide is essential and

justified for U.S. users included in the U.S. critical use exemption (CUE) request.

2. The international Montreal Protocol CUE review process is flawed.

3. Congress must act to ensure U.S. farmers have access to the amount of methyl

bromide needed to provide consumers a quality and affordable domestic product.

IMPORTANCE

Methyl bromide has two main agricultural uses: fumigation of soil prior to planting—called pre-plant treatment; and fumigation of harvested commodities and

foods—called post-harvest treatment.

The use of methyl bromide as a pre-plant treatment is essential to the production

of strawberries, tomatoes, grapes, almonds, walnuts, peppers, eggplant and cut flowers. 2003 data suggests that 95 percent of strawberry acreage in California and

nearly all strawberry acreage in Florida uses pre-plant fumigation. Because most

domestic market supply comes from these two states, the U.S. strawberry industry

will see some of the most significant projected losses due to the phase-out of methyl

bromide—an estimated nationwide loss of $131.5 million to producers. A collaborative USDA and University of Florida study found that a complete ban on farm

uses of methyl bromide for annual fruit and vegetable crops in California and Florida would result in estimated losses of ‘‘about $200 million annually in gross shipping point revenues, which represented about 20-30 percent of estimated revenues

from treated commodities in each state.’’

Where no feasible alternatives exist, pre-plant treatment with methyl bromide

controls soil-borne fungal pathogens and various pests that reduce vigor of newly

planted crops. Use of methyl bromide means yields improve because the need to

hand weed and cultivate soil is reduced, allowing for more efficient irrigation. Better

yields mean better margins, and more financial stability for obtaining next season’s

planting loans.

Methyl bromide is an important post-harvest treatment used to meet sanitary

standards set by the Food and Drug Administration and importing countries for

grains, dry beans, raisins, prunes, figs, dates, almonds and walnuts. These products

are typically treated before and during storage, and prior to being packed or

shipped. Storage structures, containers and processing facilities are also fumigated

to ensure food safety.

For those without feasible alternatives, methyl bromide continues to be the only

consistently effective and economical treatment that can be applied within a flexible

timeframe. With rare exception, it works every time, all the time.

Since U.S. ratification of the Montreal Protocol, agriculture has devoted tremendous time, money and effort into finding technically and economically feasible alternatives for methyl bromide. Public and private research efforts are estimated to

have totaled over $120 million. The good news is the U.S. has drastically decreased

its non-essential use of methyl bromide because some alternative treatments are

now available for some users. The bad news is no feasible alternatives exist—or, for

that matter, are expected soon—for most of the agricultural users currently requesting CUE consideration. Despite the claims, there simply is no one-size-fits-all replacement or combination of replacements that works as effectively, consistently or

affordably as methyl bromide.

In the end, American consumers will suffer greatly from agriculture’s loss of

methyl bromide. The phase-out means the United States will increasingly depend

on imported food sources that are potentially less regulated, less reliable and less

safe.

MONTREAL PROTOCOL PROCESS IS FLAWED

At a similar hearing before this subcommittee last summer, committee members

voiced concerns about the international treatment of and fairness towards the U.S.

CUE request. Then-chairman Barton went on to suggest that if the Montreal Protocol process of granting CUEs was not improved, this committee would be willing

to take legislative action. Regrettably, circumstances have not improved for U.S.

users depending on methyl bromide. We hope this subcommittee remains open to

taking legislative action on our behalf.

The terms of the protocol intend for the CUE process to provide relief to agriculture’s critical, well-documented need for methyl bromide. American users commit

huge amounts of time, expertise and financial resources in preparing the annual

47

U.S. CUE. With the help of USDA, EPA invested unprecedented time and resources

into submitting a thorough, well-substantiated CUE nomination package to the

international reviewers. And, in the last year, the State Department has expended

tremendous effort in advocating for American farmers and defending the U.S. CUE

request against relentless baseless questioning from the parties.

Farm Bureau commends the administration and expresses our gratitude for improved communication with the U.S. delegation to the Montreal Protocol for their

aggressive pursuit of a reasonable CUE process. The parties to the protocol have

so far not granted the U.S. the amount of methyl bromide we need. The parties continue to consider improvements to the CUE process that would provide better certainty for users.

The 2005 U.S. CUE nomination requested a consumption allowance of 39 percent

of the 1991 established baseline. This spring, the parties instead reluctantly ‘‘allowed’’ the United States only a 35 percent CUE based on consumption baseline,

and then added a requirement that domestic production be capped at 30 percent.

Nowhere in the protocol, is there any mention of direct limitations solely on production—the parties created a new requirement. Unfortunately, because U.S. agriculture had to have an approved CUE percentage to prepare for the 2005 planting

season, our delegation was effectively forced to accept the objectionable terms.

China and ‘‘developing’’ countries can continue to use methyl bromide long after

the United States and other ‘‘developed’’ nations have been cut off. China and developing nations, such as Chile and Mexico, will have access to methyl bromide until

2015 while the U.S. phase-out starts in just a few months. Coincidentally, many of

these developing nations and China, are major competitors with U.S. producers in

specialty crop markets that use methyl bromide such as tomatoes, peppers and

strawberries.

Many individuals and groups have questioned the legitimacy and objectivity of the

CUE process. The actions of the parties since last summer—most recently in the

working group meetings in Geneva—again confirm that the international process is

not objective, transparent or science-based. Farm Bureau strongly believes that the

obstructionist actions of some in the international community translate to other

countries making planting decisions for American farmers, and threatening our competitiveness and economy. We have seen and experienced enough of the Montreal

Protocol process to be convinced that the CUE process—as it currently exists—cannot be relied on to fairly evaluate American agriculture’s legitimate methyl bromide

needs.

Farm Bureau and other allied groups believe that improvements must be made

to the Montreal Protocol’s CUE process, specifically:

(1) The CUE process must be science-based and fair to all participants. We believe

the U.S. government clearly laid out the necessary information to prove that the

requirements for granting a CUE under the Montreal Protocol were met. Unless

there is a legitimate scientific question, CUE approval should not be open to

political negotiation.

(2) Future CUE negotiations should not include additional limits or reductions to

production. The terms of the Montreal Protocol intend for CUE to be granted

based on consumption, not production. Unfortunately, the parties created new

treaty terms by limiting U.S. production of methyl bromide to 30 percent of

baseline production. The United States has complied with the terms of the protocol. We believe it only fair the parties do the same by not including production

limits in the CUE.

(3) The international process should allow for multi-year CUE requests. U.S. negotiators have proposed this concept to the parties, but so far it has been rejected

with little debate on its merit. We support a multi-year CUE because it would

streamline the application process and relieve yearly burden on the applicants

and agencies. Most importantly, a multi-year CUE would allow for better planning among users: better planning leads to more flexibility and more flexibility

could lead to further reductions in the need for methyl bromide.

CONGRESSIONAL RELIEF IS NEEDED

Farm Bureau supports H.R. 3403, sponsored by Representative Radanovich and

44 additional co-sponsors. The legislation would allow use of methyl bromide as approved by EPA in accordance with international standards. H.R. 3403 provides an

impetus for the parties to the Protocol to fairly consider future U.S. CUE requests.

We respectfully request Congress’ formal consideration of H.R. 3403 to provide fairness and certainty to domestic users depending on critical uses of methyl bromide.

48

Further, we encourage Congress to support and continue to oversee the administration’s ongoing efforts to reform the Montreal Protocol CUE process as soon as

possible.

Although American farmers are drastically reducing use of methyl bromide, some

parties to the protocol continue to increase their usage and production of methyl

bromide. Production agriculture has reduced the use of methyl bromide to the bare

minimum, but we have come to our breaking point on further compliance with the

phase-out.

Unfortunately, the actions of some in the international community clearly illustrate that the protocol is no longer about ozone protection. Rather, rules are being

changed to suit the political agendas and advantages of other countries—agendas

that have nothing to do with environmental treaties and everything to do with putting American farmers and consumers at risk.

I thank you for the opportunity to address the subcommittee today regarding this

complex issue and again voice our concerns over the seriously flawed international

process governing access to legitimate use of methyl bromide for American agriculture.

Mr. HALL. Thank you very much.

Dr. Mueller.

STATEMENT OF DAVID MUELLER

Mr. MUELLER. My name is David Mueller. I am an entomologist

and an owner of a small fumigation company in Westfield, Indiana.

I am also the son of a flour miller who taught me how to fumigate

flour mills 30 years ago, so I am personally very much aware of the

needs and issues of the flour millers and the food processors.

At Fumigation Service & Supply, we have used methyl bromide

for many years, however, we have developed and adopted several

alternatives to methyl bromide that are now used in commercial

practice in feed mills, flour mills, pet food plants, and many other

food processing facilities.

In recent years, we have replaced over 100 tons of methyl bromide in more than 100 structures in the United States and Canada. Most of the work that we do, Mr. Chairman, is in structures

and not soil. Most of those alternatives were carried out in flour

mills and cereal processing companies. These alternatives are technically and economically feasible for our industry, and full details

are provided in my written testimony.

At Fumigation Service & Supply in Indiana, we still use methyl

bromide in some of our operations, but we are on line to phaseout

methyl bromide on December 31, 2004.

We offer training programs, workshops on alternatives not only

to our customers, but to our competitors.

Mr. Chairman, I am concerned about the excessive amounts of

critical use exemptions and who will control them. Will my competitors have whole groups of critical use exemptions to use and to

pass out at their favor? Here we are 6 months away from the time

when these critical use exemptions will be used, and we don’t have

a plan on who is going to use them and how many will be used

in our industry.

More than 1 million pounds of methyl bromide critical use exemptions could be available next year for fumigating flour mills

and food processing plants in the U.S. I believe this is excessive.

There are, indeed, effective economical and widely available alternatives in the U.S. for this 1 million pounds, or 483 metric tons of

methyl bromide.

49

Our company has reduced its use of methyl bromide considerably

by using alternatives in real-life field applications. We are ready

for the scheduled December 31 phaseout with proven techniques

like heat treatment, carbon dioxide fumigations, better use of

phosphine fumigants, and a newly EPA registered fumigant called

sulfuryl fluoride. Forty-seven States have approved sulfuryl fluoride for use in flour mills in the United States. With these proven

alternatives, I am confident that next year we can replace all of the

applications of post-harvest use of methyl bromide. My company,

this year, has replaced 24,000 pounds of methyl bromide since

April, with the newly registered methyl bromide alternative, sulfuryl fluoride.

I am here to report to you that replacements are available for

post-harvest applications of methyl bromide. I would suggest that

the U.S. consider adjusting its current critical use exemptions requested for mills and processing, in light of these proven options.

Another area that I am very concerned about is stockpiling. You

can call it what you want, but I call it stockpiling. Stockpiling is

a type of legal smuggling. I believe that methyl bromide stockpiles

are higher than the 5 percent currently estimated in 2005 discussions. I believe that stocks should be investigated and quantified

by an independent organization. It is important to find out the true

situation before any decisions are made about additional manufacture and imports of methyl bromide in 2005.

If you think about it, these stockpiles that are going into warehouses, that are going into tanker cars, could be used not just for

the next couple years, but for 20 years from now, legally, throughout the country.

Mr. Chairman, I continue to hear over and over again that developing countries like Mexico are providing an uneven playing field

against American agriculture. I have not found that to be true.

During the last 10 years, I have had the privilege to work with

United Nations and the World Bank as a fumigation expert in developing countries. I have worked on three continents. I have

worked with countries like Vietnam, Malaysia, Jamaica, Ivory

Coast, Zimbabwe, Mexico, Mauritius, Philippines, Turkey, and

most recently Thailand, on phaseout and demonstration projects for

post-harvest applications.

Two weeks ago, I was working in Thailand, in Bangkok, with the

Department of Agriculture there, and the World Bank, to develop

a complete phaseout strategy, including soil, for 400 tons of methyl

bromide in this Article 5 country. This country and its stakeholders

are supportive of the Montreal Protocol because the phaseout path,

the pathway for phaseout in developing countries, was made by

CFCs and some of the other programs before methyl bromide came

along. My experience is that developing countries are very serious

in their efforts to phaseout methyl bromide. Since 1998, they have

reduced their methyl bromide usage by 37 percent. The quicker we

work with developing countries like Thailand and Mexico to find alternatives, the more it will help the American fumigators and the

American farmers.

As an American, I always get one question when I go to these

developing countries. The question is, ‘‘Why does America need so

many critical use exemptions?’’

50

In conclusion, Mr. Chairman, I would like to raise an important

question. Why should companies that have met the challenge of developing and adopting methyl bromide alternatives be punished by

these excessive critical use exemptions and an uncontrolled stockpile?

My company, and others, have invested our time, our effort, and

our research into alternatives. I calculate that our company has invested over $250,000 developing new ways to fumigate without

methyl bromide. This $250,000 could have been used for other

needs to run a small business.

We have acted responsibly and taken prompt action to adopt alternatives. I therefore ask why should the ‘‘can’t do’ companies

with the ‘‘wait and see’’ strategy receive favored treatment with

these excessive critical use exemptions? Why would Congress want

to penalize companies such as mine that have acted responsibly?

We have all had 10 years’ notice to this issue.

Finally, Mr. Chairman, if the United States now grants unjustified, excessive methyl bromide critical use exemptions to companies

that did not bother to act responsibly, this action will be exceedingly unfair to companies that acted responsibly by adopting alternatives. Thank you.

[The prepared statement of David Mueller follows:]

PREPARED STATEMENT OF DAVID MUELLER, FUMIGATION SERVICE AND SUPPLY INC.

My name is David Mueller. I am a Board Certified Entomologist and owner of a

family fumigation company in Westfield, Indiana. I am also the son of a flour miller

who taught me how to fumigate over 30 years ago, so I am personally very aware

of the needs and issues facing millers. At Fumigation Service & Supply, Inc. we

have used methyl bromide (MB) for many years. However, we have developed and

adopted several alternatives to MB that are now used in commercial practice—for

fumigating flour mills, rice mills, pet food plants, and other food processing structures. In recent years we have replaced over 100 tons of MB in more than 100 structures in the United States and Canada. Most of those alternative fumigations were

carried out in flour mills and cereal processing companies. These alternatives are

technically and economically feasible for our industry—full details are provided in

my written testimony.

We still use MB in some operations—when customers request it. But we also have

alternatives available for all our MB fumigations, if customers are willing to use

them.

Over 1 millions pounds of methyl bromide Critical Use Exemptions (CUE) could

be available next year for fumigating flour mills and food processing plants in the

US. I believe this is excessive. There are indeed effective, economical, and widely

available alternatives available in the US for these one million pounds (483 MT) of

MB.

Our company has reduced its use of MB considerably by using alternatives in

‘‘real-life’’ field applications. We are ready for the scheduled December 31, 2004

phase out date with proven alternatives like heat treatments, carbon dioxide fumigations, better use of phosphine fumigants, and a newly EPA registered fumigant

called sulfuryl fluoride. With these proven alternatives, our company is confident

that we can replace all post harvest uses next year.

My company has replaced 24,000 lbs. of MB since April with the newly registered

MB alternative sulfuryl fluoride. I am here to report to you that replacements are

available for post harvest applications of MB.

Stockpiling is a type of ‘‘legal smuggling.’’ Stockpiling should be carefully investigated by EPA and the exact amount of gas should be deducted from the critical

use exemption totals each year. In the fumigation sector it is normal to have stockpiles that are only a small fraction of the total annual turnover. These stockpiles

could be used 20 years from now.

I believe that the MB stockpiles are much higher than the 5% currently estimated

in the 2005 discussions. I believe that the stocks should be investigated and quantified by an independent organization. It is important to find out the true situation

51

before any decisions are made about additional manufacture and imports of MB for

2005.

Mr. Chairman, I continue to hear over and over again that developing countries

like Mexico are providing an uneven playing field against America’s agriculture. I

have not found that to be true. The quicker we work with developing countries like

Mexico to find alternatives the more it will help our American fumigators and farmers.During the last ten years I have had the privilege to work with the United Nations (UNIDO, UNDP, UNEP) and The World Bank as a ‘‘Fumigation Expert’’ in

developing countries. I have written MB demonstration and phase out programs for

Vietnam, Malaysia, Jamaica, Ivory Coast, Zimbabwe, Mauritius, Philippines, Turkey, and most recently Thailand.

Earlier this month I worked in Thailand with their Department of Agriculture

and The World Bank to develop a complete phase out strategy for 400 tons of MB

in this Article 5 country. Most of the MB used in Thailand is used to fumigate rice.

Thailand is the largest exporter of rice in the world. This country and its stakeholders are supportive of the Montreal Protocol and the need to eliminate this serious ozone depleting substance as they did previously with their CFC phase out

projects and previous MB demonstration projects. My experience is that developing

countries are very serious in their efforts to phase out MB—since 1998 they have

reduced their MB usage by 37%.

As an American, I always get one question when I am visiting developing countries: ‘‘Why does your country need so many exemptions?’’

For structures like mills and food processing facilities the main economic issue is

downtime—the length of time for which an operation has to close down for fumigation. But our customers’ experience of alternatives clearly shows that the downtime

is similar for MB. In fact, the downtime of these alternatives is sometimes shorter.

Last month I was fumigating a large flour mill in Indiana with sulfuryl fluoride that

took 10% less time to fumigate than MB. This is valuable time for the millers and

the maintenance workers to get back in and get the mill running.

In conclusion, Mr Chairman, I would like to raise an important question: Why

should companies that have met the challenge of developing and adopting MB alternatives be punished by these excessive critical use exemptions?

My company—and others—have invested our time, effort, and research into alternatives. Since first hearing about MB being a serious ozone depleting substance

right here in Washington D.C. by NASA’s Dr. Robert Watson ten years ago, I calculate that our company has invested over $250,000 dollars developing new ways

to fumigate without MB. This $250,000 could have been used for other needs to run

a small business. We have acted responsibly and taken prompt action to adopt alternatives. I therefore ask why should the ‘‘Can’t Do’’ companies with the ‘‘wait and

see’’ strategy receive favored treatment with these excessive CUEs? Why would Congress want to penalize companies, such as mine, that have acted responsibly? We

have all had 10 years notice on this issue—we all have had plenty of time to adopt

alternatives by now.

Finally, Mr.Chairman: If the US government now grants unjustified, excessive

MB critical use exemptions to companies that did not bother to act responsibly, this

action will be exceedingly unfair to companies that acted responsibly by adopting alternatives.

ADDITIONAL INFORMATION IN WRITTEN TESTIMONY

How Do We Phase Out Methyl Bromide?

‘‘Man has done something to damage the ozone layer over the earth and man can

do something to correct this problem.’’ (Dr. Robert Watson, NASA)

Recently, the ozone hole over the southern hemisphere was 72 times larger than

Texas and 15 times larger than the United States. The intense sunshine we are feeling outside now in Washington D.C. is much more intense in places like Argentina

with a burn time of 30 minutes or Melbourne with a burn time of 60 minutes. This

is a planet-wide problem and the United States is the largest dumper of ozone depleting substances in and throughout the world, while the U.S. feels little effect so

far.

If one observes NASA’s ozone maps from the TOMS satellites, one can quickly see

that ozone depletion remains a real problem (http://toms.gsfc.nasa.gov/eptoms/

dataqual/ozone.html). The first step in correcting the problem is to develop a ‘‘can

do’’ attitude and move forward using skills and educational knowledge to replace

methyl bromide. MB users can copy others who have already eliminated MB successfully, by transferring and adopting alternatives that are used with good effect

by similar companies. While MB is a useful agriculture and post harvest biocide but

52

it harms the protective layer that circles the earth. It also increases prostate cancer

in MB applicators according to the National Cancer Institute (American Journal of

Epidemiology, 2003, 157(9); National Cancer Institute Division of Cancer Epidemiology and Genetics: http://ens-news.com/ens/may 2003/2--3-05-02-02.asp).

To allow Critical Use Exemptions and uncontrolled stockpiling will not cure the

problem. This retards progress, defeats efforts of developing countries, and damages

the image of the United States in the rest of the world.

Meeting the Challenge

In 1991 our country was charged with a responsibility to protect our ozone layer

while we also protect our food supply. Some have stepped up to the challenge with

research and development of alternatives. Others choose to take no action but hide

behind lawyers, associations, and lobbyists. Where is the incentive to protect the environment in this sector? What message does this offer to our international partners

and our customers? Why would the US want to support continued use of a known

ozone depletor and prostate carcinogen?

Alternatives to Methyl Bromide

I wish to provide a summary of some of the proven Methyl Bromide alternatives:

Structural Fumigations

a) Heat Treatments (140° F for 16-24 hours, combined with IPM), Used by US

Companies such as: General Mills, Quaker Oats, Nestle Purina, Pillsbury, Lauhoff,

various milling companies. Estimated 10% of the milling and food processing industry uses heat to disinfest structures.

b) Combination Fumigation Method (Heat, CO2, Phosphine for 24-36 hrs), Cost is similar to MB; $18.00/ 1000 cubic feet vs. $20.00 for MB.

73 alternative fumigations performed by July 2004 (US, Canada, Italy, Denmark,

Germany). An estimated 100 tons of MB has been replaced with the Combination

Fumigation Method.

c) Sulfuryl Fluoride, ProFume TM. Registered by the US EPA1/2004, registered

in 47 states in the US by July 2004. 24-48 hours exposure, cost is similar to MB.

US Companies: ProFume has the ability to replace methyl bromide on most flour

mills and structure fumigations in the US that have applied for over 1,000,000 lbs.

of MB for CUEs.

d) IPM, integrated pest management. After a structure has been fumigated and

the pest population is lowered to near zero. IPM works well for the post harvest

industries. The goal is to reduce or eliminate the need for fumigations by denying

pests harborage and food.

Some US companies have not fumigated with MB in over 10 years. This committee needs to ask how they did it. Many mills and food processing companies in

the US and other countries produce food to very high quality standards, by using

technically and economically viable MB alternatives.

Flour Mill Case Study

As one illustration, here is a case study on MB phase out in a large flour mill

in Indiana. Four years ago, this flour mill was fumigated three times per year with

MB. Understanding the challenge of MB phase out and investigating alternatives

for MB, they adopted alternatives. They achieve a better fumigation of their inbound wheat with cylinderized phosphine (ECO2FUME). The management has improved its integrated pest management program with improved hygiene throughout

the mill. This step helped the mill reduce the need for structural fumigations from

three MB fumigations per year to once per year. In addition to helping the earth’s

ozone layer, this pest management program saved four extra days for running the

mill each year: a big saving. Sanitation has been improved with better construction

designs, also helping to reduce pest problems. Monitoring and inspection is a major

part of the program.

In June of 2004 this large flour mill used ProFume gas fumigant for the first

time. The fumigation gave excellent results in the same amount of time as one MB

fumigation (22 hours). The final step of phasing out MB took a commitment from

management and a ‘‘can do’’ attitude by all employees. This flour mill demonstrated

that they don’t need MB any more.

The total impact will be saving about 6,000 lbs. MB per year. [- is 6,000 lb for

1 fumigation or 3 fumigations? Need to state figure for 3 MB fumigations per year]

It also provides four extra working days for the mill each year, which has great

value to the milling company.

There are 220 flour mills similar to this one in the US, that can also phase out

MB. Fumigation Service & Supply, Inc. has performed 18 other Profume fumigations with similar results.

53

Shutdown time

The real cost for a large manufacturing plant is the cost of being inactive. These

alternatives are faster or equal to the shutdown time of MB of 24-48 hours. This

is a very important point. The alternatives available now allow companies to get

back to work quickly, so they do not lose time/profits. Companies that use MB more

than once a year can save valuable shutdown time by switching to alternatives.

Safety

Methyl bromide is a biocide that can burn humans and has been shown to cause

prostate cancer in a very large epidemiological study. Most MB fumigations begin

inside the building with release by hand by two fumigators with self-contained

breathing apparatus. The new alternatives to MB require gas application applied

from outside the confined space. The fumigant under pressure inside steel cylinders

is directed with tubing to the exact location that needs the fumigant. More fumigant

can be added easily with this outdoor method. Whereas, the risk of MB exposure

is high when fumigators have to re-enter the building to add more MB. Methyl Bromide is colorless and odorless and will burn skin on contact. I know first hand. I

spent eight days in a burns hospital in 1985 from MB exposure to my feet and legs.

Commodity Alternatives

a) Grain—Eco2Fume TM Phosphine fumigant. This cylinderize phosphine fumigant allows for better and cheaper fumigations on stored grain than MB. (EPA registered in August 2000 as ‘‘Fast Track’’ alternative to MB)

b) Dry Fruit and Tree Nuts: Eco2Fume TM Phosphine fumigant. This new formulation of phosphine allows for re-dosing phosphine in case of leakage or bad

weather. Since the US EPA registered it in August 2000, Eco2Fume has proven to

be an excellent commodity fumigant. Research is currently underway to improve

this formulation to be less expensive than the solid formulation by using 100%

phosphine in a cylinder and mixing it with air/CO2. c) CPM, Commodity Pest Management is a method of keeping grain and other

commodities in favorable conditions to prevent pests from becoming a problem.

U.S. Industries: Popcorn, Seed, Bird food

d) Sulfuryl Fluoride, ProFume Fumigant Gas, Dow AgroSciences LLP has registered this fumigant for use on grain and specialty commodities including dried

fruit and tree nuts.

e) Storicide TM, This newly registered grain protectant uses Reldan TM and

Tempo TM in combination much like malathion used to do. This technique could replace fumigation on wheat and other small grains.

f) SpinosadTM, Dow AgroSciences has been researching the use of the proven biological pesticide called Spinosad as a grain protectant. Registration is pending on

grain. University field research has shown this technique to be effective in replacing

fumigants .

g) Diacon II TM, This IGR has received exemptions from tolerances for application to food and grain. This allows a registered pesticide to be incorporated in food

that is eaten by the consumer. IGRs will play an important part in future IPM programs.

Ships / Barges / Railcars

Empty ship holds: heat, phosphine, sulfuryl fluoride, contact insecticides

Ships/barges: phosphine (in transit)

Railcars: phosphine (in transit)

Trucks: phosphine (static), sulfuryl fluoride (under review) [???]

Tarpaulin Fumigation

Inert Gases: carbon dioxide, nitrogen, argon, ozone (slow killing)

Phosphine: (48-72 hours above 80 F))

Phosphine and heat: (35-40°C): 24-48 hours

Sulfuryl fluoride: (24-36 hours)

Methyl Bromide Alternatives Comparison for Commercial Structure Fumigations

Treatment Duration (hours) Estimated costs*

US$per 1000 ft.3

Methyl Bromide ..................................................... 24-48 hours ..................................................... $20.00

Heat +CO2+PH3 ................................................... 24-48 ................................................................ $18.00

Year round IPM ..................................................... replacing the need to fumigate .......................

Fogging + IGRs .................................................... 2-24 .................................................................. $3.00

ECO2FUME ............................................................. 48-96 ................................................................ $12.00

54

Methyl Bromide Alternatives Comparison for Commercial Structure Fumigations—Continued

Treatment Duration (hours) Estimated costs*

US$per 1000 ft.3

ProFume (sulfuryl fluoride) ................................... 24-48 ................................................................ $26.00

Heat treatment ..................................................... 24-48 ................................................................ $20.00-40.00

*including labor and sealing

Mr. HALL. Thank you, sir.

The Chair recognizes Mr. Doniger.

STATEMENT OF DAVID DONIGER

Mr. DONIGER. Thank you very much, Mr. Chairman. I want to

continue building on the last speaker, who has injected some facts

and data into this discussion. There have been a lot of claims, with

few facts and data. Let me talk about the data that has been discussed earlier today, which came from the EPA in a Freedom of Information Act response, through a request NRDC had made.

This data, which is on the consumption of this chemical, and on

the use of this chemical, calls into question the exemption asked

for for 2005, and the exemption being asked for now in 2006. In

short, these data show that the phaseout is working far better than

industry or the Government has acknowledged, and that means

that farmers, millers, and other users of this chemical need far

smaller exemptions than the U.S. Government is now seeking.

Now, I want to emphasize that I am not opposing all exemptions.

It is the size and the unnecessary amount that is wrong here.

Now, this data show—and I am going to hold up this chart which

is attached to my testimony, it is an EPA chart—it shows that

every year in the phaseout process, the production and consumption of this chemical has been below the allowed amount. In 2003,

when the limit went down to 30 percent, the consumption was only

25 percent. Mr. Holmstead told you this morning that this is a

number that the EPA stands behind as a strong number.

This is 5 percent less than the amount—in 2003, 5 percent less

than the amount the U.S. Government asserted was essential 2

years from then. And at the same time, the producers and distributors have accumulated a large stockpile of methyl bromide. And

Mr. Holmstead and others took exception to the use of the term

‘‘stockpile.’’ I refer to the letter the EPA sent Chairman Barton on

February 10—an excerpt of which is also attached to my testimony—which says, ‘‘stockpiling has indeed taken place.’’ From that

letter, one can estimate how big this stockpile is. It is at least

10,000 tons of methyl bromide. It is at least 22 million pounds.

Further evidence of how big it is is this blacked out number in the

other page that came from the EPA, it is five columns wide. The

smallest number which is five columns wide is 10,000. We don’t

know how big this number is.

Mr. Holmstead also asserted today that the number was confidential. It should be noted that EPA has never ruled that this

number is, in fact, properly confidential. Under the FOIA regulations, EPA does not rule on whether a confidentiality claim is valid

until there is a FOIA request for the records that contain the data.

And EPA’s regulations set out a procedure for deciding whether the

claim is valid when a FOIA claim request is made. Our FOIA reVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 95458.TXT HCOM1 PsN: HCOM1
55

quest has triggered that process. EPA has never decided whether

the aggregate data or the specific data is, in fact, validly confidential under the Freedom of Information Act, the Clean Air Act, and

its own regulations. The EPA’s response to the FOIA request is

overdue but, as I said, from what the EPA told the Congress and

what you can infer from the blacked out numbers here, there is a

stockpile of at least 10,000 tons or 22 million pounds, which is bigger than the request made for 2005 and bigger than the request

made for 2006.

The fact that it was possible to accumulate a stockpile while the

production and consumption were actually below the authorized

limits tells you something important about use. It tells you that

total usage has been below the amount that has been produced

over the last 5 to 10 years, and below the amount by such an

amount that this huge stockpile has accumulated.

Now, it does appear from the EPA data which you have, that

there may have been, for the first time, a drawdown of the stockpile, so that the numbers on this page that Mr. Allen and Ms.

Capps have and referred to earlier, indicate that the 25 percent

that was produced and imported last year, plus the difference in

the size of the inventory from 2002 to 2003, another 5 percent, suggests that the total usage in the United States in 2003, 2 years

ahead of the exemption year, was 30 percent. It is very difficult for

me to understand why the request for the exemption years is higher than the use in 2003, especially in light of the existence of this

enormous stockpile.

So, this leads to important conclusions. For one thing, a lot of the

complaining about the Montreal Protocol process is totally off-base.

The parties have been asking the questions, and the technical

panel has been asking the questions that the growers and the U.S.

Government refuse to ask themselves—how much stuff is actually

needed—and they have been paring back the numbers a little bit

in recognition of the dubiousness of the claims of exemption need.

Now, the EPA is required under the Clean Air Act to hold a rulemaking this year, and in that rulemaking—this is for the 2005 exemption—EPA is required to consider whether in light of the declining use there needs to be so much authorized for 2005, and required to consider in light of the stockpile whether we need to

produce the full 30 percent, or even any methyl bromide, next year.

And the parties are engaged in the same inquiry for 2006. So, you

have this domestic process that’s during the rest of this year for

2005, and an international one going on the rest of this year with

respect to 2006.

Allow me two quick comments to close. First, on the idea of a

multi-year proposal, I am not, on NRDC’s behalf, entirely opposed

to the idea of a multi-year proposal, not in concept. But the question is, does the proposal start, like the nominations for 2005 and

2006, at levels way above consumption and use in previous years,

without a guarantee against this? Any multi-year proposal, just

like an annual proposal, has to be a non-starter.

And the second thing is, does the multi-year proposal provide for

year-by-year reductions, steep year-by-year reductions, so that we

get toward the objective of zero?

56

In the past, the United States has proposed a multi-year exemption with a trivial slope in it, basically no reduction from year-toyear, and even though it talks in this proposal about having an interim increase, and that makes a multi-year proposal like that a

non-starter.

Finally, let me comment on H.R. 3403. This bill would take truly

an extraordinary and unilateral step of declaring that all U.S. exemptions, if deemed approved, even if they had been rejected under

the Montreal Protocol, and this would place the U.S. in violation

of a treaty supported by the last three Presidents, starting with

Ronald Reagan, which our country has ratified and legally bound

itself to follow. I might add that I checked my memory while sitting

here, China is a Party to this Treaty as well, and China has ratified the agreements that pertain to methyl bromide, let me correct

that part of the record from earlier.

The bill would put more people at risk of cancer. It would ignore

rapid progress that has been made. My last two sentences, sir. It

would punish responsible companies. It would force the U.S. to

thumb its nose at yet another treaty, at a time when our country

needs the broadest international cooperation, and it would expose

U.S. businesses to billions of dollars in trade sanctions. I urge you

not to move that legislation. Thank you.

[The prepared statement of David Doniger follows:]

PREPARED STATEMENT OF DAVID DONIGER, NATURAL RESOURCES DEFENSE COUNCIL

Mr. Chairman, thank you for the opportunity to testify on the phase-out of methyl

bromide, on behalf of the Natural Resources Defense Council (NRDC) and its more

than 500,000 members.

There are few more heartening success stories than the global effort to phase out

the ozone-damaging chemicals. Every American, and every citizen on this Earth, relies on the ozone layer to block dangerous ultraviolet radiation that causes skin cancer, cataracts, immune disorders and other diseases. The Montreal Protocol—which

has enjoyed bipartisan support from three presidents, beginning with Ronald

Reagan—is saving literally millions of Americans, and tens of millions of people

around the world, from death and disease and preventing billions of dollars in economic damages—including UV-related crop losses.

Yet the ozone shield directly over our heads has been weakened by ozone-depleting chemicals increasing our exposure to dangerous UV radiation. Millions of Americans—including farmers—must work everyday in the sun. Millions more—from

school children to seniors—spend hours of their days out of doors. Millions of concerned parents check the UV Index and cover their kids with sunscreen before letting them go out in the sun.

Methyl bromide is the most powerful ozone-depleter still in widespread use. All

of other potent ozone-destroying chemicals have been successfully eliminated. Methyl bromide also has been linked to increased prostate cancer risks in a study of

55,000 pesticide applicators, including farmers, nursery workers, and workers in

warehouses and grain mills. Phasing out methyl bromide is the single most important thing we can do to hasten repair of the ozone layer, as well as protect those

directly exposed. Now is not the time to tamper with the methyl bromide phase-out

requirements under Montreal Protocol and the Clean Air Act.

Last week I attended the Montreal Protocol negotiations in Geneva on critical use

exemptions for methyl bromide in 2006. NRDC has been an accredited observer at

those meetings for nearly 20 years. At the meeting, I called attention to important

U.S. government data that NRDC obtained in June under the Freedom of Information Act. I would like to share these data with this Committee today.

These data show that U.S. methyl bromide consumption and use have already

been cut well below the critical use exemption levels requested by the U.S. The data

call into question the basis of the exemption granted at the Extraordinary Meeting

in March for 2005 and the exemption requested this year for 2006.

In short, these data show that the phase-out of methyl bromide is working—far

better than industry or government has acknowledged. And that means farmers,

57

millers, and other users of this chemical need far smaller exemptions than the U.S.

government is now seeking.

The good news is that U.S. methyl bromide consumption has declined sharply.

• The data show that U.S. consumption in 2003 was just 25% of the U.S. 1991 baseline level (6,507 metric tonnes or 14.3 million pounds), even though the Montreal Protocol and the Clean Air Act permitted 2003 consumption at 30% of the

baseline level. (‘‘Consumption’’ is defined as national production plus imports,

minus exports.) • U.S. methyl bromide consumption has been well below the applicable limits in

each year going back to the start of the phase-out. (See page 2 of the attachment, from the June 18, 2004 FOIA response.)

At the same time, however, U.S. producers and distributors have accumulated a

large stockpile of methyl bromide.

• The Subcommittee will recall that in a letter to Chairman Barton dated February

10, 2004, EPA indicated that it had obtained data on methyl bromide stockpiles

from a number of companies using its information collection authority under the

Clean Air Act. (The letter is reprinted in the record of last year’s hearing.)

EPA’s letter stated that ‘‘stockpiling has indeed taken place.’’ Yet the letter provided only ‘‘qualitative’’ information on the amount of the stocks, on the grounds

that the entities from which EPA had obtained the data had claimed it to be

confidential business information. • From this letter it was nonetheless possible to deduce that those stocks were larger than the exemptions sought for 2005. Though EPA has not yet disclosed exactly how much, we can be sure that it is at least 10,000 metric tonnes (22 million pounds)—at least 40% of the U.S. baseline—and may be much higher. (See

page 4 of the attachment, explaining the basis of this estimate.)

It should be noted that EPA had not then, and still has not, ruled upon whether

those claims of confidentiality are legally or factually valid. Under EPA’s FOIA regulations, the agency typically does not rule upon the validity of confidentiality

claims until there is a FOIA request for records containing the pertinent data.

EPA’s FOIA regulations set out a procedure for making a determination on the validity of such confidentiality claims, which is triggered by the filing of a FOIA request. NRDC has requested this stockpile data from EPA under another Freedom

of Information Act request, a response to which is now overdue. We continue to

press for disclosure of this data without further delay.

The fact that it has been possible to accumulate a stockpile necessarily means

that total usage by growers and other users during the phase-out has been even

lower than the U.S. national consumption. In other words, all of the methyl bromide

currently held in stocks represents production from previous years that has not yet

been used.

A stockpile of at least 10,000 tons is far larger than needed to meet normal inventory needs. Common practice in the chemicals industry is to keep inventories at only

a fraction of annual demand. The methyl bromide stockpile greatly exceeds annual

demand.

The data obtained in June suggests that in 2003 U.S. users may have drawn upon

the stockpile for the first time.

• The data indicate a draw down of the known inventory by some 1167 tonnes (2.6

million pounds) in 2003, bringing total U.S. use to about 30%. (See page 3 of

the attachment, from the June 18 FOIA response.)

The most important observation to draw from this data is that the U.S. consumption and use in 2003 are already below the upper limits allowed in the March decision on 2005 exemptions.

• U.S. 2003 consumption was 5%—some 1600 tonnes (3.5 million pounds)—below

the upper limit on 2005 consumption set forth in the March decision. • U.S. 2003 use was 5%—again some 1600 tonnes (3.5 million pounds)—below the

upper limit on 2005 critical uses set forth in the March decision.

In press reports, and again in the Geneva meeting, representatives of the U.S.

government have responded to this data by suggesting that it may not accurately

capture all of usage of methyl bromide in 2003. That would raise some interesting

and troubling questions.

• We presume that the consumption data are accurate. Consumption must be accurately tabulated and reported under both U.S. law and the Protocol.

• The only other possibility is that in 2003 farmers and other users drew upon even

larger amounts of stockpiled and inventoried methyl bromide—amounts aboveand-beyond the stockpile data of which EPA is aware. That would underline the

need for far better data collection on this critical question of stockpiles.

These facts lead to important conclusions for both 2005 and 2006.

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• The Protocol Parties, including the United States, have twice decided that parties

must use available stocks to meet critical use needs before they may allow more

methyl bromide production. (See the 1997 critical use criteria decision, Protocol

Decision IX/6, and the critical use decision from March 2004, Protocol Decision

Ex.I/3. A copy of each of these decisions is attached.) • For 2005, the March decision of the Parties (Ex.I/3, ¶ 5) provides for each country

with a critical use exemption to take into account up-to-date information on use

levels and stockpile availability in its domestic licensing decisions. • In the U.S., domestic licensing of 2005 production and critical use must be made

through a regulation under a rulemaking required under Section 7671c(d)(6) of

the Clean Air Act. That regulation has not yet been proposed. • To comply with the March exemption decision and the Clean Air Act, EPA will

have to reduce 2005 critical uses below the 35% ceiling set in the March decision to reflect the progress in reducing use that was already made by 2003.

Likewise, EPA will have to reduce 2005 production and consumption below the

30% ceiling set in that decision to reflect the availability of existing stockpiles

of methyl bromide.

For 2006, the Protocol Parties will need to do likewise. They will need to decide

how much critical use and consumption to permit the U.S. in light of the progress

already made in the U.S. and the existence of the very large stockpile. There is

every reason to expect further progress in adopting alternatives between 2003 and

2006.

Allow me to comment on the proposal that the U.S. tabled in Geneva to allow

multi-year critical use exemptions. It is my understanding that this is, in effect, a

proposal for 2007 and beyond—and that the 2006 decision will need to be taken on

a single-year basis. In any event, NRDC believes the attractiveness of a multi-year

exemption decision depends on two rather central details:

• Does it start (like the U.S. nominations for 2005 and 2006) at a level well above

consumption and use in earlier years? Without guarantees against this, the proposal should be viewed as a non-starter. • And does it provide for steep year-by-year reductions? If it would allow only trivial

annual reductions, or even increases in interim years, that is another reason

it should be considered a non-starter.

Let me turn to some observations on H.R. 3403, which is pending before this Committee. This bill would take the extraordinary and unilateral step of declaring that

all U.S. exemption applications are deemed approved even if they have been rejected

under the Montreal Protocol. This would place the U.S. in violation of the Montreal

Protocol, a treaty supported by last three Presidents, starting with Ronald Reagan,

which our country has ratified and legally bound itself to follow. The bill would put

more people at risk of cancer. It would ignore the rapid progress actually being

made. It would punish the responsible companies, university researchers, and growers who have invested time and money into developing and adopting safer alternatives. It would force the U.S. to thumb its nose at another important treaty obligation precisely when our country needs the broadest possible international cooperation. And it would expose American businesses to billions of dollars in trade sanctions.

I cannot conclude without a word on an issue I raised last year—the still-pending

regulatory proposal to vastly expand the amount of methyl bromide used for quarantine purposes. The U.S. Department of Agriculture (USDA) is nearing promulgation of a regulation that would require treatment of all raw wood packing material

imported into or exported from this country. If promulgated, the new rule will lead

to a massive and unnecessary increase in the amount of methyl bromide used for

quarantine fumigation.

As I reported last year, the rule could result in a massive increase in methyl bromide use—by more than 102,000 tons per year according to a USDA Environmental

Impact Statement. That would increase current world use for quarantine purpose

by 10 times and triple total world use of methyl bromide for all purposes.

In 1999, USDA publicly committed to study and consider phasing out raw wood

packing material and phasing in alternative packing materials instead of ordering

huge increases in methyl bromide use. But since then USDA has broken its commitment to consider the option of phasing out raw wood packing. The department’s EIS

and its proposed rule contain not a word examining this option. One USDA official

sought to comfort me by saying that the study of moving to alternative packaging

materials ‘‘had not been abandoned, only shelved.’’

If this regulation is issued, it will more than undo all the good that has been done

by farmers, millers, and others to reduce methyl bromide use and its threat to the

ozone layer. We have signaled USDA that we would cooperate with the agency and

industry in a reasonable effort to move to alternative packaging materials, and we

59

could even accept some use of methyl bromide fumigation of current raw wood packaging as an interim measure. But we have also served notice that we will take legal

action, if needed, to block the current proposal and prevent the huge and unnecessary increase in methyl bromide it would cause.

In conclusion, the Montreal Protocol is working. It is beginning to heal the ozone

layer. It is protecting the American people. But even with absolute adherence to the

phase-out of ozone-depleting chemicals, repairing the damage—closing the holes in

the ozone layer—will take many decades. The methyl bromide phase-out process is

working successfully—just as it did for CFCs and other chemicals earlier—to stimulate the development and adoption of effective alternatives. We must stick to this

effort and complete the phase-out of methyl bromide. In particular, the United

States must now acknowledge reality and revise and reduce its exemption requests

to conform to its own data on the progress that is being made in eliminating this

chemical and its own data on huge existing stocks of this chemical.

Thank you for the opportunity to address these issues.

[Additional material is retained in subcommittee files.}

Mr. HALL. Thank you, Mr. Doniger.

The Chair recognizes Ms. Bogenholm, a true farmer, I am told.

STATEMENT OF VANESSA BOGENHOLM

Ms. BOGENHOLM. Thank you, Mr. Hall, and thank you, committee, for allowing me to testify today. My name is Vanessa

Bogenholm. I am an organic strawberry, raspberry and vegetable

farmer from California. I also am honored to sit as Chairman of the

Board of California Certified Organic Farmers. I represent $1 billion of organic products in the marketplace annually. We are the

largest group of farmers growing organically. Our grown every year

is 10 to 12 percent, and we have really seen the industry just boom

in the last 5 years. One of the papers I put in my testimony shows

that boom in the commodities you are hearing discussed today, especially.

The most important thing about this is that 16 years ago when

I graduated from college, the first day on the job, my first job was

sitting at the methyl bromide alternative research plot, and that

plot had 20-foot rows of all of these chemicals mentioned here,

every one of them. That was 16 years ago. In 2002, the Strawberry

Advisory Commission once again funded all those same materials

again, now with 50-foot plots. They had not moved remarkably

ahead and still looking at the same materials again and again.

I left working for extension and became a conventional farmer.

My last year of farming conventionally, I did not use methyl bromide, I used Telone. I had the highest production in my commodity. Many strawberries are sold under big names—I won’t mention the name—I was the highest producer not using methyl bromide. I have been just straight organically farming for 6 years.

One of the things I always hear is people trying to look for this

magic bullet. There is not one pill you can take to make you not

fat anymore. There is not one pill you can take to make you not

use methyl bromide and everything is perfect.

What we do as organic farmers is much different. Very integrated approach. It is a very much a bunch of different steps to not

have soil disease problems or insect problems in your soil that

methyl bromide gets rid of. I agree. Methyl bromide is much easier

to use. You call a fumigation company, they come and fumigate

your field.

Instead, what we have to do is rotate crops. We use what we call

‘‘cover crops,’’ which means putting different material into the soil

60

to get rid of disease. We use large amounts of compost in order to

control soil diseases.

Before I can be anything, I am a businessperson, and I have to

make payroll every Friday and, believe me, you see the large

growth in organics for one reason only—people are making money

at it because of the consumer demands, and the consumer knowing

more what happens to farmworkers when they use methyl bromide

is incredibly important.

When I was a conventional farmer, I was present during every

one of the fumigations. You cannot wear plastic gloves during a fumigation when you are shoveling soil because the gas will get underneath your gloves and burn your hands. How dare an employer

have an employee in that kind of situation. You get headaches

every time.

In California, we have the most strict usage recommendations for

these things. You have to move out of your house, if your house is

within 500 feet of a methyl bromide fumigation, for that farmer to

use it. We cannot use it around schools. A school system around

me, a farm is near the school, a grower asks the school when they

can fumigate. They fumigated over July 4 weekend so that they

didn’t have anybody around. And their concern was that it was

okay because only the migrant Head Start kids were going to be

there the following week, and the Superintendent of Schools also

knew that I would actually stop that fumigation. In order for that

grower to fumigate his field, which is actually about, I would say,

130 feet from my field, I would not have been able to harvest my

own crop on my organic farm, so he could fumigate his field.

I truly think that an employer needs to look at other options. In

the strawberry industry, many, many farmers refuse to look at

other options for one reason only. And you saw somebody earlier

give a big stack of paperwork and talk about 3,000 pages to get a

critical use exemption. I look at that and think of all those hours

work and all that money spent on a critical use exemption, that

could have gone to other research alternatives, and that is, I think,

the main problem we see here. When companies know you are

going to get an exemption, why would you look for an alternative?

That is really what I think we need to do. We need to start pushing

to get—I am not saying an immediate phaseout tomorrow—but

really make sure that commodity groups are using less and less by

the commodity.

I really thank the chairman for allowing me to speak.

[The prepared statement of Vanessa Bogenholm follows:]

PREPARED STATEMENT OF VANESSA BOBENHOLM, OWNER, VB FARMS AND CHAIR,

CALIFORNIA CERTIFIED ORGANIC FARMERS

To the Committee on Energy and Commerce U.S. House of Representatives: I

wish to thank the committee for allowing me to speak on the use and hopefully the

eventual phase out of Methyl Bromide in United States agriculture. I am Vanessa

Bogenholm, an organic farmer of Strawberries, Raspberries and Vegetables shipping

my products all over the United States including Hawaii and Canada.

I also am honored to represent California Certified Organic Farmers as the Chairman of the Board representing over 1300 organic producers and over $1 Billion dollars of organic products in the market place annually.

Main points to be made in this testimony:

• Organic farming techniques are viable alternative to the traditional use of Methyl

Bromide use for crops such as strawberries, raspberries and grapes.

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• Methyl Bromide use is dangerous to farm workers and other surrounding land

uses such as rural residential areas and schools. • Commodity Groups using Methyl Bromide need to be seriously looking at viable

alternatives to Methyl Bromide by doing full field scale trials on other production methods or materials and not just the 100 foot trials that have been done

for over 16 years. • Many commodity groups have been spending millions of dollars to get their critical use exemptions at the Montreal Protocol and meetings such as this (preparing reports, travelling and lobbying politicians) instead of putting that

money into Methyl Bromide alternative research. These commodity groups need

to have long term goals of no longer relying on Methyl Bromide for the growing

of their crops. • Individual farmers need to be encouraged to look at other farming methods besides Methyl Bromide and not just rely on their commodity groups or state extension agents to do the experimentation for them. • The financial concerns of individual farmers can not be considered more important

than the environmental concerns or the health of human beings.

Organic farming systems are based on ecologically based practices such as using

composting and soybean meals for fertilization, crop rotations that promote biodiversity in planting schemes, and non-toxic pesticides such as vegetable oils for insect

and disease control. Organic farming has been the fastest growing area of agriculture in the United States producing the same agricultural commodities that are

produced through conventional agriculture. The growth rate of organic agriculture

has been between 10-12% annually for the past 5 years with fresh fruits and vegetables comprising the largest area of growth (USDA Agricultural Information Bulletin

777).

When I graduated college with a Bachelor’s of Science degree in Agricultural Biology, I started work with the Agricultural Extension Service in Watsonville CA as

an agricultural researcher. My first day on the job 16 years ago was setting up a

Methyl Bromide alternatives experiment for strawberry production. The other major

experiment I was working on at the time was looking at the viability of organic

farming for strawberry production by comparing a farmer with both organic and

conventional strawberries in the Santa Cruz area of California.

I left that position after a couple of years and have been a strawberry farmer in

California for 14 years. I started farming conventionally, in 1997 I began to farm

a small portion of my operation organically, and by 1999 switched the entire operation over to organic production.

In the beginning of my farm business, I used Methyl Bromide. I was present during each fumigation and worked with my employees shoveling the soil at the ends

of the field over the plastic tarps used to keep the Methyl Bromide gas in the soil

for as long as possible. One of the first instructions I received from the fumigation

company was that I could not wear the plastic gloves I wore for most of my work

on the farm during the Methyl Bromide fumigation. This was because if the gas got

under my plastic gloves it would be trapped inside the glove and burn my hands.

Also, no matter how perfect the applicator on the tractor would try to be, some gas

would always be released at the end of his fumigation pass and all of us in the field

would have our eyes tearing from the Chloropicrin used with the Methyl Bromide.

Headaches were always common with my employees and myself who had worked

as shovelers on fumigation sites. I personally feel it is irresponsible for an employer

to expect his employees to work around these types of materials that are known to

cause illnesses. Methyl Bromide can cause neurological damage, reproductive harm,

can damage lungs and kidneys and possibly cause cancer. (PANNA attachment #3)

In the past few years, new larger buffer areas have been imposed on growers

wanting to use Methyl Bromide in their fields. This means that a grower may ask

a surrounding house or other farm to not be present on their own property during

the time he was fumigating his adjacent field with Methyl Bromide. How safe can

the material be if we are asking people who live within 500 ft. of a fumigation job

to go stay in a hotel for 48 hours after the fumigation? Does a farmer have the right

to put people who may just be passing by his field at danger because he wants to

use Methyl Bromide?

I and all of my organically farming associates, use many different methods to

avoid the disease and pest problems that Methyl Bromide eliminates from soil. We

rotate crops, cover crop and use compost to suppress plant diseases in the soil. Good

healthy soil structure is our best defense against disease pressure. We use plastic

mulching, flaming machines, tractor work and farm labor to reduce weed pressure.

Solarization, the use of plastic tarps to heat the soil up and kill diseases in the soil

is used in many areas. As farmers work more with these types of alternatives, they

have learned to farm better and can achieve yields similar to conventional producVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 95458.TXT HCOM1 PsN: HCOM1
62

tion methods. As an example, in 1988, a farmer using conventional farming methods

for strawberry production obtained 5000 crates per acre as compared to an organic

farmer who obtained around 2000 crates per acre. As growers have become better

at farming strawberries organically, many growers obtain yields only 10-15% less

then conventional farmers (California Extension Organic Strawberries Cost of Production Studies, 2003).

Farming without Methyl Bromide can take more time for the farmer because of

the extra tractor work needed and other land preparation. The same parcel of land

can not be farmed continuously also with the same crop which can be difficult for

growers who have never grown other crops.

Sixteen years ago, I was researching Methyl Bromide alternatives. California Agricultural Extension knew then that certain materials held promise for strawberry

production and others were not viable for many reasons. In 2002, the Strawberry

Advisory Commission was still funding small 100-200 ft research plots with many

of the same materials. How is this going to teach and encourage strawberry farmers

to look at and learn to use alternatives? Research trials of ° acre or more on producing farms need to be done by many farmers so they can begin to move away from

Methyl Bromide. When I asked a large 300 acre conventional grower how many alternatives he had tried in 2003 and before, he stated none. This same grower had

been a board member of the Strawberry Advisory Commission and he stated ‘‘we

are going to get an exemption until 2005 at least so I won’t try one until I have

to. I will stick with what I know works.’’ Because the Strawberry Advisory Commission has been so public on working on the Critical Use Exemptions many other

growers have this same belief.

Before a grower can be anything—organic or conventional—he has to be a

businessperson. If I cannot make the payroll on Friday, it does not matter how I

farm, I will not stay in business. By looking at the records of growth in California

Certified Organic Farmers we can see that growth in strawberries alone has been

155% over the last 5 years. Obviously some growers are figuring out they can make

money without Methyl Bromide.

Thank you again for your time. I have included some attachments that will give

you some other back up that farming without Methyl Bromide is possible. Please

feel free to contact me with any questions you may have.

[Additional material submitted are retained in subcommittee files.]

Mr. HALL. Thank you.

Mr. Wolf.

STATEMENT OF JAMES WOLF

Mr. WOLF. Thank you. My name is James Wolf. I am Vice President of Trane, and Chairman of the company’s Environmental Policy Council. Trane is a business of American Standard Companies.

We manufacture heating and air-conditioning equipment for small

and large buildings and are the world’s largest manufacturer of

building chiller systems.

I am pleased to tell you that we are also the leader in the manufacture of highly energy-efficient building chillers. Also, at our

manufacturing facility in Tyler, Texas, we manufacture air conditioning and heat pump products for the residential market that

offer consumers industry leading system efficiencies.

Trane has been active in the domestic and international efforts

to protect the earth’s ozone layer since 1980. We have participated

in virtually all the meetings of the Parties, as well as in domestic

efforts to implement this Treaty under the provisions of the Clean

Air Act.

I am not here today because we have a specific business interest

in the use of methyl bromide or its substitutes. I am here because

we have a strong interest in ensuring that the Montreal Protocol

remains an effective vehicle for global ozone protection. The Protocol has been recognized as perhaps the most successful international environment treaty ever negotiated. In our view, it has

63

achieved this recognition because the treaty framework has been

successful at encouraging wide scale cooperation among industry,

government and environmental representatives in order to achieve

well-defined environmental goals in a cost-effective manner.

The Protocol was one of the first policy instruments in the environmental arena to specifically take account of economic issues as

part of its implementation process. The industry approach to addressing this effort has been to manage the issue rather than simply react to it. As such, we have invested countless man-hours in

participation in the scientific and technology assessment processes

that have been so integral to the Treaty’s implementation.

Industry around the world has invested billions of dollars in developing and introducing ozone-friendly technologies. In our company, we took advantage of the technology shift away from CFCbased products, to develop better technology We have improved our

chillers compared to the CFC chillers manufactured in the 1980’s,

to use at least 35 percent less energy. Also, we have reduced the

loss of refrigerant from these chillers from up to 30 percent to less

than half a percent a year.

While industries have invested billions of dollars over the last 17

years in replacing ozone-depleting compounds, the investment has

been small and the disruption less than would have otherwise occurred had we not addressed the issue in a coordinated systematic

way.

As a leading American manufacturer, our message to you today

is that we, like many other American industry participants, have

a substantial human and financial investment in the Montreal Protocol and its processes. Our overall impression is that the Protocol

process has worked and has worked far better than any of us had

expected when it was signed in 1987. That does not mean that the

process is perfect, or that we do not have continued policy and business challenges ahead of us. We want to see the record of success

continue.

We also want the Protocol to continue because noncompliance

status, or U.S. withdrawal from the Protocol, could result in trade

impacts of billions of dollars to U.S. industries. I am not a legal expert, however, my understanding is that noncompliance with the

Montreal Protocol, or withdrawal from the Montreal Protocol, could

adversely affect the United States’ ability to trade with 187 countries that are parties to the Treaty, and cause serious financial

losses to U.S. companies as well as the loss of U.S. jobs.

It is impossible for us to say for certain that such an outcome

would come about because the Treaty has never been confronted

with such a serious breach. We would not want to risk such an outcome, nevertheless.

It has been estimated that current trade in HCFCs and HCFC

reliant technology is around $10 billion a year. This trade could be

jeopardized if U.S. status or participation in the Montreal Protocol

becomes an issue.

The Protocol has worked well over the last 17 years. It has done

so because it has made decisions based on scientific and technical

facts, and with a continued acknowledgement of its goal of balancing key environmental and economic issues.

64

As part of the final chapters of this agreement, there will be continued discussion of the need for exemptions to the phaseout. These

exemptions are a critical part of the Treaty’s effort to balance economic and environmental interests. As with some other uses, I suspect that methyl bromide critical use exemptions will be necessary

for some time to come. From our perspective, I can tell you that

the CUE process appears to have worked well in most other instances over the last decade.

We share the concern of the methyl bromide users, and have

been in their place. We are confident that diligent effort on their

part and on the part of the policymakers will produce policy decisions that are fair and achievable.

To summarize, our experience has been that the Montreal Protocol process has worked better than could have been expected

since its inception in 1987, the process can and will take into consideration key industry supplied data in order to arrive at credible

decisions on phaseout schedules and critical use exemptions. It is

incumbent on the affected industries to invest in developing a credible data base and in educating the parties, including those outside

the United States, on the importance of their use category, and

that the U.S. must do everything it can to remain a party in compliance with the Treaty so as to protect the billions of dollars of investments already made by U.S. companies in ozone protecting

technologies and not jeopardize billions of dollars in trade value of

the U.S. economy.

Thank you very much.

[The prepared statement of James Wolf follows:]

PREPARED STATEMENT OF JAMES WOLF, VICE PRESIDENT, TRANE

Good morning. My name is James Wolf; I am a Vice President of Trane and

Chairman of the company’s Environmental Policy Council. Trane is a business of

American Standard Companies. We manufacture heating and air-conditioning

equipment for small and large buildings and are the world’s largest manufacturer

of building chiller systems. I am pleased to tell you that we are also the leader in

the manufacture of highly energy efficient building chillers that have been installed

in the EPA headquarters building, the White House/Old Executive Office Building,

the IRS Building, the Federal Reserve Board Building, the Department of Interior

Building, the Washington Monument, and the Washington, D.C. convention center

to name a few. The chiller system operating in the convention center is the world’s

most efficient system operating at 0.45 kW/ton, a minimum of 15% better than all

other systems available and this is a 35% improvement over the CFC systems offered in the 1980’s. Also, at our manufacturing facility in Tyler, Texas we manufacture air conditioning and heat pump products for the residential market that offer

consumers industry-leading system efficiencies—up to 19.5 SEER, 50% less energy

consuming than equipment meeting the Federal standard of 13 SEER.

Trane has been active in the domestic and international efforts to protect the

earth’s ozone layer since 1980. As an air conditioning industry leader, we have been

involved in all of the policy negotiations leading to the signing of the Montreal Protocol on Substances that Deplete the Ozone Layer in 1987, and we have participated

in virtually all of the subsequent meetings of the Parties, as well as in domestic efforts to implement this treaty under the provisions of the Clean Air Act. Further,

Trane is a member of the Alliance for Responsible Atmospheric Policy (ARAP), the

industry coalition organized since 1980, which has been the lead industry coalition

involved with the global ozone protection effort. I served for four years as chairman

of the Alliance; I am currently a board member of this organization.

I am not here today because we have a specific business interest in the use of

methyl bromide or its substitutes. I am here because we have a strong interest in

ensuring that the Montreal Protocol remains an effective vehicle for global ozone

protection. The Protocol has been recognized as perhaps the most successful international environment treaty ever negotiated. In our view, it has achieved this recVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6621 95458.TXT HCOM1 PsN: HCOM1
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ognition because the treaty framework has been successful at encouraging wide

scale cooperation among industry, government and environmental representatives in

order to achieve well-defined environmental goals in a cost-effective manner.

In 1986, American industry, under the leadership of the Alliance, called for the

negotiation of an international treaty to deal with ozone protection efforts. This was

seen at the time as the best way to address a global environmental issue. Many of

the industries then relying on ozone destroying compounds, including automotive,

air conditioning and refrigeration, electronics, and medical supplies, were key components of U.S. global competitiveness. Threatened unilateral regulatory measures

at that time would have been damaging to US industries and would not have been

environmentally effective towards protection of the ozone layer

The Protocol was one of the first policy instruments in the environmental arena

to specifically take account of economic issues as part of its implementation scheme.

The industry approach to addressing this effort has been to ‘‘manage’’ the issue

rather than simply react to it. As such, we have invested countless man-hours in

participation in the scientific and technology assessment processes that have been

so integral to the treaty’s implementation. We have also invested thousands of hours

in educating treaty experts and diplomats in the United States and from governments around the world to ensure that they are well versed in the technical issues

related to reducing reliance on ozone depleting compounds as they are making, and

continue to make, important policy decisions.

Industry around the world has invested billions of dollars in developing and introducing ozone friendly technologies. In doing so, we have succeeded in eliminating

the use of the predominant ozone depleting compounds, known as chlorofluorocarbons or CFCs, with a few notable exceptions. While achieving the elimination of

CFC compounds, in most instances we have also been able to improve the quality

and performance of the products replacing the CFC reliant products.

As an example, in our company, we took advantage of the technology shift away

from CFC based products to develop better technology. We have improved our

chillers, compared to the CFC chillers manufactured in the 1980s, to use at least

35% less energy.

Also, since the inception of the Montreal Protocol, and our understanding of the

science, we have taken the industry from what was once a highly emissive application, to that where the chemical can practically remain in the machine for the entire

operating life, while still significantly improving greenhouse gas emissions with superior energy efficiency. For example we have reduced the loss of refrigerant from

20-30% per year to less than 0.5% per year. In fact, we offer the purchasers of Trane

chillers a leak tight guarantee at no cost.

The industry decision to support an international agreement has proven to be a

good one. The treaty has eliminated the ‘‘free-riders syndrome’’, where competing industries in other countries might not have had the same requirements, and has allowed for a collegial effort at the domestic level to meet our ozone protection commitments. While industries have invested billions of dollars over the last 17 years

in replacing ozone depleting compounds, the investment has been smaller and the

disruption less than would have otherwise occurred had we not addressed the issue

in a coordinated systematic way. According to a recent study prepared by the US

EPA and reviewed by the Office of management and Budget, the ozone protection

regulations in the United States have one of the best cost-benefit ratios of any Clean

Air Act regulatory program in the history of the Act.

The cost savings to industry and to the consumer have ultimately benefited the

economy. Furthermore, the industries reliant on the former ozone depleting compounds have been able to continue in business and meet the strong demand for

products that are safe, healthy, energy efficient, and non-flammable so that these

technologies continue to offer substantial benefits to our society overall.

As a leading American manufacturer, our message to you today is that we, like

many other American industry participants, have a substantial human and financial

investment in the Montreal Protocol and its processes. Our overall impression is

that the Protocol process has worked and has worked far better than any of us had

expected when it was signed in 1987. That does not mean that the process is perfect

or that we do not have continued policy and business challenges ahead of us. It is

a unique international institution that has worked because of strong American influence from all corners—industry, government, environment, and academia. We

want to see that record of success continue.

From a more parochial perspective, we also want the Protocol to continue because

non-compliance status or U.S. withdrawal from the Protocol could result in trade

impacts of billions of dollars to U.S. industries. I am not a legal expert, however,

my understanding is that non-compliance with the Montreal Protocol, or withdrawal

from the Montreal Protocol, could adversely affect the United States’ ability to trade

66

with the 187 countries that are parties to the treaty and cause serious financial

losses to American companies as well as the loss of American jobs. It is impossible

for us to say for certain that such an outcome would come about because the treaty

has never been confronted with such a serious breach. We would not want to risk

such an outcome nonetheless.

As an example, the encouragement of the use of HCFC technologies in transition

away from the use of CFCs has been critical to assuring the treaty’s cost-effective

accomplishments. These HCFC technologies are currently employed in a wide array

of uses including in air-conditioning and foam insulation. The Alliance has estimated that current trade in HCFCs and HCFC reliant technology is around $10 billion per year. This trade could be jeopardized if U.S. status or participation in the

Montreal Protocol becomes an issue.

The Protocol has worked well over the last 17 years. It has done so because it

has made decisions based on scientific and technical facts available when the decision was being made, and with a continued acknowledgement of its goal of balancing key environmental and economic issues. It is important not to confuse hard

bargaining with an incorrect approach. History has shown that the bargaining has

always been a challenge. A challenge that has been met because of the credibility

brought to the process by frank discussions of scientific, technical, and economic

issues, as well as key political considerations. We would hope that the Montreal Protocol will follow the latest science and understanding of the current technology as

future decisions are made, rather than relying on the earlier science and state of

the technology available when the Protocol was first developed.

Because of the success of the Protocol, decades have been shaved off of the projected date of recovery of the earth’s ozone layer. But the treaty’s ultimate success

depends on the completion of its remaining objectives, including the developing

country phaseout of ozone depleting compounds, and the ultimate elimination of

other compounds such as methyl bromide. U.S. influence is a desired and needed

component to effectively achieve these objectives. This requires the U.S. to remain

an active and effective party to this agreement.

As part of the final chapters of this agreement, there will be continued discussion

of the need for exceptions to the phaseout. These exceptions are a critical part of

the treaty’s effort to balance economic and environmental interests. As with some

other uses, I suspect that methyl bromide critical use exceptions will be necessary

for some time to come. From our perspective, I can tell you that the CUE process

appears to have worked well in most other instances that we have witnessed over

the last decade. This process has worked because of the credibility brought by industry and government discussions of facts and by the commitment of all interests towards a balanced approach. It would be our expectation that the CUE process for

methyl bromide would be no exception to this approach.

The transition process away from ozone depleting compounds has been very similar across the wide variety of affected industries. As in the agricultural arena, we

have large corporate producers and users of the compounds impacted by this treaty.

In many instances, we also have thousands of small businesses whose livelihood is

dependent on the availability of these compounds or their identified substitutes. A

critical component of the Protocol process, which has been incorporated into US domestic implementation laws, has been the identification of suitable substitutes and

reasonable expectations for market penetration of these new compounds or technologies.

This transition planning has been a significant challenge. It has required extensive work in planning, education, and familiarization of thousands of small businesses with technologies being developed by large corporate suppliers and manufacturers. Our own company had to do this with our network of dealers, suppliers, and

contractors. And we succeeded.

The transitions were usually accompanied by a firm but fair reduction schedule

that recognized the needs of these user groups and appreciated the value of the investment being made in the new technologies. Our experience has been that the

process can and will work. It does require a great deal of hard work in developing

and delivering credible information to policymakers, and in implementing the substitute technologies once identified.

We share the concern of the methyl bromide users and have been in their place.

We are confident that diligent effort on their part and on the part of the policymakers will produce policy decisions that are fair and achievable. For the sake of

all who have gone before them, we would want no other outcome so that the Protocol can live up to its reputation as an institution that is achieving its environmental objectives while balancing the economic needs of those impacted by its provisions.

67

To summarize, our experience has been that the Montreal Protocol process has

worked better than could have been expected since its inception in1987; the process

can and will take into consideration key industry supplied data in order to arrive

at credible decisions on phaseout schedules and critical use exemptions; it is incumbent on the affected industries to invest in developing a credible data base and in

educating the parties, including those outside the US, on the importance of their

use category; and that the US must do everything it can to remain a Party in compliance with the treaty so as to protect the billions of dollars of investments already

made by U.S. companies in ozone protecting technologies and not jeopardize billions

of dollars in trade value of the U.S. economy.

Thank you for the opportunity to provide information on this important topic.

Mr. HALL. Thank you very much. That completes the testimony,

and we will have some questions now, and I will recognize myself

for 5 minutes.

Dr. Mueller, you are phasing out the use of methyl bromide,

right?

Mr. MUELLER. Yes.

Mr. HALL. Can you foresee any circumstances where you might

use it again and, if so, what might these be?

Mr. MUELLER. I have thought a lot about that question, and

right now—I am an entomologist, and resistance is an issue that

I am always concerned about, and resistance management is a

major part of the components that I build into my international

phaseout programs in places like Thailand and Ivory Coast. So, if

we can prevent insects from becoming resistance to some of our

more popular fumigants that we are using as alternatives, I don’t

think we need methyl bromide. Maybe something else will come

along in the meantime. If we can’t, then maybe we will need methyl bromide.

Mr. HALL. Is something else coming along now?

Mr. MUELLER. Yes, there is. Sulfuryl fluoride, a product that has

been used for termites——

Mr. HALL. Who produces that?

Mr. MUELLER. That is a Dow AgroScience product. I think there

is a company also in Koln, Germany, that makes that product, too.

Sulfuryl fluoride looks to me—if I was asked what I would rotate,

let us say, a grain fumigation with, I would use sulfuryl fluoride.

Mr. HALL. What impact will the phaseout of methyl bromide

have on your fumigation business?

Mr. MUELLER. I guess I really won’t know until January 1 of

next year. I have told everybody in our company, without methyl

bromide, that we would freeze their salary and their income for

this year, even though we know that we are going to lose some

business.

Mr. HALL. Mr. Brown, because your Congressman might not

make it, let me ask some questions that he may want to ask you.

Have you tried alternatives to methyl bromide?

Mr. BROWN. Mr. Chairman, we have been trying alternatives to

methyl bromide since we were aware that methyl bromide was

under the gun to be phased out. As a matter of fact, this year alone

the Florida Tomato Committee will invest something over $120,000

to $150,000 in research, in conjunction with our land grant college

and USDA research facilities in the State of Florida.

Mr. HALL. Which ones have you found most effective?

Mr. BROWN. In some circumstance, we have found some of the

Telone C35 compounds to work, but we have a pest in Florida—

68

I hope you don’t have it in Texas—called ‘‘nutgrass,’’ and it will

come up through concrete pavement if you give it a crack. And we

produce many of the vegetables in Florida that use methyl bromide

during a full-bed plastic mulch, and the purpose of that mulch is

basically to cover the surface of the bed to keep rainwater from

passing through the bed and leaching fertilizer so we have a management system for nutrition and growth of that plant.

When nutgrass comes up in those beds, it is like growing those

crops under screen, and it doesn’t work. And to date, we don’t have

an effective control compound for nutgrass control and the use of

alternatives in Florida that allows us to produce those crops with

those systems.

In other areas, we have the Telone C35. The Telone compound

is not registered in some counties in Florida simply because of the

risk to groundwater. We have topography in Florida that prevents

the use of Telone in accordance to its label in Florida due to coarse

topography, and that prevents any major migration to that alternative group by the industry. But we continue to do research. We

are doing research this season in large field plots with virtually impermeable films, which are films that are being imported currently

out of Europe, not produced in the U.S., that would basically cover

those growth surfaces with a plastic material that would prevent

any ex-gassing or migration of methyl bromide out of that soil system. And if we were truly addressing the issue of ozone-depletion

and methyl bromide’s risk to the ozone, if we don’t let it escape,

it shouldn’t even be considered to be a use, but it all falls into the

pot with scrutiny as we currently have it structured.

Mr. HALL. You represent the tomato growers in most of Florida,

the State?

Mr. BROWN. That is correct.

Mr. HALL. What steps—not you personally—but what steps have

you observed for the other growers to have taken to reduce the use

of methyl bromide up to this date?

Mr. BROWN. We have been reducing the rate of methyl bromide

on a per acre basis throughout the State. We have been combining

it with larger and larger quantities of chloropicrin, which is a compound very similar to teargas that is used for some soil disease

control programs. We do have some migration to the Telone alternatives in some areas where we have some legitimate use for it,

but the industry has progressively moved forward trying to solve

that problem, but we have reached the point we don’t have a complete solution, and therefore that is why we have a critical use request in place with USDA and EPA.

Mr. HALL. All right. My time has expired. Mr. Allen, recognize

you for 5 minutes.

Mr. ALLEN. Mr. Chairman, I will try not to take more than that.

Mr. Chairman, I would first like to ask unanimous consent to enter

into the record a copy of the membership list of the Alliance for Responsible Atmospheric Policy, a group that Mr. Wolf’s company

trained as a member of, and I want to note for members of our subcommittee that this organization includes some of the Nation’s

largest employers—General Electric, Ford Motor Company, Maytag

Corporation, and Owings Corning, among many others—who, acVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6602 95458.TXT HCOM1 PsN: HCOM1
69

cording to Mr. Wolf’s testimony, could lose billions of dollars in

trade if we violated the Protocol.

Mr. HALL. Is there objection to the admission? The Chair hears

none. It is admitted.

[The information referred to follows:]

THE ALLIANCE FOR RESPONSIBLE ATMOSPHERIC POLICY

MEMBERSHIP LIST

Aeroquip Corporation; Air Conditioning Contractors of America; Air Conditioning

& Refrigeration Institute; Air Conditioning & Refrigeration Wholesalers Association;

Air Mechanical; Alliance for Polyurethanes Industry; Alliance Pharmaceutical Corp.;

American Pacific; American Plastics Council; Arthur D. Little; Association of Home

Appliances Manufacturers; ATOFINA; Bard Manufacturing Co.; Beltway Heating &

Air Conditioning Co.; Cap & Seal Company; Carrier Corporation; Central Coating

Company; Cetylite Industries; Copeland Corporation; Delphi Automotive; Dow

Chemical U.S.A.; Dupont; E.V. Dunbar Co.; Falcon Safety Products; Fluorocarbon

Technology Corp.; Foam Enterprises; Foamed Polystyrene Alliance; Foamseal; Ford

Motor Company; Forma Scientific; FP International; GE Appliances; General Electric Company; General Motors; GHG Associates; Gilman Corporation; Great Lakes

Chemical; H. C. Duke & Son; Halogenated Solvents Industry Alliance; Halotron;

Halsey Supply Co.; Hill Phoenix; Honeywell; Hudson Technologies; Hussmann Corporation; IGC Polycold Systems; INEOS; Institute of International Container Lessors; International Association of Refrigerated Warehouses; International Pharmaceutical Aerosol Consortium; Joint Journeymen And Apprentice Training Trust; Joseph Simons Company; Kysor Warren; Lennox International; Lintern Corporation;

Luce, Schwab & Kase; MARVCO; Maytag Corporation; McGee Industries; MDA

Manufacturing; Mechanical Service Contractors of America; Merck & Co.; Metl-Span

Corporation; 3M Company; Mobile Air Conditioning Society; National Refrigerants;

Northland Corporation NYE Lubricants; NYE Lubricants; Owens Corning; Perlick

Corporation; Refrigeration Engineering; Refrigeration Service Engineers Society;

Refron; Remtec International; Revco Scientific; Ritchie Eng. Co.; Siemens; Solvay;

South Central Co.; Society of the Plastics Industries; Sporlan Valve Co.; Spray Foam

Alliance; Sub-Zero Freezer Co.; Tech Spray; Tecumseh Products Co.; Thermo-King

Corporation; Thermoquest; Total Reclaim; Trane Company; Tyler Refrigeration

Corp; Union Chemical Lab, ITRI; United Refrigeration; Unitor Ships Service; Vulcan Materials; Wei T’O Associates; White & Shauger; W.M. Barr and Company;

Worthington Cylinder; York International Corp.; and Zero Zone Ref. Mfg.

Mr. ALLEN. Mr. Doniger, in the administration’s written testimony, the State Department witness states that parties to the

Montreal Protocol can ‘‘seek an exemption from the 2005 phaseout,

if it determines that the absence of methyl bromide would cause a

significant market disruption.’’ The testimony suggests that exemptions are only available to the 2005 phaseout, and that exemptions

are not available for the 2003 reduction to 30 percent of baseline

levels.

There is no critical use exemption for the interim 2003 reduction

to 30 percent of baseline under the Montreal Protocol. Is there, or

is there not?

Mr. DONIGER. You are correct. The exception is supposed to be

only for that last step between the 70 percent reduction and getting

to zero. And so talking about any exemptions above 30 percent is,

in my opinion, a breach of the Protocol.

Mr. ALLEN. Has that been challenged by any other parties to the

Treaty?

Mr. DONIGER. Well, in a way, yes, because the solution that the

parties came up with in the March Extraordinary Meeting is double-capped, that has been referred to, an upper limit on use and a

lower upper limit on production and consumption, the 35 and the

30 percent. But I would emphasize that in the decision from

70

March, the parties set those numbers for the United States and different numbers for other countries as upper limits. And each country is obliged under its domestic law, to consider whether current

data on use, current data on stockpiles, would allow for the number

to be lower in 2005. And that is the rulemaking that EPA is required to undertake later this year.

The parties also decided in 1997 that there should be no new

production—even if there is need, there should be no new production if there is a stockpile. And the United States has never been

forthcoming about the amount of the stockpile.

Mr. ALLEN. Thank you. I understand that there are critical use

exemptions to exempt activities that are in some way—I understand the critical use exemption is there to exempt activities that

are in some way unusual. If the United States was unwilling to

ban the use of methyl bromide for its most common function, as a

pre-plant soil fumigator, we would never have agreed, and in fact

fought for, a full phaseout under the Montreal Protocol and the

Clean Air Act.

Do the critical uses listed in the U.S. application include soil fumigation, do you know?

Mr. DONIGER. Well, they do, yes. For example, two of the big

ones are for tomatoes and strawberries. But I would just say that

I don’t think there is any category of use which is not eligible to

ask for an exemption, it is the amounts that are in question. It is

the huge amounts that are in question. If there were a tail in the

phaseout for which there is genuinely no alternative, whether it is

field fumigation or mills and so on, it seems to me that as a categorical matter they are all eligible, but I am concerned that they

have not made their case and they have not drawn down the

stocks.

Mr. ALLEN. Were you here this morning when Ms. McMurray

testified for the State Department?

Mr. DONIGER. Yes.

Mr. ALLEN. You may recall, she testified that in their negotiations, they always want to ask for more than they actually need.

Did you have any reaction or comment on that testimony?

Mr. DONIGER. Well, I thought it was a very honest comment, and

it should be reflected that in my opinion, the grower groups have

constructed their applications on the same principle, that they have

asked for amounts that would give them the maximum comfort

zone, so to speak. They have put in for more than they need.

The nematodes don’t attack everywhere at once. There is a notion in these applications, though, that every single use, every single farmer, ought to have a number which is the reserve against

the pest outbreak occurring everywhere at once. It just doesn’t happen that way.

Mr. ALLEN. If I could just finally turn to you, Mr. Mueller. In Ms.

McMurray’s prepared testimony—she didn’t include it in what she

was—she had to shorten her testimony for this morning, but in her

written testimony she struck a theme that was much like the

theme you were saying—you were describing in your testimony.

She said that ‘‘staying the course matters to public health and to

the ozone layer, but it also matters to the many businesses who

took the risk of investing heavily in alternatives that do not damVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6602 95458.TXT HCOM1 PsN: HCOM1
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age the ozone layer. A recent letter to EPA from companies making

this choice’’—like yours—‘‘have built a $10 billion business and

trade with ozone-safe American products and technologies that

could be at risk if the United States were to take action inconsistent with its commitments under the Montreal Protocol.’’

Is there anything in that statement that adds to what you said,

or do you have any comment on that statement from her, as reflecting the administration’s position?

Mr. MUELLER. Yes, I do. You know, so often we talk about fasttrack alternatives, and maybe a company is going to come in and

take advantage and build this new silver bullet out there. I

brought, in 1995, a product over from Australia. It is a cylinderized

phosphine material. We have phosphine already registered since

the 1950’s in the United States. And it took 5 years and $5 million

to get the first methyl bromide alternative for structural fumigations approved by EPA.

So, if you are trying to make money in this business by coming

out with a new product and getting rich, it is going to take a long

time, and it is going to take a lot of money.

Mr. ALLEN. Thank you, Mr. Chairman, I yield back.

Mr. HALL. Thank you. The Chair recognizes Mr. Radanovich, the

author of the legislation, for questions.

Mr. RADANOVICH. Thank you, Mr. Chairman, again, for having

this hearing, and apologize for having to duck back and forth, but

I did want to question the panel. Ms. Bogenholm, I enjoyed your

testimony, I thought it was very valuable. And I do have a couple

of questions. One is, you are pretty much talking about integrated

pest management as a means of addressing what would be a methyl bromide problem.

Ms. BOGENHOLM. Correct.

Mr. RADANOVICH. The other question I have is, not knowing the

size of your operation, but are those techniques economically

worthwhile in large scale farming?

Ms. BOGENHOLM. Definitely. And, you know, my company grosses

over $2 million a year. I am not what you would call a small farmer, according to USDA. I ship berries all over the world. And all

these techniques I talk about, which are cover cropping and using

compost and different fish emulsions to buildup my soil matter, all

of those things are available and they are integrated pest management techniques.

Mr. RADANOVICH. Thank you. Paul Wenger, welcome to the subcommittee. As a constituent of mine, I really warmly want to welcome you. Just because you are my constituent doesn’t mean I am

going to throw you softballs, but I am kind of curious, if you could

give me your story about the use of methyl bromide. Either there

is going to be a replacement there, or there is not. It seems to me

that there is a lot of talk. I have heard from many folks in chemical

industries that say that they do have alternatives available, but

they are just not being allowed—forcing farmers to use them.

Can you give me your down and dirty on this thing.

Mr. WENGER. Well, I think there are a couple of things. One, you

have probably seen the use of methyl bromide go down because it

is extremely expensive. So, as orchardists, during the late 1990’s

we saw prices we hadn’t seen so low since 30 years ago. When you

72

came to put a second generation orchard in, you had to look very

hard at how much you were going to spend for methyl bromide. Besides that, the fact that the Department of Pesticide Regulation in

California has come down with more stringent guidelines about the

use, so if you are around any kind of a house or school or anything,

as I said, any kind of surrounding exposure—there is going to be

certain parts of your field you can’t treat. So, then you have to take

a look at do I really treat the whole field if I only treat a part of

it.

Like Mr. Doniger said, maybe nematodes aren’t everywhere at

once, but tell me where they are in the soil. And we do do soil sampling. We do an awful lot of soil sampling because we don’t want

to spend up to $2,000 an acre, if we don’t have to. And that could

be 50—well, it could be anywhere between 40 and 50 percent of

your cost of just putting a new orchard in, not counting land values. And so in 1999, when we put in a second generation walnut

orchard, and we followed the El Nino year of 1998, and so the trees

came out of the nursery, they had been in the nursery 2 years, very

high pith, counts on the roots. A good friend of mine had a farm

next to me, he was putting in an orchard, a second generation orchard just like mine, but doing it for an absentee landowner. The

absentee landowner had a lot of money and they wanted to do the

full route. And so they went the full methyl bromide application,

and I said, well, we are going to lose methyl bromide, I think it

is time I find out how to do it the organic way or the biological

way—not necessarily organic, but biological.

So I talked to Tom Umasha and Cherlock Sunburs, an agronomist, he knows these kind of things. He took soil sampling. He

came out with biological things that we could do. We inoculated the

roots, we put the trees in the ground, and they didn’t grow.

The other fellow, his trees didn’t grow at first either. We both

took soil samples. We had another agronomist come in. We took

root samples, pithuniphyte was terribly, terribly high. He had no

nematodes, my nematode counts were off the charts. In about 3

weeks, his trees started to grow. This year, he will harvest 3 tons

to the acre. I have probably got 2 more years before I will get a

ton to the acre.

Now, if you had a full planting like that, you would be broke.

Luckily, it is only a 17-acre field, so I thought I have got to experiment, I have got to find out. Since then, we have put on ridamil,

datura, we have put on fertilizers, we have put on cattle manure,

chicken manure, we have put on sheep manure, we have put on

grape compost. We use a cover crop every single year, and it is a

fight. By the time I get the orchard going, I will have replanted 75

percent of that original orchard.

Mr. RADANOVICH. Essentially, what you are saying is that integrated pest management or any IPM approach is good, but it is

still not going to solve your needs.

Mr. WENGER. It is tough because if you are going in virgin

ground—and we call virgin ground something it didn’t have—unfortunately, we can’t do crop rotations with vines and trees. And

so sometimes you have those options with other crops that are annual, we don’t have those options. But if we go into where there

has not been any perennial crop before, we will take soil samples.

73

A lot of times you can get away without doing any kind of fumigant

at all, and we have done that and been very successful. But what

we are looking at now in California is second generation and third

generation orchards, orchards that have been in for 30, 40, 50

years, they are coming through now and taking those trees out,

and then what we call the next generation, and sometimes now it

is a third generation orchard.

Mr. RADANOVICH. And in your case, you are not going to be using

methyl bromide except for pre-plant for a vineyard or an orchard

that is going to last anywhere between 20 to 40 years.

Mr. WENGER. Right. And now looking back, 20-20 hindsight,

when you look back at the time in 1999, I thought I have got to

go out and borrow more money, pay more interest for what at that

time was going to cost around $1800 an acre. So, I didn’t have the

money. Now, if I look back, I should have borrowed the money. I

would have been money ahead.

Mr. RADANOVICH. Mr. Brown, you made a comment earlier on tomatoes, the use of methyl bromide, and how you have been able to

decrease it, part of what was used in order to decrease its use per

acre over the years have been in association with a different chemical, and I am not really aware of that. But, Mr. Wenger, too, you

mentioned that there has been—because of the price, has caused

you to use it more efficiently. Is that the answer, or what has been

the main reason why it has decreased in its use—I will ask both

of you, maybe Mr. Brown first—over the years? Why have you been

able to accomplish that?

Mr. BROWN. Margins in the tomato business are about like it is

in the nut business in California, they are real thin or nonexistent.

And every dollar you spend in producing a crop is a dollar you have

got to struggle to make back on the other end of the enterprise. So

there has been a real sense, not only with the phaseout, but a real

economic sense of trying to be extremely efficient in use of the compound.

The chloropicrin compound is a way of reducing the poundage of

methyl bromide on a per acre basis, and we also, in effect, do a

strip mulch for the bed, rather than the sheet fumigation that you

may see in California.

Mr. RADANOVICH. Mr. Wenger—and if you would add in there,

too, what experience you have had in using some of these alternatives that are out there.

Mr. WENGER. Well, one of the first things we did on hole fumigation where we have a tree blow over and die, we come back and

we treat, have methyl bromide in a site treatment, and I will do

all that application myself, and it has been a very safe compound

to use. Just like anything, you want to be very careful.

Mr. RADANOVICH. That is in like probably a 10 foot by 10 foot

area——

Mr. WENGER. Right. Have to go back to a tree hole, and you will

go ahead and you will put a pound and a half of methyl bromide.

It used to be that methyl bromide was 98/2—98 percent methyl

bromide, 2 percent chloropicrin. The chloropicrin was a teargas

that would let you know if you had any exposures and to get away

from it. It was a safety feature.

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So then what they started doing with the phaseout is going to

a 75/25 and a 60/40. One of the things we experienced is

chloropicrin is also a fumigant, does not leave the soil very quickly,

and it takes a much longer time, especially in cold temperatures.

We usually do our transplanting in January-February when the

temperatures are cold, we will fumigate somewhere in October-November. So, with damp moisture in the ground from the rains and

the colder temperatures, we started planting our trees and found

out they weren’t growing. Now we have learned that chloropicrin

will stay in that soil for a lot longer time. So, now you have to do

a different management practice, either fumigate way early or wait

another year to go ahead and plant. And so because of that, if you

could ever find—if you are ever able enough to get some 98 percent, then that is what you want to use.

The other thing I might mention, too, lately now, just the reverse

of 1999, as you know, commodity prices go up and down. We are

now experiencing some very good prices in the almond industry.

And so the usage on second generation orchards is going to go

down because any orchard that will produce even a minimal crop

is staying in the ground. You know, when prices are good, you don’t

take trees out. In the next couple of years, we have seen a huge

planting increase, a lot of that on virgin soil. So, as soon as those

orchards come into production, we are going to have an oversupply

mode, price is going to go down, as we know, and all of a sudden

you are going to see an awful lot of demand for methyl bromide

again, even though you will say that in the past it has been decreasing in its usage. But down the road, as those orchards, now

the price comes down, people are going to say, if I am getting 1,000

pounds to the acre, and it goes down to less than $1.00 a pound,

I can’t even make my way on it for the annual expenses, I am taking the orchard out, and then try to get in that cycle again. And

so there will be greater demand. So you can’t just look back and

say, well, historically, we are reducing methyl bromide. I mean, we

are talking about a biological world here, that people are keeping

trees in more now, and as soon as the price goes down, that is

when growers will make the management decision, it is time to

yank those old unproductive orchards and replant and start the

cycle all over again.

Mr. RADANOVICH. Mr. Chairman, I realize I am way over my

time. I would like another round, if we can, before closing.

Mr. HALL. Can you continue? We are not planning to have another round. Can you continue for another couple of minutes?

Mr. RADANOVICH. I can. I think Ms. Capps would——

Ms. CAPPS. Would you mind taking a second round, I have some

people waiting for me in my office. I am sorry. Would you be willing, Mr. Hall——

Mr. HALL. Have you completed your questions, Mr. Radanovich?

Mr. RADANOVICH. For now. I would be happy to yield to Ms.

Capps.

Ms. CAPPS. That would be wonderful.

Mr. HALL. The gentleman yields to Ms. Capps.

Ms. CAPPS. Thank both of you gentlemen for yielding to me. I

didn’t want to miss an opportunity to talk with a fellow representative from the Central Coast of California, Ms. Bogenholm. We are

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neighbors to each other, if I may say. Mr. Farr represents you, and

I have farmers with good strawberry yields as well, and lots of

wine grapes, and you have artichokes, we have broccoli, but it is

a lot of the same kind of agriculture. And we also have similar interests among our constituents and your customers in organic

farming. I commend you for your description of ways that this can

be done. Lots of folks now are asking for pesticide-free fruits and

vegetables when they go to the market. Both you and Mr. Mueller

have played by the rules and, Mr. Wenger, your story is apropos

to my concern and interest here. You have invested time and

money into researching and using developing safer alternatives. In the first panel, I asked the USDA about the $150 million

spent on research for alternatives, and I am asking you the same

question—is this enough money? What else can we be doing to assist growers and farmers in this area?

Ms. BOGENHOLM. I would like to address the money situation

just because I know you guys have lots of things you have to be

experts on. The average acre of strawberries grosses $35-40,000 annually. So, when you hear about other fumigation situations costing $200 more an acre, that is really a small amount compared to

what that grower is spending to grow that crop. And there are

other options that cost more money, and that is the situation that

is occurring.

Now, you talk about research dollars, and research dollars have

been very, very small in the methyl bromide situation when I started back in 1988 to now. And so in the last couple of years, you have

really seen the money ramp up, but what you haven’t seen is individual growers doing their own research, which growers do all the

time, but in the methyl bromide situation, growers weren’t willing

to try, that is where you will see the difference.

Ms. CAPPS. That is why I am asking—and others can jump in,

too. Why have we not made more progress, is it because this is a

partnership and we need to be incentivizing growers perhaps more?

Ms. BOGENHOLM. I truly believe you do incentivize growers to do

more research, and I think that individual growers need to have a

situation where basically 3 to 4 percent of their production overall

is looking at alternatives in order to use methyl bromide, in my

personal opinion.

Ms. CAPPS. Oh, have it be that.

Ms. BOGENHOLM. Have it be a requirement by a commodity so

all the growers have to try something so that they have to do it;

otherwise, growers will never learn how to—you can’t just go look

at somebody else’s field and see what he did and say, ‘‘Well, I can

do that now.’’ You have got to be trying yourself, or else you would

never learn how to do it.

Ms. CAPPS. And the incentive would be there, or the little push

to do it, and that would be something that could help growers step

over that line. I want some comment, if I have time, but this is my

concern. As long as we continue to delay the phaseout, are we continuing then to disincentivize—is that a proper word—are we working at cross-purposes with what this hearing is about. I am thinking of farmworkers’ lives, pesticide handlers, school children in

nearby communities that get the drift—and it is really hard to protect them from this—in addition to the ozone factor. I wonder if we

76

are spending enough time considering those alternatives that yield

better health and safety benefits. And in whatever time I have left,

I will leave it to whoever wants to comment on that.

Mr. MUELLER. I have thought a lot about that, and I believe that

the stakeholders or the enterprises have a responsibility to come

up with alternatives themselves. It isn’t like there is one answer

where you can go out and just dial it in and say it is going to work.

Even a flour miller, a flour miller with an old mill might have different needs than a flour miller with a brand new mill, or in different geographic locations. So, I think it is up to the individual,

and I think there is a price to pay for protecting the environment.

Ms. CAPPS. Well, what do you think of her idea if, in order to use

methyl bromide on the majority of your crop, that you would be required—because it really does come down to individual needs,

doesn’t it, and what works on particular areas—and someone else

wants to respond. Thank you. Dr. Mellano.

Mr. MELLANO. I am very sensitive to your concern about health

and safety. This morning, you talked about methyl iodide——

Ms. CAPPS. I didn’t, but it was brought up.

Mr. MELLANO. It was brought up. Methyl iodide was synthesized

by Ord and Simms at U.C. Riverside about 10 or 15 years ago. And

one of the first experiments that was done on that was done at our

place because I know them. They were actually classmates of mine

in school. And I think before you think about methyl iodide as a

full-scale substitute for methyl bromide, you ought to take a look

at the LD50’s. It is highly toxic. In addition to that, it is a liquid

at room temperature, which means it can get into the groundwater,

and that is one of the reasons why it is not registered.

Now, it works very well. We have been experimenting with it for

10 or 15 years, and we would very much like it to be registered.

It will allow us to reduce our methyl bromide use. But I am very

much afraid that we may not want what we get there because of

the groundwater problem and the toxicity.

Now, relative to farmworkers, the methyl bromide has no effect

on the farmworkers because it is gone by the time they come in.

And the methyl iodide which is a liquid at room temperature, stays

in the soil significantly longer and, therefore, there will be more exposure. So, those are some of the problems that we are dealing

with.

Now, I do want to say one thing. I stand corrected on the China

thing. I made a technical mistake. It is true that China signed last

year, but they still don’t have to phaseout the use of their methyl

bromide, so the basic premise that I made is still correct. And I am

sorry I made that mistake.

Mr. HALL. Do you want to be heard?

Mr. BAIR. Yes. In response to Ms. Capps’ question about alternatives and their uses. If you go to the NRDC Web site, which Mr.

Doniger represents, virtually every alternative that has been discussed is a viable alternative or a potential alternative for methyl

bromide replacement in the industries that I am familiar with, is

under attack for some other toxicity or some kind of related problem with those compounds, which gives you a very uncomfortable

feeling as are we basically walking off the plank.

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Mr. MELLANO. Methane sodium is a primary material, and it is

being re-registered, and we are going to lose it, maybe.

Mr. MUELLER. Just two quick comments, if I could, please. All we

really need is a menu, a menu to be able to choose from, that we

can try A, C and D and combinations to make these things work,

and not just one by itself. That is what we have found to work for

us.

No. 2, I disagree a little bit. I spent 8 days in the hospital with

burned legs and abdomen from methyl bromide. It was the most

painful experience of my life. And if you don’t believe that, anytime

you get burns, second degree burns, those are very painful.

Mr. DONIGER. I think it is worth pointing out that the farm community needs to think about some choices, too, because at these

hearings you bring forth witnesses, as they should, who have the

most compelling stories to tell, but behind them are a lot of people

who actually have less compelling stories to tell. And when they

have exemptions which are too big, it is actually making Mr.

Wenger’s life more difficult, and Mr. Mellano’s life more difficult,

because it is being misused in its lower value uses.

I have never said the methyl bromide exemptions should go to

zero. What we are saying is that they are too high, and they can

be lower.

Ms. CAPPS. Thank you.

Mr. HALL. The Chair thanks the gentlelady, she yields back her

time. The Chair recognizes Mr. Issa, the gentleman from California.

Mr. ISSA. Thank you, Mr. Chairman, and this is an important

hearing, and obviously we have way too many questions and you

have way too many answers for us to squeeze into our limited day.

I am a former businessman, so perhaps not having the kind of

farm expertise of even one-quarter of one of you, I am going to have

to limit my questions more to that sort of part of it.

One that I would have for Mr. Bair, what happens if insects

found in a mill—what are the consequences if an alternate system

were to fail in a mill—in other words, if you don’t use methyl bromide as the most effective system, what happens when a mill fails

inspection?

Mr. BAIR. Well, two things. One would be that you would likely

be subject to FDA action, including seizure of your food as being

adulterated, which obviously is something very serious. But perhaps even more important than that is that you run the risk of angering your customers. I mean, food companies have spent decades,

some of them more than 100 years, developing a consumer allegiance, a loyalty to their particular product. And the last thing

they want to do in a low margin business is anger any customers.

Mr. ISSA. So it would be fair to say you would end up in about

the same position that the company formerly known as Firestone

Tires found themselves in, you are essentially talking about a business that has zero-tolerance for failure to provide a healthy safe

product?

Mr. BAIR. It is a zero-tolerance. The gentleman who testified in

our behalf last year before the subcommittee discussed sifting flour,

and we all remember seeing grandmother or mom sifting flour

when they baked. And most people assumed that sifting flour had

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something to do with imparting—it baked a better cake, or baked

a better loaf of bread. The reason grandmother sifted flour was to

get the bugs out. And the reason nobody sifts flour anymore is because there aren’t bugs in the flour in the first place, and methyl

bromide helps us do that.

And I would like to respond, too, there has been a lot said about

alternatives here, and I would like to just quickly go through those.

To Mr. Wolf, I just want to say, in his words, he said ‘‘We have

been there,’’ in the Montreal Protocol. With all due respect, you

have not been there.

The refrigeration and air conditioning industries, when they

phaseout CFCs, first of all, the alternatives were already available.

That was a question of engineering and physics. They know what

that molecule needs to look like to make refrigeration work.

An example that we are talking about with methyl bromide, it

is not an engineering question, it is a biological question. Insects

evolve, insects develop resistance, they are changing all the time,

weather changes, soil patterns are different—it is a biological problem.

Mr. ISSA. I think not only have you made your point, but I think

even among people who might be not totally supportive of the numbers, there is a consensus that at the present time, 100 percent

elimination of methyl bromide is not yet appropriate, and I apologize, but I am going to run out of time here.

I guess one quick question which would be for Mr. Brown, if tomorrow California and Florida stopped growing tomatoes, with the

alternate—it could happen—with the alternate places that tomatoes come from, Mexico being a major supplier, would there be any

less methyl bromide being used today if the two major producing

States went out of the business? Do the alternate countries use

something else, or do they essentially use the same or greater

amount of methyl bromide per acre?

Mr. BROWN. I can’t absolutely officially speak on behalf of a

Mexican industry that I don’t work for and don’t represent, but the

use of methyl bromide in other parts of the world continues and

has a right to continue out to 2015 for those nondeveloped countries.

Mr. ISSA. Okay. Dr. Mellano, in the case of the flour industry

particularly, as a San Diegan, we both know that many growers

have operations both north and south of the border. If methyl bromide went to zero today, would your 625 acres essentially—not

that you would do it—but are they fully transferrable 70 miles

south and then until 2015 you could grow using the techniques

that are proven?

Mr. MELLANO. The short answer is yes, and in addition to that,

TriCal, who is the major fumigator in California, has already set

up a Mexican company, and the marketing companies have already

set up Mexican distribution centers in anticipation—part of it has

got to be in anticipation of the phaseout. So, basically, what is

going to happen is methyl bromide is going to move from a highly

regulated area in California to a very low regulated area in Mexico.

And to me, the total amount is going to continue at the same. That

is one of my problems.

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Mr. ISSA. Mr. Doniger, I know you have an answer for every

question I have, and more, but the question I have for you—I am

just trying to do the arithmetic—between you and Mr. Mueller, I

think I heard 483 million pounds are being used of methyl bromide,

and 22 million are being stockpiled. Would one of you give me the

number of use per annum that you were using because the stockpile I got is 22 million and the gross I got is 483 million, which

is 5 percent. What is wrong with that figure, in brief?

Mr. DONIGER. Sir, I think the number being used in 2003, the

number that corresponds to 30 percent, is about 16.9 million

pounds, and the stockpile, by my estimation, is about 22 million

pounds.

Mr. ISSA. So if, in fact—I will take the revised. Somewhere we

had this 100,000 tons and so on. I was going through—it still is a

year to a year and a half of consumption. And I am very supportive

that there should not be stockpiling, although I do recognize that

some old vehicles are still using the old freon from stockpiling

today. Most have converted, but there are still a limited amount

using it under strict rules.

What is wrong at a given time with a year and a half of—less

than a year and a half of use being available. That seems like it

is inefficient, but it doesn’t go to the 22 years or decades that was

being talked about.

Mr. DONIGER. I asked people in the chemicals industry what is

the normal inventory, and the answer is months—for normal

chemicals, a few months max, not well over a year. So, this inventory has not been created in conformity with normal practice, it is

much bigger than that.

If I may quickly, the tomato crop in California does not use

methyl bromide, its critical use exemption was rejected because

they don’t use it and they don’t need to use it, and Mexican use

has been going down. It is true that TriCal, the distributor in California, is fishing around to grow the market in Mexico, but it is

being driven by the distributor more than by any——

Mr. ISSA. Excellent. I am glad to know that if Florida shuts

down, California will be growing profitable tomatoes.

Mr. MELLANO. They would be tough in the wintertime to eat,

though.

Mr. ISSA. I will report that to Harry Sing & Sons in my district.

The Montreal Protocol limits, as we have discussed repeatedly, to

2005, without exception, unless an exemption is granted, the use

of methyl bromide. We are discussing extensions to 2005. In 2015,

the same kicks in for developing nations. For all of you on this

panel—and I don’t want you all to answer, so just ‘‘yes’’ or ‘‘no,’’

please, because I want Mr. Radanovich to get back to his time.

If we were to shut down today and Mexico, as our neighbor and

a major producing partner and sometimes competitor, were to continue to 2015, haven’t we, in a sense, hurt the ability—particularly

for the organic industry who have been experimenting and finding

alternatives—haven’t we, in fact, hurt the ability for them, with

their lesser dollars for experimentation, to kick in?

And the final part of this yes-or-no question is, in a sense, don’t

we need to have a hybrid here of reduce methyl bromide whenever

possible, increase experimentation and research so that by 2015 it

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will be a very teachable skill to Mexico, China and other developing

nations? Isn’t that an ultimate goal that we can all agree on here

today, that regardless of the size of the exemption, whether something is granted, we have a transition problem in the developed

world to get the answers by 2015? Can I just get a yes or no on

this, and Mr. Radanovich will ask all your other questions.

Mr. BAIR. Yes.

Mr. BROWN. Yes.

Mr. MELLANO. Yes.

Mr. WENGER. Yes.

Mr. DONIGER. No, it can be done much faster than that.

Mr. ISSA. But, yes, the goal is to get it done.

Mr. DONIGER. To get it done in the next couple of years.

Ms. BOGENHOLM. And the reason it can be done is many of those

companies in the United States are growing in Mexico also, most

of those companies that are big vegetable companies here are halfowners in major Mexican companies and, yes, it is going to go very

quickly down there, much quicker.

Mr. ISSA. Thank you. Mr. Wolf?

Mr. WOLF. I don’t have the information to answer.

Mr. ISSA. I will take that as a yes. Thank you. Yield back, Mr.

Chairman.

Mr. HALL. Thank you, Mr. Issa. The Chair recognizes Mr. Radanovich. You were kind enough to yield part of your time to the

gentlelady from Missouri, so we recognize you for 5 minutes.

Mr. RADANOVICH. Thank you, Mr. Hall. I appreciate it, Mr.

Chairman, and for the extra time as well. I am going to try to take

advantage of that by asking as many questions as I can, so your

short responses would be real helpful.

Mr. Wenger, I think you may have said it in the last round of

discussion, the reason for the reduction in the overall baseline, has

that been because of a large movement of row-crop production

going into fruit-nut production which would require less methyl

bromide? Did you or Mr. Brown say that?

Mr. WENGER. I don’t know how many of the row crops utilize, but

definitely anytime you are talking about cropping patterns, you see

a lot going into permanent crops from row crops, especially if they

have been unprofitable for some of those in the row crop industry.

Mr. RADANOVICH. But that movement means less use of methyl

bromide.

Mr. BAIR. Frankly, because you are either going from every year

or almost every year to once over a long period of time.

Mr. WENGER. I think that anytime you look, in agriculture, you

better not look at last year and say I am going to plant the crop

based on last year because you are going to go broke. You have to

look at trends, and I think with methyl bromide it is the same

thing. The goal is we want to phaseout. What we are talking about

here is the critical use exemption is part of it, and what is fair. And

if we are going to phaseout, then the whole world needs to phaseout. But what we are talking about is the critical use exemption.

Mr. RADANOVICH. Very good, thank you. Mr. Bair, you had a

similar example of the use of alternatives to methyl bromide in

milling that—the story being similar, and it has met with limited

success. Can you just briefly tell me that story?

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Mr. BAIR. Yes, thank you. There has been much said about sulfuryl fluoride, and I am not disparaging any alternatives. We would

like there to be more alternatives. We would like to have more

tools in the toolbox. But a couple of facts that are important to

know about sulfuryl fluoride, first of all, it is not registered for use

on any enrichment, like iron, niacin, riboflavin, thiamin, that are

any grain-based foods in your supermarket, it is not approved for

use on them. So, if your plant is making, say, a cake mix, and you

have got cocoa and shortening and salt and sugar and other things,

you can’t use it in that situation. It is not approved for—again, ingredients or enrichment.

There are very few international tolerances. So, if you are exporting a food product, your product may very well have illegal residues when it gets to that foreign country. And, also, because of a

concern of over-exposure to fluoride, EPA, when they wrote the

label, put in some very weird language about exposure to the point

where it basically eliminates its use in warehouses or any stored

product area.

Mr. RADANOVICH. Very good. Thank you. Mr. Wolf, it seems to

me that there is just a lot of debate on whether there really is a

substitute for methyl bromide yet or not. And what I get from the

testimony is that there really isn’t anything out there yet that has

all the benefit of methyl bromide without any harm to the environment. Is there something that can exactly replace methyl bromide

with all the benefits, and yet not yield the harmful benefits to the

environment?

Mr. WOLF. As I stated in my testimony, I am not here with

knowledge from methyl bromide, so I am not in a position to answer that question. I don’t have the information.

Mr. RADANOVICH. Mr. Doniger, I am wondering if you can give

me your thoughts on two products, Telone and Metam sodium, two

potential methyl bromide alternatives? Is it true that the NRDC

believes Telone to be highly carcinogenic, and metam sodium to be

one of the top ten most dangerous chemicals? Do you support its

registration as an alternative, or maybe you can elaborate on that.

Mr. DONIGER. These two chemicals are registered now. They are

under review, as is methyl bromide. Methyl bromide, I would hazard a guess, was last registered in 1961. They are all overdue for

safety reviews. They do need to be subjected to an up-to-date look

at health and safety, and EPA is doing them in a package—in

other words, all the ones that are used for similar purposes are

being evaluated, quite sensibly, in the same package. We don’t

have any objection to doing that, and we don’t want to see methyl

bromide replaced by something more dangerous. We want to see

the range of alternatives increase.

There are some other compounds in the registration pipeline, as

you have heard, and there are practice changes that can be made

to further minimize the use of this compound. Things have been

coming down. They are lower than the current critical use requests

now. Let us take yes for an answer and continue with the progress

that is being made. That is our position.

Mr. RADANOVICH. Can anybody on the panel—I am not sure who

to specifically ask here, but can anybody give me an idea of when

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a suitable alternative to methyl bromide can be available at an economic price to the people that need to use them?

Mr. DONIGER. Sir, it is happening every day, percentage-by-percentage of the use. That is why things have been coming down. We

are succeeding. There is not going to be one single chemical that

is the drop-in replacement for all uses of methyl bromide, but the

suite of alternatives is expanding, and that is why the use is declining. We are at the point now where the exemptions don’t have

to be as large as what is requested. Not zero yet, but smaller.

Mr. RADANOVICH. But that criteria will never get you to zero. I

mean, it just won’t happen without a suitable alternative.

Mr. DONIGER. It may.

Mr. RADANOVICH. Mr. Mueller.

Mr. MUELLER. Five years ago, I spent—methyl bromide cost

about $1.85 a pound for our company. Today, it costs $8.17 a

pound. It was an easy insurance to be able to go in and disinfest

a building, a facility, and you didn’t have to spend a lot of time

sealing or doing the extra things that took manpower. At $8 a

pound, you do go in and do all those things, and you reduce not

only the number of times you need to fumigate, but the amount of

fumigant that you add to an existing building. So, I believe because

we are getting better at fumigating and the price is higher, almost

four times higher, that the fumigators are using less fumigant

throughout the country.

I guess the analogy that I would use is, if gasoline was 25 cents

a gallon, you could go out and drive all day long, but if it was $8

a gallon, you would be very careful how you spent it.

Mr. RADANOVICH. All well and good, too, everything that has

been done, I think, in reductions is a very good thing, but everything that you are talking about will never get us to zero without

a suitable replacement to methyl bromide.

Mr. DONIGER. Sir, I think you are right, except that it won’t be

one suitable replacement, it will be a set of suitable replacements,

and you keep filling out the suite and knocking off categories of

use, reducing the total use, that is how the phaseout of CFCs was

won, that is how the phaseout of Haalons was one, and there is no

one solution for any one of those chemicals that has previously

been phased out, and we got there. Now, with CFCs, there is a tiny

little exception left for asthma medicines, and it is not as small as

it should be because we are even making progress there. You get

going, keep it going, and you can get very, very close to zero.

Mr. RADANOVICH. Will that go beyond 2005?

Mr. DONIGER. The inhaler?

Mr. RADANOVICH. Get down to that, because I support the process, I just don’t want people going broke in the meantime.

Mr. DONIGER. I am not coming here and saying what the number

should be, I am telling you that the number that is requested than

where the use and the production are now, and there is this huge

stockpile to work down.

Mr. RADANOVICH. Yes. What I am saying is that it is probably

going to take a little bit longer than 2005, which is the cutoff date.

Mr. DONIGER. And that is why the exemption process, properly

implemented, is there.

Mr. RADANOVICH. Yes, sir?

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Mr. MELLANO. I want to say that I agree with Mr. Doniger, and

I never do, so I thought I better say that. However, I disagree with

his timeline. The flower growers, we are willing to stand on our

data, we have it here. Now, if he believes that the timeline should

be shorter, they ought to produce data, scientific data, that is all

we are asking for, and then we will produce our scientific data, and

then you guys can decide. That is all we are asking.

There is no question that we want to reduce it, and we have reduced it. The question is when, and we don’t believe we can do it

in the next 2 or 3 years.

Mr. RADANOVICH. I agree. Thank you very much for your testimony. Thank you, Mr. Chairman.

Mr. HALL. Thank you, and I thank the committee. It is pretty obvious why the minority and the majority agreed on this panel and

selected you, and Chairman Barton agreed to it, because you have

been very helpful and you have been very patient. You obviously

are all very successful in what you are doing, and you are also generous with your time. We thank you, and we are adjourned.

[Whereupon, at 3:05 p.m., the subcommittee was adjourned.]

[Additional materal submitted for the record follows:]

DOW AGROSCIENCES

August 2, 2004

The Honorable RALPH M. HALL

Chairman, Subcommittee on Energy and Air Quality

2405 Rayburn House Office Building

House of Representatives

Washington, DC, 20510

DEAR CONGRESSMAN HALL, we appreciate the opportunity to provide the Subcommittee on Energy and Air Quality information on the Dow AgroSciences’ products that are alternatives to methyl bromide. Our company has a keen interest in

this issue as our products are viable, economic alternatives for U.S. farmers and

others as they continue the phase-down of methyl bromide in accordance with the

Montreal Protocol. Dow AgroSciences has made and continued to make significant

investments in research and development, registration and production facilities for

the commercialization of effective alternatives to methyl bromide.

We hope that the information provided in this document is informative and helpful as the Committee considers this issue. Please feel free to contact me if I can be

of further assistance on this issue.

Sincerely,

REID SPRENKEL

Global Business Leader-Fumigants

cc: Mr. Kurt Bilas

Question 1. Does Dow AgroSciences (or any its affiliates) manufacture, export or

import MB in the United States? Anywhere in the world?

Response: No, although our parent, The Dow Chemical Company, was a producer

of methyl bromide (MB) up until the mid-1980’s, Dow Chemical has divested all its

MB business and no longer manufactures, exports or imports MB.

Question 2. What products does Dow AgroSciences currently market that could

serve as an alternative to MB?

Response: Dow AgroSciences currently markets several products that are effective

MB alternatives that include one of the following active ingredients: 1,3-

dichlorpropene (1,3-D), 1,3-D plus chloropicrin and sulfuryl fluoride. Dow

AgroSciences markets other products that, to a lesser degree, also control pests for

which MB is used.

1,3-D is a mainstay agricultural preplant soil fumigant for controlling nematodes,

weeds and diseases in key horticultural crops. When combined with chloropicrin,

1,3-D controls an even broader range of soil borne pests. 1,3-D is marketed in the

United States under the brand names Telone , Curfew  and InLine . 1,3-D products are also marketed under other brands by U.S. formulators. In addition to these,

other Dow AgroSciences’ products such as Goal  and Treflan  herbicides, can be

84

used in combination with 1,3-D in some cropping situations to enhance weed control

performance.

Sulfuryl fluoride is marketed under the brands ProFume TM gas fumigant for

postharvest applications, such as grain processing facilities, and Vikane TM gas fumigant for structural fumigations to control termites and other pests. ProFume received US EPA registration in January, 2004 for use on dried fruits, and tree nuts

as well as in grain milling facilities and additional registered uses for ProFume are

expected soon.

Question 3. Can these alternative products completely replace the use of MB at

this time?

Response: Not completely, but they are viable alternatives for most current MB

applications.

Question 4. Are these alternatives registered? What is the status of their registration?

Response: Yes. Each of the Dow AgroSciences fumigant alternatives to methyl

bromide has been registered by the US EPA. In fact, 1,3-D and sulfuryl fluoride are

the only fumigant products that have successfully completed the US EPA re-registration process ensuring their future as alternatives to methyl bromide.

Question 5. Are there any environmental issues associated with these alternatives? Please explain.

Response: Successfully completing the EPA re-registration process is a clear demonstration that Dow AgroSciences’ methyl bromide alternative products satisfy the

comprehensive requirements of modern pesticide regulatory standards, and, when

used according to label directions, do not present unreasonable risks to humans or

the environment.

Question 6. What crops are 1,3-D plus chloropicrin used on? How long has this

product been on the market?

Response: Products containing 1,3-D plus chloropicrin are registered in the US for

fumigation of soil prior to crop planting. There is no limit to the range of crops on

which the products can be used. 1,3-D plus chloropicrin has been registered and sold

in the US since 1975. Today these products are used successfully in preplant operations for a wide variety of fruit and vegetable crops nationwide, most notably, but

not limited to, strawberries, tomatoes, peppers, melons, onions, carrots, fruit and

nut trees (replanting) and flowers.

Question 7. What pests are controlled with 1,3-D plus chloropicrin products and

how does that compare to MB?

Response: Like MB, 1,3-D plus chloropicrin products control a broad spectrum of

soil borne pests, nematodes, diseases and weeds. The broad spectrum control provided by these products allows farmers to reliably establish strong, healthy plants

that lead to higher yields of high quality produce.

There is a very large database of field trial results in the US (much of which has

been generated by USDA and university researchers over the last 8-10 years) that

show 1,3-D plus chloropicrin products compare favorably with MB, provide comparable control of pests, and produce equivalent crop yields. In fact, in many instances yields from 1,3-D plus chloropicrin treated crops are higher than those from

MB treated crops, as demonstrated by the increase adoption and use of this product

in the market place in strawberry and other crops .

Question 8. How does this product compare in cost to MB?

Response: 1,3-D plus chloropicrin products are typically equal to or less expensive

than MB. For example, for California strawberries, the most widely used 1,3-

D+chloropicrin product, InLine , costs less than half that of MB per acre. In the

Southeastern US, a typical ‘‘in bed’’ application of Telone  C-35 (1,3-D plus

chloropicrin at 35%) combined with herbicide costs approximately $100 less per acre

than the typical dose of MB. It is important to note that prices may vary from state

to state and can fluctuate. The dose used can also affect the cost. Again, as a general rule, 1,3-D plus chloropicrin products are favorably priced and often less expensive than MB.

Question 9. How does this product compare in efficacy to MB?

Response: The efficacy of 1,3-D plus chloropicrin, either alone or in combination

with an herbicide when needed, compares very favorably with MB and MB plus

chloropicrin combinations. Telone products have been tested extensively in commercial scale research and demonstration trials in the US and internationally and have

demonstrated consistent, high levels of efficacy.

Question 10. How do the crop yields using this product compare to those grown

using MB?

Response: 1,3-D plus chloropicrin, either alone or in combination with an herbicide when needed, has provided yields as good as or better than MB and MB plus

chloropicrin combinations in numerous commercial scale research and demonstraVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6621 95458.TXT HCOM1 PsN: HCOM1
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tion tests. This is validated by the increasing adoption of Telone products on key

crops in the US and overseas.

Question 11. How will township caps in California and karst restriction in Florida

impact the use of Telone products?

Response: Township caps in California: Recognizing the important role of 1,3-D

as a methyl bromide alternative, the California Department of Pesticide Regulation

(CPDR) has developed and implemented a ‘‘California Management Plan’’ (CMP) for

1,3-D. The CMP, which provides flexibility in the township allocations of 1,3-D within California, permits annual uses of 1,3-D at a level of 180,500 ‘‘adjusted’’ pounds

per township. For areas requiring uses that exceed this level, the CMP can accommodate a greater demand if it is justified by region-specific assessments. This ‘‘region specific’’ facet of the CMP is what has been utilized recently to permit annual

township allocation levels greater than the 180,500 lbs in specific ‘‘high need’’ townships in Merced, Santa Barbara and Ventura counties.

It is important to stress that if 1,3-D were the only alternative to methyl bromide,

the current CMP would not likely have the capacity to support a complete changeover from methyl bromide to 1,3-D in all of the 350 fumigant use townships in California. Instead, in approximately 20 of the 350 townships, additional alternatives

would be needed. Methyl bromide alternatives other than 1,3-D are registered in

California (e.g. chloropicrin and metam-NA) and are well positioned to satisfy this

need.

Fortunately, the uses of methyl bromide in California are tracked and regulated

using a system similar to that required for 1,3-D within the CMP. These methyl bromide township limits (now being converted within the CDPR regulations to monthly

air concentration limits) in combination with the 1,3-D CMP product tracking and

allocation requirements provide an excellent framework upon which to base the allocation of licensed methyl bromide within California following the phase-out of that

product beginning January 2005.

Karst geology in Florida: The vast majority of Florida tomatoes, peppers and

strawberries are grown in seven counties, with only 10% of the current methyl bromide uses on these crops occurring in regions of the state where karst conditions

are known to exist.

Buffer Zones: In 2003, the US EPA approved a refinement of the required 1,3-D

buffer zone on all Telone labels from 300 feet to 100 feet for annual cropping. Farming is predominately in areas of low housing density and buffer zones have minimal

impact on acreage able to be treated. In the worst cases of high housing density

area, analyses of satellite images of small fields show that less than 3 % of the field

acres are affected by buffers of this size. Given the predominate areas of low housing density, this impact of buffer zone restrictions is negligible.

Question 12. Are there herbicides registered and available that will help control

tough to control weeds such as nutsedge? If so, how do they compare in efficacy and

cost to MB?

Response: Yes, two new herbicides with excellent activity against nutsedge have

been registered and are commercially available. Both received expedited review by

the EPA as methyl bromide alternatives due to their nutsedge activity. Halosulfuron

methyl is registered as Sandea  by the Gowan Company. Syngenta recently introduced trifloxysulfuron-sodium, the active ingredient in Envoke . Both products are

labeled for tomatoes. Sandea has a broad label and can be used on many other

crops. Efficacy of both products is very good. Other existing products have been used

to manage nutsedge. Dual  Magnum has been approved for use against nutsedge

and peppers in Florida. In addition, fumigants and herbicides such as metam sodium, Treflan  and Devrinol  have demonstrated utility in helping to manage

nutsedge when used in combination with 1,3-D.

Question 13. 1,3-D recently received changes to the label regarding personal protective equipment (PPE). Please explain what those changes were and how this will

affect the usage of this product? Please describe the PPEs required for MB?

Response: In 2003, the Telone product labels received significant changes related

to the Personal Protective Equipment (PPE) requirements. The PPE requirements

(including respiratory protection and dermal protection) for the 1,3-D plus

chloropicrin combination products are now consistent with other soil fumigants that

are used in combination with chloropicrin, including methyl bromide.

Question 14. Are Telone products viable alternatives for all pre-plant uses of MB?

Response: Yes. As preplant soil fumigants, Telone products with and without

chloropicrin can be used for all the same uses as MB. It is recognized that there

are legitimate situation locations for which other alternative solutions are needed

or critical use exemptions may be appropriate where limitations of alternatives

exist, i.e., after township caps in California are reached and in the 10% of acreage

in Florida where specific restrictions exist.

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Question 15. Are Telone products economic alternatives for all pre-plant uses of

MB?

Response: Yes. As pre-plant soil fumigants, Telone products with and without

chloropicrin can be used economically for all the same uses as MB as has been seen

with the increasing adoption of Telone products on key crops in the US and overseas

It is recognized that there are legitimate situation locations for which other alternative solutions are needed or critical use exemptions may be appropriate where

limitations of alternatives exist. i.e., after township caps in CA are reached, in the

10% of acreage in Fl where specific restrictions exist.

Question 16. Have Telone products been tested under commercial production conditions?

Response: Yes. Telone products have been tested extensively under commercial

production conditions in the US and widely used for commercial crop production in

the US and internationally for decades. Telone has already been utilized in place

of MB successfully in US crops such as strawberries and peppers in California. Is

has also been adopted in various crops in Europe and Australia, including tomatoes,

strawberries and peppers, and is also used in several Article 5 countries.

Question 17. Have Telone products been tested extensively inside the US?

Response: Yes. Telone products have been tested extensively in the US and widely

used for commercial crop production in the US and internationally for decades.

Telone has already been utilized in place of MB successfully in US crops such as

strawberries and peppers in California. Is has also been adopted in various crops

in Europe and Australia, including tomatoes, strawberries and peppers, and is also

used in several Article 5 countries.

Question 18. How will the US EPA Re-registration process affect Telone?

Response: 1,3-D has completed the EPA re-registration process. It is important to

note that 1,3-D is the only soil fumigant active ingredient that has successfully completed this process. Following the issuance of the 1,3-D re-registration decision by

the US EPA, Dow AgroSciences has worked successfully to refine and reduce some

of the restrictions that were placed on the product as a condition of re-registration

(e.g. buffer zone distances). These post-RED regulatory refinements help optimize

the opportunities for 1,3-D soil fumigants to effectively serve as alternatives to

methyl bromide. It is important to note that as other soil fumigants complete the

re-registration process, it is likely their use conditions and restrictions will be similar to those for 1,3-D.

Question 19. What types of application equipment can be used to apply Telone

products?

Response: Telone products have significant application flexibility and can be applied in two basic ways: (1) Using the traditional shank-injection method in the

same manner that MB is applied. This method is a direct ‘‘plug-in replacement’’ application method and requires very little change from the current MB application

technology. (2) Telone products can also be applied by drip irrigation method whereby the products are injected at very low concentration into irrigation water and applied through irrigation drip tape. This application method offers additional technical advantages, flexibility and conveniences to growers. Drip application is not

technically possible with MB.

Question 20. Are there advantages to using MB rather than Telone products? If

so, please describe them.

Response: Telone and MB have various strengths and weaknesses which vary depending on the crop and conditions under which they are used. Perhaps, the most

significant advantage of using MB is just the familiarity that some users may have

with the product. The US Critical Use nomination process has resulted in generous

allowances for some sectors and has not provided incentives to adopt alternatives.

However, many farmers have evaluated alternative technologies and learned to use

Telone products and other alternatives to their advantage. The adoption of 1,3-D by

California strawberry growers, so far converting approximately 25% of the California strawberry acres, is an excellent example of the ongoing market transition

to alternatives.

Question 21. Are there limitations on the use of Telone products as an alternative

to MB? Please explain.

Response: As preplant soil fumigants, Telone products with and without

chloropicrin can be used for all the same uses as MB. It is recognized that there

are legitimate situation locations for which other alternative solutions are needed

or critical use exemptions may be appropriate where limitations of alternatives

exist, i.e., after township caps in CA are reached and in the 10% of acreage in Florida where specific restrictions exist. Where severe hard-to-control weed problems

exist, such as nutsedge, other herbicides can be used in combination with the fumigation treatment to overcome this concern.

87

Question 22. Can U.S. farmers completely stop using MB and switch to Telone

products today?

Response: Yes, for pre-plant applications, and in fact some farmers already have.

The success of this is further demonstrated with the increasing adoption of Telone

products on key crops in the US and overseas. While some farmers may not choose

to convert all their acres immediately to an alternative, the transition is already underway in many instances.

Question 23. Why did Dow AgroSciences develop sulfuryl fluoride (SF) for

postharvest fumigation?

Response: Dow AgroSciences began the development of ProFume to ensure that

U.S. agriculture would have an effective post-harvest fumigant following the phase

out of methyl bromide in 2005. The development of ProFume was initiated in the

mid 1990’s in response to the dried fruit and tree nut industry’s expressed need for

a MB alternative. Sulfuryl fluoride had already become a widely used fumigant for

structural uses where MB had once been used. The initial work to develop ProFume

as a commodity fumigant was a cooperative effort between the California Dried

Fruit Association and the USDA laboratories in Fresno. Once initiated, the work

was expanded to include uses in cereal grain storage, milling and food processing.

Question 24. What is the current registration status within the US including the

status of state registrations?

Response: Since obtaining the US EPA Section 3 registration for ProFume in January, 2004, 47 states plus the District of Columbia have granted approval. ProFume

registration decisions in the remaining 3 states are anticipated before the end of

2004. Vikane has been registered for use in the U.S. since 1961 and is registered

in all states where it is needed.

Question 25. Which pests does SF target? Does it kill all life stages including

eggs? Does MB kill all life stages including eggs?

Response: Yes, sulfuryl fluoride controls all life stages of all pests of economic importance in structural and postharvest uses. These pests include beetles, weevils,

termites, moths and rodents. SF has been registered for more than 40 years and

effectively used in millions of fumigations world wide that validate the effectiveness

of this compound. For postharvest uses specifically, laboratory research, field research trials and commercial applications of ProFume have demonstrated that SF

is effective as a methyl bromide alternative.

Question 26. How does the operational down time of a facility fumigated with SF

compare to MB? Will a grain mill or other food handling facility be required to be

shut down longer due to fumigating with SF?

Response: No, users of ProFume will not be subject to longer shut down time as

compared to fumigation with methyl bromide. In developing ProFume, the milling

and food handling industry stressed the requirement that any new pest control technology that lengthens down time would not be acceptable. The concept of Precision

Fumigation* was developed with that goal in mind. Experience has shown that

using Precision Fumigation, the fumigator and miller have the flexibility to alter the

actual exposure time dependent on the target pest, environmental conditions, quality of sealing, etc. In most cases, SF fumigations have been successful with exposure

times equal to or less than those required for MB fumigations.

Question 27. How does the cost of SF compare to MB? Does the fumigant represent a large percentage of the total cost of a fumigation treatment? Will using SF

cause a rise in the price of food commodity due to a higher cost of fumigation for

a food processing facility?

Response: Overall, the cost of fumigation is not a significant part of the overall

annual production cost for a mill. Any difference in cost between treatments with

these two fumigants is insignificant in the overall operations costs of the food processing facility. By incorporating good fumigation practices, like Precision Fumigation, and effectively using the Fumiguide* Program for ProFume gas fumigant,

these differences can be minimized. Generally speaking, the cost of the fumigant is

roughly 1⁄3 of the total cost of the fumigation. Other components include labor and

fumigator profit.

Question 28. Please explain the concept of ‘‘Precision Fumigation’’ and how it will

be used by the fumigation industry?

Response: Precision Fumigation is based on Integrated Pest Management (IPM)

principles and is a decision making process that takes into consideration factors like

pest biology, environmental conditions, exposure time, and sealing effectiveness in

order to optimize dosage, application rates and timing. By taking into consideration

all of these key fumigation variables, the fumigator can offer flexibility to his customer to minimize the downtime of the mill. ProFume is the only product that incorporates tools such as the Fumiguide and Precision Fumigation to enable the fumiVerDate 11-MAY-2000 07:26 Nov 10, 2004 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6621 95458.TXT HCOM1 PsN: HCOM1
88

gator to efficiently manage a host of complex variables and offer the miller a variety

of choices relative to the fumigation of his facility.

Question 29. Does Dow AgroSciences have enough production capacity to supply

the anticipated demand for SF?

Response: Yes. Dow AgroSciences production capacity can meet the growing market need today. Dow AgroSciences has made substantial investment in expansion

of its sulfuryl fluoride production capacity in anticipation of greater demand following the scheduled phase-out of MB in the postharvest fumigation market.

Question 30. In what uses, geographies or circumstances would SF not be a viable

alternative to MB?

Response: Sulfuryl fluoride is not being developed for use in the control of pests

in fresh fruits and vegetables and fresh cut flowers due to the potential for fumigants to cause damage to these commodities. ProFume would have a fit in many

quarantine and pre-shipment applications; however, exemptions for methyl bromide

under the Montreal Protocol in this use pattern have made this potential label expansion a low priority for development at this time.

Question 31. Are there advantages to using MB rather than SF? If so, please describe them.

Response: ProFume and MB have various strengths and weaknesses which vary

depending on the conditions under which they are used. Perhaps, the most significant advantage from using MB is just the familiarity that users may have with the

product. Some fumigators have been using MB for decades and may prefer to continue using what they know, rather than make the effort to adopt alternative technologies. Other fumigators have already successfully transitioned to ProFume and

other alternatives. As previously stated, sulfuryl fluoride marketed as Vikane gas

fumigant has replaced the vast majority of methyl bromide in the structural fumigation market. Users accustomed to methyl bromide for years have successfully

switched to Vikane.

Question 32. Are there limitations on the use of SF as an alternative to MB?

Please explain.

Response: While sulfuryl fluoride compares favorably to MB in performance and

properties, as well as being an excellent alternative, there are some food uses for

which sulfuryl fluoride is not yet registered.

Question 33. Does Dow AgroSciences have an estimate of the amount of MB that

can be replaced using either Telone products or SF today? In one year? In two

years? In three years? In ten years?

Response: Methyl bromide users have successfully phased-out a significant MB

volume over the past 10 years. During this time there have been no production disruptions or economic disadvantages faced by farmers or others who have converted

to alternatives. Dow AgroSciences believes that this trend towards phase-down can

continue without causing economic disruption to current MB users. As market adoption of 1,3-D and sulfuryl fluoride as MB alternatives continue, taking into account

the limitations discussed in this Q&A, the United States could phase down methyl

bromide use to at least 20% of the 1991 base in three years or less. Further reduction of MB could take place if other alternatives were also adopted.

 TM*Vikane, Telone, ProFume, Inline, Curfew, Goal, Treflan, Precision Fumigation and

Fumiguide are trademarks of Dow AgroSciences LLC  Sandea is a trademark of the Gowan Company  Envoke and Dual Magnum are trademarks of Syngenta  Devrinol is a trademark of United Phosphorus

DOW AGROSCIENCES

August 27, 2004

The Honorable RALPH M. HALL

House of Representatives

2405 RHOB

Washington, DC 20515

DEAR CONGRESSMAN HALL, er your letter dated August 17 attached are the responses to the follow-up questions posed to Dow AgroSciences regarding methyl bromide alternatives. We appreciate the opportunity to add to the hearing record regarding this subject. Your letter requested that both an electronic and paper copy

of the responses be sent. Unfortunately, we do not have electronic versions of all

the supporting documentation/studies. Consequently, only a paper copy is provided

for some of our responses. The support materials (both paper and electronic) are

89

contained in the accompanying three ring notebook. We appreciate your interest in

this important issue.

Regards,

REID SPRENKEL

Global Business Leader—Fumigants

cc: Mr. Mark Menezes

Mr. Kurt Bilas

FOLLOW-UP QUESTIONS:

Question 1. In your response to Question No. 7, you state, ‘‘In fact, in many instances yields from 1,3-D plus chloropicrin treated crops are higher than those from

MB treated crops, as demonstrated by the increase adoption and use of this product

in the market place in strawberry and other crops.’’ Please provide summary data

that support this statement with regard to both increased crop yields and increased

use. Response: There are several studies conducted by independent researchers that

demonstrate yields with alternatives that contain 1,3-D plus chloropicrin are as

good as or better than those with MB. The most well known and longest running

study has been conducted by IR-4 since 1999. Two strawberry research trials were

conducted each year in both Florida and California. Numerous alternative treatments were compared with the MB standard on commercial farms. Results from the

first three seasons have been summarized and are included. In these 12 trials, 15

of the 18 treatments that contained 1,3-D plus chloropicrin were numerically superior to the MB plus chloropicrin standard in the same trial. Similar results came

from a separate study in Florida. In this two year study, a 1,3-D plus chloropicrin

treatment, in combination with registered herbicides, was compared to the standard

MB plus chloropicrin treatment on commercial farms. Seven trials were conducted

on tomatoes and three on pepper by University or USDA researchers. The 1,3-D

plus chloropicrin treatment was numerically superior to the MB standard in six of

the seven tomato trials and two of the three pepper trials. Average yield increases

over all trials were 7.97 and 7.17 percent for tomato and pepper, respectively. In

addition, two recent publications (Gilreath et al. 2004. Crop Science) document the

yield increase of 1,3-D plus chloropicrin compared to MB in tomatoes and peppers.

Supporting details and documentation of each of these research trials are included

as both hard copy and electronic attachments.

Documentation to demonstrate increased adoption of 1,3-D plus chloropicrin

comes from Crop Data Management Systems (CDMS) in California. All applications

of any pesticide must be recorded in California and CDMS is the company that

maintains and reports these records. Between the years 1999 to 2003, use of 1,3-

D has increased from 632 to 2512 acres in peppers and from 0 to 5817 acres in

strawberries. Overall use of 1,3-D in the state has increased from 31,661 acres to

53,401 acres in this same time period. A hard copy summary of this information is

attached.

Question 2. In your response to Question No. 10, you state, ‘‘1,3-D plus

chloropicrin, either alone or in combination with an herbicide when needed, has provided yields as good as or better than MB and MB plus chloropicrin combinations

in numerous commercial scale research and demonstration tests.’’ Please provide

summary data that support this statement.

Response: Data to support this question are the same as those cited for the above

question which, in part, requested information to document yield performance of

1,3-D plus chloropicrin relative to MB.

Question 3. In your response to Question No. 25, you state, ‘‘For postharvest uses

specifically, laboratory research, field research trials and commercial applications of

ProFume  have demonstrated that SF is effective as a methyl bromide alternative.’’

Please provide summary data that support this statement.

Response: Laboratory research results have been widely reported within the international community. The results of one such study, conducted by Central Sciences

Laboratory in the UK is attached in which Dr. Chris Bell, globally recognized as

an expert in stored product insect control, characterizes sulfuryl fluoride as a ‘‘like

for like’’ replacement for methyl bromide in many ways. The efficacy of sulfuryl fluoride is also described in the May, 2002 issue of the American Institute of Baking

Technical Bulletin. Fumigation companies that are responsible for the majority of

mill fumigations within the US also report successful experiences with ProFume 

in the attached newsletters from both Industrial Fumigants Company (IFC) and Fumigation Service and Supply, Inc., two of the largest fumigation companies within

the US summarize their positive experiences using ProFume. Positive results with

ProFume in the Dried Fruit and Nut Industry are reported in the attached article

90

found in the Pacific Nut Producer Magazine, featuring comments from both Diamond Walnut of Californian and the California Dried Fruit Association. Three attached articles from the USDA publication ‘‘Methyl Bromide Alternatives’’ also discuss the future of ProFume as an alternative to methyl bromide.

Question 4. In your response to Question No. 26, you state, ‘‘In most cases, SF

fumigations have been successful with exposure times equal to or less than those

required for MB fumigations.’’ Please provide summary data that support this statement with regard to both effectiveness and exposure times.

Response: The attached Louisiana Rice Mill case study describes the efficiencies

that can be achieved with ProFume and Precision Fumigation techniques. Decreased

down time for the mill results from a combination of shorter exposure and aeration

periods. This case study is representative of what would be expected in mill and

food processing facility fumigations in general. Since the first commercial sales of

ProFume in the US in April of this year, roughly 10% of the wheat and rice mill

fumigations that have occurred (22 out of an estimated 237 fumigations) have been

done using ProFume. Seventeen wheat mills and 5 rice mills across a wide geography within the US have been successfully fumigated with this product in the first

four months since product launch. Several of these mills are planning subsequent

fumigations with ProFume based on a high level of customer satisfaction relative

to biological control, mill down time, and the flexibility which is offered by the

FUMIGUIDE  and Precision Fumigation . Dow AgroSciences anticipates that in

2005 ProFume will displace methyl bromide in 35% of the mill fumigations in the

US and that in 2006 ProFume will be able to displace 100% of the methyl bromide

used in milling, food processing and dried fruit and tree nut fumigations in this

country.

Question 5. In your response to Question No. 31, you state, ‘‘As previously stated,

sulfuryl fluoride marketed as Vikane  gas fumigant has replaced the vast majority

of methyl bromide in the structural fumigation market.’’ Please provide summary

data that support this statement with regard to the reference to ‘‘vast majority.’’

Response: Sulfuryl fluoride as Vikane  gas fumigant was first sold in the 1960’s

as a replacement for methyl bromide in the structural fumigation market. The development of Vikane was driven by the need to offer the drywood termite control

industry a product that would not cause the odors which were often associated with

methyl bromide fumigation. Throughout the 1970’s and 1980’s both Vikane and

methyl bromide were used in this market. Throughout the 1990’s, methyl bromide

experienced increasing regulatory restrictions which ultimately led to its near demise within the residential drywood termite market and is rarely used today. Independent market research conducted as recently as 2003 by Specialty Products Consultants, LLC and summarized in the report entitled ‘‘An Analysis of the U.S. Structural Pest Control Industry’’ supports that Vikane is by far the market leader in

the residential fumigation sector within the United States.

Question 6. In your response to Question No. 32, you state, ‘‘While sulfuryl fluoride compares favorably to MB in performance and properties, as well as being an

excellent alternative, there are some food uses for which sulfuryl fluoride is not yet

registered.’’ Please describe the food uses for which sulfuryl fluoride is not yet registered. Is sulfuryl fluoride now in the process of being registered for these food

uses? If so, when do you expect the registration process to be complete? If not, why

not?

Response: As described in question 24, ProFume is not yet registered for use on

‘‘processed foods’’ beyond those specifically listed on the current Section 3 registration (cereal grains such as wheat, rice, corn and most dried fruits and tree nuts).

The current ProFume registration permits the fumigation of these commodities and

their processed fractions as well as the facilities (mills) in which they are processed.

Additional ‘‘processed foods’’ such as spices, finished bakery goods, and etc. are anticipated to be added to the federal label by first quarter, 2005. The residue research

has been completed and the registration package is at the US EPA for review at

this time. ProFume will not be developed for use in the fumigation of FRESH fruit

and vegetables or FRESH cut flowers due to phyto toxicity concerns on fresh

produce.

Question 7. In your response to Question No. 33, you state, ‘‘As market adoption

of 1,3-D and sulfuryl fluoride as MB alternatives continue, taking into account the

limitations discussed in this Q&A, the United States could phase down methyl bromide use to at least 20% of the 1991 base in three years or less.’’ Please provide

summary data that support this statement.

Response: 19.7 MM lbs of MB have been requested for CUE’s in the US which

represent 35% of the 1991 base amount. We believe there are approximately 11.5

MM lbs (about 20.4% of the 1991 base) being requested for which our products today

do not have a current or known pending fit.

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The resulting 8.2 MM lbs are in areas which our products, with or without an

available herbicide partner, can replace. This includes 1.7MM lbs requested for postharvest uses that can be replaced by sulfuryl fluoride, the active ingredient in

ProFume gas fumigant. Registrations and ample supplies of ProFume will be available by the end of 2005 to displace all but 2% of the requested methyl bromide

pounds in 2006. The remaining 2% are for uses that ProFume is not known at this

time whether it will have a fit, such as smokehouse ham and cheese fumigations.

The other 6.5MM lbs of the 8.2 MM lbs come from replacement of preplant uses

of methyl bromide with Telone products. This still leaves a total of 11.5 MM lbs of

methyl bromide for which Telone products do not currently represent a viable alternative. At the present time, Telone is not a viable alternative only for certain types

of specific conditions. For example, acres planted which exceed allowable use of

Telone because of California township allocation limits, areas limited by karst topography or some soil types, and insufficient product efficacy data for some minor uses.

We believe a three year timeframe is a reasonable and necessary period to transition to new alternatives. This timeline is also consistent with guidelines published

in a recent MBTOC report. Although the intention of the Montreal Protocol would

have been to reduce production and use to zero by 2005, it now isn’t practical to

expect such a reduction to happen overnight. For a reduction to the 20% level, it

seems reasonable to implement a plan for the user community and others to transition at scheduled increments. So, if the starting point in 2005 is 35%, a 5% reduction per year for three years would result in a reduction to 20%.  ProFume, Vikane, Telone, FUMIGUIDE and Precision Fumigation are registered trademarks of Dow AgroSciences LLC

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