Fighting For Safer Rails On Seacoast Fruitful, If Costly

Nov 4, 2015

A multi-year conflict between a Newington propane company and its neighbors comes to a head this week as state regulators decide whether the company can expand immediately, or must undergo a year-long evaluation.

On the surface, Planning Board and court decisions have favored the propane company. But opponents say despite apparent setbacks, they have succeeded in stalling the project, and extracting concessions.

SEA-3 Wants To Bring Propane In By Rail

For decades, the propane company Sea-3 imported propane by cargo ship from Algeria, mostly, and sold it locally from their facility in Newington.  Then, about four years ago, cheap American propane flooded the market from fracking operations out West.

SEA-3 claims the company has been losing money for four years, due to the price differential.

Two years ago the company set out to reverse its business model. It wanted to bring in cheap domestic propane by rail from out West, sell it here in the winter, and export it by cargo ship in summer.  

The company argues this will lead to cheaper propane and more secure energy sources for the region.

Neighbors Fear Explosions

Nobody thought that two years later, local residents would still have the project at a halt.

Rich and Catherine DiPentima live 100 feet from railroad tracks that would carry 16 cars of propane each day.  That’s about 25 times as much propane brought in by rail today.

Back in March of 2014, the DiPentimas and their neighbors got together to fight the project.  They feared the tracks were not maintained enough to handle so much hazardous material. Catherine DiPentima was particularly suspicious of the company that owned the tracks, Pan Am. “Our concern is about their safety record, their transparency, their management style, the reports that we’ve seen,” she told NHPR in 2014.  “We’re very concerned.”

Since then, the DiPentimas and six of their neighbors, the cities of Portsmouth and Dover, and a couple environmental groups have been unrelenting in their demands  for additional safety measures from the railroad and propane company.

SEC Hearings Begin Thursday

Now it’s up to 3-members of the state’s energy Site Evaluation Committee to decide whether the proposed expansion is safe enough to proceed without a year-long evaluation.

Usually, these year-long evaluations are reserved for brand-new facilities.  So, Sea-3’s attorney  Alec McEachern thinks he has a good case. “SEA-3 has been in operation at this site for 40 years, and they already have rail facilities and bring in railcars,” he says.

McEachern is keen to mention that most of the public concern revolves around railroads: something locals have virtually no control over.

"Federal law protects the rights of the railroad to operate, and as a result there’s very little regulation that state or local Government can impose on a railroad."

Opponents Push Against Federal Preemption Laws

Although opponents to this project have had very little legal ground, that hasn’t stopped them from lawyering up.

After the Newington Planning Board gave the company the thumbs up, the DiPentimas and their neighbors convinced the city of Portsmouth to appeal that decision in court: not a common course of action.

The city wanted, among other things, a comprehensive, independent safety study of the site and railroad.

Portsmouth City Attorney Jane Ferrini says “when you are dealing with complicated technical federal regulations there's a question of compliance and access to that information.”

The Judge said: No.

Even Failed Litigation Bears Fruit

But for opponents, putting in that time and money has paid off.

After a judge denied Portsmouth its comprehensive, independent safety study, opponents brought the request before the state energy regulator, which began considering  SEA-3’s request for an evaluation exemption back in January.

Ultimately, the committee forced the propane company to cough up $45,000 for the study, which analyzed both the site and the rail lines. 

The independent research firm’s 180 page report did not uncover any safety concerns.  

According to Pan Am spokesperson Cynthia Scarano, the railroad has invested close to $1 million to upgrade the railroad tracks above the class required for the project. That upgrade will continue, she says, if the project gets the green light.

Between the rail upgrades and the independent safety study, Portsmouth resident Rich DiPentima says – he’s feeling more secure. “it’s not zero risk,” DiPentima says, “but the risk is certainly much lower.”

Peace Of Mind Isn’t Cheap

Not all cities of 20,000 people have a staff of two full time and two part time civil attorneys . “It has taken an extraordinary amount of time,” Ferrini says. “that, I don’t think was anticipated by anyone starting out.”

DiPentima and his neighbors all chipped in to retain their own private attorney, too. It’s been an expensive two years for cities and residents along the Pan Am tracks. But even when you’re facing federal preemption laws and losing battles in court  -- squeaky wheels still seem to get the grease.

And things may well not be over yet. Although opponents say they now feel the rails are secure, they still want a full year-long review of the actual propane storage site. That will likely be decided Friday.