 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
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. David Doniger
Mr. Chairman, member of the subcommittee, my name is David Doniger. Thank you for the opportunity to testify today. I am Policy Director of the Natural Resources Defense Council's Climate Center. I have worked to protect the ozone layer for more than 20 years in both non-governmental and governmental capacities, dealing with all of the important ozone-destroying chemicals, from the CFCs to methyl bromide. During the 1980s and early 1990s, I represented NRDC in negotiations on the Montreal Protocol and its follow-on agreements, and worked to enact and implement the ozone protection title of the 1990 Clean Air Act Amendments. I served in the Environmental Protection Agency during the Clinton administration and participated in deliberations leading to the 1997 Protocol amendments on methyl bromide. I rejoined NRDC in 2001, and I continue to monitor international and domestic policy on protecting the ozone layer. Global Threat and Global Response There are few more harrowing threats to our health and our environment than destruction of the Earth's protective ozone layer. And there are few more heartening success stories than the global effort to phase out the ozone-damaging chemicals. The Montreal Protocol - which has enjoyed bipartisan support from three presidents, beginning with Ronald Reagan - is saving literally millions of Americans, and tens of millions of people around the world, from death and disease. Every American, and every citizen on this Earth, relies on the ozone layer to block dangerous ultraviolet radiation that causes skin cancer, cataracts, immune disorders and other diseases. Yet the ozone shield has been - and continues to be - badly damaged by a range of man-made chemicals, from CFCs to methyl bromide. Nearly all of the high-potency ozone-destroying chemicals have been successfully eliminated. Methyl bromide is only one still in widespread use. The Antarctic ozone hole is the most striking symbol of humanity's capacity to injure the environment on a global scale and in ways that no one foresaw. But the damage is not confined to the ends of the Earth. The ozone layer directly over our heads has been weakened, sharply increasing our exposure to dangerous UV radiation. Millions of Americans - including farmers - must work everyday in the sun. Millions more - from school children to seniors - spend hours of their days out of doors. Millions of concerned parents check the UV Index and cover their kids with sunscreen before letting them go out in the sun. The Montreal Protocol is working and has begun to heal the ozone layer, but it will still take at least 50 more years to fully recover - assuming we stay the course and complete the phase-out of all potent ozone-destroyers, including methyl bromide. As stated in the latest ozone science assessment: The Montreal Protocol is working, and the ozone-layer depletion from the Protocol 's controlled substances is expected to begin to ameliorate within the next decade or so. . . . Failure to comply with the Montreal Protocol would delay or could even prevent recovery of the ozone layer. For example, continued constant production of ozone-depleting substances at the 1999 amount would likely extend the recovery of the ozone layer well past the year 2100. The total atmospheric abundance of ozone-depleting gases will decline to pre-Antarctic-ozone-hole amounts only with adherence to the Montreal Protocol's full provisions on production of ozone-depleting substances. This is no time to slacken efforts to protect the ozone layer or to tamper with the world's most effective environmental treaty. Americans know what causes ozone depletion, and they expect their government to do what it takes to stop it. They will not reward leaders who bash the Montreal Protocol or attack the Clean Air Act. Dozens of other industries have stepped up and accepted their responsibility to replace CFCs, halons, and other ozone-destroying chemicals they had grown accustomed to. They innovated and adopted new technologies and practices, and they successfully eliminated these chemicals within a decade or less. Their new products are as good as or even better than the ones they replaced. Producers and users of methyl bromide have already had a dozen years to work on replacements - more time than any other industry. Many farmers and food processors have accepted the science and faced up to the challenge of eliminating methyl bromide, and much progress has been made. Progress will continue as existing alternatives are more fully adopted and new ones are successfully registered under the pesticide laws. But some factions in this industry have chosen denial and obstruction and are waging a campaign to stop or even reverse the phase-out of methyl bromide. Their campaign, based on misrepresentation and innuendo, must not be allowed to succeed. Leaders who pander to their pressure are punishing those farmers who played by the rules, endangering the health of millions of Americans, and making our country into an international outlaw.
Methyl Bromide: Still Dangerous After All These Years Methyl bromide is the most dangerous ozone-destroying chemical still in widespread use. Some, however, would have you believe that new science has virtually exonerated it. But the latest scientific assessment confirms that methyl bromide is in the same league with the potent chemicals that have already been eliminated, with an "ozone depletion potential" of 0.38. That is nearly twice the 0.2 level that defines a "Class I" chemical that must be eliminated under the Clean Air Act. Methyl bromide is nearly four times more potent than methyl chloroform, which was phased out in the 1990s, and HCFC-141b, a CFC replacement that has been nearly eliminated. In fact, the latest Scientific Assessment indicates that methyl bromide is causing nearly as much damage to the ozone layer as all HCFCs combined. We have long known that short-term exposures can cause severe illness and death, and many communities have restricted its use in fields located near homes and schools. Now new information links methyl bromide with increased cancer risks among farmers and other workers who are directly exposed. Most recently, the National Cancer Institute reported in May that methyl bromide has been linked to increased prostate cancer risks in a study of 55,000 pesticide applicators, including farmers, nursery workers, and workers in warehouses and grain mills. The Critical Use Exemption Process: Broken at Home, Not Abroad Other witnesses would have you believe that they are being victimized by an unfair process under the Montreal Protocol. In fact, it is the Bush administration and U.S. agribusiness that are abusing the critical use exemption process. A brief description of the Protocol's phase-out requirements and the critical use process is important. The U.S. agreed to these provisions and is legally bound by them. Moreover, Congress passed amendments to the Clean Air Act in 1998 requiring the phase-out of methyl bromide in this country to proceed on the same terms. The Protocol sets out a four-step reduction in methyl bromide production. After a freeze in 1995 at 1991 levels, methyl bromide must be cut by at least 25 percent starting in 1999, 50 percent in 2001, 70 percent in 2003, and 100 percent in 2005. The Protocol allows critical use exemptions from the last step only. There are no critical use exemptions from the interim 25, 50, and 70 percent reductions. Only after 2005, when the reduction otherwise reaches 100 percent, can there be any such exemptions. The exemption provision is located in the paragraph that mandates the final step from 70 to 100 percent reduction: "This paragraph will apply save to the extent that the Parties decide to permit the level of production or consumption that is necessary to satisfy uses agreed by them to be critical uses." In this way, the total amount of critical use exemptions granted is limited to a maximum of 30 percent of a country's base 1991 level. Critical use exemptions under the Clean Air Act are limited to the same amount. The process of applying for critical use exemptions is transparent, with clear standards and explanations, and many opportunities for a country to make its case. The Protocol parties set forth exemption criteria in 1997. The application process began this year with national applications. Applications must show that "[t]he specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption;" that "[t]here are no technologically and economically feasible alternatives or substitutes available;" and that "[a]ll technically and economically feasible steps have been taken to minimize the critical use and any associated emission of methyl bromide." Applicants also have to demonstrate that "an appropriate effort is being made to evaluate, commercialize and secure national regulatory approval of alternatives and substitutes" and that "research programmes are in place to develop and deploy alternatives and substitutes." Applications are reviewed first by expert panels reporting to the Protocol's standing expert advisory group (the Technical and Economic Assessment Panel (TEAP)), which will make recommendations to the parties. In May, the TEAP published an interim progress report on all countries' applications, recommending that many exemptions be granted, and that some be denied because proven alternatives are available. For a large number of specific crops and other applications from many different countries, however, the TEAP's progress report states that the national applications do not give sufficient information to form a technically sound recommendation. Each country now has the opportunity to supply the needed information before the TEAP makes its final recommendations to the parties. The parties will meet to discuss the applications in July, and will make final decisions six months later at their official annual meeting in December. The Bush administration has abused the critical use process in three ways. First, it has requested exemptions that greatly exceed the 30 percent upper limit. The U.S. baseline amount is 25,528 metric tons. Thirty percent of that amount is 7,568 metric tons. The administration, however, requested exemptions totaling 9,921 tons for 2005, and 9,445 tons in 2006 - 39 percent and 37 percent, respectively, of our baseline. This is far more than the maximum level allowed under the Protocol and the Clean Air Act. The administration apparently denies that there is a binding 30 percent upper limit on critical use exemptions. If that were true, the parties could agree to any amount of exemptions - all the way up to a country's 1991 baseline level. This is an absurd reading of the Protocol. It would mean that after reducing methyl bromide without exceptions by at least 70 percent in the years leading up to 2005, the parties would then be free to reverse the phase-out and increase methyl bromide production again - all the way back to the freeze level of 1991. The second abuse is that the administration's application is deliberately bloated. The executive summary of the request reveals that that the application was purposely constructed to ask for more methyl bromide than the administration's best estimate of what is really needed. The amount requested for each of the 16 covered sectors contains a hefty "margin of safety" that exceeds the best estimate of need. The application notes that previous exemption requests for other chemicals ran 30 to 40 percent higher than the amounts actually needed. The application then urges "a similar, understanding approach" for similarly inflated methyl bromide exemptions. The consequences of padding of each sector's application are further exaggerated by the fact that the administration is asking for a "lump sum" allocation and the freedom to re-deploy unneeded excesses in one sector to any other users. There might be an argument for allowing this freedom to move methyl bromide around between sectors if the total request had been built up from best estimates of each sector's needs, rather than padded figures. In that case, some sectors would be likely to do better than expected with alternatives, while others might fall behind. The freedom to move methyl bromide from one sector to another would allow for a much smaller total request while still having an adequate margin of safety overall. As presently constructed, however, the total amount is way more than needed. The third abuse - perhaps the biggest "black box" of all - is the administration's failure to define what constitutes "significant market disruption." As noted, each country must show that "[t]he specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption." The term "significant market disruption" indicates a focus on market impacts, not just costs for a specific grower group. A pertinent measure of market disruption would be the effect on consumer prices for that commodity. And there must be more than just an effect - the effect must be significant. The U.S. application is full of claims about increased costs for producers, but the administration has yet to articulate any definition of what market impacts constitute a significant disruption. As should have been expected, the U.S. application is now drawing questions from the TEAP expert panels. The TEAP progress report indicates favorable recommendations for the full amount requested for a number of U.S. sectors - for example, fruit tree nurseries, orchard replanting, strawberry runners, mills and processors, smokehouse hams, and dried fruit, bean, and nut storage. The TEAP report indicates a wholly negative recommendation for only one U.S. usage - tobacco seedlings - on the basis that at least five specific alternatives are available and in use in other countries. For a number of U.S. sectors - including the heaviest users, such as field fumigation of tomatoes and strawberries - the report states that the expert panel is "unable to complete its evaluation" due to incomplete information. For each of these sectors, the report frames specific questions for the U.S. to address concerning potential alternatives. The TEAP's progress report treats the U.S. application no better or worse than any other nation's. Each application received the same scrutiny and many other nations, including, Australia, Belgium, France, Greece, Italy, Israel, Japan, Portugal, Spain, and the U.K, have received recommendations for reduced use or have been asked for more information on important sectors. The Bush administration may now be tempted to try to bull its way through to approval of the entire request, putting politics and special interests first and public health and international cooperation last. Grabbing for everything risks a destructive confrontation here at home and with other countries abroad. It could trigger a downward spiral that destroys the consensus for protecting the ozone layer. If the U.S. breaks up that consensus, other countries are likely to slow or even abandon their phase-outs of methyl bromide and other chemicals as well. Does the Bush administration - or the Congress - really want the responsibility for wrecking another international agreement? For preventing repair of the ozone layer and exposing millions more Americans to skin cancer and other illnesses? Quarantine Out of Control The Subcommittee has also asked for views on the quarantine exception. The short answer is that the quarantine process is out of control. Historically, the amount of methyl bromide used for quarantine - fumigation of domestic and international shipments to meet food purity standards and prevent the spread of pests - has been relatively small. In the early 1990s, before the phase-out of other uses began, quarantine and pre-shipment uses combined were estimated to be about 10 percent of total production. The volume used for this purpose does not appear to have changed dramatically in the 1990s, although the percentage went up as the volume of other uses was reduced. The TEAP reports that about 19-21 percent of total world production in 2000 - between 10,475 and 11,800 tons - was for quarantine and pre-shipment purposes. Because of both the importance of quarantine fumigation and its small scale, the parties to the Montreal treaty agreed to exempt quarantine and pre-shipment production from the phase-out. In effect, they made a pragmatic decision to focus on the dog, not the tail. Thus the Protocol and the Clean Air Act currently allow continued production of methyl bromide for this purpose, both before and after 2005. Now, however, the Bush administration is on the verge of two new actions that would explode the quarantine exemption far beyond any contemplation and create huge loopholes in the methyl bromide phase-out. In short, the tail is about to overwhelm the dog. The first of these actions is a new rule proposed by the U.S. Department of Agriculture (USDA) that would require the treatment of all raw wood packing material imported into or exported from this country. If promulgated, the new rule will lead to a massive and unnecessary increase in the amount of methyl bromide used for quarantine fumigation. The proposed rule would require all imports and exports of products packaged in raw wood to be heat-treated or fumigated with methyl bromide to kill any pests in the wood. In practice, because heat treatment is more expensive, most products packed in raw wood will be fumigated with methyl bromide. USDA has not provided consistent estimates of how much methyl bromide will be used to meet this requirement. In the draft environmental impact statement (EIS) for this rule, USDA estimates that methyl bromide emissions will increase by 5,145 metric tons. That would double current world use for fumigation purposes, and would increase total world usage by more than 10 percent. This estimate is likely to be on the low side because it assumes that raw wood packing material would be fumigated before goods are packaged in it. We know from experience in China, however, that fumigation occurs at port facilities, after goods are packed in raw wood materials. Under that scenario, another USDA EIS predicts a massive increase in methyl bromide use - by more than 102,000 tons per year. That would increase current world use for quarantine purpose by 10 times. It would be more than double total world use of methyl bromide for all purposes. To be sure, raw wood packing presents a real risk of carrying new and destructive pests onto our shores. But treating such packing material with methyl bromide is both an incomplete defense against these pests and a large new threat to the ozone layer. The way out of this dilemma - to protect both the ozone layer and to prevent pest infestations - is to phase out the use of raw wood packaging. In 1999, USDA publicly committed to study and consider phasing out raw wood packing material instead of ordering huge increases in methyl bromide use. The department's 1999 advance notice specifically identified this as a solution that would be assessed. The notice identified a third option: "to prohibit the importation of SWPM [solid wood packaging material] in any form and from any country. ..." Alternatives would include packing material made from "processed wood (e.g., particle board, plywood, press board) and nonwood materials (e.g., plastic)." USDA went on to say: The advantages of this option are that it would provide the greatest protection against pest risk and could eventually result in decreased use of methyl bromide. A disadvantage of this option is that it could have an undesirable effect on international trade. This effect could be mitigated by a phase in period to allow shippers to adjust to the prohibition, and, during this time, heat treatment, treatment with preservatives, fumigation, or other effective alternative treatments could be required before SWPM could be imported." [emphasis added] The notice explicitly asked for public comment addressing several questions, including: o What would be the economic, environmental, or other effects of prohibiting the importation of SWPM from any country, including disruption in trade and potential delays in shipping, effects of alternative materials on the environment, etc.? o If importation of SWPM into the United States were to be prohibited, or if treatment of some kind were to be required for all SWPM imported into the United States, would the shipping industry need a phase in period to allow time to adapt? If yes, how long? But since then USDA has broken its commitment to consider the option of phasing out raw wood packing. The department's draft EIS and its proposed rule contain not a word examining this option. The Bush administration's second big expansion of quarantine fumigation would allow major evasion of the phase-out of non-quarantine uses. The administration is developing a proposed rule that would allow state agriculture agencies to reclassify many ordinary uses of methyl bromide as "quarantine" uses. USDA would then "rubber stamp" the state requests. Thus relabeled, these now non-quarantine uses of methyl bromide production would evade the phase-out. A rubber-stamp proposal would violate Section 419 of the Plant Protection Act, 7 U.S.C. Sec. 7719, passed as part of the 2002 farm bill. Section 419(a) states that: "The Secretary shall not authorize such treatments or applications unless the Secretary finds there is no other registered, effective, and economically feasible alternative available." In other words, USDA must carefully review each state classifications and reject those that lack merit. If the Bush administration moves ahead with huge expansions of quarantine use, it is courting another major conflict among the Montreal Protocol parties. Seeing the quarantine exemption used to evade the phase-out, and seeing quarantine use grow to equal or to dwarf other uses, many countries will likely move for new treaty restrictions on quarantine use. And once again the Bush administration will be on the wrong side of a critical environment issue and an international treaty dispute. I would be happy to answer your questions.
|
|||||||||||
|
