2015-04-24 / Front Page

Being railroaded?

City resident claims codes ignored
By Duke Harrington
Staff Writer


The Rigby Yard facility, located off Route 1 between the Cash Corner and Thornton Heights neighborhoods and owned by Pan Am Railways, is reportedly interested in leasing 10 acres of more than 215 at the site to NGL Supply Terminal Co. The company wants to use the site as a facility to store and distribute liquid propane, which would reportedly include reconfiguring rail lines to direct as many as 30 rail cars at a time to that section of the site. However, local environmental activists claim the proposal violates city code. (Duke Harrington photo) The Rigby Yard facility, located off Route 1 between the Cash Corner and Thornton Heights neighborhoods and owned by Pan Am Railways, is reportedly interested in leasing 10 acres of more than 215 at the site to NGL Supply Terminal Co. The company wants to use the site as a facility to store and distribute liquid propane, which would reportedly include reconfiguring rail lines to direct as many as 30 rail cars at a time to that section of the site. However, local environmental activists claim the proposal violates city code. (Duke Harrington photo) SOUTH PORTLAND — At the same time it was losing its “business-friendly” certification from the state, South Portland was bending so far backward to accommodate one company that it almost broke its own codes, so claims one leading critic of city government.

NGL Supply Terminal Co., a subsidiary of NGL Energy Partners LP of Tulsa, Oklahoma, approached the city in February with plans to lease space from Pan Am Railways on 10 acres at its Rigby Yard facility.

The supply company wants to store liquid propane gas at the 256-acre rail yard, located off Route 1 between the Cash Corner and Thornton Heights neighborhoods.

The plan called for six above-ground propane tanks, each capable of holding more than 60,000 gallons — or 8,000 cubic feet — of liquid propane, for a total of 360,000 gallons — or 48,125 cubic feet of storage. That’s 38,125 cubic feet over the maximum allowed by city zoning. Moreover, with 87 fuel storage tanks in the city, South Portland in the 1990s prohibited installation of new above-ground storage tanks holding more than 25,000 gallons of anything, liquid or gas.

Zoning rules also prohibit local storage of any fuel or “illuminating gas” in amounts that excess of 10,000 cubic feet.

NGL currently stores and distributes LP gas from a 4-acre site on Commercial Street in Portland. That facility holds 280,000 gallons of gas preparatory to distribution across Maine and New England. However, NGL will soon lose that location because the property owner, Unitil, has signed on to sell the land where NGL’s terminal is located to the state. The Maine Department of Transportation (DOT) plans to use the property to expand the International Marine Terminal, which is owned by Portland and managed by Maine Port Authority.

The company met with the planning board in a workshop session on Feb. 24 when it was advised it would need to seek waivers or pursue zoning amendments. It also has the option of working with Pan Am to seek a federal waiver to the local zoning rules, if it can prove the city code constitutes an “unreasonable burden on commerce.”

Some city sources have since said NGL has dropped its interest in Rigby Yard, while others say an amended proposal is in the offing.

“We’re waiting for the applicant to decide how they want to proceed,” said Assistant City Planner Stephen Puleo.

But Eben Rose, who lives on Buchannan Street, says NGL should have been turned away from the onset, based on the conflict of the initial proposal with city code.

“They were able to come in and pitch this to the planning board, but they should have been turned away at the door, because it’s against code,” Rose said on Tuesday. “If an off-track betting parlor wanted to set up in a residential area, they’d just be told, no, you can’t do that. You don’t have code enforcement saying, we’re going to call on our all-volunteer planning board and give them a presentation on this thing that’s a violation of our code, and just sort of see how it plays out, and if somebody notices, we’ll just cover up our tracks and walk away.”

Rose has been one of the more vocal critics of South Portland for the past two years, and the city has wound its way through the sticky situation of tar sands. One of the more frequent speakers at the city council podium, he and his son dressed in costume as uber-cool and untouchable oil company executives in an attempt to tweak the council’s collective nose, although he thought better of the tactic by the time he got to the microphone during the public comment portion of that meeting. However, Rose also has been reliable as someone who speaks not just from the heart about his fears for the local environment, but backed by documents and verifiable facts.

Rose said he was first to point out the conflict between city code and NGL’s plans, days after learning about the Feb. 24 workshop and watching online video of that session. Most damning, he said, is the boilerplate language read at the start of the meeting, as at every planning board session, by the chairman, exhorting applicants to ensure their projects comply with city code before making their presentations. Rose has openly questioned whether South Portland Code Enforcement Officer Pat Doucette even knew the NGL proposal was not up to par.

“There’s no evidence that she had any idea these prohibitions even existed in city code, and apparently did not do her due diligence to even see what the code says,” Rose said. “Instead, she and the planning office went ahead and gave NGL an opportunity to have an audience with the planning board, and didn’t tell the planning board this was a violation of code.”

Neither Doucette nor City Planner Tex Haeuser could be reached for comment Tuesday. Officials from Pan Am and NGL did not return requests for comment.

Rose said he pointed out the conflict between the project and city code, only to hear back two weeks later, following a March 11 email from Doucette to Gailey, in which she determined the apparent violation was, in fact, not a violation at all.

“NGL is not proposing to store gas in excess of 10,000 cubic feet or otherwise. Liquid propane is not measured in cubic feet; it is measured in gallons,” wrote Doucette, observing that the propane would arrive and depart South Portland as a liquid.

But Rose said Doucette “does not understand basic high school physics. Anything that is a gas at 68 degrees at one standard atmospheric pressure is a gas.”

“When confronted with questions about this proposal’s incompatibility with code, Doucette contrived this work-around — propane is not a fuel gas and is therefore not subject to the storage limit set forth in Code,” Rose said. “Concurrent jurisdictions were not consulted beyond key city staff, including Assistant Fire Chief Miles Haskell, who all agree with the South Portland-only definition of propane-is-nota fuel-gas.

“But the South Portland Fire Department’s own fire code rule book, in National Fire Protection Association (code) 58, manifestly identifies propane as a fuel gas,” Rose said. “My efforts to involve City Manager Jim Gailey in reining in staff’s oddball definition by seeking consultation outside of complicit city staff were rejected by him because he says he did not receive very many calls complaining about the proposal.

“Apparently existing law does not justify enforcement if no one complains,” Rose said.

Rose also faulted City Attorney Sally Daggett, saying “she has positioned herself as bodyguard in defending Doucette’s right to go off-script and invent new language to substitute for code.”

Rose has accused South Portland of supporting what he calls a “shadow government” purportedly eager to lure in industrial concerns.

“They’ll tell you up and down that this is a safer alternative (to tar sands),” Rose said. “Well, no, it’s not. Having a bigger facility is not a safer alternative to anything. Having no facility is the safest alternative.”

Rose has called on the city council to conduct a hearing to investigate why and how the NGL proposal got as far as a planning board workshop.

“It absolutely never should have got that far, especially when the planning board was, it seems, deliberately kept unaware of the conflicting provisions of code when they preliminarily reviewed the proposal.

“We have a city run amok,” he said. “We have code enforcement that either does not know or does not care about city code. And, in the case of a fireman not representing NFPA 58’s definition of liquid propane as a gas, that’s tantamount in my view to fraud, and that should be prosecuted.

“Jim Gailey seems like a patsy,” Rose said. “He may have the authority to rein in his employees, but he’s not going to because he lacks the power. There’s a lot of culpability to go around here, so that even though this proposal ultimately got turned away, there’s still momentum behind it because they were allowed to go and make their pitch to the planning board.”

Although NGL’s proposal appears dead at the moment, city staff reportedly met with company representatives as recently as April 2, and at least one city councilor seems to agree with Rose, at least in his call for a public hearing on the issue.

In an email last week to Gailey and Mayor Linda Cohen, Councilor Brad Fox said he “would like the council to have a conversation on the way that staff interpreted and applied the city’s zoning ordinance to an industrial proposal that is prohibited by our zoning ordinance.

“I agreed with those residents that the portions of the code that prohibit tanks containing certain substances had been misinterpreted by city staff, based on the science involved,” Fox wrote. “I am requesting full disclosure of the facts on staff’s interpretations of the ordinance.”

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