2015-05-08 / Front Page

City seeks outside advice on propane proposal

By Duke Harrington
Staff Writer

SOUTH PORTLAND — While the city seeks outside advice on the interpretation of rules regulating the storage of liquid propane gas, one South Portland city councilor is fighting to drag the question into the public arena in a council workshop session.

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. That rail yard is located on more than 200 acres off Route 1, between the Cash Corner and Thornton Heights neighborhoods, to store liquid propane gas.

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 has previously 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 exceed 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.

NGL 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.”

But Buchannan Street resident Eben Rose, one of the leading voices in South Portland’s recent fight over diluted bitumen, or “tar sands,” has been making waves over the propane proposal.

Rose has condemned city officials — most pointedly Code Enforcement Officer Pat Doucette — saying NGL should have been “turned away at the door” and denied the workshop hearing before the planning board, because of the conflicts between its proposal and city code.

“There’s no evidence that (Doucette) 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 in an April 21 interview. “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.”

Rose says 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. That, she intimated, absolved NGL from limits on the storage of gas.

However, Rose kept the issue at the forefront with city officials, via email and in the press.

On April 28, City Manager Jim Gailey alerted the city council that, at a staff meeting earlier that day, it was decided to seek an outside interpretation of relevant portions of city code pertaining to the city’s Nonresidential Industrial zone.

“The code officer’s interpretation about a month ago has led to questions being raised and whether the proposed NGL terminal is allowed by Ordinance,” Gailey wrote. “At the time the code enforcement officer worked with the deputy fire chief, planning director and city attorney to come to the interpretation. Staff has subsequently received additional information from the applicant that has been applied to the ordinance resulting in another section of the ordinance prohibiting the NGL proposed use.

“Today’s staff discussion was around seeking a third party interpretation,” Gaily wrote. “The code officer is open to initiating such a review and hopes that a thirdparty review will bring closure. This week the code enforcement officer will be reaching out and working with a third party contractor.”

Gailey did not name the contractor and did not respond to a request for comment Tuesday. However, a request to obtain a copy of his April 28 email and subsequent communications on the topic was forwarded to his assistant, Mary Perry.

Late Tuesday afternoon, Perry emailed the Sentry to say she could not respond to any Freedom of Access Act requests until after returning from vacation, May 13.

In an email Tuesday evening Mayor Linda Cohen refused to forward her copy of Gailey’s email.

“I believe you have made a request to city hall for this information,” she wrote. “I understand our legal department has received your request. All requests for information goes to our legal department for handling.”

In an unsolicited comment Tuesday, Rose redirected his concern at Cohen, writing in an email to the Sentry, “I am disappointed in Cohen’s lack of concern for this issue. She puts herself out there as a stickler for ‘proper procedure,’ but what more ‘proper procedure’ can there be than integrity in enforcing code? Put another way, what level of corruption would she advise that active citizens like me should tolerate?”

City Councilor Brad Fox — who campaigned last fall on an environmental platform with backing from Protect South Portland, the grassroots environmental group that rallied against tar sands — has been sympathetic to Rose’s concerns.

“I 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,” he wrote in an April 14 email to Cohen. “Staff’s actions included holding a planning board workshop and apparently meetings with the project applicant. I see this as a waste of scarce public resources and I believe councilors should be able to get information about how it happened.

“I was contacted a number of weeks ago (by) several residents about the dangers of a proposed LNG terminal,” Fox wrote. “After reading the ordinance sections, 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.

Fox wrote that he had taken his concerns to Gailey after consulting “an impartial science teacher in Portland,” who, he said, backed Rose’s points.

“I asked Mr. Gailey if city staff could double check with an outside expert to see if our residents, the science teacher, and I were correct in our reading of the ordinance,” Fox wrote. “I was told that the ordinance was being reviewed. Later, Mr. Rose was told that he should take his complaint to the planning board and pay $100 to appeal the decision. I was never given any information about the review.

“I fully expect more press reports on this issue based on what residents tell me,” Fox wrote. “I would like to be prepared. I also believe there are times when city councilors must give policy guidance to staff about longstanding city policy. I am requesting full disclosure of the facts on staff’s interpretation of the ordinance.”

In addition to his recent communications, Fox provided a copy of Gailey’s April 28 email, in which the city manager noted, “Staff has not heard from NGL for a number of weeks now.

“The last staff heard from NGL, NGL was exploring a zoning text change for the known ordinance presenting a problem for their application,” Gailey wrote. “It wouldn’t surprise me that NGL adds clarification (to the code) if it is found to have a wrong interpretation, ultimately presenting two text changes under their request.”

However, even before that, Fox was trying to get his peers to address the issue on their own, absent a request from NGL.

In an April 25 email, Fox asked Mayor Cohen to schedule a council workshop “to begin the process of amending Sec. 27-964 of the code of ordinances to include a scientific definition of (liquid natural gas).

“I hope that we can schedule it soon, given the timeliness of the matter,” Fox wrote.

“We will be reviewing workshop topics and dates on May 11 and you should bring the subject up at that time,” Cohen replied, in additional emails provided by Fox. “If you have support to add the item to a workshop agenda, we can decide if we want to bump other items we have scheduled in order to give this priority over them.”

That same day, Gailey weighed in, but suggested a pow wow to make sure all ducks were lined up prior to any public comment.

“I am all for your request,” he wrote, “but let’s talk a little strategy this week to reduce our exposure.”

“Let’s meet after Monday’s meeting,” Fox replied, referring to an April 27 joint workshop of the city council and school board. “(Councilor) Tom (Blake) would like to join us. We’d both like to get past this issue.”

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