2015-12-25 / Front Page

City council reverses course, puts block on propane project

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — Two weeks after clearing the path for construction of a major propane distribution complex, the City Council reversed course Monday, voting instead to impose six-month moratorium on construction of any such facility.

That change of heart was made possible by Councilor Eben Rose, who said his Dec. 9 vote to “table indefinitely” debate on a moratorium had been meant to buy some time for the idea to grow, not to kill it in the crib. Rose, who was attending his first meeting as a councilor Dec. 9, apologized at the Dec. 21 session, saying he had been sick at the time and unable to hear well.

Councilor Brad Fox also apologized to the public for use of the word “indefinite” in his Dec. 9 motion to table talk of a moratorium. As a supporter of the measure, he, too, had only meant to delay proceedings, in hopes of winning support from at least one other councilor, he said.

According to the city’s charter, final adoption of a zoning ordinance requires a super-majority of five yes votes. A moratorium is, technically, a zoning amendment, albeit a temporary one that, without re-authorization, expires after six months. To date, Councilors Maxine Beecher, Linda Cohen and Claude Morgan have opposed passage of a moratorium.

Because Rose voted in favor of tabling the moratorium at the Dec. 9 meeting, he was allowed to move for reconsideration of that decision. He did so Monday, putting the proposal back on the table in a 4-3 vote.

That was the same tally on the resulting vote for the moratorium, with Councilor Patti Smith and Mayor Tom Blake joining Fox and Rose in adopting the measure. With only a simple majority needed at first reading, the moratorium proposal now goes to the planning board, which is required by state law to conduct a public hearing on it.

That hearing has yet to be scheduled. However, NGL Supply Terminal, the Oklahoma-based company that plans to lease nearly 10 acres from Pan Am Railways at Rigby Yard, was scheduled to go before the planning board with its application on Jan. 12.

Immediately after Monday’s council meeting, NGL’s regional operations manager, Kevin Fitzgerald, issued a statement denouncing the change of course.

“This decision sends an alarming message to any business interested in establishing itself in South Portland,” he wrote. “In rejecting the guidance of their own veteran fire chief, the councilors confirmed they are willing to preempt and delay the city’s own processes for purely political purposes.”


Both Fox and Rose have opposed NGL’s project since it was first announced last February — Rose because the propane facility, as proposed, conflicts with city codes, Fox out of concern for the impact of any industrial accident on site, given the proximity to residential homes.

Rose was first to raise a red flag one year ago, following NGL’s initial February appearance before the planning board. At that time he pointed out NGL’s plans for three storage tanks holding 60,000 gallons of propane, each, was in conflict with city codes, which since the 1990s have prohibited installation of new above-ground storage tanks holding more than 25,000 gallons. Another code bars local storage of any fuel or “illuminating gas” in amounts that exceed 10,000 cubic feet.

Rose continued a full-court press of emails when the city’s code enforcement officer, Pat Doucette, issued an interpretation claiming the rule did not apply, because propane is stored under pressure, rendering the gas into a liquefied state. Continued pressure from Rose over the spring forced the city to hire an outside consultant to render an opinion on Doucette’s interpretation. In a June 4 letter, Portland engineering firm Woodard and Curran said NGL’s tanks, as proposed, would always have enough gas in them to trigger the cubic-foot limit contained in city codes.

On Monday, Rose acknowledged the moratorium appears to be dead-on-arrival whenever it returns to the council for final passage. However, claiming NGL’s latest application still fails in the face of current zoning rules, Rose said Monday’s do-over can do good, since it compels a planning board review and recommendation.

The extra review is needed, Rose said, because NGL’s downsized proposal — which now calls for a single 24,000-gallon storage tank augmented by up to 16 rail cars — still conflicts with city code. The rules, he said, prevent overnight storage of more than 10,000 cubic feet of gas.

“This give us all a chance to sort though this complicated information that apparently has baffled city staff up to this point,” Rose said. “This is not about whether we love propane or hate propane. It’s not about whether we’re going to have propane for our homes this winter. That’s never been the issue. But even in the end this doesn’t get or give votes, it will give the planning board some tools and make them aware there are these important issues, because I don’t have faith that’s going to be communicated to them with fidelity. They were not the first time.

“Mind you, this [storage] prohibition is not about tanks, it’s about storage,” Rose said. “It could be in a rail car, it could be in a fixed storage tank, it could be in a purse. It doesn’t matter. If it’s over 24 hours and there’s a volume over 10,000 cubic feet — that’s 74,805 gallons — it is not allowed.

Rose, Fox, Smith and Blake all spoke in favor of the moratorium it order to conduct a full and thorough review of NGL’s proposal, and how the city should respond to it.

The four also teamed to backdate the moratorium to Oct. 14, when the council first debated the need for it in a workshop session. That date is important because City Attorney Sally Daggett had dated the moratorium to start with the Dec. 9 council meeting, which was after the Nov. 23 final submission by NGL of its latest application.

Starting the moratorium after NGL’s application was deemed complete by the planning office could have rendered it legally inert.

Councilors Beecher, Cohen and Morgan voted against the date change. None spoke at Monday’s meeting, other than to vote.

Meanwhile Fox, who has continually raised the spectre of a devastating explosion at Rigby Yard, said he favors a moratorium because too few people know that could happen. Fox said he canvassed the Thornton Height’s neighborhoods near Rigby Yard last week, and was shocked to find that none of six families to whom he spoke had any idea of what was to come.

“I don’t think we’ve done a very good job of communicating this at all,” he said.

Still, several expert sources, including recently retired Fire Chief Kevin Guimond, have testified to the council that a propane tank explosion, or BLEVE, is extremely remote, given the fire department’s response time and the safety measures to be installed by NGL.

“The big, catastrophic failures that people have been talking about, that’s not common. And BLEVEs (boiling liquid evaporating vapor explosions) they can be controlled, thanks to technology and mitigating infrastructure,” Guimond said on Nov. 9. “I feel we have everything we need in place to make a decision. If we can limit the amount of [rail] cars in use with fixed firefighting protection, it will be better than what we’re already doing down at the other end of the yard.”

NGL, which is being forced out of its current home on Commercial Street in Portland by state expansion of the International Marine Terminal, has “had not incident in 60 years” there, Fitzgerald has said.


In the days preceding Monday’s council meeting, both the Portland Regional Chamber of Commerce and the South Portland-Cape Elizabeth Chamber issued letters in support of NGL. What made that significant, a company spokesman said, is that NGL is not a member of either organization.

“A moratorium on liquid propane terminal development within the city represents delaying tactics despite clear testimony from the city’s respected former fire chief that such actions are unnecessary to protect the health and safety of local residents,” the Portland Chamber said in a Dec. 21 release. “Failure to allow a permitting process to proceed in a predictable, fair way sends a chilling message to any legitimate business interested in operating within or relocating to South Portland.”

Most of the audience members at Monday’s council meeting spoke against the NGL project, or at least in favor of the deeper review a moratorium might allow.

Still, there were those who backed the Chamber view,

including Summit Street resident Jeff Selser. He said the normal planning board process and the rule of law as it currently exists in South Portland is adequate for a safe review of the NGL project. More amusingly to the audience, he called out Fox for a Chicken Little attitude about propane storage and the possibility of explosive accidents.

“If you look at the statistics, you are more likely to be killed while walking on the street by an airplane falling out of the sky than you are to be killed or seriously injured by an explosion at Rigby Yard, but we are not imposing a moratorium on flights in and out of the city,” he said. “You are more likely to be killed by a dog, but we’re not imposing a moratorium on issuing dog license in the city.

“We have to make our laws predictable and easy for everybody to follow and understand,” Selser said. “And if I submit an application to the city, I have to be reasonably confident the laws are not going to be changed on me midstream.”

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