CG Notice Withdraws Frack Water Barge Shipment Policy Letter

Today the Coast Guard published a notice in the Federal Register (81 FR 8976-8978) withdrawing its proposed policy letter concerning the carriage of shale gas extraction waste water (SGEWW) in bulk via barge that was published in October of 2013. The Coast Guard will continue to approve such shipments on a case by case basis.

The Coast Guard regulations for transporting hazardous bulk liquid cargoes by barges are covered under 46 CFR Parts 151 and 153. SGEWW is not one of the listed products in §151.05 so any shipments of that material are required (§151.05-15) to obtain specific permission from the Commandant before it can be shipped by barge. The proposed policy letter would have set forth a standard procedure for requesting that approval.

The only reason given for the withdrawal of the proposed policy letter is that the low number of requests for approval to-date indicate a relative lack of interest on the part of the industry. The notice indicates that the Coast Guard will continue to collect information from the requests it has/will receive and re-evaluate the need for guidance documents or additional regulation at some future date.

Commentary

There is a discussion in the notice about the comments that the CG did receive during the comment period for the original notice. Over 70,000 comments were received with more than 68,000 coming in an organized campaign of form letters. The Coast Guard noted that those form letters expressed opposition to the policy letter but failed to offer “input regarding the substance of transporting SGEWW in bulk as described in the policy. In short the campaign was targeted at opposing fracking (which is outside of the control or regulation of the Coast Guard) rather being concerned with the safe transportation of the SGEWW.

The people behind these types of response campaigns to regulatory issues know full well that failure to address the specific issues involved in the proposed regulations/guidance means that the responses will largely be ignored by the regulatory agency. This is especially true when the issues raised in the form letters are not under the control of the agency soliciting public input. All this means is that the organizing entity is not really trying to influence government policy but is simply trying to raise money to keep their organization funded by appearing to address the concerns of its constituents.

Now there is nothing inherently wrong with organizing a letter writing campaign. In fact, a smaller campaign with only 140 signatories did raise specific issues with the policy letter and suggested that a rulemaking process might be better suited to this situation. The CG disagreed with that final point, but did agree with other points raised in the letter and noted that they would take them into consideration during the on-going case-by-case approval process.