[Federal Register Volume 63, Number 24 (Thursday, February 5, 1998)]
[Rules and Regulations]
[Pages 6008-6010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2875]



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Part III





Environmental Protection Agency





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40 CFR Part 82



Protection of Stratospheric Ozone: Control of Methyl Bromide Emissions 
Through Use of Tarps; Final Rule

  Federal Register / Vol. 63, No. 24 / Thursday, February 5, 1998 / 
Rules and Regulations  

[[Page 6008]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5962-1]
RIN 2060-AH26


Protection of Stratospheric Ozone: Control of Methyl Bromide 
Emissions Through Use of Tarps

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final determination.

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SUMMARY: Through this action EPA is making a determination that 
requiring the use of gas impermeable tarps to control emissions of the 
pesticide methyl bromide is not appropriate under section 608(a)(2) of 
the Clean Air Act (CAA or Act) at this time. This determination is 
based on a review of currently available studies and field data on the 
use of tarps, particularly gas impermeable tarps, to reduce methyl 
bromide emissions from soil fumigation in the period prior to January 
1, 2001. Methyl bromide depletes stratospheric ozone, which protects 
the earth from harmful ultraviolet radiation, and existing CAA 
regulations call for U.S. production and importation of methyl bromide 
to cease by January of 2001. EPA is also announcing the availability of 
its report, ``Feasibility of Using Gas Impermeable Tarps to Reduce 
Methyl Bromide Emissions associated with Soil Fumigation in the United 
States,'' dated January 26, 1998, which provides the analysis upon 
which EPA's determination is based.

EFFECTIVE DATE: This determination will become effective on April 6, 
1998 unless adverse comment is received by March 9, 1998. If adverse 
comment is timely received on this determination, EPA will withdraw the 
determination and timely notice to that effect will be published in the 
Federal Register. All comments will then be addressed in a subsequent 
final determination based on the proposed determination contained in 
the Proposed Rules section of this Federal Register that is identical 
to this direct final determination. If no adverse comment is timely 
received on this direct final determination, then the direct final 
determination will become effective 60 days from today's Federal 
Register document and no further action will be taken on the parallel 
proposal.

ADDRESSES: Comments on this determination should be sent to Docket No. 
A-98-07, U.S. Environmental Protection Agency, OAR Docket and 
Information Center, Room M-1500, Mail Code 6102, 401 M Street, S.W., 
Washington, D.C. 20460. The docket may be inspected from 8:00 a.m. 
until 5:30 p.m., weekdays. The docket phone number is (202) 260-7548, 
and the fax number is (202) 260-4400. A reasonable fee may be charged 
for copying docket materials. A second copy of any comments should also 
be sent to Carol Weisner, U.S. Environmental Protection Agency, 
Stratospheric Protection Division, 401 M Street, SW, Mail Code 6205J, 
Washington, DC 20460, if by mail, or at 501 3rd Street, N.W., 
Washington, DC 20001, if comments are sent by courier delivery.

FOR FURTHER INFORMATION CONTACT: Carol Weisner at (202) 564-9193 or fax 
(202) 565-2096, U.S. Environmental Protection Agency, Stratospheric 
Protection Division, Mail Code 6205J, 401 M Street, SW., Washington, DC 
20460.

SUPPLEMENTARY INFORMATION: The contents of this direct final 
determination are listed in the following outline:

I. Background
II. Basis for Today's Action
III. Administrative Requirements
IV. Judicial Review

I. Background

    Section 608 of the CAA (42 U.S.C. 7671g) sets forth certain 
requirements for a national recycling and emission reduction program 
aimed at Class I and Class II ozone-depleting substances and their 
substitutes. Class I and Class II ozone-depleting substances are 
designated as such under section 602 of the Act, in accordance with the 
Montreal Protocol on Substances that Deplete the Ozone Layer, an 
international agreement to which the United States is a party.
    Methyl bromide is a pesticide which is a Class I ozone-depleting 
substance under the Montreal Protocol and under the Act. Pursuant to 
section 602 of the Act and implementing regulations, production of 
methyl bromide in the U.S. and importation of methyl bromide into the 
U.S. will cease effective January 1, 2001.
    Section 608(a)(1) of the Act provides for a national recycling and 
emission reduction program with respect to the use and disposal of 
Class I substances used as refrigerants. Section 608(a)(2) provides for 
such a program with respect to Class I and Class II substances not 
covered by section 608(a)(1).
    The Sierra Club Legal Defense Fund (recently renamed the 
Earthjustice Legal Defense Fund) sued EPA in the U.S. District Court 
for the District of Columbia on March 31, 1995, claiming that EPA had 
not fulfilled its obligation under section 608(a)(2) of the CAA. In a 
consent decree (notice of which was published on September 17, 1996, in 
the Federal Register at 61 FR 48950) EPA agreed to, among other things, 
issue either: (1) A proposed rule requiring control of the emission of 
the pesticide methyl bromide through the use of tarps, or (2) a direct 
final determination that no such rule is either necessary or 
appropriate under section 608(a)(2) of the Act.
    EPA's agreement to make a choice between these two options was 
based on EPA's commitment to complete a study regarding the control of 
methyl bromide emissions through the use of tarps, particularly gas 
impermeable tarps (``virtually impermeable film'' or ``VIF'' tarps). 
The study was to assess the economic feasibility of, and explore 
potential options for, increased use of these tarps. This study, 
``Feasibility of Using Gas Impermeable Tarps to Reduce Methyl Bromide 
Emissions Associated with Soil Fumigation in the United States,'' which 
EPA issued on January 26, 1998, is available in the Docket for this 
action. Based on the analysis in this study, EPA has determined that 
requiring the use of VIF tarps is not appropriate under section 
608(a)(2) of the Act at this time.

II. Basis for Today's Action

    Section 608(a) of the Act provides that regulations under this 
subsection shall include requirements that reduce the emission of the 
relevant ozone-depleting substances ``to the lowest achievable level.'' 
Although the phrase ``lowest achievable level'' is not defined in the 
Act, EPA's interpretation of this phrase is based on the language of 
the Act and the legislative history of section 608.
    In applying this standard to regulations issued under section 
608(a), EPA takes both technological and economic factors into account, 
considering in an appropriate manner the technology available, costs, 
benefits, and leadtimes involved. See 58 FR 28660, at 28667-28669, for 
a discussion of this standard as applied in the final rule issued May 
14, 1993, establishing a recycling program for ozone-depleting 
refrigerants recovered during the servicing and disposal of air-
conditioning and refrigeration equipment.
    EPA has considered the factors mentioned above to determine whether 
control of methyl bromide emissions through the use of VIF tarps would 
represent the ``lowest achievable level.'' EPA has concluded, based on 
review of currently available literature and field data, that requiring 
the use of VIF tarps is not appropriate at this time.

[[Page 6009]]

Following is a discussion of the consideration of these factors.
    Methyl bromide is injected into soil to control soil-borne plant 
pathogens, nematodes, weeds and insects. Existing EPA and state 
regulations generally require that when methyl bromide is used as a 
soil fumigant, tarps must be used to cover the fumigated area for 1 to 
5 days, depending on the location and application circumstances. The 
tarps temporarily hold the pesticide in the soil to insure its 
effectiveness and reduce the exposure of farm workers and nearby 
residents to the toxic gas.
    EPA and state regulations currently allow the use of tarps that are 
permeable to methyl bromide (polyethylene or ``PE'' tarps). These tarps 
can reduce the rate of methyl bromide emissions to the ambient air 
during the fumigation on a temporary basis. However, a significant 
portion of the methyl bromide injected into the soil eventually leaks 
through these permeable tarps and an additional portion is emitted to 
the atmosphere when the tarps are removed following fumigation.
    VIF tarps are currently being manufactured and used in Europe. Use 
of these tarps in Europe has shown that the high application rates 
typical in Europe can be reduced. However, this experience is not 
directly relevant to the U.S. situation where use rates are much lower 
than what is common in Europe. Nevertheless, some have suggested that 
use of VIF tarps in the U.S. might achieve significant reductions in 
methyl bromide emissions from soil fumigation. EPA consequently focused 
its study on the feasibility of using VIF tarps in the near term to 
significantly reduce methyl bromide emissions to the air from soil 
fumigation.
    In the U.S., VIF tarps have been tested in a variety of laboratory 
and university field studies for their potential to reduce emissions of 
methyl bromide. EPA's review of these studies leads to the conclusion 
that significant emission reductions are possible with the use of VIF 
tarps. However, significant reductions can be realized only if use of 
VIF tarps is accompanied by changes in methyl bromide application and 
tarping practices and the appropriate soil conditions exist.
    Emissions of methyl bromide from the soil following fumigation are 
a function of several factors, including the amount of methyl bromide 
applied, the depth of its injection into the soil, and the type, 
moisture level, organic content, microbial composition, and temperature 
of the soil being fumigated. Use of tarps can reduce emissions, but the 
extent of any reductions depends on the type of tarp used, tarp 
handling practices (including the amount of time the tarp is left on 
the field or ``tarp cover time''), and the other factors listed above.
    Available studies indicate that VIF tarps could result in 
significant reductions in methyl bromide emissions if certain 
conditions are met: (1) Tarp cover time is lengthened from 1 to 5 days 
to probably 10 or more days; (2) the depth of injection of methyl 
bromide into the soil is deeper than typically used with permeable 
tarps; and (3) soil conditions which promote degradation of the methyl 
bromide in the soil (thereby reducing emissions to the atmosphere) are 
either present or are optimized by application of soil amendments, 
irrigation, or fertilization. However, the effects of meeting such 
conditions on pest control effectiveness and crop production in the 
U.S. have not yet been adequately tested. VIF tarps and the changes 
that would be needed in application procedures and soil preparation 
have not been studied in U.S. commercial settings, where pest control 
efficacy and crop production over a typical growing season could be 
fully evaluated. Without such data, EPA does not have sufficient 
information to evaluate the efficacy and cost-effectiveness of 
requiring the use of VIF tarps (along with necessary changes to 
application procedures and soil preparation) to reduce emissions of 
methyl bromide, while still ensuring adequate pest control and crop 
production.
    While VIF tarps are used in Europe, the European experience so far 
does not provide the information needed to make decisions about 
requiring VIF tarps in the U.S. European studies involving VIF tarping 
have primarily focused on the extent to which impermeable tarping can 
make it possible to lower application rates of methyl bromide while 
still achieving adequate crop protection. Those studies indicate that 
methyl bromide application rates used in Europe can be reduced by at 
least 50 percent. The direct relevance of those studies to the U.S. 
situation is limited, however, since application rates in the U.S. are 
typically far lower than the rates used in Europe. Also, the European 
studies have not focused on the emissions implications of VIF tarping, 
providing little data of the sort provided by U.S. studies. Beyond 
that, differences between European and U.S. crop, soil and climatic 
conditions, as well as agricultural production and tarping practices, 
make direct comparisons inappropriate. While the European experience 
suggests that VIF tarping has the potential to lower methyl bromide 
emissions, it does not establish how VIF tarping can be used in the 
U.S. in a manner that will ensure consistently lower methyl bromide 
emissions, adequate crop protection, and farmworker safety.
    In addition, available information indicates that requiring U.S. 
farmers to use VIF tarps in the near term (until methyl bromide's 2001 
phase-out in the U.S.) would be impracticable. As mentioned previously, 
VIF tarps are currently made only in Europe. Current European 
production capacity is not great enough to supply the U.S. market if 
VIF tarps were to be required here. In addition, as currently made, VIF 
tarps come in sizes that are incompatible with U.S. application 
equipment. It is questionable whether tarp producers here or abroad 
would make the investment necessary to ensure adequate availability of 
VIF tarping to U.S. farmers in the few years left before methyl 
bromide's scheduled phase-out in the U.S.
    Beyond questions of availability, there are also questions of 
efficacy if U.S. farmers were required to use VIF tarps before answers 
can be obtained about the need to couple use of VIF tarps with changes 
in application procedures and soil preparation. For example, due to the 
smaller size and different tensile strength and flexibility of 
currently available VIF tarps as compared to permeable tarps, tractors 
and other application equipment would need to be adapted. Application 
procedures for using VIF tarps in flat-field or ``broadcast'' 
fumigation, where the tarps must be glued together to cover an entire 
field for the specified tarping duration, have not been tested in a 
commercial setting, although there is anecdotal information that the 
glue used to seal permeable tarps may not be sufficient to seal VIF 
tarps for an extended tarping duration. Weather conditions may affect 
the tarp integrity for the extended tarping duration required for 
successful emission reductions with VIF tarps, but this has not been 
tested in a commercial setting.
    The other conditions for successful use of VIF tarps in achieving 
significant emission reductions are subject to similar uncertainties 
because of the differences in soil conditions, weather conditions, and 
crop production requirements in the many areas of the U.S. where methyl 
bromide is used to fumigate the soil. For example, the depth of 
injection of methyl bromide into the soil depends on a number of 
factors specific to the crop which is to be planted. Shallow 
applications (such as 20 centimeters or 8 inches) are appropriate for 
soil to be planted with shallow root crops such as vegetables, but 
deeper applications (such as 46

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centimeters or 18 inches) are appropriate for soil to be planted with 
fruit tree crops which have deeper roots. Most of the studies of 
emission reductions using VIF tarps indicate the need for very deep 
injection applications (such as 61 centimeters or 24 inches) but do not 
assess the resulting effect of such deeper injections on pest control 
efficacy and crop production.
    Similarly, the ability to use application procedures such as 
irrigation, fertilization, or the addition of soil amendments, which 
help promote degradation of methyl bromide in the soil (thereby 
reducing emissions to the atmosphere) is affected by soil conditions, 
weather conditions, and crop production requirements. Tests of VIF 
tarps in reducing emissions of methyl bromide have not assessed the use 
of these tarps in commercial settings where one or more of these 
application procedures were used.
    Without additional research testing the use of VIF tarps in 
commercial growing conditions, it is not possible to adequately 
evaluate the level of emission reductions that may be possible with the 
use of VIF tarps, and the effect that related changes may have on pest 
control and crop production. Without such information, EPA also cannot 
adequately evaluate the economic feasibility of using VIF tarps and 
making necessary changes to application practices and soil preparation.
    Additionally, there are other potential environmental and health 
impacts of using VIF tarps about which little information is currently 
available. For example, VIF tarps may be more expensive to landfill 
than PE tarps since they are heavier, and may be more difficult to 
recycle because of the combination of plastics used to make them. 
Another concern is that bromine levels may increase in fumigated soil 
to the extent methyl bromide is allowed to degrade in the soil rather 
than volatilize to the atmosphere. Finally, VIF tarps without longer 
tarp cover times could result in higher levels of methyl bromide 
exposures for farm workers and nearby residents when the tarps are 
removed. These issues add to the uncertainty of whether requiring VIF 
tarps in the near term would be, on balance, beneficial to the 
environment and society in general.
    Given the environmental, technological, economic and other 
uncertainties associated with use of VIF tarps, EPA believes it is not 
appropriate at this time to require under section 608(a)(2) the use of 
these tarps as a means of reducing emissions of methyl bromide to the 
``lowest achievable level.'' Further information and discussion 
relevant to EPA's decision not to require VIF tarping at this time may 
be found in the study mentioned above. This study is available in the 
docket for this determination, as described above.
    EPA encourages the use of tarps to control methyl bromide emissions 
where such use is appropriate given soil and weather conditions and 
crop production requirements. Options to promote emission reductions, 
including ways to optimize the use of tarps to achieve emission 
reductions, are discussed more fully in the study, especially in 
section 4.3, on ``Additional Emissions Factors.'' Nothing in this 
determination should affect any existing legal requirements to use 
tarps such as federal pesticide labeling requirements or California use 
permit conditions.

III. Administrative Requirements

A. Executive Order 12866

    Executive Order 12866 (58 FR 51735, October 4, 1993) provides for 
interagency review of ``significant regulatory actions.'' It has been 
determined by the Office of Management and Budget (OMB) and EPA that 
this action, which is a determination that requiring the control of 
methyl bromide emissions through the use of tarps is not appropriate, 
is not a ``significant regulatory action'' under the terms of Executive 
Order 12866 and is therefore not subject to OMB review under the 
Executive Order.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that 
Federal agencies, when developing regulations, consider the potential 
impact of those regulations on small entities. Because this action is a 
determination that requiring the control of methyl bromide emissions 
through the use of tarps is not appropriate, the Regulatory Flexibility 
Act does not apply. By its nature, this action will not have an adverse 
effect on the regulated community, including small entities.

IV. Judicial Review

    Because this direct final determination is of nationwide scope and 
effect, under section 307(b)(1) of the Act, judicial review of this 
action is available only by the filing of a petition for review in the 
United States Court of Appeals for the District of Columbia Circuit 
within sixty days of publication of this action in the Federal 
Register.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Reporting and recordkeeping 
requirements, Stratospheric ozone layer.

    Dated: January 30, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-2875 Filed 2-4-98; 8:45 am]
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