LNG by Rail and the Unified Agenda

While the Trump Administration published a final rule from the Pipeline and Hazardous Material Administration (PHMSA) authorizing the shipment of liquified natural gas (LNG) by rail last July, it was obvious that the incoming Biden Administration was opposed to such activity. In the first day of the Administration, President Biden published a list of agency actions requiring review by the incoming administration; one of three actions listed for DOT was the LNG by rail rulemaking.

With the publication of the Spring 2021 Unified Agenda, we have chance to see how the new Administration intends to deal with the LNG by rail situation.

There are two separate rulemakings listed in the Unified Agenda from PHMSA for LNG by rail:

Hazardous Materials: Improving the Safety of Transporting Liquefied Natural Gas

Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail, and

Improving Safety

The abstract for the first rulemaking states:

This rulemaking would amend the Hazardous Materials Regulations governing transportation of liquefied natural gas (LNG) in rail tank cars. This rulemaking action would incorporate the results of ongoing research efforts and collaboration with other Department of Transportation Operating Administrations and external technical experts; respond to a mandate in Executive Order 13990 for PHMSA to review recent actions that could be obstacles to Administration policies promoting public health and safety, the environment, climate change mitigation; and provide an opportunity for stakeholders to contribute their perspectives on rail transportation of LNG.

DOT took the first public step in the review process by including the LNG by rail final rule in the Regulatory Review published by DOT in May. In the preamble, DOT specifically mentions the Biden mandate to review the LNG by Rail rule. The public comment period for that regulatory review ended on June 4^th; there were no public comments offered on the LNG by rail question. A National Academy of Science study on the safety of LNG by rail is ongoing (see below).

According to the Agenda entry for this rulemaking, DOT expects to issue a notice of proposed rulemaking (NPRM) in April of next year.

Suspending the Rule

The abstract for the second rulemaking states:

“PHMSA proposes to amend the Hazardous Materials Regulations (HMR) to suspend authorization of liquefied natural gas (LNG) transportation by rail pending completion of the companion rulemaking under RIN 2137-AF54 [the rulemaking described above].”

According to the Agenda entry for this rulemaking, DOT expects to issue a notice of proposed rulemaking (NPRM) next month.

Ongoing Safety Study

Last year PHMSA reached an agreement with the National Academies of Sciences, Engineering, and Medicine (NASEM) to convene a committee of independent experts to study the safe transportation of LNG by rail tank car. A pre-publication version of the Phase I study report has been published.

Phase II of the study began with a kick-off meeting last month.

Additional CSB IST Study Comments

With the final day for submitting comments on the proposed National Academy of Sciences study on the IST situation at the Bayer CropScience facility in Institute, WV the Chemical Safety Board posted a second batch of comments that it has already received. The nine included in this file bring the total to 20 comments received to date.

I am happy to see that there are some major players on both sides of the IST debate that are included in the second batch of submissions, including the ACC, Greenpeace, API/NPRA and the AFL-CIO. Still nothing from Bayer, but they may be maintaining a low profile on this matter. I’m surprised though that they haven’t at least submitted a letter confirming their support for such a study; that would seem to me to be a PR101 requirement.

Well, we still have today for submissions, so I expect that there will be at least one more batch of comments posted on the CSB web site, perhaps tomorrow or next Monday. If we continue to get the major player’s views on the record, I’ll withdraw my earlier complaint about the short time frame for the comment submission process.

CSB MIC Study Comments

The Chemical Safety Board has published on their site the public comments that they have received so far on their proposed National Academy of Sciences study on the methyl isocyanate situation at the Bayer CropScience plant in Institute, WV. They have posted eleven comments (including mine) though their 15 day comment period doesn’t actually end until Monday. The comments that they have received to date have been interesting and varied. They come mainly from academics and consultants. With the short response time that CSB provided for comments, I am not surprised that there have been so few comments received. What does concern me, however, is that many of the commentors are so unfamiliar with the public record of this particular case. A couple of the commentors suggested transportation safety measures for MIC, apparently unaware that the material is produced on-site. Other commentors suggested just-in-time or in situ manufacturing without realizing that the Institute plant uses a continuous manufacturing process so that it can supply MIC to multiple processes, including at least one not owned/operated by Bayer. Political Considerations Readers of this blog, and the smaller number that may be aware of my personal blog, will know that I am an admirer and ardent supporter of the work that the Chemical Safety Board does. This is one of the reasons that I was very happy to see that they would be responsible for the design of the NAS study of the IST issues at Bayer. Their single minded devotion to process safety and ability to delve into the minutia of safety issues will provide the proper focus for the planned study. I am not sure, however, that they realize that this is not solely, or perhaps even mainly, a process safety issue. In a much larger sense it is a very potent political issue. Both sides of the current debate on the use of IST techniques as security measures are going to be looking to this study to validate their particular view point. The side that does not receive that validation will, in the current political climate, almost certainly vilify the study and perhaps the messenger as well. The only way that the CSB is going to be able to avoid that political fight is to ensure that both sides have an ample opportunity to provide their input into the design process for the study. If CSB can get the support from both sides at the start of the study and the NAS provides a reasonably balanced (both technically and politically) study team, then the study will face much less criticism when it is published. While the Board is well known for its technical competency, they are not exactly political neophytes by any stretch of the imagination. I had hoped that they had the necessary political acumen to pull of a successful response to this techno-political problem. I was concerned when I saw the 15 day comment period and their failure to use the Regulation.gov comment mechanism. Seeing the lack of politically important commentors to date, has increased my level of concern. We still have today and Monday before the current comment period expires. We may yet get the necessary participation. Or, more likely, CSB will announce an extension of the comment period and then lobby the important parties to gain their participation.