USDA comments on EPA Allocation rule (Methyl Bromide)

Lee, Amanda I.

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o

:

Jeremy Arling 01/11/2011 10:28 AM

Cc: "Johnson, Katrina M.", "Kunickis, Sheryl" , "Bittleman, Sarah"

, "Engelberg, Noah"

History: This message has been forwarded.

Jeremy, please find attached USDA’s response to EPA’s CUE methyl bromide rule. Please let me know

your availability towards the end of this week or next week for a conference call. Thanks. Amanda

The US Department of Agriculture has reviewed EPA’s allocation rule and we have the following response

(see attached and below).

Researchers need clear assurance from EPA that methyl bromide will be available for Critical Use

Exemption sectors after 2013. Certain sectors are being proposed for 100% phase out by 2013 or near

phase out. It would be unfair for researchers to purchase MeBr from the diminishing stocks allocated

for growers’ CUEs. While the amounts of methyl bromide needed for alternatives research are relatively

modest, nevertheless, we have reports that methyl bromide was already difficult or impossible to

purchase for research in 2011. 
Response to EPA regarding allocation rule with emphasis on proposed end of CUE process:

In a draft proposed rule identifying uses that qualify for the 2011 critical use exemption for 

methyl bromide per the Montreal Protocol and the Clean Air Act, EPA is also proposing to end 

use of the CUE process in 2013. The provisions of the rule dealing with qualifying 2011 uses 

are similar to provisions used in prior years and USDA has only minor editorial comments on 

these. However, the proposal to end the use of critical uses is a major policy decision affecting 

the employment and income in the US food and agriculture sector, supplies and prices of fresh 

and processed foods available to consumers, and USDA research programs. USDA does not 

support EPA’s proposal to establish an end date for the critical use exemption for methyl 

bromide.

EPA states quite clearly, “EPA recognizes that alternatives may not exist for a small subset of 

current CUE uses and that these few uses may not have alternatives when the CUE program 

ceases. EPA also recognizes that as a policy matter it has been granting CUEs in its yearly 

rulemakings based on the unavailability of alternatives. (p 38)”

The draft rule discusses the following reasons and factors deemed important by EPA for a policy

change:

 Transition time already provided (p 38).

 Many sectors have successfully completed their transition (p 36).

 International context is changing (p 36).

o Other developed countries are ending their own CUE programs

o The phaseout date for developing countries is 2015

o Many developing countries with monetary assistance from the United Nations 

Multilateral Fund (MLF)have already ended MB use

o These developments will complicate USG efforts to successfully negotiate further 

amounts of exempted methyl bromide with the parties in the future

o A clear end date acknowledges change in context, and

o May save work and effort on applications for future CUEs on the part of the small 

number of remaining methyl bromide users.

 Establishing an end date in the near future would be a reasonable means of bringing the 

transition to a close (p 36).
 The potential benefit of advance notice to the few remaining sectors that continue to use 

methyl bromide (p 38).

EPA points to its authority and discretion under the Clean Air Act to cease granting exemptions 

even if there are no suitable alternatives (p 37).

The rational for the policy change is not derived from a balancing of pro’s and con’s nor is there 

any consideration of the impacts on the economy or the environment. Thus, USDA offers the 

following reasons why the United States should not end its use of the critical use exemption 

program.

EPA refers to a few remaining sectors requesting CUEs but does not elaborate that this includes 

about 10,000 acres of California strawberries, 8,000 acres of Florida strawberries, and 4,000 

acres of strawberries in other eastern States (acres approximate based on CUE requests 

considered in 2010). Other crops to count among the few sectors are melons, eggplant, peppers, 

and tomatoes in Florida and the Southeast; forest seedlings in the northeast and Southeast; 

nursery stock in California (Nurseries in this sector provide plants to commercial growers of rose 

bushes, and such diverse fruit crops as apricots, peaches, prunes, nectarines, cherries, plums, 

apples, pears, Asian pears, and ornamental pears. Nut trees produced by these nurseries include 

almonds, walnuts, pistachios, pecans, and chestnuts.); and ornamentals (cut flowers, cut greens, 

and bulbs) in California and Florida. There are others crops that continue to depend in part on 

critical use MB. Post-harvest and structural use in food processing facilities does not involve 

nearly as much MB as soil uses. Among these are dried cure pork products where despite 

significant research there is consensus that there are no suitable alternatives to control pests; 

certain dried fruit, dates, and nuts in California; and a group of flour mills, rice mills, and pet 

food producers who have not succeeded in transitioning away from MB and who soon not have 

possibilities of adapting their facilities to SF.

The loss of income and jobs resulting from ending CUEs for the above sectors before suitable 

alternatives are found and implemented would be substantial. Time does not permit careful 

estimates. However, USDA makes the point that a policy decision regarding ending CUEs 

should give great weight to the domestic economic consequences.

EPA has not identified any environmental benefits or costs of the proposed end to CUEs. Are 

there environmental impacts that make ending the CUE process a good policy decision? It 

would be useful to consider impacts in a risk-risk tradeoff. Less MB use is positive for the ozone 

layer and reducing human health effects. However, there are difficult to quantify negative 

impacts on water, air, and human health from alternatives that may be adopted. Beyond the 

negative impact on land values should certain agricultural lands leave production, other land uses 

will have their own environmental effects. This may sound speculative, but the issue has been 

cast as a policy decision and the US government should take a comprehensive view of the 

consequences. The global environmental benefits will be limited if crops currently grown in the 
US move offshore where methyl bromide fumigations may still continue. For this reason, a 

phase-out date should be considered when research has determined economical and feasible 

alternatives for the remaining CUEs.

However, in this regard there is no current assurance that research into economical and feasible 

methyl bromide alternatives will be completed by 2013 or 2014 for every CUE. The numerous 

long term and grower demonstration studies which are in place, many of which are funded 

through Transition and ARS Areawide project funds should be allowed to run their courses.

Where there are current alternatives, a further refinement of their uses (e.g. for different soil 

types, shallow and deep rooting crops, impenetrable soil covers, etc.) could not effectively 

continue without the use of methyl bromide as a comparison. USG should also continue to allow 

for the nomination of additional amounts for research in future years. A separate track for 

research uses will ease the state, federal and international paperwork especially as methyl 

bromide supplies become no longer available in the commercial market place.

It is dubious that the experience of other developed elimination of CUEs has much relevance to 

the United States. The United States is unique among the developed countries that have used the 

CUE process. For example, the scale of US production is much larger making alternative to 

open field production infeasible; and local restrictions to protect ground water prevent use of an 

important alternative to MB (1,3-D) in parts of Florida and significantly limit its use in 

California.

It is remarkable that EPA considers ending the CUE process a policy positive because it saves 

work and effort by remaining CUE applicants. CUE applicants voluntarily incur the costs of 

preparing CUE applications based on the physical imperatives of pest control and economic 

necessity.

It is equally remarkable that EPA places any weight on MBTOC’s question when the US will 

end its CUE program (p 42-43). Such a question was outside the terms of reference for 

MBTOC’s assessment of critical use nominations. If the Parties to the Protocol wish to address 

ending the CUE process, that is their prerogative to seek consensus on a date. 

As to EPA’s point that there is a potential benefit of advanced notice to the remaining sectors 

requesting CUE MB, USDA agrees notice and certainty are desirable goals. However, the 

particular deadline of December 2013 is insufficient notice. The US government will submit its 

critical use nominations for MB to be used in 2013 to the Ozone Secretariat of United Nations 

Environment Programme this month. These nominations are based on applications received 

from the food and agriculture sectors last summer. These nominations will be reviewed by 

technical committees and decisions regarding approval will take place at the meeting of the 

Parties to the Montreal Protocol in November, 2011. Given the expected cancelation of SF 

tolerances it is unlikely alternatives will come in place for post harvest uses by January 2014.

Limited State registration of DMDS to date, little commercial experience with it, and 
questionable prospects for bystanders and neighbors to tolerate its odor suggest it is optimistic to 

consider DMDS will fill the pest control role of MB. Suit has been filed or will soon be filed in 

California to reverse the registration of methyl iodide. Further, although methyl iodide is 

considered a technically viable alternative to MB, there are serious concerns beyond litigation.

California has limited rates so that growers and researchers are questioning whether it will be 

efficacious. Additionally, California’s buffer requirements may make methyl iodide use 

impractical in many locations. 

A decision to end CUEs should consider the possible loss of suitable alternatives through 

canceled registrations, canceled tolerances, new regulatory restrictions, and other events. EPA 

staff has stated EPA will not consider loss of suitable alternatives sufficient reason to resume 

critical use nominations for uses that have transitioned to alternatives, increase quantities 

nominated for CUEs where transition is still incomplete, or initiate critical use nominations 

where the sector has no history of MB use but now has no alternative. This is especially relevant 

to assessing the policy merits of ending CUEs given EPA’s plan to announce this month the 

cancelation of the tolerances for Sulfuryl Fluoride (SF). SF was registered as ProFume in 2004 

and has replaced MB approximately 64 metric tons of MB used on cocoa beans as well as 

quantities of MB used in food processing facilities, stored commodities, and other post-harvest 

applications. Under EPA’s policy industry transporting and storing cocoa beans could not 

resume CUE requests for MB. 

Experience has shown that while there have been major successes in developing and adoption of 

MB alternatives, there is substantial public and private research effort in the United States and 

elsewhere dating from the mid-1990s has yet to find suitable alternatives for certain MB uses. It 

is unduly optimistic to assume solutions will be forthcoming between now and 2014.

Although EPA has the authority to cease the CUE process, it is important to consider the 

obligations to American stakeholders. What are the benefits of ending CUEs to the American 

people? EPA has described the Montreal Protocol CUE process as a negotiation. It appears the 

US is unilaterally abandoning a right to request CUEs without gaining anything. That would 

seem to contradict a fundamental principle of negotiating. 

Further Notes: 

2013 Phaseout Date:

- While EPA is currently considering support for the California strawberry 

growers’ request for 900 to 1000 metric tonnes in 2013. It is implausible that 

growers will be able to transition to zero by the following year, 2014.

- The Montreal Protocol Parties, in Decision IX/6, allowed for Critical Use 

Exemptions if “there are no technically and economically feasible alternatives or 

substitutes...” and did not require a specific phase out date for CUEs.
Emergency Uses

- The US should avail itself of all the provisions of the Montreal Protocol. 

- Montreal Protocol Parties in 1997 (Decision IX/7).

http://www.unep.ch/ozone/Publications/MP_Handbook/Section_2_Decisions/Arti

cle_2/decs-critical-use_exemptions/Decision_IX-7.shtml

- While the EU and Canada have had emergency production use available for their 

growers since 1999 and 2000, respectively, there is no emergency use available 

for US growers/facilities.

- For some CUE sectors, a phase-out could be envisioned if emergency use were 

available. For example, the Methyl Bromide Technical Options Committee 

(MBTOC) provided for 200 kg MeBr to treat two medium size cheese facilities 

for mite outbreaks but also referred to the availability of the emergency use on a 

contingency basis.

Page 48 http://ozone.unep.org/Assessment_Panels/TEAP/Reports/TEAP_Reports/ 

Teap_October_2010_MBTOC_CUN-report.pdf Similarly, while certain ham 

processors have never encountered a ham mite infestation, an emergency 

production provision would benefit them should a mite outbreak were to occur 

and if a CUE were no longer in place

- Catastrophic Events - Under the Montreal Protocol Treaty, 20 tonnes is available 

for each “event.” It is conceivable also that US agriculture could encounter longlasting area-wide power outages such as in the event of tropical storms.

Hurricane Katrina caused power outages lasting several weeks. Such outages can 

cripple food plant sanitation efforts necessitating plant-wide fumigations.. 

Because an emergency production rule could take more than a year to be written, 

writing should begin as soon as possible.

- Using strawberries as an example, in 2010, California strawberry growers, are 

confronting new pest pressure from the northern part of the state with the 

discovery of Charcoal rot and Fusarium wilt. These two diseases require the 

higher rates of MeBr unless an alternative can be found. It is not certain that a 

replacement can be found by 2013 when EPA proposes to discontinue CUE 

applications. If no alternative is found, and the two diseases continue to spread, it 

is likely that MeBr will still be needed in 2013-14. The availability of emergency 

use might allow for a speedier phase-out of this CUE.

Notes:

(1) Canada has had emergency use provisions in effect since 1999

Canadian Environmental Protection Act, 1999 Part 3 33(b.2) 

http://laws.justice.gc.ca/eng/SOR-99-7/FullText-bo- ga:l_3::bo-ga:l_4.html 

In 2010, Canada invoked Decision IX/7 for emergency use for strawberry 

runners on Prince Edward Island Page 11 Line 83

http://ozone.unep.org/Meeting_Documents/mop/22mop/MOP-22-9E.pdf

EU, 2000 Emergency Use

http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000R2037

EN:HTML
Economical and Technologically Feasible Alternatives in Other Countries

- There are MeBr alternatives or practices available in other countries which have 

phased out CUEs which are not available in the US. 

- Israel has formaldehyde registered which is not registered in the US.

http://www.sviva.gov.il/Enviroment/bin/en.jsp?enPage=bulletin&infocus=1&enD

isplay=view&enDispWhat=object&enDispWho=News%5El2104&enZone=septe

mber_bull04&enVersion=0&

- Israeli growers can successfully use soil solarization, taking advantage of their 

unique sunny climate whereas California’s strawberry growers situated near the 

cool, cloudy Pacific coast, cannot.

- Spanish strawberry growers are able to use a biofumigants (e.g. fresh poultry 

manure), http://www.fao.org/DOCREP/004/Y1809E/y1809e04.htm This option 

is not available in California because there is (1) not enough poultry manure 

available for all of California’s strawberry acreage and (2) current food sanitation 

standards prohibit on this application.

Potential Economic Impact of Ending CUE applications in 2013

Using strawberries as an example, at about 9,000 acres, California strawberries 

represents 90% of the proposed EPA total CUN request for 2013. In 2008, 

California’s 37,600 acres of strawberries was worth about 1,578,175,000 dollars. 

www.nass.usda.gov/Statistics_by_State/California/Historical_Data/StrawberriesA.xls

By extrapolation, $377,000,000,000 of strawberries could be at risk without 

methyl bromide in 2014 if alternatives were not available by then and no CUEs 

were available.