SOUTH PORTLAND — A divided City Council approved a hotly contested fire code amendment early Tuesday that requires a 1,257-foot buffer between important public facilities and proposed liquefied petroleum gas distribution plants.

The council’s action followed Friday’s announcement by NGL Energy Partners that withdrawn a year-old proposal to build a $3 million propane depot. While the citizen-drafted code change was proposed late last year to limit NGL’s gas storage plan, several councilors said they saw the amendment as a way to control potential development of propane facilities anywhere in the city, including by Rigby Yard owner Pan Am Railways.

A majority of councilors approved the buffer requirement despite warnings from the city’s attorneys that Pan Am might challenge the fire code amendment in court or before the U.S. Surface Transportation Board as a precedent-setting infringement on federal pre-emption rights that allow railroads to disregard local land-use regulations.

The council voted 4-3 for the citizen-drafted amendment, which was heavily edited recently by a consulting attorney for the city. The vote came shortly after midnight Monday and followed 2½ hours of deliberations that some councilors described as muddy,w confusing and convoluted.

The council dropped a competing proposal that was drafted in January by the city’s usual attorney as an alternative for councilors who were concerned that the citizen-drafted amendment would invite a lawsuit from Pan Am Railways.

Mayor Tom Blake apologized for a monthslong process he called “messy,” but he forged ahead with a vote on the citizen-drafted amendment despite the apprehensions of some councilors.

“Our primary focus is to protect our citizens,” Blake said. “We have two competing ordinances. I think this is the best one.”

Blake voted in favor of the 1,257-foot buffer along with councilors Brad Fox, Eben Rose and Patti Smith, who said she didn’t want to act in fear of being sued. Councilors Maxine Beecher, Linda Cohen and Claude Morgan opposed the measure.

“I think we have a mess in front of us,” Beecher said. “I’m sorely disappointed that (the staff-drafted amendment) isn’t getting more support.”

Morgan questioned whether there was a conflict of interest in moving forward with the citizen-drafted amendment because it was largely rewritten by Russell Pierce, a member of the Portland law firm Norman, Hanson DeTroy. Devin Deane, an associate at the law firm, lives near Rigby Yard and worked with the neighborhood group that opposed NGL’s proposal.

Pierce told the council that he was unaware of Deane’s involvement before the city manager asked him to review the citizen-drafted amendment and that he was “not an advocate” for the measure.

Pierce said the city had responded to an “appreciable risk” of an explosion posed by NGL’s proposal. He noted that while federal pre-emption laws prevent municipalities from passing zoning regulations that infringe on railroad activity, they appear to allow objective local regulations that protect public health and safety, such as fire codes.

The 1,257-foot buffer is the minimum safe distance recommended by the U.S. Department of Transportation for first responders at emergency incidents involving rail cars that contain propane, according to the amendment.

The buffer applies to 24 different types of public infrastructure, including all government buildings, community centers, police and fire stations, hospitals, schools and churches, parks and piers, power plants, public utilities and telecommunications services, and other fuel storage facilities. The only residential property listed in the amendment is housing for senior citizens, veterans and people with disabilities.

In a memo to the council last week, Pierce said the list underscores the objectivity of the amendment because it covers structures often used by the public or that would require evacuation in the event of an emergency at a propane facility.

Pierce said the citizen-drafted amendment offered “a valid regulatory approach” because it establishes a “rationally based” buffer but doesn’t ban the development of propane plants entirely.

Pierce didn’t say where propane plants could be located, but a map developed by city staff shows 1,257-foot buffers drawn as circles around dozens of important public facilities across the city. While the buffer requirement would have blocked NGL’s proposal because of its proximity to the Cash Corner Fire Station, it appears that a large, outer section of the 245-acre rail yard remains open to potential development of a propane depot.

Pierce called the amendment “novel,” noting in his memo that “this particular approach to the issues has not been raised before to our knowledge.” He said there’s no guarantee that it would withstand a challenge by the railroad.

“If any approach is going to work, this is it,” Pierce told the council.

The staff-drafted fire code amendment was written to avoid challenging federal preemption. It would have required the largest storage tank in a propane facility to be at least 1,056 feet (two-tenths of a mile) to 3,168 feet (six-tenths of a mile) from homes, schools, hospitals, businesses or recreational areas, depending on the size of the facility.

Largely written by Sally Daggett, the city’s corporation counsel, the staff-drafted proposal was based on “worst-case scenarios” outlined in chemical accident prevention regulations and propane risk management guidelines from the U.S. Environmental Protection Agency.

The proposed buffers would have limited human injury and property damage in the event of a fire or blast related to an accidental propane release or vapor cloud explosion, City Manager Jim Gailey wrote in a position paper.

According to a fire safety analysis prepared for NGL, the radius of a vapor cloud explosion at the Rigby Yard depot would have been 2,112 feet, but the potential for an explosion would be low because of safety features in the facility’s design. The nearest commercial building is 390 feet from the storage facility and the nearest home is 700 feet away.

Foley Hoag, the Boston law firm that’s defending the city’s Clear Skies ordinance in federal court, reviewed both amendments in January and favored the staff-drafted proposal. Still, Foley Hoag said it probably would have been challenged in court or before the federal Surface Transportation Board.

In contrast, Foley Hoag found the unedited citizen-drafted amendment to be overwritten, unclear and based on unsubstantiated newspaper accounts and other questionable sources that would be difficult to explain, let alone defend, in court.

Related Stories