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Prepared Witness Testimony The House Committee on Energy and Commerce
Status of Methyl Bromide under the Clean Air Act and the Montreal Protocol.
Subcommittee on Energy and Air Quality
Mr. Reginald Brown
Mr. Chairman, I am Reginald Brown. I am Chairman of the Crop Protection Coalition (CPC) and Executive Vice President of the Florida Tomato Exchange. The CPC is comprised of agricultural organizations in the United States representing tens of thousands of American farmers, processors, and horticultural interests, billions of dollars of agricultural production and employing hundreds of thousands of people. Our commodities, farmers, mills and the economic contribution they make, are an extremely important economic factor in many rural communities of the United States. While the crops we produce are diverse, we share a common concern about the potential loss of an important crop protection tool-methyl bromide. Our message is simple. The current phaseout of methyl bromide under the Clean Air Act and the Montreal Protocol will cause serious economic disruption to many segments of the American agriculture, economic losses to communities that rely on our farmers, the loss of jobs and a loss of international competitiveness. In short, this is a wreck waiting to happen. We believe there are many critical uses of methyl bromide, including use as a pre-plant soil fumigant, post-harvest commodity treatment and structural treatment of processing and storage facilities, for which feasible alternatives are not available. This belief has been confirmed most recently by the U.S. government, including the U.S. Environmental Protection Agency (EPA). Specifically, in response to an exhaustive evaluation of substantial applications for critical use exemptions (CUE), involving a large number of EPA and USDA Ph.D. scientists, the U.S. government determined that there was a lack of feasible alternatives for many uses of the chemical. It is understood that the U.S. government recommended approval of approximately 22 million pounds of methyl bromide under the CUE process. This translates into almost 10,000 long tons. The CUE applications reviewed by EPA to reach this conclusion were extensive. In fact, CUE applications for just three Florida crops exceeded 3,000 pages of supporting documentation from the industry. The industry devoted significant and substantial resources to make certain that the applications submitted were rigorous and reliable. Thousands of industry man hours were required to develop the applications to achieve the degree of rigor that the U.S. government had said would be needed to obtain the CUE. Extension scientists were very heavily involved in this effort as well. The industry met with EPA and USDA officials on numerous occasions to make certain that what the U.S. government said was needed to support a CUE application, was in fact provided. In short, a good working relationship developed between industry and the EPA to make certain that the U.S. government had all the information necessary to support the approval of the CUE application. Based on the extensive record it had, the EPA recommended that CUE applications equating to 39% of 1991 baseline levels should be recommended for approval. It should be noted that the original CUE applications from all sectors totaled 35 million pounds or 62% of the 1991 baseline levels. Through the critical review process, EPA reduced this number to the 39% figure. Clearly, no one can say that he Agency simply "rubber stamped" the CUE applications it received. If the EPA or USDA did have questions concerning a specific application request, the government would contact the applicant and seek clarification of the request or the information submitted with it. Attached to this testimony is the sector analysis that was provided by the EPA, which analysis describes EPA's review of the applications received. (Attachment 1) The CUE process might have a chance to work if it simply required a review and approval by the U.S. government. However, as the chairman knows, this is not how the CUE process works. In fact, securing the U.S. government's recommendation for approval is simply an early step in the CUE process. Once such recommendation is given, the U.S. government forwards it for approval to the Montreal Protocol. This then entails review by the Methyl Bromide Technology Options Committee (MBTOC). That review occurred over a 5-day period in May, 2003. The MBTOC's deliberations are apparently secret. Even when the EPA was asked after the MBTOC meeting, what the MBTOC had decided, senior Agency representatives indicated that they did not know. MBTOC would not disclose its analysis and conclusions to the EPA. Once MBTOC commented on the CUE applications, its recommendations were forwarded to the Technology and Economic Assessment Panel (TEAP) for review. Ultimately, the TEAP determined that most of the U.S. applications were inadequate. While it did approve the U.S. requests associated with post-harvest and structural uses, it approved less than 10% of the U.S. CUE application requests. This equates to only approximately 830 long tons. Unfortunately, 90% of the pre-plant uses were not recommended for approval by TEAP (more than 9,000 long tons). TEAP stated that the U.S. government had not submitted sufficient information to support the U.S. request. It left the door open for the U.S. government to do a better job, submitting more information. Then, perhaps, maybe the TEAP could support approval of additional CUE requests. Given the response of the TEAP in considering applications for continued use of ozone depleting substances for use in asthma inhalers, a use which can help save lives and mitigate a public health threat, the CPC is not optimistic about he likelihood that the U.S. requests for pre-plant soil uses will ever be approved, regardless of the volumes of supporting material that the U.S. includes with its CUE requests. There simply is a bias that exists in TEAP against approving any exemptions that could continue the use of ozone depleting chemicals, regardless of the legitimate needs of various sectors. It is clear that the CUE process is substantially and fatally flawed. This conclusion is based on the observation of the operations under the Montreal Protocol. It would be one thing if the CUE system was designed to not present an undue regulatory burden, that is was a transparent, open, objective and fair review process. However, the CUE process is none of these things. The application itself is overwhelming! Such application process is structured on a yearly basis. As noted above, the amount of resources needed to complete the application are enormous. Even with all that effort, and after securing EPA approval, it turns out that the bureaucrats of the UNEP committees can act to derail the approval process, all under the guise that the U.S. government had not submitted quite enough information to substantiate the application requests. No wonder that Johnathan Banks, co-chair of MBTOC publicly announced at an alternatives research conference in 1997 that industry should not place any hope in the CUE process. No significant amounts of methyl bromide would be allowed under the Montreal Protocol. The sooner the U.S. industry "got over it", it would then move on to full implementation of alternatives to methyl bromide and achieve complete phase out of the chemical. This was from one of the leaders under the Montreal Protocol. Unlike the review conducted by EPA and USDA of the CUE applications, it appears that neither MBTOC nor TEAP decided to conduct their evaluations in the sunlight nor engage the countries involved in any meaningful dialogue over the requests that had been submitted. Further, these committees under the Montreal protocol appear to be perfectly content to create whatever standards they want to in evaluating CUE application requests. There is no public comment opportunity on these standards before they are adopted by the committees. A simple example of this involved a criteria that TEAP adopted to determine whether an alternative was economically feasible. Instead of relying on the economic analysis associated with a particular use, the TEAP adopted an analysis that was tied to the amount of funds given to developing countries under the Montreal Protocol Multilateral Fund to encourage the elimination or reduction of methyl bromide use in that developing country. This created a cost per ton figure. If the CUE request was below such amount, this would indicate that economically viable alternatives did exist and the CUE should not be granted. Only if the alternatives costs in the developed nation were above that figure, would the alternatives be considered not economically viable. Setting aside the obvious questions regarding the appropriateness of such criteria, nevertheless, it remains that such standard was never put forth for public comment. It was simply unilaterally adopted by TEAP in evaluating the U.S. CUE requests. I am certain that the leaders of these committees believed that they have not done anything wrong. While serving on these committees they operate divorced from their countries. They serve as universal soldiers in a fight to protect the environment. They know their goal and because it is for the greater good, they feel comfortable with taking whatever approach necessary to achieve that goal. Unfortunately, questions about facts, due process and fundamental fairness tend to get swept aside in such a system. Accountability to the public becomes irrelevant. This same phenomena can be seen in the operation of the Multilateral Fund (MLF) under the Montreal Protocol. It is understood that a total of $1.3 billion has been spent on the MLF from 1991 to the present date. The U.S. government's share of this is approximately 27% or $350 million. Since 1997, MLF has spent approximately $81 million on methyl bromide projects. Roughly 40% of that amount has gone directly to nations that are agricultural competitors of the U.S., including Mexico, China, Chile, Costa Rica, Guatemala and Argentina. The MLF requires recipient countries to file progress reports. However, progress reports have not been submitted for 40% of the methyl bromide projects (~ $27 million). The non-reporting countries include Costa Rica, Argentina, Guatemala, Chile and Turkey. These countries are therefore technically out of compliance with the Montreal Protocol. Additionally, some nations that had not yet ratified the relevant amendments to the Montreal Protocol, have received MLF funding for methyl bromide projects. For example, China received over a million dollars for methyl bromide alternatives research before it signed the Copenhagen Amendments to the Protocol. (Incidentally, during this time, China was also building a new methyl bromide production facility.) Further, MLF funding for methyl bromide projects was given to countries that never even reported using methyl bromide (e.g., Albania, Panama and Burkina Faso). The foregoing demonstrates that a lot of funds, including U.S. funds have been spent under the MLF with little or no supervision, accountability or results. Again, since the apparent, environmental goal is justified, the mechanics used to achieve that goal appear to have little importance under the Protocol. The Congress and this Administration cannot pin their hopes on such a flawed system to protect our nation's interests. The Congress and this Administration should not abrogate their responsibility to our nation's food, fiber, or horticultural industries by defaulting to the decisions of other foreign countries, particularly when such decisions are final and not reviewable. This is simply wholly inconsistent with the principles of our country. The CPC is not at this time advocating an end to the phase out of methyl bromide. The issue is not whether the chemical has an ozone depletion potential value that warrants its phaseout, regardless of the uncertainties associated with that value. We seek a delay. We recognize that developing nations have access to the product long after the developed countries are to have phased out the chemical. We believe the playing field should be leveled. We believe the phaseout date should be extended for all parties under the Montreal Protocol until 2010. We believe freezing the production level at 50% of the 1991 baseline would not significantly impact the restoration of the ozone layer. Again, it should be remembered that man's contribution to the production of the chemical is approximately 15-25% of all methyl bromide produced. (Most of the methyl bromide is produced naturally such as by the oceans or by biomass burning.) We have discussed this issue with several ozone scientific experts who privately agreed that such an adjustment would not have a significant impact on the restoration of the ozone layer. When the foregoing is contrasted with the adverse economic effects to a wide variety of food, agriculture, and horticultural interests that will result if methyl bromide is not available, it is clear that an adjustment to the phase out schedule must be implemented. Action must be taken by the Parties to the Montreal Protocol to achieve such a change. If the Parties are unwilling to make such a change, then Congress and this Administration must make the change through a change in the domestic law, the Clean Air Act. Action is needed now so that all affected parties have an opportunity to know what tools will be available to them come January 1, 2005. CPC appreciates the opportunity to provide these comments to the subcommittee. We hope that meaningful action will result to address this critical problem for our nation.
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