SOUTH PORTLAND — Outside consultants have determined a propane storage facility proposed for Rigby Rail Yard is not permissible under the city’s Code of Ordinances.

The third-party interpretation of the proposal by NGL Supply Terminal Co. was sought after Code Enforcement Officer Pat Doucette’s finding in favor of the plan was challenged by some city councilors and a resident, Eben Rose.

In an April 28 email to city councilors, City Manager Jim Gailey said “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.”

The city subsequently hired Tom Schwartz and Adam Steinman, of the Portland branch of Woodard and Curran, for $3,200 to interpret the city’s zoning regulations with regards to the storage of fuel gas proposed by NGL.

Their determination refutes Doucette’s interpretation.

On Monday, following the release of Schwartz’s and Steinman’s findings, Kevin Fitzgerald, regional operations manager for NGL Energy Partners, said, “We look forward to reviewing the Woodard and Curran report and working with the City of South Portland to evaluate all potential options, including ordinance language revisions, or design and location alternatives.”

Representatives from the Tulsa-Oklahoma-based subsidiary of NGL Energy Partners submitted their application for Rigby Rail Yard in January, and met with the Planning Board for a preliminary site plan review in late February.

NGL Supply Terminal Co. currently distributes gas liquids from a four-acre site on West Commercial Street in Portland. Rigby Yard, at 20 Rigby Road, would more than double the size of the company’s operations, to 10 acres of space, leased from Pan Am Railways.

Fitzgerald said Monday that relocation from the existing facility is “motivated by and in direct support of the state’s development of the Portland waterfront.”

Rigby Yard, Fitzgerald said, was “carefully” selected as the best location for NGL.

“The $3 million state-of-the-art facility is designed to safely meet the high demand for clean-burning propane at over 50,000 homes and businesses throughout the greater Portland region,” he said. 

NGL’s proposal includes storing liquid petroleum gas, or propane, in six 60,000-gallon above-ground storage tanks.

But the zoning code caps the allowed amount for a storage tank at 25,000 gallons. The explicit storage of fuel or illuminating gas “in excess of 10,000 cubic feet” is also prohibited in the ordinance.

Liquefied petroleum gas is defined in the ordinance as any material that’s composed “predominantly” of hydrocarbons, including “propane, propylene, butane and butylene.”

Doucette’s determination came under fire when she classified propane as a non-gas substance. 

She went on to state that the list of prohibited uses in the zoning ordinance “does not apply because the product involved is not fuel gas or illuminating gas.”

Because the substance would arrive as a liquid and depart the facility as a liquid, the prohibition of “10,000 cubic feet” does not apply, Doucette wrote in a March 11 memorandum to Gailey. “Liquid propane is not measured in cubic feet; it is measured in gallons.”

But that isn’t a correct assessment, Schwartz and Steinman found, because all propane containers have some level of liquid and some level of gas in them at all times. 

Knowing this, “It would be very difficult to ensure the storage and distribution activities could be performed while ensuring there will always be less than 10,000 cubic feet (74,800 gallons) of gas stored on the premises at all times,” Schwartz and Steinman concluded.

Options for how NGL could proceed with their application were outlined in a press release from Gailey on June 5.

“Now that is has been determined that (the relevant zoning code) prohibits the use as proposed, the applicant could 1) appeal the decision of the Code Enforcement Officer to the Board of Appeals; and/or 2) apply for a zoning text change, proposing to change the current ordinance language.”

Rose, the resident whose persistent criticism helped spur the city to seek a third-party opinion in the first place, and whose initial assessment was eventually supported by Woodard and Curran, said he remains bothered by the process.

“We have an elected legislative body that is empowered to codify rules that code enforcement is sworn to uphold,” Rose said Tuesday. “But this process has revealed a culture within Planning and Development that has evolved away from respecting and understanding these directives in relation to the code.”

As for NGL, he said, “the fact that they ignored this zoning and tried to wheedle around definitions to get their way demonstrates that they have little regard for complying with regulation, and this does not inspire confidence in their conduct of operations.”

“If a propane terminal of this type and scale are someday considered worthy of a zoning change by the neighborhood residents and council of this city,” Rose said, “we all have good reason not to trust NGL to be that firm.”

Alex Acquisto can be reached at 781-3661 ext. 106 or aacquisto@theforecaster.net. Follow Alex on Twitter: @AcquistoA.