2016-04-08 / Front Page

Proposal derailed

South Portland appears to have put propane issue to bed
By Wm. Duke Harrington
Staff Writer


The homes of the Thornton Heights neighborhood, seen on right, overlook the Rigby Yard rail station. Because of their proximity to the railway, and a commercial propane distribution center that had been proposed for construction on the site, the South Portland City Council voted 4-3 on Monday to adopt a fire code amendment establishing a 1,257-foot setback from any bulk propane storage site and so-called critical infrastructure. Although the homes do not qualify, the nearby Cash Corner fire station will put any future proposal for large-scale propane projects away from the local residents. (Duke Harrington photo) The homes of the Thornton Heights neighborhood, seen on right, overlook the Rigby Yard rail station. Because of their proximity to the railway, and a commercial propane distribution center that had been proposed for construction on the site, the South Portland City Council voted 4-3 on Monday to adopt a fire code amendment establishing a 1,257-foot setback from any bulk propane storage site and so-called critical infrastructure. Although the homes do not qualify, the nearby Cash Corner fire station will put any future proposal for large-scale propane projects away from the local residents. (Duke Harrington photo) SOUTH PORTLAND — After more than a year of wrangling, and after the applicant has already bugged out, South Portland has a code update that will block construction of a propane storage site in that part of Rigby Yard closest to residential homes.

The city council voted 4-3 Monday, April 4, to adopt an amendment to South Portland fire codes that establishes a 1,257-foot setback between any new commercial propane distribution facility and newly anointed “critical infrastructure.”


This detail from a planning department map of South Portland shows the limited area following Monday’s 4-3 city council vote where a commercial propane distribution facility could be built, within appropriate zoning areas outlined on the map, but at least 1,257 feet from “critical infrastructure” designated by the colored circles. (Courtesy image) This detail from a planning department map of South Portland shows the limited area following Monday’s 4-3 city council vote where a commercial propane distribution facility could be built, within appropriate zoning areas outlined on the map, but at least 1,257 feet from “critical infrastructure” designated by the colored circles. (Courtesy image) The amendment defines a commercial propane distribution facility as one with total on-site capacity of 25,000 gallons or more of propane. That includes not only fixed tanks, but the “transloading” of liquid petroleum gas between different modes of transportation, such as from rail cars to delivery trucks. Under the new code, any such complex would require a permit from the fire department. That permit must be denied if the development occurs within the assigned buffer zone.


The Rigby Yard rail station is seen from the vantage point of homes in the Thornton Heights neighborhood. To protect those residents from any possible industrial explosion, the city council on Monday adopted a fire code amendment that will prevent any commercial propane distribution complex, like the one proposed by NGL Energy Partners, from being built here. The council crafted the ban as a fire code update, in hopes of using public safety as a means to do an end run on the ability Pan Am Railways might have to circumvent local land use regulations. But some on the council now fear a lawsuit challenging the new rules. (Duke Harrington photo) The Rigby Yard rail station is seen from the vantage point of homes in the Thornton Heights neighborhood. To protect those residents from any possible industrial explosion, the city council on Monday adopted a fire code amendment that will prevent any commercial propane distribution complex, like the one proposed by NGL Energy Partners, from being built here. The council crafted the ban as a fire code update, in hopes of using public safety as a means to do an end run on the ability Pan Am Railways might have to circumvent local land use regulations. But some on the council now fear a lawsuit challenging the new rules. (Duke Harrington photo) Meanwhile, critical infrastructure is said to mean a list of 19 different types of structures, including government buildings and meeting halls; airports; fire, police and rescue services; hospitals, medical offices and dental clinics; power plants and transmission lines; nursing homes; radio transmitters and television studios; food distribution warehouses; docks and piers; schools; churches; telecommunications facilities; and utilities. Also included is elderly housing, as well as care centers for veterans and the disabled.

A map created by the city’s planning department shows that a radius of 1,257 feet drawn around every critical site limits potential construction of a propane complex to just three places in nonresidential zones where such a facility could be built. These include a small wooded area on the eastern side of Forest City Cemetery, the area next to the Main Street ramp onto Interstate 295 (now occupied by oil industry storage tanks), an area around F.W. Webb Company, off Postal Service Way, and the western end of Rigby Yard, closest to the Scarborough town line.

The Rigby Yard chunk also includes areas now occupied by the city’s capped landfill, where a proposed solar array might go, and much of the Wainwright Athletic Complex.

That would seemingly leave just the outlaying portion of the actual rail yard, as well what was once, a century ago, the infield of the Rigby Park horse racing track.

Councilor Brad Fox, who championed two paths to defeating a plan submitted by NGL Energy Partners to relocate from its current home off Commercial Street in Portland, said the fire code update has a specific purpose — to ban NGL locating near the Thornton Heights neighborhood.

New neighbor

NGL is being forced out of Portland by the state’s expansion of the International Marine Terminal. It had planned to lease 10 acres of Rigby Yard from Pan Am Railways. Fox first made a go at a moratorium on propane yards to buy time to tighten zoning rules, out of concern NGL was locating too close to residential homes. That track died in a 3-4 vote Jan. 18, because a moratorium, as a zoning amendment, needs a super-majority of five votes for passage, per the city charter.

However, because of NGL’s partnership with Pan Am, there was fear it could lean on pre-emption to local laws allowed for railroads by the federal Surface Transportation Board.

Because the fire codes are safety regulations and not land use rules, they only need a regular majority to pass. More importantly to Fox and George Corey — the Franklin Terrace resident who drafted Fox’s fire code amendment — while Pan Am might leapfrog over local land use rules in the name of federal preemptions, the courts, they say, are less likely to overlook limitations passed in the name of public safety.

“This ordinance was meant to prevent the rail yard from securing an exemption through the surface transportation board based on this idea of preemption,” Fox said.

At Monday’s meeting, Fox also said the idea is indeed one that targets safety in general. It was not, he said, specifically aimed at NGL.

“There were never any goal posts moved,” Fox said, addressing recent criticism from some of his fellow council- ors. “All of that is completely untrue. We are only trying to protect our residents and the people living around Rigby Yard. But even so, NGL never even had a right to build a facility here based on our current code.”

“Troubled, long path”

Mayor Tom Blake lamented the months “wasted” on

what, he said, ended up being a boondoggle in the form of Fox’s moratorium request. But just as bad, he said, was the many seeming misinterpretations of city code made over the past year by Code Enforcement Officer Pat Doucette and City Planner Tex Haeuser — although Blake did not call out anyone by name.

NGL was initially given a green light for its proposal in February 2015, even getting an initial hearing before the planning board. However, Eben Rose, not yet a city councilor at the time, raised a public fuss, pointing out that NGL’s plan for three storage tanks holding 60,000 gallons of propane, each, was far greater than the limits allowed in city zoning rules. Those rules ban any new storage for petroleum products in excess of 25,000 gallons, as well as 10,000 gallons or more of any “illuminating gas.”

Rose continued a full-court press of emails after Doucette issued an interpretation claiming the limits did not apply, because propane is stored under pressure, rendering the gas into a liquefied state. Continued pressure from Rose forced the city to hire an outside consultant to render an opinion on Doucette’s view. On June 4, 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 the zoning rules.

As summer unwound into fall, Fox complained that then-Mayor Linda Cohen blocked his attempts to bring the NGL issue to a city council workshop. Meanwhile, NGL worked behind the scenes to secure alternate readings of city code designed to secure the capacity it wanted, for as much as 504,000 gallons of propane storage. It first asked that its proposed depot be viewed as “pressure vessels” rather than simple storage tanks, then suggested some of smaller tanks should be thought of as an accessory use to one big tank.

Denied on both counts, NGL moved from three fixed storage tanks to plans that involved the use of as many as 16 rail cars, “transloading” propane directly onto delivery trucks, or else funneling it through the one tank it could have.

Hearings before the planning board were scheduled and then postponed several times as public pressure began to mount under a barrage of criticism from Fox, even as Fox drew the ire of some of his fellow councilors for lobbying them, the public and the press via a private email account.

In late November, after Fox introduced the moratorium proposal and took advantage of a planned technical update of city fire codes to introduce an amendment related to propane storage, NGL’s application was finally declared completed. A planning board hearing was put back on the schedule, but on Jan. 8, Doucette preemptively rejected NGL’s plan outright. In the denial letter, she said South Portland city code allows for no more than 74,805 gallons of liquid propane gas to be stored overnight.

NGL initially said it planned to appeal Doucette’s decision, then declared it would update its proposal with a schedule to shuttle rail cars in and out of Rigby Yard, such that there would never be enough propane on site to run afoul of the 24-hour storage limit, previously unmentioned to it by the planning department. Finally, on March 17, NGL pulled the plug, saying it would look elsewhere to find a home for its $3 million development.

“We have taken a really troubled, long path to get to this end result,” Blake said on Monday, likening the experience to a family trip he and his wife once took when their children where young. However, while that trip was “just a disaster,” it ended up in Florida.

“The destination is what’s really important in life,” Blake said.

“This is a solid good ordinance. I see this ordinance working very well,” he said of end result and the fire code update with its new propane buffer zone.

Flag the train

However, three members

of the council — Cohen, Maxine Beecher and Claude Morgan — said they feared the new setback would entice a legal challenge from Pan Am, even with NGL having walked away. Already, they noted, South Portland is embroiled in a court fight with Portland Pipe Line over its attempt to ban diluted bitumen, or “tar sands oil,” from flowing though city ports. Morgan has predicted that lawsuit could cost South Portland taxpayers upward of $2 million in attorney fees before all is said and done “I can’t see putting another (ordinance) out there that raises red flags and says, ‘Come on, sue us,’” Cohen said. “We have a fiduciary responsibility to the taxpayers of this city to make sure we are not breaking them by fighting for one ordinance after another.” “We truly cannot afford anther lawsuit,” Beecher agreed. “I think this could be the tide-turner and, sadly, this (fire code update and the fear of a second lawsuit)

could be the tipping point at which the public turns on us, on our existing lawsuit, and that’s the prize where we should be keeping our eyes,” Morgan said.

But other members of the council fell back on concerns about a massive propane explosion resulting from an industrial accident, no matter how unlikely the city’s own fire department leaders said that would be. Backing any such development away from certain structures was, they said, a wholly appropriate response.

“To me, this is a declaration of what we care about if we share the zip code 04106,” said Councilor Patti Smith.

The fire code amendment submitted by Fox was largely rewritten by Russell Pierce from the Portland law firm Norman Hanson & De- Troy. For a time, the council also had a competing measure on the table authored by city staff, but it voted in March to focus on the Pierce version by the same 4-3 breakdown it has run almost from the beginning on the propane project.

In an undated, unsigned memo contained in the council’s April 4 information packet, Pierce said the attempt to limit rail yard development via a fire code could set a national precedent.

“This particular approach to the issues has not been raised before to our knowledge,” he wrote.

“This approach does adhere to precedent that local fire codes and local fire safety reporting requirements have typically been found to remain applicable and appropriate in those areas where localities do retain their reserved police powers to protect public health and safety,” Pierce wrote. “Here, the amendment is contained entirely in the city’s fire code and is a permitting requirement enforced by the fire department, based on an objective and clear safe distance criterion.

“Of course there is never an absolute guarantee that this, or any, local regulation would remain in force against a rail carrier,” he added.

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