SOUTH PORTLAND — Although the City Council was divided at a Monday night workshop on a moratorium to halt a liquefied petroleum gas storage facility proposed for Rigby Rail Yard, moratorium backers remain optimistic the council will freeze the project.
“I am still fairly confident that the moratorium still has a chance of being in place,” Councilor-elect Eben Rose, who will be sworn in Dec. 7, said Wednesday afternoon by phone.
No formal action was taken at the council workshop, but discussion suggested that only three of seven councilors supported the idea. A super-majority of five affirmative votes is necessary to approve the proposal.
The council deferred taking a formal vote until its Dec. 9 meeting, when Rose will have replaced Councilor Melissa Linscott, who Monday remained unconvinced a moratorium is needed.
Kevin Fitzgerald, regional operations manager for NGL Energy, parent company of NGL Supply Terminal Co., which is proposing the Rigby project, said he felt “encouraged” by the council’s discussion.
“We want to work closely with South Portland residents, staff and officials through an open, transparent and predictable process. The city’s Planning Board is specifically charged with evaluating new development proposals, ensuring compliance with local ordinances and all health, safety, fire and operational standards,” Fitzgerald said in a prepared statement.
“We look forward to presenting our proposal to the Planning Board, providing detailed information about its safety features and answering any questions from staff and residents alike.”
The council first discussed the possibility of a moratorium in October, after residents came forward with concerns about living close to an area where large quantities of propane would be stored and transported.
They were responding to NGL’s application to construct a $3 million storage facility on the northern end of Rigby Yard, between Route 1 and Rumery Street, and within 500 feet of about 70 properties.
The proposal is still in the preliminary stages of city approval; the application has not been designated as adequately complete by city staff, who are still waiting for materials from NGL. Only after the application is deemed complete by staff can it be vetted by the Planning Board.
If the city enacts a moratorium, it would halt the plan to store 24,000 gallons of LP gas, commonly known as propane or butane, and load and transport thousands of gallons more each day by truck and rail car. The proposal includes space for 16 rail cars, each capable of holding 30,000 gallons, and one 24,000-gallon above-ground storage tank.
NGL supplies propane to retailers in the greater Portland area. “Anybody who sells propane within 100 miles of here is a customer,” Fitzgerald said Wednesday morning.
During Monday’s discussion, councilors sparred with each another and with Fire Chief Kevin Guimond over the level of risk the project involves.
Councilor Brad Fox, who has opposed the proposal from the beginning, said that while some propane tank explosions are caused by “boiling liquid expanding vapor explosions,” or BLEVEs, which can be detected and controlled, many catastrophic explosions happen spontaneously because of human error.
But Guimond countered that “the big, catastrophic failures that people have been talking about, including yourself … a lot of them are BLEVEs.” And BLEVEs, Guimond said, can be controlled thanks to technology and mitigating infrastructure.
Fox suggested “we’re talking about 30,000-gallon tanks … that’s a lot of propane in one place, and the tanks often will have chain reactions and explosions.”
“No,” Guimond replied. “No, that’s not common.”
Even with all the safety precautions, “these explosions (still) happen,” Fox continued. “Do you think it’s a smart idea to put that quantity of propane next to those Rumery Street houses that are 500 feet away? Could you guarantee that none of the types of explosions that have happened elsewhere wouldn’t happen here?”
Guimond said nothing could be guaranteed.
“But what I will say: there’s probably 100 cars of propane in that rail yard tonight. I feel, (in) my professional opinion, is that if we can limit the amount of cars in a fixed facility with fixed firefighting protection, it will be better than what we’re doing down at the other end of the yard, like you mentioned.”
Any time human elements are introduced into any project, “you have issues,” Guimond said.
“However, I would caution people to get on the Internet and look at some of those explosions. Most of those are in the 1970s,” before present-day safety regulations, Guimond said. “The technology has gotten a lot better to detect these leaks.”
Another factor complicating the council’s decision is the potential legal fallout from enacting a moratorium, and whether restricting NGL would overstep the city’s regulatory authority.
Legal implications could include violation of the federal Commerce Clause, which is one of the actions the city is accused of by Portland Pipe Line Corp. in its lawsuit, filed in response to the Clear Skies Ordinance and the city’s decision last summer to ban the bulk loading of unrefined tar sands onto ships.
According to a memo from city attorney Sally Daggett and City Manager Jim Gailey, a moratorium would allow the city to review existing regulations and determine whether additional regulations should be required; decide whether the city has the authority to implement more regulations “in light of the complex regulatory environment already in place surrounding rail carriers and hazardous materials,” and decide what “enforcement mechanisms” for additional regulation would look like.
Councilor Claude Morgan, the only councilor to definitively oppose a moratorium, said such a move would open the city to further legal scrutiny.
“I think it’s bait and switch. It feels very much like we want to change the rules mid-game, and I do think that makes us very susceptible to legal action,” Morgan said.
From an economic development standpoint, “we have limited coffers, we have limited juice to have limited fights. We are already mounting a monumental lawsuit (that’s going to) be very expensive for this city,” Morgan said.
Councilor Patti Smith disagreed, saying, “We have a lot of information that we do not know.”
Enacting a moratorium is “a prudent decision,” Smith said. It would allow the city “an opportunity to learn. It’s not my job to project what the outcome will be.”
It is the council’s job to understand “what our threats are,” she said, “(and) whether they’re real or not real.”
While councilor sentiment remained divided, all but one of the more than 20 residents who addressed the council at the Nov. 9 workshop were in favor of a moratorium.
“Do not confuse physical danger with jurisdictional complexity,” Bob Whyte, of Orchard Street, told the council Wednesday. “To take all the jurisdictional brambles away from this problem, there would be absolutely no discussion that it is dangerous.”
“The issue that this city faces is how to deal with that danger in a way that deals with those jurisdictional problems, and the only way to to do that is to take time to look at it,” he said. “It needs to be a moratorium.”
South Portland city councilors will decide Dec. 9 whether to enact a moratorium on NGL Supply Terminal Co.’s application to construct a liquified petroleum gas facility at the northern end of Rigby Yard. The proposal would include 16 30,000-gallon rail cars like these, photographed last month at Rigby.