Wednesday, April 29, 2015

Proposal For Propane Tanks Sparks Debate in South Portland ME

(SOURCE:, By Kate Irish Collins)

Whether the City Council should take action on a proposed new liquid propane distribution facility before an application for the project has even been officially submitted is at the center of a debate in South Portland.

But other questions surrounding a preliminary plan to allow the NGL Supply Terminals Co. to move from Portland to the Rigby Rail Yard, off Route 1, are being asked, as well, including whether interpretation of the city’s code of ordinances should be left up to residents or paid city staff.

Mayor Linda Cohen told the Current she believes the council should not intervene and that “staff should be allowed to do what they always do – follow their normal procedures” when it comes to determining whether a liquid propane operation at the rail yard adheres to the city’s ordinances.
“At this point, there is not even a complete application before the Planning Board. If and when there is, the public process will begin,” she said.

Councilor Brad Fox disagrees. He said that it’s up to councilors to ensure that the laws of South Portland are followed by elected officials and staff alike. 

“It’s my job as a councilor to ensure the health, safety and general welfare of the people of South Portland (and) I take that responsibility very seriously,” he said. “I think that the people of South Portland expect their elected officials to pay attention to things that may (do) harm and to obey the law.”

Fox has asked the City Council to provide oversight of NGL Supply Terminals Co.’s potential move to South Portland.

As of the Current’s Tuesday deadline, it’s unclear if the company wants to move its operations to the Rigby Yard, which would include construction of six, 60,000-gallon, above-ground tanks to hold liquid propane that would come in by rail and then be transferred to delivery trucks.

The Planning Board held an initial workshop with officials from NGL in late February, and Tex Haeuser, South Portland’s director of planning, said his office has not received anything new from NGL since then.

In addition to the new storage tanks, NGL was also proposing construction of an 1,800-square-foot office building, with associated parking, as well as new security fencing.

NGL has not responded to the Current’s requests for comment, nor have officials with Pan Am Railways, which owns the Rigby Yard.

According to the Maine Historical Society, the Rigby Yard was the base of the Maine Central Railroad, and the location of the interchange with the Boston and Maine line. It was built in 1923 on the site of a former horseracing track and is commonly referred to as the largest rail yard facility in New England.

Questions about whether the NGL proposal meets South Portland’s zoning standards were first raised by resident Eben Rose, who wrote an opinion column in the April 9 issue of the Current in which he argued the plan should have been “dead on arrival.” Instead, he said, NGL was allowed to make its pitch to the Planning Board while Pat Doucette, the city’s code enforcement officer, and Sally Daggett, the city attorney, “deliberately kept” board members in the dark about a city ordinance that prohibits any project that would store gas in excess of 10,000 cubic feet.

But in a memo to City Manager Jim Gailey, dated April 15, Haeuser said he and Doucette both originally felt that the NGL proposal is a permitted use at the Rigby Yard. In the memo, he argued planning staff did not at first think the provision of code cited by Rose applied, since the product being stored would be “primarily in a liquid state.”

However, after further review, which he said was conducted in part because of the questions raised by Rose, Haeuser said planning staff determined in early April that the NGL plan was incomplete and encouraged company officials to consider a variety of alternatives.

Those alternatives, according to Haeuser’s memo, include seeking a zoning amendment or requesting a waiver from the City Council on the current above-ground storage tank capacity rules. He also told Gailey that the planning staff has encouraged Rose to pursue an administrative appeal “as a way to settle the issues being discussed,” which Rose has not yet done.

And, in a memo to Gailey, which is dated March 11, Doucette said she “carefully” considered the city code and initially did not agree with Rose’s interpretation of the law.

But, in his guest column in the Current earlier this month, Rose said one of the reasons he’s been persistent in raising the issue of whether city staff interpreted the code correctly is because “no vision delivered by a Comprehensive Plan or rising through a committee amounts to much if our frontline defenders of the code ignore it.”

Since then, Rose has told the Current that another of his concerns is for the city not to waste staff time and resources “considering prohibited proposals.”

He added that since, in his view, the NGL proposal is actually prohibited by two sections of the code, “they should have been turned away at the door.”

“If NGL wants this project, they first need to try to change these established zoning laws through the council,” Rose said, adding, “the council enacts laws codified in our code of ordinances. It is not staff’s place to invent new code or to make concerted efforts to work around them.”

Like Fox, Rose said his most immediate concern is for health and safety, if the NGL proposal moves forward.

He argued that “even the best adherence to safety codes and inspection still are not 100 percent effective,” and said that even if the risk of a liquid propane spill or explosion is small, it’s still “a risk that does not presently exist.”

Fox said he decided to seek council action after being contacted by Rose and being convinced, after a careful reading, that NGL’s proposed project “is clearly not permitted by two sections of the city code.”

“The language in the code is straightforward. This has been the law in South Portland since 1995,” said Fox. “There is no dispute that liquid natural gas is a petroleum-based product.” 

He added, “Our codes protect our citizens and I want our city staff to follow the code of ordinances as they are written. Twenty years ago, the citizens of this city lobbied the council to limit new tanks for petroleum-based products. The council adopted section 27-1517 and staff is failing to apply it.”

In addition, Fox said, “City staff can’t ignore provisions of the zoning ordinance to the detriment of the public welfare. (That’s why) it is important for the council to provide clear guidance about our expectations.”

Like Rose, Fox said he viewed the workshop and staff time spent on the NGL proposal as a “waste of scarce public resources,” which is why he asked Cohen for the council to step in.

In a recent email to Cohen, he wrote, “I believe councilors should be able to get information about how it happened. I also believe there are times when city councilors must give policy guidance to staff.”

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