<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:26716.wais]
METHYL BROMIDE: ARE U.S. INTERESTS BEING SERVED BY THE CRITICAL USE
EXEMPTION PROCESS?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY AND RESOURCES
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
FEBRUARY 15, 2006
__________
Serial No. 109-129
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
_____
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
------ ------
David Marin, Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on Energy and Resources
DARRELL E. ISSA, California, Chairman
LYNN A. WESTMORELAND, Georgia DIANE E. WATSON, California
ILEANA ROS-LEHTINEN, Florida BRIAN HIGGINS, New York
JOHN M. McHUGH, New York TOM LANTOS, California
PATRICK T. McHENRY, North Carolina DENNIS J. KUCINICH, Ohio
KENNY MARCHANT, Texas
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Lawrence J. Brady, Staff Director
Dave Solan, Professional Staff Member
Lori Gavaghan, Legislative Clerk
Richard Butcher, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on February 15, 2006................................ 1
Statement of:
Wehrum, William L., Acting Assistant Administrator for Air
and Radiation, U.S. Environmental Protection Agency;
Michelle M. Castellano, attorney and vice president,
Mellano & Co., San Luis Rey, CA; James A. Bair, vice
president, North American Millers' Association; and David
Doniger, senior attorney, Natural Resources Defense Council 15
Bair, James A............................................ 35
Castellano, Michelle M................................... 24
Doniger, David........................................... 46
Wehrum, William L........................................ 15
Letters, statements, etc., submitted for the record by:
Bair, James A., vice president, North American Millers'
Association, prepared statement of......................... 37
Castellano, Michelle M., attorney and vice president, Mellano
& Co., San Luis Rey, CA, prepared statement of............. 26
Doniger, David, senior attorney, Natural Resources Defense
Council, prepared statement of............................. 48
Issa, Hon. Darrell E., a Representative in Congress from the
State of California:
Briefing memo............................................ 5
Prepared statement of.................................... 3
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 74
Wehrum, William L., Acting Assistant Administrator for Air
and Radiation, U.S. Environmental Protection Agency,
prepared statement of...................................... 18
METHYL BROMIDE: ARE U.S. INTERESTS BEING SERVED BY THE CRITICAL USE
EXEMPTION PROCESS?
----------
WEDNESDAY, FEBRUARY 15, 2006
House of Representatives,
Subcommittee on Energy and Resources,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:06 p.m., in
room 2203, Rayburn House Office Building, Hon. Darrell E. Issa
(chairman of the subcommittee) presiding.
Present: Representatives Issa, Watson, and Kucinich.
Staff present: Larry Brady, staff director; Lori Gavaghan,
legislative clerk; Tom Alexander, counsel; Dave Solan, Ph.D.,
and Ray Robbins, professional staff members; Alexandra Teitz,
minority counsel; Richard Butcher, minority professional staff
member; and Cecelia Morton, minority office manager.
Mr. Issa. Ladies and gentlemen, I want to thank you all for
being here. Please all take seats.
Yes, if the private sector witnesses would also take their
place at the table, I would appreciate it.
In the future we may want to schedule these differently,
but we had noticed this as a single panel, and with your
indulgence, we will go forward that way. I guess officially I
will bring this hearing to order.
And to my amazement, a quorum being present, this
subcommittee hearing on will come to order.
The subcommittee is conducting this hearing today to
highlight the shortcomings or successes of the Montreal
Protocol's Critical Use Exemption process with respect to
methyl bromide.
This is an issue of paramount importance to my constituents
and my ranking member's constituents in southern California, as
well as the growers and manufacturers throughout the country.
First let me say that I fully support the Montreal Protocol
in its effort to eliminate the use and production of ozone-
depleting substances. We have been very successful in this
effort. Through the cooperation of the Government and private
sector in the United States, we have eliminated the use and
production of more than 90 percent of the substances on the
Protocol's list. We are working hard to eliminate the last 10
percent, which includes methyl bromide.
In 2007, the United States, it is estimated, will use only
26.25 percent of what it used in 1991. We are continuing our
effort to find substitutes for methyl bromide. To date, the
U.S. Government alone has spent more than $200 million in this
pursuit, and we understand that the private sector in response
has spent at least the same. But a substitute alternative on a
universal basis has not been found to date. This is why we have
to continue with a critical use exemption for certain
categories for which there is no alternative, as afforded under
the Montreal Protocol.
However, I am concerned that when put into practice, the
critical use exemption process does not work well. The process
is lengthy, unpredictable, expensive, and anything but
transparent--and I want to emphasize, anything but transparent.
Some of our competitors not covered, such as China, India, and
Mexico, will not be subject to the Protocol until 2015. Every
year we apply, we are authorized considerably less than what
our farmers require.
We must ask ourselves: Are U.S. interests adequately served
under the critical use exemption process as it currently
functions? Should we be subject to international procedures
that lack transparency and predictability? Is there anything
Congress can do to spur transparency and predictability? Can
the process be simplified? Why can't we have a multi-year
approach? These are just some of the questions for today.
I hope that the testimony delivered today--and I have read
the testimony in advance--will shed some light on the critical
use issue and suggestions for improvements, and particularly in
the question-and-answer period. I hope that this panel will
suggest improvements that you believe would help in this
process.
[The prepared statement of Hon. Darrell E. Issa follows:]
[GRAPHIC] [TIFF OMITTED] 26716.001
Mr. Issa. We have a very distinguished public and private
panel today. First of all, we have Mr. William Wehrum, Acting
Assistant Administrator for Air and Radiation, U.S.
Environmental Protection Agency, and thank you for being here.
We have Ms. Michelle Castellano, vice president, Mellano &
Co. from San Luis Rey, CA, and I do have to once again thank
you as a constituent and as a major employer in my district.
Your family has been very generous in working on this issue
both here and overseas.
Mr. James Bair, vice president of North American Millers'
Association, again, a returnee of many contributions to the
committee.
Finally, Mr. David Doniger, senior attorney, the Natural
Resources Defense Council. I have been particularly interested
in your submittals. They are extensive, and I look forward to
our question-and-answer period. I also understand that you will
have some documents to submit, and that will be allowed under
unanimous consent.
I look forward to hearing testimony from this panel. I ask
unanimous consent that the briefing memo prepared by the
subcommittee staff be inserted into the record, as well as
other relevant materials, including any materials which you
recognize and elect to have during your testimony.
[The information referred to follows:]
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Mr. Issa. I now yield to the ranking gentlewoman from
California for her opening statement.
Ms. Watson. I sincerely want to thank our chairman for this
hearing.
On April 5, 1988, President Ronald Reagan signed the
Montreal Protocol on substances that deplete the ozone layer.
On October 26, 1990, the House of Representatives voted 401-25
to pass the Clean Air Act and implement the Montreal Protocol.
On November 15, 1990, President George Bush, Sr., signed into
law the implementing legislation for the Montreal Protocol.
Most importantly, the Protocol has enjoyed the bipartisan
backing of four consecutive Presidents.
According to the National Resources Defense Council, methyl
bromide is the most dangerous ozone-destroying chemical still
in widespread use. The NRDC further states that methyl bromide
has also been linked to the increased rates of prostate cancer
in pesticide applicators and other agricultural workers, not to
mention skin cancer and cataract cases that are directly linked
to a weak ozone layer.
For 16 years, the Montreal Protocol has been working to
phaseout ozone-depleting chemicals and to protect and restore
the ozone layer. The United States demonstrated that we were
able to work together with the international community to
answer an environmental problem that threatened the entire
planet. According to the Protocol, the use of methyl bromide
was supposed to be reduced to zero by the year 2005. For the
past 3 years, the United States and a few other countries have
requested exemptions from the Protocol for so-called critical
uses.
The subject of this methyl bromide hearing is: Are U.S.
interests being served by the critical use exemption process?
Unfortunately, we as Americans tend to look at some issues
through a very narrow window. If we want to be critical of an
agreement with the world, especially what is considered to be
the most effective and beneficial environmental world treaty
thus far, one must examine all sides of the issue.
Representative Radanovich has introduced legislation in the
108th and 109th Congress that had authorized methyl bromide use
regardless of the Montreal Protocol. The bill is a threatening
measure to be utilized if all of the U.S. critical use
exemptions are not issued by the Montreal Protocol parties.
Congress can move legislation to grant exemptions presumably
even if it takes the United States out of compliance within the
Montreal Protocol.
My concern: What is the science, legal, and international
ramifications behind such an initiative? Many believe that the
Montreal Protocol has the flexibility necessary to address
appropriate needs for methyl bromide until alternatives are
identified. We have every reason to believe that the exemption
process works. After all, the United States was a leader in
developing and drafting every detail of the Protocol.
Mr. Chairman, to question the critical use exemption
methodology of the Montreal Protocol is a commendable oversight
practice, but my constituents want to know if there is a reason
that is backed by scientific, empirical evidence behind that
thought. Several agricultural interests, including some in my
own home State of California, have initially bought into the
``whatever the United States wants'' with methyl bromide
initiatives. It is our duty to question if American economic
interests are balanced with the interests of the United States
and the world human health, the United States and world
environmental health, and, last but not least, the health of
U.S. foreign policy. As a former Ambassador, I fully understand
the importance of being American while embracing the world we
live in.
Mr. Chairman, I want to commend you again on this hearing.
American citizens need answers. It is critical that we find a
solution to the methyl bromide dispute and develop any
environmentally sound alternatives that we can. It is
imperative for our economy and for the independence of our
great Nation, and I hope this hearing will demonstrate how
unwise it would be for the House of Representatives to walk
down a path that violates international law, threatens the
repair and the healing of the ozone layer, and adds risk to the
health of many Americans.
I look forward to this informational session with the U.S.
Environmental Protection Agency, the National Resources Defense
Council, the North American Millers' Association, as well as
representatives from industry. Mr. Chairman, I yield back the
remainder of my time. Thank you.
Mr. Issa. Thank you. Mr. Kucinich, I really appreciate your
interest in this and yield you such time as you may need.
Mr. Kucinich. Thank you, Mr. Chairman. I want to thank you
for calling this hearing. I have a delegation from the Ohio
National Guard coming to my office shortly, and I would
appreciate your indulgence if I could read a statement and then
return to my office for the meeting. So thank you, and it is a
pleasure to serve with you on this committee, and thanks to the
gentlelady, the ranking member.
I was dismayed when I learned that today we would be
discussing efforts to perpetuate and possibly increase the use
of methyl bromide. Continuing to allow it to be manufactured
and used is bad for the environment, bad for human health, bad
for international relations, bad economics, and is simply
unnecessary.
Methyl bromide has been responsible for a significant
amount of the degradation of our protective ozone layer. In
2005, the size of the resulting hole in that layer over the
Antarctic reached 9.4 million square miles, an area almost as
big as the combined areas of the United States and Canada,
according to the NASA. Current estimates say that it will take
another 50 years for the hole to repair itself.
Too much ultraviolet B, which is filtered by the ozone
layer, causes cataracts and suppresses immune systems, making
us more vulnerable to viruses and bacteria, and contributes to
skin cancer. It is this threat to human health that is the
major reason why the international community agreed to ban
methyl bromide. It was a display of unprecedented cooperation
in the face of an environmental threat.
Methyl bromide puts their own workers and consumers at
risk, too. It is no wonder that it causes chronic health
problems for the workers who apply it and the nearby
communities who are exposed to it. Exposure has effects on the
neurological system, including functional impairment, lethargy,
twitching, tremors, and paralysis in extreme cases. It has also
been linked to prostate cancer and birth defects in some
studies.
Continuing to manufacture methyl bromide is bad economics.
Since the international community agreed to phaseout methyl
bromide, companies who play by the rules have been planning for
its phaseout. They have incurred real financial costs by
investing in alternatives, anticipating the phaseout required
by the Montreal Protocol. Failing to adhere to the U.S. promise
to phaseout methyl bromide puts these companies who are playing
by the rules at an unfair competitive disadvantage. Those who
do the right thing and obey the law should be rewarded for
their good-faith efforts, not punished.
Consider the international implications as well. An attempt
to let the United States allow methyl bromide to be used
without going through the specified channels like other
countries are required to do would further harm our standing in
the international community. It also sends a signal to other
countries that we will only honor our agreements until we
change our mind. It harms negotiations on future agreements.
The EPA is currently trying to address the methyl bromide
issue by substituting chemicals, like methyl iodide, that
aren't as harmful to the ozone layer but are still highly
toxic. Instead, we need to look at alternatives for pest
control that not only preserve the ozone layer, but also
protect workers' health, community health, consumer health, and
ecological health. In fact, that is exactly what Americans
want.
One of the biggest growth industries right now, for
example, is organic food. According to the Congressional
Research Service, ``The annual rate of market growth since 1990
has remained steady at about 20 percent.'' When given a choice
between food grown with toxic chemicals or food grown
organically, people choose the latter, especially when the
price is comparable, which is increasingly the case as the
economies of scale are becoming more prevalent.
One of methyl bromide's biggest uses is for strawberry
crops. Jake Lewin, Director of Marketing for the California
Certified Organic Farmers, says, ``Strawberries can be grown
without pesticide. We have 60 growers who don't use methyl
bromide. The bottom line is small, and large growers have
successfully produced strawberries without pesticides.'' And
that, by the way, is from the Santa Cruz Sentinel. I have the
citation for the record.
So we are talking about yielding to the management of
chemical producers and agribusiness, who, by the way, rarely
have to apply the toxic pesticide themselves or live in
adjacent communities, at a drastic cost to our health and that
of the Earth. It speaks to the systematic deference to
corporations at the expense of the biological systems on which
we intimately depend for life. So I say this policy is unwise
and unnecessary, and I call for the immediate and permanent
phaseout of methyl bromide.
Mr. Chairman, I want to thank you for giving me the
opportunity to read this statement.
Mr. Issa. I want to thank you for your participation, and
anything you want to place in the record, for the next 2 weeks
it will be left open.
Mr. Kucinich. Thank you, Mr. Chairman.
Mr. Issa. And give my best to, as a former Ohioan, our
National Guard.
Mr. Kucinich. I will do that, and I will let them know that
you were kind enough to indulge my reading this statement.
Mr. Issa. Not a problem, Dennis.
Before I hear your testimony, it is the rule of this
committee that all people participating in the hearing, whether
as witnesses or in support staff that may either advise or
testify, be sworn in. So I would ask not only our witnesses but
any supportive staff to please stand for the oath.
[Witnesses sworn.]
Mr. Issa. Let the record show everyone answered in the
affirmative. Please be seated.
Before we hear your testimony, I would like to say two
things. First of all, absolutely everything in your written
statement will be in the record. We will also allow for
additional material and additional response to material that is
submitted. We want this record to be as full and complete as
possible. I will hold open the record--and I will say it again
at the end--for at least 2 weeks, but if necessary, longer.
This is an extremely important subject. We are absolutely
dedicated to the elimination of methyl bromide. This hearing is
about how to do it and how to make the system work properly. We
are open to hearing about alternatives and the progress on
alternatives. So although the scope is relatively narrow
because there is only so much time, we are going to allow for
an expansion of the record so that we can be as complete as
possible. That is with unanimous consent by my ranking member.
So feel free in your 5 or so minutes to go off of your
prepared statement knowing it is going to be in. Additionally,
it is a single panel, so we do not plan on cutting anyone
short. If other Members come in, they will be able to ask
plenty of questions. Again, this is very important on a
bipartisan basis that it be a very complete record.
So, Mr. Wehrum, you are first. Thank you.
STATEMENTS OF WILLIAM L. WEHRUM, ACTING ASSISTANT ADMINISTRATOR
FOR AIR AND RADIATION, U.S. ENVIRONMENTAL PROTECTION AGENCY;
MICHELLE M. CASTELLANO, ATTORNEY AND VICE PRESIDENT, MELLANO &
CO., SAN LUIS REY, CA; JAMES A. BAIR, VICE PRESIDENT, NORTH
AMERICAN MILLERS' ASSOCIATION; AND DAVID DONIGER, SENIOR
ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL
STATEMENT OF WILLIAM L. WEHRUM
Mr. Wehrum. Thank you, Mr. Chairman, Congresswoman Watson.
I appreciate the opportunity to be here to testify. It is a
privilege. I am here on behalf of three Federal agencies--the
Department of State, the Department of Agriculture, and the
Environmental Protection Agency--to discuss the methyl bromide
critical use exemption process under the Clean Air Act and
Montreal Protocol.
I recognize this issue is of great importance to you and
many of your constituents.
Since the Montreal Protocol's inception in 1987, the United
States has exerted strong global leadership in the transition
away from ozone-depleting substances and toward the development
of new technologies that are safe for the ozone layer. We
continue to meet all of our obligations under the Montreal
Protocol and have successfully phased out most ozone-depleting
substances controlled by the Protocol.
Because of the U.S. Government's commitment and our
innovative domestic industries, the world is well on its way to
seeing the recovery of the stratospheric ozone layer. We
estimate that full implementation of the Montreal Protocol will
save 6.3 million U.S. lives that would otherwise have been lost
to skin cancer between 1990 and 2165.
Pursuant to the Montreal Protocol and Title VI of the Clean
Air Act, methyl bromide, like other ozone-depleting substances,
has been subject to a gradual step-by-step phaseout with
certain allowable exceptions. Today's discussion will focus on
the critical use exemption, or CUE process, which allows
parties to identify crops and uses for which there are no
technically and economically feasible alternatives. The CUE
process essentially allows on a yearly basis the production and
import of new methyl bromide for such uses after the Montreal
Protocol's phaseout date of January 1, 2005.
The CUE process begins when EPA solicits applications for
methyl bromide users for their critical use nomination, or CUN.
I am from EPA, so we are into acronyms. EPA conducts a
technical review of the applications, and the U.S. Government
then submits a CUN to the parties of the Protocol approximately
2 years before the control period in which the CUE will be
produced.
A technical committee called the Methyl Bromide Technical
Options Committee [MBTOC], reviews this U.S. CUN and provides
recommendations to the Protocol parties. Parties then act to
authorize the CUEs. Finally, EPA allocates the CUEs through a
notice and comment rulemaking process.
Since the CUE process has been implemented under the
Protocol and the Clean Air Act, the United States has
consistently received over 90 percent of the amount we
nominated for consideration by the parties to the Protocol. I
believe this is a tribute to the strength of the data and
technical information that the United States has assembled for
its nominations. To date, EPA has completed action on
rulemakings to provide CUEs in 2005 and 2006. The agency is now
preparing a proposal to implement decisions regarding methyl
bromide taken at the last meeting of the parties in Dakar,
Senegal, in December 2005. This rulemaking will address CUEs
for the year 2007. The United States also recently submitted
its CUN to parties for methyl bromide production in 2008.
Although there continues to be room for improvement, we
believe that both the international and domestic processes for
developing and allocating critical use exemptions are working
well and that the CUE process yields an annual amount of methyl
bromide to meet the critical needs of U.S. farmers while
continuing to show steady gains in protection of human health.
While there is no silver bullet, that is, no currently
approved alternative to methyl bromide that can substitute for
methyl bromide in all uses, some alternatives have been
developed, and more are under review. My written testimony
contains a list of substances that have been approved and are
making inroads in the marketplace in combination with or
instead of methyl bromide, thereby reducing overall methyl
bromide use. Altogether, the United States has taken the lead
in finding alternatives to methyl bromide, and EPA continues to
give highest priority to the registration of alternatives to
this chemical, including iodomethane, a highly promising
potential replacement for important soil uses of methyl
bromide.
Mr. Chairman, we don't claim that the process for
determining CUEs for methyl bromide is perfect or that
everything has run completely smoothly, but we have worked with
other Protocol countries to make improvements. For example, in
2004, we collaborated with the other parties to revise the
guidelines used by the MBTOC to provide a more transparent and
well-defined process for the MBTOC to review nominations. The
success of this effort is illustrated by the fact that for the
first time, MBTOC's critical use recommendation for the United
States had no material in the ``unable to assess'' category.
This timely approval will allow the U.S. regulatory process to
move forward.
Mr. Chairman, the U.S. positions in recent meetings of the
parties have demonstrated the administration's strong
commitment--strong continued support for the Montreal Protocol,
as well as our commitment to the phaseout of methyl bromide as
technically and economically feasible alternatives become
available for U.S. growers and other users of methyl bromide.
Altogether, we believe it is vital to work with Congress
and the community affected by the methyl bromide phaseout to
ensure that our implementation of the Protocol and the CUE
process continues to be successful.
I would be pleased to answer any questions you may have,
and again, thank you for the opportunity to be here. It is a
privilege.
[The prepared statement of Mr. Wehrum follows:]
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Mr. Issa. Thank you, Mr. Wehrum.
We will now hear from Ms. Castellano.
STATEMENT OF MICHELLE M. CASTELLANO
Ms. Castellano. Thank you, Congressman Issa.
As you stated, my family grows cut flowers in the San Diego
area of California. I am a third-generation flower grower. We
farm approximately 400 acres in that area.
The question of whether the CUE process is working is of
great importance to us and all of the agricultural sector. I am
here today on behalf of the entire ornamental cut flower
industry, and from our point of view, we would have to say that
it is not working. We support the Montreal Protocol and we
support being part of it, but we do not feel that we are being
treated fairly in that process.
We are very clear on the terms of the Protocol and are in
compliance, yet we continue to receive arbitrary cuts from our
applications for our needed methyl bromide. At the first level,
we are concerned when EPA reviews our applications. We feel
that they review our applications without a complete
understanding of the agricultural industry and the varying
practices of agriculture, different sectors and within our
different communities. Despite their relentless attempts to
understand agricultural practices, pesticide use, varying
practices from different regions, we find that agriculture does
not fit into EPA's BUNI charts that they use across the sector,
and especially cut flowers tends to be more complex than other
agricultural practices. We will continue working with EPA in
getting a better understanding, but in the meantime, we feel
that the cuts that take place in those BUNI charts is an
arbitrary cut and not scientifically justified.
We are further concerned that when EPA proposes this
reduced application to the international community, MBTOC
arbitrarily reduces our amount as well without scientific
justification. My written testimony includes an excellent
letter from Claudia McMurray noting the U.S. concerns with
MBTOC's arbitrary reduction with no scientific reasoning. And
it also includes one of MBTOC's reports making assumptions that
if alternatives work in one region, they are going to make the
assumption that it is going to work in another region and make
cuts up to 20 percent. There is no scientific justification for
this, and according to the Protocol, that is outside of MBTOC's
area. There needs to be scientific justification for cutting
our application.
In addition to the arbitrary cuts, we are also concerned
that more and more of our allocations are being derived out of
stocks--stocks being methyl bromide that was manufactured prior
to the 2005 cutoff. Stock supplies that may or may not exist
are not part of the Montreal Protocol and are not controlled by
the Montreal Protocol and, therefore, should not be part of the
allocation. Not only is it not part of the allocation and
should not be discussed, it is also taking up much of the U.S.'
time at the international meeting. Instead of focusing on the
terms of the Protocol, they are spending way too much time
negotiating these stock numbers that we do not feel are
appropriate.
Most recently, applicants, such as us, are also required to
provide a National Management Strategy, and as part of this
strategy, we are supposed to suggest how our critical use
exemption amounts will be phased down. That is also not part of
the Protocol. The phaseout was for 2005 if critical use
exemptions are needed; that is, if no technical or feasible
alternative exists based on research, we are allowed to apply
for this critical use exemption. Let me reiterate, that is part
of the Protocol. The United States did sign onto the Protocol,
and this was part of it. We are still at that point. We would
be happy to use alternatives if they were out there, but they
are not.
If our applications are scientifically justified, which we
feel they are--our research that takes place in the United
States in the agricultural industry is the most complex
research taking place and the most sophisticated research.
Therefore, we feel that our applications are completely within
the Protocol, and the cuts that are taking place are not
justified.
I thank you again, and I am happy to answer any questions.
[The prepared statement of Ms. Castellano follows:]
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Mr. Issa. Thank you.
Mr. Bair.
STATEMENT OF JAMES A. BAIR
Mr. Bair. Thank you, Mr. Chairman and members of the
subcommittee. I am Jim Bair, vice president of the North
American Millers' Association, and I am also here as vice
chairman of the Crop Protection Coalition. NAMA has 48 member
companies that operate 170 grain mills in 38 States and have a
collective daily production of more than 160 million pounds,
and the chairman and ranking member may find it interesting
that California is leading in that category. In fact, Los
Angeles is the milling capital of the United States. There are
six mills in Los Angeles that produce 8 million pounds of flour
every day.
Mills use methyl bromide for just one reason, and that is
to keep insects out of food. We think that clean and wholesome
food is something that consumers have come to expect. We know
that the Food and Drug Administration demands it, and most
people will remember seeing their mother or perhaps their
grandmother baking and sifting flour, and the reason you sifted
flour was to get the bugs out of the flour. And there is a
reason that you can hardly find a flour sifter anymore. It is
because there are not bugs in the flour. Methyl bromide is one
of the tools that we use to make sure that continues to be the
case.
We are getting better every day about minimizing our use of
pesticides, and even in advance of the Montreal Protocol cuts,
we had already voluntarily cut our methyl bromide usage by
about 60 percent.
What is all the fuss about? This controversy about methyl
bromide, we are spending tremendous resources on it. In my
opinion, the controversy is not about a problem of significant
environmental consequence. If you go to the U.S. EPA Web site,
you can find a lot of data. For example, this says that the
amount approved for 2006 is about 0.3 percent of the ozone-
depleting potential from all sources when the Montreal Protocol
was first negotiated. So we are talking about a tiny slice of
the ozone-depleting potential that remains. And like most
things, those tiny incremental gains to be made are going to be
the most difficult and extraordinarily expensive to achieve.
Montreal Protocol meetings, as Ms. Castellano referenced,
these meetings do not represent the open policymaking that you
would recognize from the U.S. Congress, for example. The 2003
meeting was in Nairobi, which is a city so dangerous that the
U.S. Embassy had evacuated its Embassy--excuse me, the State
Department had evacuated its Embassy. The 2004 negotiations
took place on Thanksgiving Day. The 2005 negotiations were in
Dakar, Senegal, which is not exactly an easy place to get to.
And the 2006 working group meetings will be on our 4th of July
Independence Day. So we think that if the United States has to
defend the largest critical use exemption program, it is not
unreasonable to think that it could be done at a date and a
location that would be convenient for the CUE holders to be
able to get there and defend and answer questions. And,
frankly, we ought to be able to do that since the U.S. funds 25
percent of all the Montreal Protocol activities each year.
Those meetings, when we get there, I know Ms. Castellano
and I have both been kicked out of meetings there. The
substantive negotiations take place behind closed doors. And I
think American agriculture is justifiably skeptical about
receiving fair treatment through such a process.
Let me briefly hit how the CUE process works. As has been
said, we submit our application every summer. That goes to the
U.S. EPA. They analyze it. They make a cut--so far they have
already made a cut. They roll all those CUEs into one package,
which goes to the United Nations Environmental Program parties.
They make another cut. Then it goes back to the U.S. EPA, and
before they make their allocation, they can make another cut,
as they did just in January of this year where they cut us by
another 15 percent. It is important to note, I think, that in
each of those cuts, we have no right of appeal.
We object to the way rules are changed in the middle of the
game. Congress ratified the Montreal Protocol treaty with an
understanding about what the details of that agreement were,
and yet every year the treaty--there are agreements made that
we think change the original intent of the treaty.
Mr. Chairman, you asked for recommendations in testimony
about how we could improve the CUE process, and I will be happy
to do that briefly for you.
We think that when cuts are made, we should have the right
of appeal, and that they should not be made without some basis
in scientific fact.
We think that the U.S. EPA should be required to publish
any changes in the rules or the allocations by December of the
preceding year. For example, this year they did not publish the
2006 allocation until almost February 1st. I am aware of
growers and food processors who had the need to fumigate in
January and did not because they were not sure if it would be
legal to do so.
So I would be happy to--I see my time has expired. I would
be happy to go through more recommendations in the question-
and-answer period, but I want to thank you for your----
Mr. Issa. How many more do you have?
Mr. Bair. Just a couple. It would just take me 30 seconds.
Mr. Issa. Without objection, go ahead.
Mr. Bair. We think that the Congress should shine more
light on the international process. Again, the closed meetings
are a problem. Hold the meetings in a place that is safe and
reasonably convenient for us to attend.
Research--we think Congress should increase funding for
research to develop effective and economic alternatives. You
have appropriated funds for, as you said, nearly $200 million
worth of research, with very little to show for it so far.
Those are my recommendations, and I thank you for the extra
time.
[The prepared statement of Mr. Bair follows:]
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Mr. Issa. Thank you.
Mr. Doniger.
STATEMENT OF DAVID DONIGER
Mr. Doniger. Thank you very much, Chairman Issa,
Congresswoman Watson. Thank you for the opportunity to be here
on behalf of NRDC, which for 30 years the Natural Resources
Defense Council has been the principal environmental
organization working on protecting the ozone layer.
The global treaty, the Montreal Protocol, is a global
success story, and it has been backed by four Presidents of
both parties. It has accomplished a great deal already. It has
saved millions of Americans and even more people around the
world from death by skin cancer and even more people from
illnesses such as non-fatal skin cancer and cataracts. Now is
not the time to tamper with the success of this agreement.
As the Congresswoman mentioned, methyl bromide is the most
powerful ozone-depleting chemical that is still in wide use,
and Nobel Prize-winning scientist Mario Molina, whose comments
I cite in my testimony, has said that the ozone layer simply
cannot fully recover without the phaseout of all the ozone-
depleting chemicals, including methyl bromide.
Now, you have heard claims that the process is broken and
that there is a shortage of methyl bromide. In my view, there
is a glut of methyl bromide available today. More than twice
the amount EPA says is needed is available out there, and I
will go through why that is so.
But more to the point, or to start at the beginning, the
amount of methyl bromide that is said to be needed has been
greatly exaggerated. How do we know this? The total amount that
was used in 2003 by everyone, by all the users, not just the
critical users, was nearly 25 percent less than the amount EPA
said the subgroup of critical users needed in 2005. The same
thing has happened again this year.
Let me say a word more about the health effects of these
exemptions. Dr. Sasha Madronich, who is an expert who helped
develop the EPA risk assessment model, working with that model
has calculated that the exemptions that were issued in 2005
will lead to more than 10 skin cancer deaths in the United
States, more than 2,000 other skin cancer cases, and more than
700 cataract cases. The exemptions for 2006 are roughly the
same size, so it is appropriate to double those numbers, and
the toll will continue to increase for each year that these
exemptions go on.
Now, I am not saying we can get to zero right away. I am
not saying we don't need exemptions. NRDC understands and
accepts that the exemption process is a part of the treaty. But
it is being abused, and it is the abuse that we need to stop
and get the exemptions down to size and get toward zero as
quickly as we can.
Let me call your attention to figure 2 in my testimony. It
is on page 6. I had intended to project some slides. I got here
late, and so it is my fault. I appreciate the staff's
cooperation in advance to prepare for a projector, and we just
did not get time--I did not get here in time to set that up.
But figure 2 shows in the top bar the amount of methyl
bromide in pounds, 17 million pounds, that was used by
everybody, according to EPA data, in 2003. The critical use
allowances for a smaller group of farmers and millers and
others were set, in 2005, at 21.1 million pounds, and for 2006,
at 18 million pounds. Well, we do not understand how the part
can be larger than the whole and why the usage should be that
high.
There are a number of reasons why the usage was
exaggerated: the use of very old data that was out of date; the
use of unreasonable assumptions that the pests will hit
everybody everywhere at once; the assumption that everybody
needs their own reserve because methyl bromide cannot be moved
around in the marketplace. These are all unrealistic and wrong
assumptions.
There is a strong injunction from the parties that the
United States agreed to to take advantage of tarping with
impermeable materials to keep the methyl bromide from leaking
from the soil as fast as it otherwise does and thereby reduce
the amount needed to accomplish the mission of killing the bugs
and to reduce the leakage. There is no requirement for tarping
or reduction on account of tarping in these exemptions this
year.
If I may be indulged for a couple more minutes?
Mr. Issa. Go ahead.
Mr. Doniger. Thank you. The sulfuryl fluoride----
Mr. Issa. We are going to have a long Q&A.
Mr. Doniger. I appreciate that. I understand. This is a new
chemical. I will save my story about sulfuryl fluoride for the
question-and-answer period, if I may, but let me call your
attention very briefly to Figure 3, which is about stockpiles.
Now, the treaty, the agreements that our country has made
are very clear that there is not supposed to be new production
unless there are no stocks, unless the stocks are insufficient
to meet the need. We know from the partial data that EPA has
given the Congress that the stocks at the beginning of 2004
were larger than the critical use need. When you add to that
the new production that was authorized, you end up with an
amount which is double the asserted need, and the same is true
for 2006. So we have a glut of methyl bromide around. We do not
have a shortage.
I will conclude my remarks with that. Thank you.
[The prepared statement of Mr. Doniger follows:]
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Mr. Issa. Thank you.
Mr. Doniger, one question that I have is about these
figures on use. Isn't it fair to say that we do not really
track use as much as we track purchases; that we know what was
bought, but we really do not have a complete understanding of
what was used, particularly prior to 2005, because you had
users who were not critical. Maybe Mr. Wehrum can answer this
as well. Is that true? Before people had to get a specific
critical use, we knew how much was sold, but did we really know
exactly how much was used?
Mr. Wehrum. The U.S. EPA and the U.S. Government does not
track use.
Mr. Issa. OK. So, Mr. Doniger, it would be fair to say,
because I come from the electronics industry, a lot of--I mean,
inventory imbalances I understand, and stockpiles I
understand--but if I understand correctly, in 2003 at 17
million, if I were one of the non-critical use companies, I
would be using up my stockpiles knowing that in 2005 I am not
going to be using it anymore. So I am going to be in a phaseout
process of going to alternatives.
Isn't it true that could account for some of this
reduction?
Mr. Doniger. Well, let me say a word about these figures.
You are right that they are kind of inventory balance at the
high level. They represent the production and import, plus the
amount of the stockpile that was drawn down, the difference in
the size of the stockpile between the end of 2002 and the end
of 2003. EPA put those three numbers together and called them
use in a document they produced and they released to us.
Mr. Issa. I have no problem with this being somebody's best
guess.
Mr. Doniger. Sure. Second----
Mr. Issa. I just want to look at this and say, if I
understand it correctly, 2003 to 2005 is an interesting anomaly
in that it goes up. Since 2006 falls down to a number--and at
the current rate of decline, 2007 is going to be a number lower
than 2003--to a certain extent, the anomaly is behind us. We
are making progress toward the zero number. My understanding is
critical use goes on until 2015 in the United States, and
unfettered use under the protocol goes on--and maybe this is
for the EPA--for China and India until 2015. Isn't that
correct?
Mr. Wehrum. That is not my understanding, Mr. Chairman.
Mr. Issa. My understanding is China, India, and other
developing countries, including virtually all of Africa, are
uncontrolled and unlimited and unreporting.
Mr. Wehrum. Developing countries that are parties to the
Protocol do, in fact, have commitments under the Protocol,
initially to----
Mr. Issa. Which is 2015.
Mr. Wehrum. Well, initially to cap usage based on historic
levels, and then in the year 2005, an obligation to cut usage
by 20 percent became effective, and then that remains in effect
until 2015, when the prohibition comes into effect for
developing----
Mr. Issa. But isn't it true that we don't know China's
consumption or production because they don't report.
Mr. Wehrum. My understanding is China is a party to the
Protocol, and they are subject to the commitments that I just
described for developing countries that are members or parties
to the Protocol.
Mr. Doniger. If I may add, Congressman----
Mr. Wehrum. Well, Congressman, just to complete the answer,
there are countries that are not parties to the Protocol, and I
believe that is part of what you are getting at.
Mr. Issa. Mr. Wehrum, I guess my overall concern is that I
want to see the end of ozone-depleting chemicals as soon as
possible. I agree with Mr. Doniger in what I think he is
getting to, which is I do not want to see stockpiles around
that one way or the other we have to get rid of in the future.
I want to see that by the time we get to the final cutoff there
is none left because it would be absurd to have stockpiles that
you then have to figure out a way to get rid of or ultimately
vent and you hurt the ozone layer.
However, my understanding is with the countries that are
presently major agricultural countries that either are not
reporting as India is--I mean, India does not report to the
IAEA. They actually do not tell us about their nuclear program
even though they are supposed to. They are one of the non-
reporting countries, as I understand, on this.
We have an inherent question, and it is a question for the
ozone layer, which is if the ozone layer isn't getting any
better, could it be that, in fact, we are not--the United
States has dramatically reduced its use, but that does not mean
that the world has reduced its use at all unless we have full
compliance or at least full reporting.
Mr. Wehrum. Mr. Chairman, to complete the thought from a
moment ago, I think of the situation as three bins. There are
parties to the Protocol that are developed countries, such as
the United States and the European Union, for which there are
well-defined obligations, and commitments are tracked very
closely. The second bin I think about are parties to the
Protocol that are developing countries, and they have the
obligations that I described a couple minutes ago. Then there
is a third bin, which are countries which are not parties to
the Protocol, and their activity--they do not have an
obligation to report whatever their activities are with regard
to methyl bromide utilization, and they are not subject to
commitments that the other parties of the Protocol may be
subject to.
So the sum of all that is there is some usage in the world
that we do not track and that is not reported on a regular
basis. It is my understanding, based on what we do know, that
it is a relatively small amount of usage as compared to that
used by the parties to the Protocol, but we do not have
complete information, that is true.
Mr. Issa. As a San Diegan, it may be anecdotal, but we have
seen a huge part of our flower industry transferred from San
Diego to Guatemala, Ecuador, and these other countries. The
Europeans have transferred to Africa. It is no accident that
they have transferred from this country, which is reducing
dramatically, to a country in which it is substantially
unregulated.
Mr. Doniger. Congressman, I think it would be possible in
the supplementary period to get you information on which
countries--certainly which countries are a party. There is no
important country economically or agriculturally which is not a
party. It will also be possible to get you up-to-date
information on who has been reporting and who is not.
The third thing I think it is important to get to you and I
know the EPA could supply--we will try as well--is an
indication of which developing countries are way ahead of
schedule in reducing methyl bromide, because they participate
in work under the Multilateral Fund, and they make contract
agreements, which they have to follow through on and which they
do report on, to reduce their usage in exchange for smaller
amounts of transitional financial assistance.
So there are quite a number of developing countries,
including some in the regions you mentioned--Africa and Central
and Latin America--which are way ahead of schedule, and they
started from a much lower base than we did.
Mr. Issa. Mr. Wehrum, I would appreciate it if you could
try to get us the followup information, particularly as to what
we know, and what we don't know--sort of each of the baskets--
because ultimately we signed on to a global protocol intended
to save the entire world, and it is only as good as the total
reduction.
One question that I would have, Mr. Wehrum, when you said
that the EPA had worked with other member countries to improve
the process, I would be interested to hear what has been
accomplished, where you see some improvements, and if you could
give us some examples of that.
Mr. Wehrum. Certainly, Mr. Chairman. And to your previous
point, we are certainly happy to put together the information
that you requested, and we will get that to you in a timely
manner.
I believe significant improvement in the process has been
made, and mostly with regard to how the MBTOC operates. There
were legitimate concerns about the transparency of the process,
concerned about the way in which the decisions were made by the
MBTOC and the ability of parties to understand--and
stakeholders, not just parties to the Protocol, but
stakeholders----
Mr. Issa. I was there for Thanksgiving.
Mr. Wehrum. I applaud your commitment, Mr. Chairman.
So with regard to the operation of the MBTOC, improvement
has been made. The MBTOC is better about documenting the
decisions that they have made, and I think evidence of that is
in the last consideration of the 2007 critical use exemption
where we did not get an ``unable to assess'' from the MBTOC. So
that was an improvement, a recognition of the improvement in
the process.
MBTOC has been encouraged to seek more freely information
from stakeholders and those who use methyl bromide and have
petitioned for the use of methyl bromide under critical use
exemptions. They have been encouraged to provide an indication
earlier rather than later of their inclination with regard to
the applications that are made, and that helps protect against
late hits and give people an opportunity, if they think the
MBTOC is pointed in the wrong direction, to try to provide
additional information and input to the process.
So our belief is the sum of all of that is, we think the
process is working better, and as I said in my testimony, it is
not a perfect process, but we are making improvement over time,
and it is worth pointing out it is still a relatively new
process. We have not been at that for very long. I think we
have learned a lot, and we will continue to apply what we have
learned and continue to try to make it better.
Mr. Issa. I appreciate that, and we are going to
undoubtedly do a second round, but I want to ask one quick exit
question of Mr. Bair and Ms. Castellano.
I have noted that in 2001, basically you were paying
roughly $1.80 a pound for methyl bromide. In 2002, that doubled
to about $3.50, and I understand that currently it is about $7
a pound.
I am constantly being told by providers or potential
providers of alternatives that they are cost-effective, that
their alternatives are reasonably priced or are reasonably
close in total cost to methyl bromide.
The interesting thing was that I started this process in
about 2002, when it had just jumped up to about $3.50, and they
said they were close. This year, they are still saying they are
close, and you have a $7 methyl bromide.
Could you just give us your view of--and obviously, I
understand that if they worked equally well, you would probably
be using them regardless of price. But on those which we are
being told are alternatives in some narrow or sometime use, can
you give us sort of an understanding of the price points?
Because the estimation that I have is that methyl bromide will
double again in the next year or two, that inherently as there
is a reduction in who is making it and so on, the price is
going to spiral upward.
Mr. Bair. I think that----
Mr. Issa. I hate to get into price here.
Mr. Bair. No, but I think your point is a valid one because
despite, you know, the comments that Mr. Doniger has made about
stocks, Econ. 101 would suggest that the doubling of the price
of methyl bromide in the last 3 or 4 years would suggest that
those stocks aren't all that significant. The prices have
quadrupled since the baseline year, and as you pointed out,
doubled in the last 3 years. And that is also contrary to what
we continually hear from the U.S. EPA, who say, Gee, you know,
these stocks must be dramatically large because the price of
methyl bromide is going down. And that does not fit with what
anybody in the industry or any of the applicators know to be
true. The price, in fact, is going up and has gone up
dramatically because we are producing less of it--and, frankly,
using far less of it. So the market is a tiny sliver of what it
was, you know, a few years ago.
Mr. Issa. Ms. Castellano.
Ms. Castellano. I think that is a good point, but there is
a misconception that we are using methyl bromide because it is
the cheap alternative and we do not want to get into other
alternatives. That is absolutely not true. If there was an
alternative out there that worked for us, we would absolutely
use it. In our case, it costs now upwards of $2,000 an acre to
fumigate a field with methyl bromide, and that is before we
have put anything in the ground, grown it, and processed it.
So it is not a cheap product. It is just the only thing we
have to use. Some of the alternatives that have been suggested
aren't good enough. They also require two, three, five
applications, and there is time that has to be put between
those applications before we can put our crop in the ground. We
cannot do that. And it is also in many situations not safe for
the workers to be applying an alternative four or five times,
whereas the methyl bromide is one time.
So, absolutely, the price is getting out of control, but it
is still our only alternative out there, and we have to keep
using it.
Mr. Bair. Also, Mr. Kucinich when he was here, he
referenced organic, and, you know, that is a growing segment of
the market. There have been mills that have attempted to use
environmentally friendly alternatives such as high heat, for
example. I am aware of a mill in New York State that used high
heat and caused significant structural damage to the facility,
which then was very expensive to fix.
We know high heat kills insects. Cereal plants have been
using it for 50 years to kill insects. But we do not generally
have the capacity in a flour mill to turn the heat up to 140
degrees and hold it there for 24 hours in order to kill
insects. It can be done. It is extremely expensive, and there
are other considerations, such as structural damage to your
facility, that cause safety considerations.
Ms. Castellano. Congressman Issa, could I also make a
comment on the comment that was made about organic
strawberries?
Mr. Issa. Sure.
Ms. Castellano. Being from California and discussing
strawberry growers in California, we are cut flower growers.
But we are surrounded by strawberry growers, and there tends to
be a lot of comments made about organic strawberry growers in
California. And I want to clarify something for everyone to
understand. When strawberry growers claim that they are
organic, that always doesn't mean exactly what we think it
means. What is happening to strawberry growers in California on
a large level--I am not saying it--it is not all 60 of the
growers, but plugs are being grown in South America. They are
being grown in Mexico. They are being grown in Guatemala. They
are being grown--and what plugs are in the agricultural
industry is a plant is grown from a seed somewhere else. You
wait until you actually have a plant. You relocate it and plant
it in a different farm.
What is happening for strawberry growers at a tremendous
rate in California is plugs in Mexico and Guatemala, being
highly fumigated with methyl bromide and other chemicals that
EPA does not allow to be used here in the United States, is
producing a plant that is then brought to California, planted
in California ground, and then is organic in California ground.
So when we say someone is an organic grower, we need to be
clear if that plant has been organic from day one or if the
California ground that it is growing in is organic.
So I just want to clear up that misconception that often
gets confused in this discussion.
Mr. Issa. Thank you.
Ms. Watson.
Ms. Watson. I again want to thank you, Mr. Chairman, for
holding this hearing so we can have these open discussions.
I would like to address my comment to Mr. Doniger, and to
the rest of the panel, I want you to know that for 17 years, I
chaired the Health and Human Services Committee in California
in the Senate. And the last 3 years of my tenure there, we had
methyl bromide debates in front of the committee, and every
time the issue came--and we had them in a room that held 750
people. A great many of them were advocates, a great many of
them were critics. And when all the facts were laid in front of
the committee of nine people, they voted the methyl bromide
bill down. It was done three times. Maybe we spent 124 hours,
maybe more.
On the last day of the session, the bill was pulled out of
my committee at 4 a.m., taken up by the pro temp of the House,
and let out. I resigned my chairmanship because I was
thoroughly convinced that the public's interest was not taken
into consideration. It was the economic interest of the growers
alone.
What I was striving for was a balance between the two,
because as Chair of Health, I wanted to see policy pass out of
my committee that was in the best interest of the largest
number of people.
So my questions go to you, Mr. Doniger, with that
background, and remember what my interest is: Health first, and
then balancing the health and economic benefits second. What
impact does a large amount of exemptions have on the farmers
who try out the alternative chemicals or pest control
techniques and on the companies that make them?
Mr. Doniger. Well, I think what is happening is a major
discouragement to those who try the alternatives and those who
try to provide the alternatives. And let me give as an example
and a contrast how the CFC phaseout worked out. There were firm
deadlines and companies that tried--that went into the
alternatives, either as users or as providers, counted on the
phaseout deadlines sticking. And they did stick and the price
went up somewhat for the old chemical, and the need went up for
the new chemical, and it created the opportunity for
entrepreneurs, both in the users and the producers, to come up
with these alternatives. And it worked very well. We had an
almost complete phaseout of CFCs in less than the 10-year
period allowed for the original phaseout.
What is happening with methyl bromide is that the rug is
being pulled out from under the providers of the alternatives
and also from under those who experiment with the alternatives.
Ms. Watson. Would you clarify? When you say the rug is
being pulled out, who is pulling the rug out?
Mr. Doniger. When the deadlines are extended by way of
granting large exemptions, the message that is sent to the
users of the products is stick with the old, you don't need to
change. And the market prices are not there for the
alternatives.
So I will give you an example from the milling industry and
how this is working out right now in the 2006 rules that EPA
just issued. I am sure Mr. Bair will have his own perspective
on this. Sulfuryl fluoride is a chemical that is now registered
by the EPA, and in all or virtually all the States, for use in
mills and the other food-processing facilities to kill the bugs
as an alternative to methyl bromide.
Now, in my opinion, EPA should have said, ``now that
sulfuryl fluoride and a list of other materials that are in Mr.
Wehrum's testimony are available for that set of uses, we don't
need methyl bromide anymore, let's give them a year, maybe 2
years, and end the use of methyl bromide in that category of
structural fumigation.''
Instead, what EPA said was: How long will it take sulfuryl
fluoride to penetrate the market if there is no methyl bromide
phaseout? And the answer EPA came up with was they would make
15 percent of the market inroads each year. So it would take,
15 percent a year, 8 years for sulfuryl fluoride to replace
methyl bromide, and that is the length of time EPA has
indicated it is prepared to leave methyl bromide in place for
the structural fumigation.
So it is backward. Instead of the phaseout driving a faster
penetration of sulfuryl fluoride, it is holding back the
penetration of sulfuryl fluoride because it is protecting those
who are using methyl bromide and supplying methyl bromide and
letting them continue with business as usual. That is not how
we did it with CFCs. If we had done it that way with CFCs, we
would still be stuck with CFCs.
The way to get rid of these chemicals in an orderly way is
to set a phaseout schedule and stick to it and reward those who
try the alternatives and provide the alternatives instead of
undercutting them.
Ms. Watson. Let me then go over to Mr. Wehrum. You are
representing the EPA. The United States led the international
effort to save this protective ozone layer that we are so
concerned about through the development of the Montreal
Protocol. Right?
Mr. Wehrum. Correct.
Ms. Watson. OK. And since President Reagan, every President
has upheld our commitment under this treaty, which has been
widely acclaimed as the most successful environmental treaty
ever, and apparently it is showing some results.
In previous hearings, administration witnesses have
affirmed that President Bush also strongly supports the treaty.
In 2003, witnesses from both EPA and the State Department
stated that they did not believe any changes to the Montreal
Protocol or current law were necessary.
Now we have a bill, H.R. 1257. Will the administration take
a position in opposition or support of that bill? Or will they
violate their commitments under the treaty? Do you have any
idea?
Mr. Wehrum. The administration has not taken a position on
that bill, Congresswoman.
Ms. Watson. Has the administration seen the bill?
Mr. Wehrum. Yes, ma'am. Yes, Congresswoman.
Ms. Watson. Could you indicate to this committee, since we
are holding this hearing, just where the administration is
leaning on it? Could you do that for us?
Mr. Wehrum. I am unable to do that today, Congresswoman.
Ms. Watson. No, not today. I mean could you gather that
information, if you can, and inform us here at the committee?
Mr. Wehrum. I am certainly willing to consult with my
colleagues in the administration and determine if we can
develop a statement on the legislation. I am willing to do
that, Congresswoman.
Ms. Watson. Well, I again want to commend the Chair because
these are the kinds of oversight hearings we need to have so we
can be on the same page with our discussions, because remember,
this is an international protocol we are talking about, and
that is why I was asking Mr. Doniger who, you know, is
responsible. And I don't know whether the administration is in
accord with H.R. 1257 or they have other changes. But we would
like to have some indication of where they stand on that.
H.R. 1257 would amend the Clean Air Act to provide that for
2007, the amount of methyl bromide allowed for critical uses
would be equal to the amount requested by the United States at
the international negotiations. And this is more methyl bromide
than the parties to the Protocol authorized for the U.S.
critical use for that year. And if we adopt this bill as law,
then we will be in violation, so that is why we need some
indication up front as to where the administration is coming
from. We would appreciate any kind of feedback that you could
give us.
If we were to violate the Montreal Protocol, isn't it
likely that other countries will also feel free to do that? If
we do not comply, why should they? And we do know--and you are
going to provide us with the list of those countries,
particularly developing countries, that are not signees to the
Protocol.
So I wanted to throw that out to you so when you report
back to us, we can have maybe a little clearer picture.
I have a couple more questions, Mr. Chairman, if you----
Mr. Issa. Go ahead. Get it off your chest.
Ms. Watson. OK. Since we are a party to the Montreal
Protocol and it has been since the time of President Ronald
Reagan signed onto this. Now, if H.R. 1257 were enacted, it
would certainly place the United States in noncompliance. What
I would like to see, Mr. Chairman, is that we hold more of
these hearings. I think the representative Ms. Castellano makes
a point when she clarifies what we mean by organically grown.
Is it the soil that pesticides have been spread on here, or are
they from countries that are in noncompliance?
Mr. Issa. It is like the American flag with ``Made In
China'' on it.
Ms. Watson. Exactly. I think these are things that we need
to know and we need to have this information when we discuss
public policy. And so I hope we will have followup hearings to
this, too.
This is the last question to Mr. Doniger. The United States
has an international reputation as a leader, and as a leader in
protecting the ozone layer. What is your view if such a bill as
H.R. 1257 were signed into law? What would happen?
Mr. Doniger. Well, I do think it would place the United
States in violation because instead of following the process
for exemptions, we would simply be saying we get whatever we
want, and that is not in compliance with our treaty
obligations.
I think more generally the United States has hurt its
reputation in the past several years by the vigorous pushing of
these exemptions without full disclosure of information. The
stockpile condition, for example, is a requirement that the
parties imposed that the United States agreed to that there not
be production to the extent that the stocks were sufficient to
meet the need. The U.S. Government has not disclosed the
stockpile information to the public here, to the Congress here,
except in one veiled letter, to us, or to other countries. And
it is hurting the U.S. perception of leadership and
responsibility in the eyes of other countries, and this has
ramifications in other areas of our foreign policy as well.
Ms. Watson. Let me just intervene here and I am going to
address this question to the Chair and maybe to the attorney.
Is there any reason why this information needs to be top secret
and not shared with us here in Congress?
Mr. Issa. No. I am informed that----
Ms. Watson. It is a privacy issue?
Mr. Issa [continuing]. Asking people what they own, you
know, exceeds the normal request without a purpose.
If I can actually clarify something with the EPA, no matter
how much you have in your stockpile, if you do not have a use
permit, you cannot use it. Isn't that correct? So a stockpile
becomes worth zero if--for example, the people who do not have
critical use exemptions, they cannot use up their stocks just
because they happen to have it. Isn't that correct?
Mr. Wehrum. That is not correct, Mr. Chairman.
Mr. Issa. They can actually continue--does that mean that
there are people who may be using methyl bromide without a
critical use exemption simply because they have stockpiles. Is
that correct?
Mr. Wehrum. That is correct.
Mr. Doniger. It is not that they have the stockpiles. They
are purchasing the stockpile from the same suppliers.
Generally, farmers do not keep their own stockpile. And the
same I believe is true of the millers and other users. They buy
the stocks, they buy the material with the service from
applicators.
Mr. Issa. With the gentlelady's indulgence, that I think is
a question that where the EPA stands on it and how you are
going to ensure that if we say that we are only using X, that
we not be using X under the critical use and Y for other
purposes. I certainly think that this is something that on a
bipartisan basis we would like to know what your program is to
prevent that in the future.
I am not sure that I need to know how much somebody has in
their garage. What I do need to know is: Is it being used? And
if so, why would we continue to tolerate people who no longer
have a valid use for it because there are alternatives or
because there has been a complete phaseout in their category,
and yet they are still buying and using it? I think that flies
in the face of Mr. Bair and Ms. Castellano saying we are doing
all this paperwork to justify why we still need it and we
welcome an opportunity to use an alternative. That is in the
system. That is in the Protocol four Presidents have all signed
onto. But I don't think anyone has signed onto this back door
that Mr. Doniger talks of.
Mr. Wehrum. If I may, Mr. Chairman, a couple of
observations. One is the amount of stocks is finite and is
diminishing over time. We have, in fact, as an agency collected
information on the amount of stocks in an effort to understand
how much there is and how that number changes over time. But we
are also bound by very strict confidentiality requirements as
it applies to business confidential information.
Mr. Issa. But you know and you cannot tell us?
Mr. Wehrum. The matter is actually currently under
litigation. The Natural Resources Defense Council sought this
information through a Freedom of Information request. Certain
of the businesses that supplied information contested the
agency's initial determination. Our initial determination was
that the aggregate number was a number that we believed that we
could share and not violate our confidentiality obligations.
But certain companies that provided some of the underlying
information disagreed with that, and so the matter is currently
a matter of litigation. The----
Mr. Doniger. If I----
Mr. Wehrum. Please, let me finish. The last thing I will
say is, it is not a shock that stocks are out there. That is
the way the Montreal Protocol has operated. A good example is
on the refrigerant side where there are plenty of cars on the
road that use banned CFCs in their air conditioners, and if you
have one of those cars today, you can go buy replacement
refrigerant off the shelf. That is not illegal. It is not
wrong. There was an expectation that the amount in stock would
diminish over time, but that there was a reason in that case to
allow people to continue to maintain cars that were using the
banned materials.
Mr. Issa. The U.S. Air Force is still flying our Lear 31s
or 35s that we bought in the 1970's, and they still have old
air conditioners.
Mr. Wehrum. So the fact of the existence of stocks is not
unusual or unprecedented, just in terms of how this treaty and
how this Protocol is operated, and it has been a factor in our
decisionmaking. So it is an issue that we are well aware of.
Mr. Doniger. Two quick points, if I may.
One, the EPA and the NRDC are in agreement that the total
number of the stockpile is not confidential, but until this
litigation can be resolved--and it is litigation brought by two
of the suppliers, who are not prosecuting their cases, they are
doing nothing except putting a hold--it is the equivalent of a
senatorial hold on the disclosure of this information.
Mr. Issa. Thank you for saying Senate.
Mr. Doniger. Yes. [Laughter.]
Mr. Doniger. And the producers and distributors, who never
appear before these hearings, are quite content to keep the
information secret, not just from us, not just from other
governments, but from the users, because it makes it easier to
charge higher prices if you can convey to the users and
everyone else the perception that the material is really
scarce.
I have a document from one of these companies, which I will
make available to the committee, which says use the new
production first, keep the stocks in reserve, pass the stocks
over to the next year--absolutely opposite of normal inventory
practices, which is rotate your stock, use the old stuff first.
This is an evasion----
Mr. Issa. Unless you are in the wine business.
Mr. Doniger. That is true. And methyl bromide doesn't get
better as it gets older. So the other point is that it is true
that stocks of other chemicals are--it is not that the stocks
are regulated. It is that the new production is supposed to be
limited to the amount that cannot be supplied from the stocks.
With CFCs in older air conditioners, we do not have any new
production, and people do use the stocks to meet the needs of
old cars and old Lear jets. But with methyl bromide, you are
supposed to take the stocks into account and reduce the amount
of new production so that it does not increase beyond what is
really needed--not double what is needed, and so that is the
error here. That is why we have gone to court. We are expecting
a decision from the court of appeals any week now, which would
address the stocks issue, the excess assessment of use, and
also the data disclosure issue.
Mr. Bair. Mr. Chairman, may I speak----
Mr. Wehrum. Mr. Chairman, if I may----
Mr. Issa. Certainly, as long as we let----
Mr. Bair. Mr. Doniger is getting liberal use of your time,
and I would like to have an opportunity to respond at some
point.
Mr. Wehrum. Just, Mr. Bair, with your indulgence.
Mr. Issa. The Government first.
Mr. Wehrum. Just a point. The U.S. Government, of course,
does not agree with everything that Mr. Doniger just said.
There is litigation on many of the points that he just
described related to the rule that we promulgated to adopt the
critical use--the CUE process within our regulations and to
adopt the first of the critical use exemptions. So we have
defended ourselves in court, and we look forward to a decision
on the merits by the D.C. Circuit.
Ms. Watson. Let me just----
Mr. Issa. Mr. Bair, and then----
Ms. Watson. Yes, let me just comment on what he just said.
That is the reason why I asked if you could report back to us,
because we don't know where the U.S. administration stands on
the changes that would be required in the law. So if you can
clarify, just give us information. And when I asked about the
stockpiles, I was talking about the overall supplies. I am not
talking about individual users and individual inventories. I
just wanted to know--and we do have a chart. If you don't agree
with everything that Mr. Doniger says, maybe you can put out
your own chart just for our information. Is that something you
can do?
Mr. Wehrum. As long as it does not violate our
confidentiality obligations under the law.
Ms. Watson. Oh, come on. I just explained that. Don't give
me that kind of rhetoric. What I said is--you know, there is
confidential information. That is not what I am asking for. Can
you give us the figures of the overall supply, stockpile?
Mr. Issa. That is what is in litigation, is what he is
saying. That is actually what is in litigation.
Ms. Watson. So you don't go along with what he has here?
Mr. Wehrum. Well, the U.S. Government's position was that
the aggregate number we determined did not need to be
considered confidential business information.
Ms. Watson. OK, good. Can you give us what you have?
Mr. Wehrum. No, ma'am, because our position was challenged
in court, and we have to await the decision of the judge before
we can determine how to proceed.
Mr. Doniger. I have to wait. I am not sure you have to
wait.
Mr. Issa. Well, look, I am going to sort of take a little
bit of liberty here. I have heard that you expect it within a
couple of weeks. We will make every effort to leave the record
open, but even if it is already closed, I assure you we will
welcome the information when it becomes available.
I will take the liberty as chairman of saying that if it is
not forthcoming in a reasonable period of time--in other words,
if the court stalls--then I do believe it is within the
interest of this subcommittee that we have a separate fact-
finding on the stockpiles. I think we have learned enough today
about the stockpiles that, although I do agree that maybe the
Protocol is spending too much time on stockpiles, when it comes
to this subcommittee ensuring that those who have a legitimate
use for methyl bromide are not simply getting it out of
substantial stockpiles or, what I think I heard Mr. Doniger
say, the potential that there is an excess production based on
excess justifications for critical use that then may
potentially go sideways through stockpiles into other people's
hands. This subcommittee is interested in the efficiency of
Government, the effectiveness of Government, and the adherence
to the Montreal Protocol. This hearing was called in no small
part because it is the belief of this subcommittee--this
chairman, at least--that, for example, the EPA's taking until
January 31st when you had 6 months to come up with a rule put
private enterprise at an unfair disadvantage because you
literally had fumigators who were not able to do what they
should be able to do, or at least were afraid they would be
fined. That should not be the way we do business.
It is the intent of this subcommittee to ensure that while
we adhere to the Montreal Protocol, on the flip side, the other
parties to the Montreal Protocol adhere to the letter of the
law as well. I think that is where Ms. Castellano particularly
says it, which is these exemptions are in the Protocol, and if
you don't mind, I am going to close my question, Mr. Doniger,
specifically: I am very much of the right age and background to
understand when we did away with both our aerosol cans that
were ozone-depleting and particularly with freon. When an
alternative existed, the only problem was having machinery that
then worked with the alternative, because, unfortunately, old
air conditioners were not tolerant of the new freon, you know,
Freon 12 and so on.
Today, wouldn't you agree that although we have made a lot
of progress, science has not produced a universal alternative
to methyl bromide for all uses from a chemical standpoint,
leaving 140-degree heat in a factory out? Isn't that sort of
the state today?
Mr. Doniger. Well, I agree this was true with CFCs as well,
that you had one chemical that was replaced by a suite of
chemicals. Some of them were not even in the same family of
chemicals. And that is what is happening--that is what has
happened with each ozone-depleting chemical, and that is what
is happening with methyl bromide.
So although this chemical iodomethane is pretty close, if
it does get registered, to a drop-in alternative, it isn't
necessary to have a drop-in alternative, and we don't expect to
have a single one that covers the field. What we do think is
that you can pick off niches of the market, niche by niche, and
get down to the hard cases much faster than we have.
Mr. Issa. We look forward to working with you, the other
panelists, and other contributors to this, to find those
alternatives and to ensure--and particularly for the folks in
industry here today--that this subcommittee will do everything
it can to streamline the process and to ensure that the
exemptions continue to be granted in a timely--well, become
granted in a more timely-fashion to the extent that there is
not an alternative.
I think the gentlelady and myself would both join in saying
when there is an alternative, we look forward to your companies
embracing it at the earliest possible time and would also want
to be just as strong a watchdog on compliance as we are on the
agencies.
The gentlelady has one more round.
Ms. Watson. I would like to ask Mr. Doniger if he could do
a little research on my behalf. As I mentioned, in my
California experience we had farmers come in, and these were
food farmers. These were not florals. It might be a whole
different story. But if you could do a little research and see
what the alternatives some of the farmers in California are
using to methyl bromide, I would like to have that information,
if you would.
Thank you very much, Mr. Chairman.
Mr. Issa. Well, thank you, Ms. Watson. I will dispense with
a full closing statement and simply thank our witnesses for not
only thoroughly delightful opening statements, but I think a
lively discussion that took us not just to the issue that we
came here for, but as I requested, I think you have done a good
job of opening up additional areas for this subcommittee to be
involved in.
I must admit I am not sure my authority over organic
farming is as comprehensive as I would like, but I will speak
to the chairman about whether we have that, because I do
believe that we have to make sure that we are a committee of
facts, and if there are organic alternatives, I am thrilled.
But if we are simply manufacturing in another country using
other chemicals and then claiming something is possible, I have
been down the road in the electronics business. For many years
I had people who said ``Made In America,'' but they imported a
complete stuffed board and then put it in a box in the United
States and proudly said ``Made In America.'' That is not the
right way to increase American jobs. It is certainly not the
right way to justify organic agriculture.
So as I said earlier, we will hold the record open for at
least 2 weeks. I will make every effort to hold it open until
we can include an aggregate stockpile figure. I would welcome
all of you to give us your additional thoughts separately on
the stockpile situation, and particularly on whether or not
there is a substantial amount of clandestine use outside of
critical use exemption. This committee has very much
supported--at least the chairman has supported--critical use
being retained, but that is the front door. We will be
interested, and with the gentlelady's permission, I expect we
will be following up on making sure that back-door use--in
other words, ozone-depleting that is not critical and
required--is reduced.
And with that, I thank you and this hearing is adjourned.
[Whereupon, at 3:33 p.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Dennis J. Kucinich and
additional information submitted for the hearing record
follow:]
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