Board moves ahead with hearings, completeness determinationTank opponents make silent stand in crowd
Searsport — The Searsport Planning Board decided not to rescind its previous vote deeming the application from Colorado-based DCP Midstream complete and to begin a series of public hearings as scheduled, but agreed to keep those hearings open until an all hazards risk assessment study is completed in early 2013.
The board made those decisions during its regular meeting Monday night, Nov. 12, after receiving a letter from Thanks But No Tank and Islesboro Island Trust attorney Steve Hinchman. In his letter, Hinchman asked the board to rescind its Oct. 8 decision determining the application from DCP to construct a 22.7 million gallon liquefied petroleum gas terminal at Mack Point complete, and also asked the board to withdraw the notice of public hearings on the matter. At the October meeting, those hearings were tentatively scheduled to take place during the week of Nov. 26, and the board has since set the first public hearing for Monday, Nov. 26, at 6 p.m. at Searsport District High School. Additional hearing dates have been set for the same time and location on Nov. 27-29 if necessary.
At the start of the meeting, Planning Board Chairman Bruce Probert requested the board take up the "communications" portion of the agenda before moving to the second item on the agenda, which was the discussion regarding the request from Hinchman and TBNT.
The board agreed, and at that time Hinchman addressed the board about another issue, the expected completion date for the all-hazards risk assessment from Good Harbor Techmark. In August, IIT commissioned Good Harbor to identify potential intentional, natural and accidental threats to a fuel storage facility of the proposed scale, as well as vulnerabilities associated with the 24-acre project site.
Hinchman told the board the study, which he previously expected would be finished in time for the public hearings, wouldn't likely be completed by then. Because of the upcoming holidays, other work obligations and the lack of a county-wide emergency plan that is specific to an LPG-related disaster, Hinchman said the study would not likely be finished for six or eight weeks.
Hinchman said Waldo County Emergency Management Agency lacks such an emergency plan because agency staff would not create such a document for "something that may or may not happen." Because of the lack of a specific LPG plan at the county level, Hinchman said Good Harbor has had to pull some of its data together "from scratch."
"It may be a better decision to defer these [public] hearings] until after those gaps are fixed and we have the Good harbor report in-hand," Hinchman said.
Probert said the board would discuss the matter, but cautioned the final decision on the matter may not change decisions the board made at the October meeting.
Hinchman said he understood he would be able to address the question of completeness Monday night, but Probert said, "Not at this time."
Hinchman then said he and his clients have additional concerns about the application, including a map that shows DCP's intentions to re-route a pipeline that looked as though it would pass through some town-owned property. That, said Hinchman, raises questions about the company's title, right and interest on the proposed development site.
To rescind, or not to rescind
During the board's discussion regarding Hinchman's requests, Searsport Planning Board attorney Kristin Collins said town ordinances do not carry a provision for rescinding the board's completeness determination.
"There is no interim process to reconsider the board's decision," she said.
Collins said the idea at this point is to proceed with public hearings and consider evidence provided by each party at that time, and to examine all questions — including those regarding title right and interest on the property — at the public hearings.
Collins said if the board determines there is not sufficient evidence included in the application, including information the company provided various agencies to obtain permits, then the board could still deny the application.
In terms of the various company names used on several of the permits, an issue Hinchman brought up during the Oct. 8 meeting, Collins said the state Department of Environmental Protection has jurisdiction to consider those differing names and the pipeline route change.
Board member Lee Ann Horowitz said she was "uncomfortable" making these kinds of decisions when there are so many outstanding legal questions, a point with which fellow board member Brian Callahan.
"We're a volunteer board," said Horowitz.
Collins said the board's role is only to make determinations on applications based on ordinance requirements, not legal questions that may arise during the process. The legal questions, said Collins, are often left up to the courts to decide.
"If the ordinance doesn't speak to something that's been requested of you, you don't have to do it," she told the board. "... While you have to make decisions, you are not the ultimate deciders on these legal issues."
Collins added the board would not be giving DCP "a free pass" if they did not rescind their vote deeming the company's application complete.
Probert said in terms of deeming the application complete, the board only needs to see that the company has filled out the proper fields in each of its applications but does not have to find evidence that all the answers are accurate.
"All the blanks were filled in, that's what we require for the application," said Probert. "It doesn't say they're correct."
That, said Probert, is what the public hearings are for.
After some additional discussion, the board voted 4-1 (with Horowitz opposed) not to rescind its vote determining the DCP application complete.
Public hearings will include Good Harbor report
When discussing whether the board would postpone the public hearings until the Good Harbor report is completed, Collins said the board would need to ask for an extension from DCP.
Town ordinances call for the board to hold public hearings within 30 days of deeming an application complete, and last month, the company agreed to an extension because the town was still waiting on an economic impact study from Fannon Evaluations Group of Portland.
When asked if the company would allow an additional extension due to the pending Good Harbor report, DCP attorney James Kilbreth with Portland-based Verrill Dana said he felt the delay in starting the public hearings had gone on long enough.
"How long do you put this off? When do you get this started?" he said.
Kilbreth's comments drew murmurs from the audience, at which time some in attendance rose while holding bumper sticker-sized signs that read, "We will not be silenced." Others remained seated but kept their sign visible for the rest of the discussion pertaining to DCP.
Board member Mark Bradstreet suggested the board consider holding the public hearings as scheduled and then continue the hearings in January when the Good Harbor report is completed.
Probert asked Collins if the board would run into any legal issues by doing so, and Collins said that action would fall within the parameters of what the ordinance dictates.
The board eventually voted 5-0 to hold the public hearings as scheduled and re-open the hearings when the Good harbor report is available, as Bradstreet suggested.