2015-12-11 / Front Page

Council weighs propane moratorium

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — With a deadline looming for a major propane distributer to move off the Portland waterfront, securing a new home in South Portland remains in doubt with a divided city council seemingly deadlocked on how to deal with the development.

In February, Oklahoma-based NGL Supply Terminal Co. announced plans to lease nearly 10 acres from Pan Am Railways at Rigby Yard, located off Route 1 just below the Thornton Heights neighborhood. The company has a storage yard just across the Fore River, at the base of the Casco Bay Bridge, where it keeps 260,000 gallons of propane. However, the company is being forced out of that site by the Maine Port Authority, which awarded a bid to Americold for a 6.3-acre refrigerated warehouse, about half of which is to be built on space now occupied by NGL.

However, NGL’s proposal ran up against zoning ordinances in South Portland that truncated its plans from three 60,000-gallon storage tanks to a single tank holding 24,000 gallons. NGL plans to make up for the loss of fixed storage by using up to 16 rail cars for a reported total of as much as 744,000 gallons of propane on site at any one time.

That’s caused concern for some nearby residents, as well as local environmental activists, who fear the explosive impact of an industrial accident.

On Wednesday, Dec. 9, the city council was scheduled to vote on a moratorium that would prevent NGL from moving forward for six months — well past its deadline to be off the Portland waterfront.

Pushed back from its regular Monday date by the annual inauguration ceremony, Wednesday’s council meeting took place after the deadline for this week’s Sentry. However, three councilors — Brad Fox, Patti Smith and Mayor Tom Blake — went on record in support of the moratorium at a Nov. 9 workshop. Meanwhile, newly elected councilor Eben Rose, who was the first to raise an alarm over the NGL proposal back in February when, following an initial appearance by the company in front of the planning board, it appeared the city’s planning and code enforcement department was ready in interpret relevant ordinances in a way that would have allowed NGL’s original, larger project to go through.

South Portland’s City Charter requires a super-majority of five yes votes on final passage of all zoning ordinances amendments and, with Councilors Maxine Beecher Linda Cohen and Claude Morgan on record against the moratorium, it could be dead on arrival come the second reading Monday, Dec. 21.

That is, of course, unless one of the no votes can be convinced to red-rover over to the opposing side.

“I’m hopeful,” Blake said. “I’m forever an optimist.

“I think the moratorium is the best way to go,” Blake said. “We have what I consider to be weak Chapter 8 (fire code) ordinances. I think we can do a better job protecting our citizens, and a moratorium will give staff time to dissect and analyze any changes we may develop.”

With passage of a moratorium in doubt, some residents have taken up the pen to draft fire code updates of their own. Believed to be the work of many hands, including Fox, a proposed list of amendments was submitted to the city last week by Franklin Terrace resident George Corey. It will be the subject of a special council workshop set to start at the conclusion of Wednesday’s business meeting.

According to City Manager Jim Gailey, the code changes, if adopted, would prohibit the issuance of a fire permit to any commercial propane distribution facility located less than 1,800 feet from “critical infrastructure.”

“They provide a definition of ‘critical infrastructure,’ but the measurement is from property’s boundary lines and not the facility itself,” Gailey said in a Dec. 8 email.

In a Dec. 3 email, NGL’s regional operations manager, Kevin Fitzgerald, said the proposal is not meant to strengthen fire safety rules, as Blake said is necessary, but to ban his company from relocating to South Portland.

“In testifying about our proposed Rigby Yard project, former South Portland Fire Chief Kevin Guimond told city councilors, ‘We have the codes in place we need to make a safe decision,’ and, ‘we will come out of this with a safe project.’ Given the chief’s testimony, and since NGL hasn’t had the opportunity to appear before the planning board to discuss our facility’s state-of-the-art safety features and operations, these amendments seem unnecessary and designed to preempt an open, transparent and predictable Planning Board review process.”

Morgan agreed and on Monday said, “Frankly, I think this deprives the applicant of due process. I question the ethics of it.”

However, Fox said in a Dec. 7 email that residents have had to act in light of the council’s apparent unwillingness to do so.

“We want to strengthen our current ordinances to protect our city from the very real danger of explosions and massive fires that would destroy our infrastructure,” he wrote.

Fox has been the most vocal critic on the council of the NGL project, saying at the Nov. 9 workshop, “Depending on the amount of propane that explodes, this whole neighborhood could be wiped out.”

Fox campaigned online throughout the summer and early fall against NGL, drawing criticism from Morgan and others because he used a private email address to circulate links to related news stories, copies of city hall communications and words of caution about propane storage and distribution.

On Monday, NGL filed a request with the city under Maine’s Freedom of Access Act to see “all public records relating in any way to our proposal.”

“Given recent media indicating Councilor Fox used his private email account on at least 125 occasions to discuss NGL’s proposed project in direct contravention of city and state public access laws, we are increasingly concerned that he, and potentially other councilors, are actively engaged in subverting an open and transparent planning board review process before that process has even begun,” Fitzgerald wrote in a press release announcing the filing.

“We are additionally concerned that Councilor Fox is pursuing fire code ordinance amendments designed exclusively to prohibit the lawful development of our proposed facility,” Fitzgerald said. “Because these amendments appear so narrowly drawn as to target our project exclusively, we will actively monitor council deliberations and, should the council enact these amendments as written, reserve the right to pursue all means of redress, including legal action.”

That last bit raises red flags for some.

“We already have $500,000 set aside for one lawsuit, can we afford another $500,000 for second one?” Blake asked, rhetorically.

That comment referred to ongoing legal action over the council’s adoption in July 2014 of new zoning rules designed to build tar sands. Portland Pile Line Corp. filed suit even though, as it stated many times, it had no plans to pump tar sands through its South Portland terminal.

The NGL debate has been compared to the lengthy, sometimes acrimonious fight over tar sands. In that instance as well, residents rallied to submit an ordinance of their own, even forcing it before voters via a petition drive, when the council seemed slow to take up their cause.

Although Blake supported that effort, he has come to regret the results, at least in terms of the era of bad feeling it created and because the citizen-authored ordinance was so easily picked apart by opponents.

“I think we have better government when government responds to people and makes the requested changes,” he said. “The council didn’t take action on tar sands and so the citizens petitioned their own action, and we saw the debacle that was created because of that. That’s not the best way to do government, to have the citizens write (ordinance) language.”

But for Morgan, the big difference is that, in this case, residents seem to be picking the wrong ordinance to amend.

“I believe that is the wrong chapter to be addressing this,” he said. “This is really a land use issue and belongs there, not in the fire codes.”

Morgan also said he feels getting to NGL through the fire codes undermines the pubic vetting process.

“This has not been announced as the major policy change it really is,” he said. “It’s only ever been announced in this meek term of updating fire codes. What does that tell the public? It tells them really nothing, when in a huge public policy decision is being made here. I think it’s a real backdoor approach to settling what should be a lively public discussion, not this chummy little event publicized under fire codes.”

Another difference between the tar sands fight and the current battle over propane, Morgan said, is the relative lack of a public outcry in this case.

“I just not have not seen this mass uprising,” he said. “Everything has come from a few very vocal individuals.”

However, Blake said the reason for that is the change in council make up since the summer of 2014, which has seen Fox, Rose and even Morgan added to the roster.

“Since tar sands, the council has become more progressive and I think a lot of citizens have backed off a bit and are putting it in the council’s hands to do the right thing,” he said.

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