Effingham—February 6, 2024—Effingham’s Planning Board has unanimously approved changes to the Groundwater Protection Ordinance that critics say will diminish current safeguards and create an environmental loophole for developers.
The changes will now advance to voters, who will have their say in March.
The board’s approval came during a February 2 public hearing at which Board Chair George Bull said the changes were needed to avoid potential lawsuits around the Fire Chief’s role in approving Spill Prevention, Control and Countermeasure Plans.
SPCC Plans are local documents requiring recipients of special use permits to account for how they store and handle controlled substances. They provide town officials with a game plan if a natural or man-made disaster releases hazardous substances into the environment.
The state’s model groundwater protection ordinance recommends that either the Fire Chief, Health Officer or Emergency Management Officer determine whether such plans are adequate. Effingham chose the Fire Chief for that role when it approved the ordinance in 2011.
But Bull argued at the hearing that the role is “unfair” to the Chief because he has not been trained for such reviews, and there are no clear approval standards.
He said most towns in the region don’t require a Fire Chief’s review of SPCC Plans, but conceded neighboring Freedom does.
“We are in legal limbo as a town, and what that’s going to end up creating is lawsuits and litigation, and that’s what we’re trying to avoid, and that is why we have proposed these changes,” Bull said.
Fire Chief J.T Harmon was at the hearing but did not comment.
Origin in Gas Station Case
The Fire Chief’s role became a flash point in the Meena gas station proceedings after the board declined to require a review by the Chief despite repeated reminders by its independent advisor, North Point Engineering, that it was an obligation.
The situation came to the public’s notice after the Planning Board granted conditional approval for the gas station on July 11 and did not list the Fire Chief’s review as one of the items that needed to be completed before final approval could be granted.
In response to a question at last week’s hearing by Freedom resident Brian Taylor, Bull said Town Counsel Mathew Serge and the Planning Board’s outside counsel for the gas station case, Christopher Boldt, recommended rewriting the ordinance to remove the Fire Chief’s required role.
Bull also said he was told by DES official Matthew Jones that the Fire Chief’s role in reviewing SPCC Plans was not “appropriate,” and an independent third-party review would be preferable.
In response to an email from Ossipee Lake Alliance, Jones said he did not recommend changing the ordinance or removing the Fire Chief, which he said is a town matter.
Jones said his discussion with Bull was general, not specific, and that he told the board chair the use of a licensed professional engineer for some SPCC Plan reviews is “a path that might have benefits,” depending on what the controlled substances and quantities are.
An Environmental Loophole
Bull sought to reassure the hearing’s largely skeptical audience of about 15 people by saying the Fire Chief’s required review will be replaced with an option for the board to obtain a third-party review if it believes it’s warranted.
“Isn’t making it optional, where it says a qualified third party may be required, isn’t that creating a whole new quandary?,” asked Green Mountain Conservation Group’s Matt Howe.
“There are times you have to rely, unfortunately, on the board’s judgment on some of these things,” Bull replied.
Bull also said the Fire Chief and Conservation Commission will still be involved because the Planning Board will now have to provide them with a copy of SPCC Plan documents, a requirement that has actually been in the ordinance since 2011.
Prior to the hearing, critics of the rewrites said the new language requiring special use permit applicants to submit an SPCC Plan that complies with DES’s SPCC Plan standards will create an environmental loophole because the state standards only apply to storing petroleum in above-ground tanks.
They said the proposed ordinance change will remove protections already in place in favor of protections that don’t apply. Bull read the passage in question aloud while discussing the changes, but did not address the apparent contradiction and was not asked about it.
Asked by Effingham resident Susan Slack about adding language to elaborate on the board’s expectations of the Fire Chief and Conservation Commission, Bull conceded that tweaks might be needed before the town’s vote, but major changes would have to wait.
He promised that if he is still in office, the board will review anything she wants to suggest for consideration in 2025.