USDA comments on EPA Allocation rule (Methyl Bromide)

Lee, Amanda I. t
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: 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 theUS 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, andquestionable 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 availablefor 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:HTMLEconomical 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

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