## R ESPONSE TO 

## P UBLIC 

## C OMMENTS FOR

THE 

## N OTICE OF 

## P ROPOSED 

## R ULEMAKING 

## : T HE 

## 2009 C RITICAL 

## U SE 

## E XEMPTION FROM THE 

## P HASEOUT

OF 

## M ETHYL 

## B ROMIDE

1. C OMMENTS ON R ULEMAKING P ROCESS

................................................... ............................. 1

2. C OMMENTS ON P ROPOSED L IST OF C RITICAL U SES

................................................... .......... 2

3. C OMMENTS ON P ROPOSED T OTALS OF E XEMPTED N EW P RODUCTION AND I MPORT ........ 2

4. C OMMENTS ON THE A MOUNT TO B E S OLD FROM P RE -P HASEOUT I NVENTORY ................. 5

5. C OMMENTS ON THE S UPPLY C HAIN F ACTOR

................................................... ..................... 9

6. C OMMENTS ON M ETHODS OF E STIMATING D RAWDOWN

................................................... 10

7. C OMMENTS ON T REATMENT OF C ARRY -O VER A MOUNTS ................................................. 11

8. C OMMENTS ON A MOUNTS FOR R ESEARCH P URPOSES

................................................... ..... 11

9. C OMMENTS ON A LTERNATIVES TO M ETHYL B ROMIDE

................................................... .. 12

9.A S ULFURYL F LUORIDE

................................................... .................................................. 1 2
9.B M ARKET S TATUS OF I ODOMETHANE

................................................... ........................... 15
9.C M ARKET A VAILABILITY OF T ELONE

................................................... ........................... 16
9.D O THER C OMMENTS ON THE T RANSITION TO A LTERNATIVES : ........................................ 17

10. C OMMENTS ON E MISSIONS M INIMIZATION

................................................... ..................... 17

11. C OMMENTS ON A LLOCATION M ETHODOLOGY

................................................... ................ 18Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

1 

## 1. Comments on Rulemaking Process

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

Reginald Brown Crop Protection Coalition 0064

• Support for Quick Rulemaking: The Methyl Bromide Industry Panel (MBIP) commented that EPA should move as quickly as possible to prom ulgate the final rule, for planning purposes. They noted that they appreciate the “no a ction assurance.” [0055]

EPA recognizes the importance for the methyl bromid e producer, distributor, and user community to have critical use allocations and crit ical uses established before the control period begins.

Recognizing that it was unable to issue a final all ocation by the end of 2008, the Agency stated through a “no-action assurance letter” it will exer cise its enforcement discretion to allow companies identified in the proposed rule as holder s of critical use allowances or critical stock allowances for 2009, to produce or import critical use methyl bromide for the specified critical uses proposed for 2009 until May 1, 2009 or until t he final rule is published, whichever is sooner, in amounts not to exceed the allowance allo cations identified in the proposed rule.

• Rulemaking Should Be Based on Sound Science: The Crop Protection Coalition commented that any action regulating fumigants shou ld be “based on sound science and reliable information.” [0064]

EPA agrees that regulatory actions should be based on sound science and reliable information. Each methyl bromide request is evaluated by EPA sci entists to determine whether:

1. there are alternatives that are technically feas ible that can be used in the production of the crop (and are not banned by other regulations)

2. these alternatives are economically feasible, an d

3. failure to get access to methyl bromide will res ult in a significant market disruption.

Based on the findings of Agency scientists and econ omists, EPA decides which nominations to put forth and how much to request.

During the evaluation and deliberation, the latest journal articles and study findings are consulted. EPA scientists also work closely with r esearchers and other experts to ensure full understanding of the circumstances of the nominatio n and the issues involved in transitioning to alternatives. The result is a US request that is b ased on sound science and reliable information

.Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

2 

## 2. Comments on Proposed List of Critical Uses

Commenter Organization Document ID No Reginald Brown Crop Protection Coalition 0064 Gene Harrington National Pest Management Associatio n 0065

• Support for the Uses Exempted: The Crop Protection Coalition noted that they find the list of uses to be appropriate. [0064]

EPA is not changing any of the proposed critical us es in the final rule, except to adjust some of the limiting critical conditions in response to com ments received.

• Wording Change Requested for NPMA: The National Pest Management Association (NPMA) requested that the language describing NPMA in Column B of Appendix L be changed to “Members of the National Pest Management Association treating processed food, cheese, dried milk, herbs and spices, and spaces an d equipment in associated processing and storage facilities.” [0065]

EPA agrees with NPMA’s revised description except f or the inclusion of dried milk, which has not been approved as a critical use by the Parties to the Protocol. The final rule will reflect NPMA’s suggestion with the exception of the term “d ried milk.”



## 3. Comments on Proposed Totals of Exempted New Product ion and Import

Commenter Organization Document ID No B. Sachau Citizen of Florham Park, NJ 0001 Marcy Martin California Grape & Tree Fruit League 0 061 Reginald Brown Crop Protection Coalition 0064 Daniel Botts Florida Fruit & Vegetable Association 0066 Dan Hale California Strawberry Commission Public He aring 1 Jamie Consuegra Natural Resources Defense Council 0 068

• Complete ban on methyl bromide. One commenter called for a complete ban of methyl bromide, citing its harmfulness. [0001]

EPA disagrees that methyl bromide should be complet ely banned. There are still uses for methyl bromide that have no technically and economically f easible alternatives available.

To reiterate our commitment to addressing the envir onmental impact of methyl bromide, we are summarizing U.S. Government activities:

• The Montreal Protocol required developed countries to end consumption of methyl bromide by 2005, except for uses that qualify eithe r for a critical use exemption or for the quarantine and preshipment exemption.Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

3 • The Clean Air Act directs EPA to issue regulations to implement the provisions of the Montreal Protocol in the United States. EPA’s regu latory framework ensures U.S. compliance with the phaseouts under the Montreal Pr otocol, including limitations on the production of methyl bromide except for exemptions such as the critical use exemption. These regulatory requirements are codified at Subpa rt A to Part 82 of Volume 40 of the Code of Federal Regulations (40 CFR Part 82, Subpar t A).

• The U.S. has consistently met its reduction milesto nes for methyl bromide, and through a partnership with the United States Department of Ag riculture – Agricultural Research Service, EPA is continuing to make a substantial re source commitment to minimizing the use of this fumigant. Under the U.S. Department of Agriculture's Methyl Bromide Alternatives Program: http://www.ars.usda.gov/research/programs/programs. htm?np_code=308&docid=14368

, agricultural and forestry leaders from private indu stry, academia, state, and Federal agencies have come together to develop viable alter natives to methyl bromide. This research program, which has spent over $200 million , has taken into account input from federal agencies as well as extensive private secto r research and trial demonstrations of alternatives to assess the problem, formulate prior ities, and implement state-of-the-art
research.

• The downward trend in amounts of pre-phaseout inven tory shows that the inventory held by companies in the U.S. is being managed effective ly.

EPA remains committed to finishing the job of resto ring and protecting the ozone layer, protecting public health and meeting the critical n eeds of American farmers as they make the transition to methyl bromide alternatives.

• The Natural Resources Defense Council stated that E PA should allocate less than the amount requested by CUE applicants. [0068]

As a result of the detailed review of applications by U.S. experts, the U.S. typically nominates critical uses in amounts less than those requested by applicants. Additionally, since 2006, EPA
has allocated critical use allowances in amounts lo wer than the amounts authorized by the Parties
to the Montreal Protocol. We have found it invalua ble to credibly demonstrate to the Parties that
the U.S. submits a robust annual nomination and tha t we are committed to reducing our reliance on methyl bromide.

• Five commenters stated that the level of exempted n ew production and import for critical
uses was too low.

- The California Grape & Tree Fruit League commented that the proposed levels of new production and imports are not “reflective of the n omination” and do not “account for the sum total of all requested needs.” The commenter st ated that the reductions outpace the development of alternatives, and feel this is an “u nfair action against the agricultural industry.” The commenter requested a more detailed explanation regarding the implementation of the transition prior to final rul emaking. The commenter also stated thatSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

4 crop plantings can “fail within two years of planti ng” as a result of infestation or disease, and pest management tools are key elements in preve nting such failure. [0061]

- The Crop Protection Coalition commented that the Cr itical Use Exemptions for 2009, as authorized by the Parties, are the “bare minimum am ount necessary to meet the needs of the participants.” The commenter stated that EPA s hould adopt the amounts approved by the Parties to Montreal Protocol, without further r eductions. [0064]

- The Florida Fruit & Vegetable Association (FFVA) ex pressed their concern that the amount proposed for Critical Use Exemptions was too low, and will limit the amount available to Florida growers. The commenter stated that FFVA members are susceptible to geographical and distributional constraints of t he allocation process, and that in previous years, growers with legitimate needs for C UE materials have been told that none was available. The commenter also noted that growe rs have been told that formulations and quantities will be limited in this season due t o scarcity of CUE materials. The
commenter concluded that FFVA’s critical use needs will not be met by the reduced production and consumption levels in proposed rule. [0066]

- The California Strawberry Commission commented that the Parties to the Montreal Protocol could have specified a lower amount of new production, but they decided not to,
based on the same information that EPA has consider ed for the allocation rule. The Commission stated that EPA should make small adjust ments that will not result in “market disruption” rather than making a “dramatic reinterpretation of the data.” [Public Hearing 1]

The maximum critical use amount, whether out of new production/import or out of existing (pre2005) stocks is determined by the Parties to the Pr otocol, generally but not always in accordance with the recommendations of the Methyl Bromide Tech nical Options Committee (MBTOC), the UN body with the responsibility for assessing the v alidity of the critical use exemption requests. Although the amount authorized by the Parties may n ot be the same as the amount requested or nominated, it is the maximum amount that the US wil l allocate.

The Parties authorized new production of 3,962 metr ic tons of critical use methyl bromide for 2009, while EPA’s proposed rule sought to allocate 1,618 metric tons of new production through critical use allowances. Since 2006, EPA has alloca ted critical use allowances in amounts lower than the amounts authorized by the Parties.

EPA disagrees that the final 2009 allocation should be exactly what the Parties authorize, though the Agency does agree that the amount should be ref lective of the nomination, when considered together with more recent information, such as upda tes on alternatives. The Parties to the
Montreal Protocol authorized in Decision XIX/9 the equivalent of 16.7% of baseline for 2009
critical uses. The final rule allocates 16.4% of ba seline (with 7.5% coming from pre-phaseout inventory). Thus, the allocation is only .3% of ba seline less than what the Parties authorized. In the previous two CUE rulemakings, this difference w as closer to 2% of baseline.

As described in more detail in the preamble of the final rule, EPA has the discretion to allocate
less than the full authorization. EPA addressed thi s issue in past CUE preambles and response to comments documents. Since 2006, EPA has allocated c ritical use allowances in amounts lower than the amounts authorized by the Parties.Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

5 Since methyl bromide production was phased out for developed countries in 2005, the U.S. has forwarded critical use exemption (CUE) requests to the Parties to ask for additional production. For sound reasons related to unique conditions of U .S. agriculture, the United States has been requesting CUE amounts larger than any other countr y. To support these requests, we have found
it invaluable to demonstrate to the Parties that we are also committed to reducing our reliance on this chemical. That these efforts have been helpfu l is demonstrated by the fact that in every year that the U.S. has made a CUE request, the Parties h ave invariably approved approximately 90 percent of the U.S. nomination.

There are also sound domestic reasons for EPA to co ntinue to allocate less than the total authorized amount of new production. First, U.S. di stributors maintain an inventory of methyl bromide that was produced prior to the phaseout in 2005. As of December 31, 2008, this inventory was 4,271 metric tons – an amount that ex ceeds the entire 2009 amount authorized by the Parties. In authorizing the level of new produ ction for 2009, the Parties stipulated that the authorized amount of new production and consumption be reduced by “available stocks.” Since the rule was proposed, EPA has received data showin g that the pre-phaseout inventory is lower than EPA had projected, though a large amount still remains. This means that there is less available inventory than the Agency estimated in th e proposal. As discussed in the preamble, EPA is authorizing more new production in the final rule to reflect this new information on the amount in inventory.

In the Framework Rule (69 FR 76982), EPA establishe d a system to reduce authorized critical use amounts to account for unsold carryover amounts of critical use methyl bromide from previous years. The implementation of this policy is discussed in detail in Section V.D.4. of the preamble to the final rule. It is appropriate to r educe the total critical use amount to account for carryover, because the pool of critical use materia l unsold in previous years is available for critical uses in subsequent years. Therefore, carr y over amounts can offset the need for a certain amount of new production, import or supplies from p re-phaseout inventory. In this way EPA can also credibly assure the Parties that any amount th ey agree to allow for continued new production is in fact being used for uses defined a s critical, rather than being added to amounts already in an existing inventory.



## 4. Comments on the Amount to Be Sold from Pre-Phaseout Inventory

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

Reginald Brown Crop Protection Coalition 0064 Daniel Botts Florida Fruit & Vegetable Association 0066 Dan Hale California Strawberry Commission Public He aring 1Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

6 • Two commenters commented that the amount of methyl bromide to be sold from prephaseout inventory was too high.

- The Crop Protection Coalition (CPC) commented that EPA has incorrectly estimated the amount of pre-phaseout inventory available to CUE h olders and has “grossly abused it [sic] discretion” in setting the CSA amount. CPC st ated that the ruling on amount of previous stocks to be used in 2009 “utterly disrega rds all the previous work, effort, and information” by the U.S. government to gain approva l by the Parties, and that that the amount to be drawn from previous stocks is a decisi on made on “administrative discretion” only. The commenter noted that registr ants have new, more reliable information on existing stocks that is being provid ed to the Agency. CPC stated that it would be more appropriate for EPA to assume that no pre-phaseout inventory is available to CUE holders. [0064]

For the final 2009 allocation rule, EPA used report ed end-of-year data to calculate methyl
bromide stocks.

As background, prior to the phaseout date of Januar y 1, 2005, it was legal to accumulate inventory of MeBr. While additional accumulation o f inventory is not permitted under the CUE program, anyone –approved critical users or otherwi se—can utilize inventories accumulated prior to the phaseout date.

EPA recognizes that inventories are important to in dustry in the U.S., but in other countries inventories have not accumulated. The presence of inventories in the U.S. market has been a major factor in the international discussions to de cide the amount of new production necessary to satisfy critical uses in the U.S.

Although the yearly negotiations have been challeng ing, the U.S. has successfully reached agreement with other Parties, so that domestic agri cultural sectors continue to receive CUE
authorizations from the Parties to the Protocol.

- The Methyl Bromide Industry Panel of the American Chemistry Council (MBIP)
commented that the amount of CUE material to be dra wn from pre-phaseout stocks for 2009 is too high. MBIP requested that EPA set the stock amount at levels consistent with the percentage of baseline that was used in 2008 (6.8%) , or at a minimum revise calculations to reflect actual inventory data and SCF inputs.

MBIP stated that the amount from stocks is eight ti mes higher than the level set by the Parties, and 50% higher than the level of CSA for l ast year. MBIP also stated that United States is not required to draw so much methyl bromi de from stocks to fulfill its duly under the Montreal Protocol; the decisions of the Parties should be viewed as guidance and are not binding. In setting the CSA level, the commenter b elieves that the United States has “grossly abused” its discretion in allocating CSAs versus CU As. The commenter asserted that the NPRM does not provide an explanation or justificati on for the dramatic increase in the CSA amount, violating administrative law. MBIP stated t hat in setting the CSA level the NPRM does not consider the impact on CUE users or non-CU E users, or the effect a drawdown of stocks could have on the United States’ ability to respond to catastrophic failure in domesticSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

7 production of methyl bromide. MBIP commented that t he following should be taken into

account.

• First, MBIP noted that stocks in the U.S. are alrea dy declining rapidly, and have decreased by almost 75% since 2003. Data collected by MBIP shows that 2008 represented the highest percentage drawdown since 2 004.

• Second, MBIP commented that there is no indication in the NPRM or docket that
EPA has considered the effect of the level of CSAs on the SCF in future years. According to the commenter, the proposed CSA level will jeopardize the United States’ ability to address a catastrophic disruptio n in the supply chain. The amount of stocks that would be left under the proposed rule w ould be “dangerously close” to EPA’s 55% target for the supply chain factor analys is. The Panel noted that the stocks left over would be below the amount approved for 20 10 by the Parties to the Montreal
Protocol.

• Third, MBIP commented that the proposed rule mistak enly assumes that all stocks are
available for CUE users.

• Fourth, MBIP commented that that the lack of suffic ient access to pre-phaseout stocks would set users’ needs against each other, p otentially causing “significant supply and cost challenges” at a time of economic h ardship. MBIP also noted a severe cutback in the production of Telone, which m any growers were transitioning to. [0055]

The 2009 CUE rule applies the same methodology as t he 2008 CUE rule. Also, although the amount proposed to have been taken from inventory w ould have been an increase over previous years, the amount in the final rule is not. EPA is using the same methodology in the final rule: the only difference is that the rule uses actual re ported data, and does not rely on statistical models to make a projection.

EPA is aware that non-approved critical users are a ccessing pre-phaseout inventory. Decision Ex I/3 of the Montreal Protocol, which informs Agen cy actions on methyl bromide, does not require that individual Parties (such as the U.S.) prohibit the use of stocks by users whose uses fall outside the categories of agreed-upon critical uses. Nothing in the Protocol or the Clean Air Act mandates that EPA limit drawdown from inventory for such uses. EPA also recognizes that certain users may not have elected to apply for a C UE because they reasonably believed they could meet their transitional needs through invento ry. Further detail on the issue of nonapproved critical users’ access to pre-phaseout inv entory is available in previous CUE preambles and response to comments documents. EPA did not re visit the issue in the 2009 CUE rulemaking.

In response to a comment on the proposed rule, EPA conducted a preliminary estimate show the
demand in 2010. This estimate showed that between about 300 and 1,800 MT of pre-2005 inventory methyl bromide could be needed in 2010 to meet demand not expected to be satisfied by imports during the time required to re-establish domestic production following a domestic production failure. This preliminary projection wa s developed using the same approach taken in the 2008 and 2009 rulemakings, and employed the amo unt of methyl bromide authorized for critical use in 2010 by the 20 th Meeting of the Parties to the Montreal Protocol in order to projectSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

8 forward to 2010. This estimate is subject to chang e as other information becomes available, including finalized U.S. data on methyl bromide pro duced in the United States in 2008 (as
submitted to the Ozone Secretariat under Article 7 of the Montreal Protocol).

• Five commenters commented that pre-phaseout stocks are not dedicated to the use of CUE
holders.

- The Methyl Bromide Industry Panel of the American C hemistry Council (MBIP) commented that the proposed rule mistakenly assumes that all stocks are available for CUE users. According to the commenter, contracts a nd existing sales relationships
between distributors and non-CUE users limits the a mount of stocks that are actually available to CUE users. In addition, MBIP noted th at pre-phaseout stocks are held by a very small number of distributors, who informed MBI P that they intend to sell at least some of their stock to non-CUE users. [0055].

- The Crop Protection Coalition (CPC) commented th at most stocks are held at the dealer-distributor or service company level, and th e amount of existing stocks varies from region to region. According to the commenter, stoc ks were not available to CUE holders
in the southeast this fall. CPC also commented tha t EPA has no ability to control the disposition of existing stocks, and questioned EPA’ s basis for assuming that stocks are
restricted to CUE holders. CPC commented that the result of this “faulty logic” is penalizing CUE holders, and suggested that EPA focu s on assisting the user community in the transition to alternatives. [0064]

- The Florida Fruit & Vegetable Association (FFVA) co mmented that the Agency’s adjustment of the new production and import levels to account for pre-phaseout existing stocks is misplaced, since stocks are legally in co ntrol of “the distribution stream” and hence not dedicated to the critical use needs of gr owers. FFVA stated that much of those stocks will be directed to non-exempted uses. [006 6]

- The California Strawberry Commission cited that sto cks are not readily available for CUE holders, as other users buy methyl bromide. The commenter noted that reports have indicated that non-CUE users are using methyl bromi de stocks in California, and that California has experienced spot shortages in CUE co mmodities in 2008 as a result of geographical shortages. The commenter also noted th at the amount of stocks is incorrectly estimated. [Public Hearing 1]

Issues concerning supply of pre-phaseout inventory are addressed in the Response to Comment Document for the 2008 CUE Rule. Briefly, EPA regar ds this material as “available” because it is owned by someone other than the end user. While a distributor might prefer to sell methyl bromide to non-critical users to satisfy prior cont racts or internal business decisions, this is not the result of any EPA regulatory constraint. EPA believes that the private market continues to determine effectively where methyl bromide inventor y will be used.

- The Natural Resources Defense Council suggested t hat the Agency prohibit the use of pre-phaseout stocks for purposes that are not criti cal uses. [0067]Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

9 EPA does not currently require the sale of inventor y to critical users. However, beginning in 2010, distributors will be unable to sell to non-cr itical users due to labeling changes to methyl bromide. Under the Reregistration Eligibility Deter mination (RED) for methyl bromide soil fumigation uses issued in July 2008, uses already c onsidered critical by the Parties have been considered eligible for re-registration, along with QPS uses. More information is available in the methyl bromide RED, available on the web at: http://www.epa.gov/oppsrrd1/REDs/methylbromide-red. pdf.



## 5. Comments on the Supply Chain Factor

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

Reginald Brown Crop Protection Coalition 0064 Jamie Consuerga Natural Resources Defense Council 0 068

• Higher Level of Stocks Needs to be Kept for Supply Chain Disruptions: The Methyl Bromide Industry Panel of the American Chemistry Co uncil (MBIP) incorporated its
comments on the 2008 CUE rule related to the calcul ation of the SCF by reference, and noted that the amount of stocks necessary for supply chai n disruptions “should be equivalent to at least a one-year supply of material.” MBIP urged EP A to adjust its proposed SCF upward to ensure that sufficient stocks are maintained. [005 5]

• Estimation of Stocks Needed in Case of Production F ailure is Flawed: The Crop Protection
Coalition commented that the stocks needed in the e vent of a domestic production failure are incorrectly estimated in the proposed rulemaking, s ince only the actual entity holding the stocks can control the disposition of those stocks. [0064]

The supply chain factor is the Agency’s estimate of the amount of existing methyl bromide
stocks that would be sufficient to meet CUE uses if there were a domestic production failure. Under EPA’s regulatory framework, once the amount o f existing stocks is less than the supply chain factor amount, EPA will allocate the full amo unt of new production authorized by the Parties, once other reductions (such as uptake of a lternatives and adjustments for carry-over amounts) are taken into account.

For 2009, EPA used the same assumptions for calcula ting the supply chain factor as it did for the 2008 CUE rule. EPA assumes that imports will arriv e 15 weeks after domestic production
failure.

This assumption is based on publicly available info rmation, discussion with industry representatives, and data collected by the Agency.

In the 2009 proposed rule, EPA did not re-open the issue of how many weeks’ supply the supply chain factor should represent. That issue was addr essed in detail in the 2008 CUE preamble and accompanying technical document. Nor did EPA re-op en the issue of whether to reserve stocks
for critical users. Further discussion of that iss ue appears in previous CUE preambles and response to comment documents.Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

10 Additional information on the SCF can be found in t he Technical Support Document contained
in the docket to this rule.

• The Supply Chain Factor is Unnecessary: NRDC stated that the entire amount of pre-2005 stocks should be allocated to critical use needs, r educing or eliminating the need for new production. [0068]

The preamble of the final rule provides a detailed rationale for EPA’s application of the supply chain factor. The SCF provides an analytical mecha nism that enables the Agency to calculate critical stock allowance amounts to allocate beyond the amounts stipulated by the Parties.



## 6. Comments on Methods of Estimating Drawdown

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

W. Caffey Norman Patton Boggs, Attorneys at Law,

Representing Arysta LifeScience 0063, with 1 attachment

Dan Hale California Strawberry Commission Public He aring 1

• Amount Designated to be Used from Pre-Phaseout Stoc ks is Based on Flawed Analysis: The Methyl Bromide Industry Panel (MBIP) commented that EPA’s formulaic approach to determining available stocks is flawed and does not provide flexibility needed to address changing circumstances. MBIP commented that EPA’s calculation of the drawdown should be revised to reflect actual inventory data. A survey conducted by MBIP found that prephaseout stocks were drawn down by an amount 44% hi gher than predicted by EPA’s new exponential model. MBIP commented that the exponent ial model is an improvement over the linear model, but is still flawed in assuming a con stant drawdown rate, leading to “absurd” predictions over 10 and 20 year timeframes. Accordi ng to MBIP, the primary flaw in the model is that it is not a true predictive model. M BIP stated that EPA should instead collect information on stock levels by December 1 of each y ear and use this information to adjust CUAs and CSAs in the final rule. [0055]

• Price Increase in Methyl Bromide Will Impact Demand for Stocks: Arysta LifeScience noted the significant difference in the drawdown us ing the exponential versus linear method. The commenter stated that prices of methyl bromide have increased by 50% since 2004, and that iodomethane has become available since then, r educing the total overall demand for methyl bromide. [0063]

• Assumptions on Drawdown are Flawed: The California Strawberry Commission commented that the EPA has falsely assumed the amou nt of stocks used in 2008. The commenter noted that reports from 18 new producers, distributors, and applicators could change assumptions. The Commission also pointed ou t that while EPA models the utilization rate of stocks as linear or exponential , another option is that the previous year’s use of stocks “simply reflects the unique market co nditions of that year.” [Public Hearing 1]Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

11 The formula for calculating available stocks is not a new approach: it was finalized in the 2008 CUE Rule. Information on the development of that fo rmula can be found in the proposed and final 2008 CUE Rules, as well as in the Technical S upport Document for the 2008 control period, which is included in the docket for today’s action.

The one difference from prior rules is that the Age ncy is able, in the final 2009 rule, to use actual data on the amount of 2008 pre-phaseout inventory i nstead of an estimate. EPA believes that using reported end-of-year data to calculate methyl bromide stocks in the 2009 final rule moots concerns about the accuracy of EPA’s estimate.

Due to the timing of the 2009 final allocation rule , the Agency was able to use actual stock level
data from 2008.



## 7. Comments on Treatment of Carry-Over Amounts

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

Dan Hale California Strawberry Commission Public He aring 1

• Two commenters commented that the current reporting on carry-over amounts is
inaccurate.

- The Methyl Bromide Industry Panel of the American C hemistry Council (MBIP)
commented that a “more accurate assessment” of the carry-over amount could be developed by surveying all companies holding invent ory of methyl bromide. MBIP reiterated its suggestions for reporting reform. [0 055]

- The California Strawberry Commission commented that inaccurate reporting and new companies distributing methyl bromide result in ove restimates of how much is being carried over. [Public Hearing 1]

EPA responds to these concerns directly in section V.D.4 of the final rule preamble. EPA is continuing to calculate carryover in the manner des cribed in the 2008 CUE rule, relying on sales information that is reported to us on a mandatory b asis under the regulations. The Agency continues to welcome suggestions for improving repo rting and for ensuring that regulated entities are aware of their reporting obligations.



## 8. Comments on Amounts for Research Purposes

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

• Pre-Phaseout Stocks Should Not Be Used for Research : The Methyl Bromide Industry Panel of the American Chemistry Council (MBIP) comm ented that the pre-phaseout stockpile is at a “dangerously low level” and shoul d not be drawn down for researchSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

12 purposes. MBIP stated that the new production leve l should be increased to account for any methyl bromide dedicated for research purposes. [0 055]

EPA believes pre-phaseout inventory is available in sufficient quantity to continue to encourage researchers to procure methyl bromide from inventor y. The Agency estimates that more than 1,700,000 kg of pre-phaseout inventory is available for critical uses whereas EPA is allowing the sale of 22,171 kg of methyl bromide from existing s tocks for research purposes, and adjusting new production accordingly.



## 9. Comments on Alternatives to Methyl Bromide

Commenter Organization Document ID No Earl Hallberg Presto-X LLC 0046
Kevin Pass Action Pest Control 0047 Russell Martinez American Rice, Inc. 0048 Sean Brantley Emory Brantley & Sons 0049 R. Thadd Bigler Central States Enterprises 0050 Rick Arnett Fume Tech, Inc. 0051 John Mueller Fumigation Service & Supply, Inc. 0052 Bill Cohen Pest Fog Sales Corp. 0053 Herbert C. Yeaman Degesch America, Inc. 0054 Methyl Bromide Industry Panel American Chemistry Council 0055

David Culp Dickson Chemical Co., Inc. 0056
Justin Kremer Ecolab Inc. 0057 Perry Nettles Food Protection Services 0058 Management Staff Research Fumigation Company, LLC 0 059 Anne Bookout Royal Fumigation 0060 Ellen Thoms Dow AgroSciences 0062 W. Caffey Norman Patton Boggs, Attorneys at Law, Representing Arysta LifeScience 0063, with 1 attachment

Reginald Brown Crop Protection Coalition 0064 Ellen Thoms Dow AgroSciences 0067, with 13 attachme nts



### 9.A 

### Sulfuryl Fluoride

• Thirteen commenters indicated their support for sul furyl fluoride, citing advantages such as ease-of-use, efficacy, safety, and reduced aerat ion times. Eight of those commenters stated that the cost of fumigating with sulfuryl fl uoride was comparable to or less expensive than methyl bromide.

- Action Pest Control commented that the use of ProFu me® (sulfuryl fluoride) has allowed them to nearly eliminate the use of methyl bromide. The commenter stated that otherSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

13 advantages include that down time is reduced with u se of ProFume, and that Dow’s ProFume Stewardship Program supports responsible us e of fumigants. [0047]

- American Rice, Inc. commented that ProFume (sulfury l fluoride) has been a suitable alternative for all post-harvest product fumigation needs. The commenter stated that ProFume’s cost is competitive, and that ProFume is easy to use and aerate after use. [0048]

- Emory Brantley & Sons commented that ProFume (sulfu ryl fluoride) has proven effective, safe, ozone-friendly, and economical, an d that the advantages of ProFume far outweigh those of methyl bromide. According to the commenter, ProFume has been used in a wide variety of applications, and its applicat ion has steadily increased annually. The commenter noted that the ProFume Stewardship Progra m requires training and testing, with ProFume representatives ensuring proper monito ring and safety during use. A software tool is used to make sure that the proper dosage and aeration times are being used, resulting in less fumigant released upon aera tion when compared to methyl bromide. Fumigation with ProFume, the commenter no ted, is often less expensive than methyl bromide “in fumigant cost, product downtime, site closure time, and
labor/materials.” The commenter also noted that ele ctronic monitoring of ProFume levels is also available, compared to the expensive, singl e-use colorimetric tubes used for monitoring methyl bromide. ProFume is also non-rea ctive with the product, noncorrosive, non-flammable, and has no impact on seed germination. [0049]

- Central States Enterprises noted that ProFume (sulf uryl fluoride) has exceeded their customers’ expectations and has reduced aeration ti mes, translating into cost savings for customers compared to methyl bromide. [0050]

- Fume Tech, Inc. commented that ProFume (sulfuryl fl uoride) has been “very costeffective” and is a “more effective and safe” alter native to methyl bromide. According to the commenter, some customers claim a better effica cy and lower cost compared to methyl bromide. The commenter also noted that ProF ume has worked well in cases where insects have developed a phosphine resistance . [0051]

- Pest Fog Sales Corp. noted that the calculating pro cedures and label for using ProFume, including the software, are much clearer than those for methyl bromide, and that Dow’s stewardship program is “the best in the industry.” The commenter also noted that fumigation with ProFume is quick and precise, and c lears faster than methyl bromide. [0053]

- Ecolab Inc. commented that their use of ProFume (su lfuryl fluoride) for structural fumigation has been successful, noting the product’ s advantages over methyl bromide: training and support by a Dow Chemical representati ve, controlled release, rapid aeration, and profitability. [0057]

- Food Protection Services commented that ProFume’s q uick set-up, excellent penetration, and rapid aeration has made it a successful fumigan t for customers. The commenter stated that the stewardship training by Dow, the Fu miguideTM software, and the comprehensive fumigation plans have often allowed f or reduced use of fumigant. The commenter also noted that the economic impact of re placing methyl bromide withSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

14 ProFume is related to eliminating unnecessary fumig ations, and improvements that allow the most effective control measures to be implement ed [0058]

- Degesch America, Inc. indicated their support for t he use of ProFume (sulfuryl fluoride), citing their customers’ “great satisfaction” with i ts results and the quality of the product stewardship program provided by Dow AgroSciences. [ 0054]

- Dickson Chemical Co., Inc indicated their support f or the use of ProFume (sulfuryl fluoride), citing their customers’ satisfaction wit h its results, in regards to application, pest control, and aeration timing. [0056]

- Research Fumigation Company, LLC commented that as a result of using ProFume in mills and commodities, they have experienced good p est control, improved exposure and aeration times, and have been able to reduce their methyl bromide use. [0059]

- Royal Fumigation commented that they successfully t ransitioned from methyl bromide to ProFume (sulfuryl fluoride), including for cocoa be ans, by working with Dow AgroSciences. The commenter states that ProFume is an efficacious and economically feasible alternative to methyl bromide. [0060]

- Dow AgroSciences LLC (Dow) commented that fumigator testimonials support the efficacy and economics of ProFume (sulfuryl fluorid e). In particular, according to the commenter, the Fumiguide software allows for effici ent and effective fumigation, tailored to the application at hand. [0062, 0067]

• Disadvantages of Fumigating with Sulfuryl Fluoride: Presto-X LLC noted that their experience with ProFume (sulfuryl fluoride) as an a lternative has been positive, but that the cost is not competitive with methyl bromide due to the increased dosages needed to obtain efficacy comparable to methyl bromide. The comment er stated that another disadvantage is that ProFume is not approved for some food commodit ies and pet food ingredients. [0046]

EPA welcomes information from applicators and end u sers regarding their experiences using sulfuryl fluoride. This information demonstrates t hat many stakeholders in the post-harvest sector are moving away from methyl bromide and to t his alternative. EPA does not believe, however, that the commenters have provided informat ion that is sufficient to warrant
modification of the rates EPA uses to estimate the adoption of this alternative in the marketplace. Except in situations where applicants have told EPA that they will be converting completely to sulfuryl fluoride use, EPA has assumed that the tra nsition will occur over several years.

The commenter is correct that sulfuryl fluoride is not approved for all post-harvest uses.

When evaluating whether methyl bromide is needed, E PA looks not just at sulfuryl fluoride but all possible substitutes to determine if a substitu te (be it another chemical or a practice such more frequent cleaning) is both technically and economic ally feasible and whether or not a significant market disruption will ensue if methyl bromide is u navailable. In situations where sulfuryl fluoride is not approved for use on the commodity, as in the case of pet food, the transition assessments developed by EPA scientists are not bas ed on sulfuryl fluoride but on other
alternatives.

EPA has received a variety of information concernin g both the price of both methyl bromide andSummary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

15 sulfuryl fluoride. In some examples the price of S F is higher than the price of methyl bromide,
in some cases it is lower. EPA has also observed t hat the price of methyl bromide has been increasing through time. It is important to note t hat the cost of the fumigant is a fraction of the cost of the fumigation.

Except in situations where applicants have told EPA that they will be converting completely to sulfuryl fluoride use, EPA has assumed that the tra nsition will occur over several years, with the transition occurring more rapidly where there is a cost advantage to using the alternatives.

• Issues Identified as Barriers to the Use of Sulfury l Fluoride Have Been Resolved: Dow AgroSciences LLC (Dow) commented that issues report ed in the 2009 CUE nominations as barriers to the adoption of ProFume (sulfuryl fluor ide) as an alternative to methyl bromide
have either since been resolved or demonstrated not to be barriers. Dow stated that the efficacy of ProFume in the field has been demonstra ted in mill evaluations and for various commodities, including cocoa, dried fruits and tree nuts. Testing conditions include worstcase field circumstances. Dow noted that the suitab ility of ProFume for the cocoa and chocolate industry has allowed the industry to enti rely replace methyl bromide with ProFume; an average of 22 cocoa fumigations are con ducted daily with ProFume. Dow also
commented that sales of ProFume have increased sinc e 2004, and that no disruption to the food industry was observed in Europe associated wit h no methyl bromide used for postharvest fumigation in 2008. The fumigant is regist ered in all 50 states and in foreign countries. Dow attached thirteen supporting documen ts with updated data on ProFume’s efficacy, product use, and economics. [0062, 0067]

EPA appreciates technical supporting information, s uch as the information on limiting critical
conditions.



### 9.B 

### Market Status of Iodomethane

• MIDAS (Iodomethane Formulation) Is Widely Available , Widely Applicable, and Has Economic Advantages: Arysta LifeScience commented that MIDAS®, containin g iodomethane, is a drop-in alternative for methyl br omide in 85% of soil applications, and is registered for use in 47 states. The commenter sta tes that the amount of iodomethane estimated by EPA in its 2008 rule to replace methyl bromide (14,472 kg) represents approximately 300 acres treated; however, MIDAS® wa s used in its first year on more than 7,000 acres. The commenter stated that iodomethane can be used easily, using the same equipment as methyl bromide, and can be used with f ilms. According to the commenter, MIDAS® is also economically viable, as it can be ap plied at 20-30% lower rates per-acre than methyl bromide with no performance reduction. The commenter believes that at least 650 MT of critical use methyl bromide will be repla ced by MIDAS® in 2009, with use primarily in Florida, Georgia, and Virginia, and on strawberries, tomatoes, and peppers. The commenter attached several studies on the advantage s of MIDAS® and its cost-effectiveness compared to methyl bromide to support their comment . [0063]

Iodomethane is currently registered on food crops ( peppers, tomatoes, strawberries) and nonfood nursery crops (ornamentals, forest seedlings, and strawberry nurseries). EPA has assumed uptake on only the food crops at this time. Althoug h it is registered on non-food nursery crops,Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

16 the Agency has not assumed any uptake for 2009. Th is is in keeping with the Agency’s policy of being protective of nursery crops until there is ce rtainty that use of the newly registered alternative is efficacious on nematodes, diseases, and fungi and can meet any certification requirement.

There are two major CUE food crops that do not have an iodomethane registration: curcurbits and eggplants. EPA did not estimate any uptake on those crops. For the crops and states where iodomethane is registered, EPA has estimated that a n additional 15 percent of the critical use methyl bromide authorized by the Parties for 2009 c an transition to iodomethane use.

The Agency’s analysis, described in a memo on the d ocket for this action, estimates that iodomethane can feasibly replace 262,035 kg of meth yl bromide in 2009. This analysis was conducted in the same manner as the analysis for th e 2008 CUE rule.

In estimating the amount of methyl bromide that wil l be replaced by iodomethane, EPA is not estimating overall market penetration for iodometha ne. EPA expects that iodomethane will also penetrate markets occupied by fumigants other than methyl bromide.

Nevertheless, because of information regarding the decreased production of Telone, EPA is not making any reductions for alternatives (such as iod omethane) in the final 2009 CUE rule.

• Lack of Access to Iodomethane: The Methyl Bromide Industry Panel of the American Chemistry Council (MBIP) commented that iodomethane , an alternative fumigant, is not easily available to methyl bromide users. MBIP sta ted that the Proposed Rulemaking does
not contain sufficient information on how the rule accounts for use of iodomethane to allow for meaningful comment. Because of this limited am ount of information, MBIP stated that the rule does not satisfy the standard that an “age ncy notice must describe the range of alternatives being considered with reasonable speci ficity” and that, as a result, EPA cannot promulgate a final rule that “imposes anything but a de minimis reduction in the total level of critical use production and imports to account for the estimated uptake of iodomethane.” [0055]

EPA calculated that iodomethane replaces methyl bro mide by 15% for the crops and States where it is registered. Our calculations are cont ained in a background document to the docket for the rulemaking.

.



### 9.C 

### Market Availability of Telone

• Decreased Telone Supply: The Methyl Bromide Industry Panel (MBIP) commented that a predicted drop in the supply of Telone in 2009 wo uld create additional pressure on prephaseout inventories of methyl bromide. [0055]

• PA received information that Dow AgroSciences has r educed its production of 1,3 D (marketed as Telone) for the first half of 2009. C ommenters believe that this shortage will place greater pressure on stockpiled methyl br omide as growers facing a shortage of Telone will be forced to rely on the pre-phaseout i nventory. [0063]Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

17 As discussed in detail in the preamble to the final rule, EPA received information projecting a shortage of Telone in the first half of 2009, some of which was confidential business
information. EPA was not able to assess the exact impact and duration of a shortage of Telone but, based on information available to the Agency, ascertained that it was appropriate to reflect these projections in its calculation of new product ion, which includes information available about market penetration of alternatives. As descr ibed in the final rule, EPA addressed the likely shortage of Telone by restoring an amount of new me thyl bromide production equivalent to the
amount that would have been subtracted to reflect u ptake of iodomethane. In effect, EPA did not make any adjustments to the amount of new productio n to reflect availability of alternatives.



### 9.D 

### Other Comments on the Transition to Alternatives:

• Success in Using Several Alternatives: Fumigation Service & Supply, Inc. commented that their company has, over the course of six years, co mpletely replaced methyl bromide applications with heat, phosphine, fogging, and Pro Fume. The commenter reported that costs and efficacy standards have been maintained while m oving from methyl bromide to alternatives. Only two out of hundreds of customer s still hold out for methyl bromide. [0052]

• Difficult Transition to Alternatives: The Crop Protection Coalition commented that the process of transitioning to alternatives will likel y be “much harder” and “much slower” as a result of EPA’s “fumigant RED process.” [0064]

It is not clear from this comment exactly why EPA’s Reregistration Eligibility Decision (RED) is making the transition to methyl bromide alternative s harder and slower. Through the RED process, EPA is ensuring that all pesticides us ed on food in the United States meet the Federal Food, Drug, and Cosmetic Act’s safety stand ards

. EPA is strongly committed to involving stakeholders and the public in reevaluating registered pesticides. The Agency's public participation proc ess for pesticide tolerance reassessment and reregistration has provided a dynamic framework for public involvement and consultation during the conduct of these programs. Because pesticides do not all present the same degree of risk or complexity of issues, the public participation proc ess provides options for conducting a full 6 phase process, modified 4 phase process, or streaml ined low risk process. Using this tailored approach, EPA promotes robust public involvement wh ile making timely pesticide regulatory decisions. The significant risk reductions EPA has required as a result of this process has resulted in improved food safety and human health a nd environmental protection.



## 10. Comments on Emissions Minimization

Commenter Organization Document ID No Dan Hale California Strawberry Commission Public He aring 1 Jamie Consuegra Natural Resources Defense Council 0 068

• Recommendations for Reducing Emissions: The California Strawberry Commission provided several recommendations for further reduci ng emissions of methyl bromide. First,Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

18 the Commission suggested that EPA implement a multi -year CUE and allocation rule to provide a more predictable market, or alternatively that EPA provide matching grant funds. Second, the commenter stated that EPA should encour age the use of formulations with a lower percentage content of methyl bromide and shou ld reduce buffer zones for those formulas. Third, the Commission commented that EPA should regulate emissions of methyl bromide and not production. The Commission noted th at the current rulemaking fails to reward “investment in new environmental technology. ” [Public Hearing 1]

The Montreal Protocol highlights the need for all p arties to take steps to reduce emissions. The critical use process under the Protocol is also str uctured so that CUE requests are processed yearly. While the U.S. government has raised the i ssue of changing to multi-year CUEs (during international meetings), there has been very little support from other countries for making this change. Many of the countries expressed concern tha t providing a multi-year exemption would take away a needed incentive for producers of alter natives.

Through sponsorship of the Methyl Bromide Alternati ves Organization annual conference, EPA supports research and demonstration projects where formulations with a lower percentage content of methyl bromide are used. However, the A gency disagrees that lower percentages of methyl bromide use mean a concurrent reduction in b uffer zones.

Regarding the third comment, the regulatory structu re established by EPA in response to the Montreal Protocol is based on production, not emiss ions. The Agency has not seen a compelling reason to change this structure.

• The Natural Resources Defense Council suggested tha t EPA require emission minimization. [0068]

Rather than mandate emission reduction techniques, EPA will continue to work with the U.S. Department of Agriculture – Agricultural Research S ervice (USDA-ARS) to promote the techniques on a voluntary basis. As discussed abov e, the federal government has invested substantial resources into best practices for methy l bromide use, including emission reduction practices. USDA-ARS has a national outreach effort to publicize the best practices. Also, EPA continues to work on the registration review of pro mising methyl bromide alternatives while USDA-ARS works closely with researchers and growers to identify and develop new pest
treatment solutions.



## 11. Comments on Allocation Methodology

Commenter Organization Document ID No Methyl Bromide Industry Panel American Chemistry Council 0055

• Support for Universal Allocation: The Methyl Bromide Industry Panel of the American Chemistry Council commented that they support the c ontinued use of universal allocation approach. [0055]Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide

19 EPA agrees with this comment supporting the existin g allocation system. EPA considered sector-specific and other allocation approaches in the proposed Framework Rule, and decided that the existing universal allocation system with pre-plant and post-harvest allowances was the most effective and least burdensome system. Rather than specify the amount of methyl bromide available to each crop/region, EPA divides the tota l CUE amount between the pre-plant and postharvest sectors. This allows market forces to help mediate where, for each sector, the methyl bromide will be used rather than the government dic tating use on a state-by-state and crop-bycrop basis. EPA does not take any action to disadv antage a particular crop or region.