Effingham—January 28, 2024—The days of Effingham’s Fire Chief approving plans for the storage and use of potentially hazardous materials within town borders may be coming to an end.

The Planning Board will hold a special public hearing on Friday evening, February 2, to present its recommendation that the Fire Chief be removed from zoning’s chain of oversight for Spill Prevention, Control and Countermeasure Plans, known as SPCCs.

As defined in the zoning ordinance, SPCCs are action plans to “prevent, contain and minimize releases from ordinary or catastrophic events such as oil and gas spills, floods or fires that may cause a large release of regulated substances.”

The Fire Chief’s role in SPCCs was established as part of a “model ordinance” that DES developed to help communities adopt groundwater protections based on best practices. There are now 114 New Hampshire towns with protection ordinances.

Sections 2208, 2211 and 2212 of Effingham’s Zoning Article 22 require the Fire Chief’s approval of SPCCs, and authorizes him to monitor and inspect such uses for compliance. Article 22 of the ordinance was adopted in 2011 after a town vote.

The Planning Board made its determination to remove the Fire Chief from the ordinance at a January 18 meeting chaired by George Bull and attended by members Paul Potter, Gary Jewell, Elaine Chick and Linda Edwards. Fire Chief J.T. Harmon did not attend.

The board’s draft meeting minutes state that the “expectations” of Zoning Article 22 are “beyond the scope and skill level” of the Fire Chief, and the Chief’s oversight is not needed because an SPCC is “developed by a qualified engineer.”

Board member Elaine Chick was tasked with reviewing the ordinance to create a “track change” document for the board’s review. Board Chair George Bull did not respond to emailed questions asking when Chick was given the task, and whether the Fire Chief requested, or was consulted about, the proposed changes.

Gas Station Connection
The Planning Board’s move comes after questions were raised about the Fire Chief’s role in approving the SPCC in the Meena LLC gas station case, which was ruled to be a Development of Regional Impact affecting ten communities.

Meena’s SPCC, which was required by the ZBA in 2021, is controversial because of the number of times it was rewritten to achieve adequacy, and because a review by the Fire Chief was omitted from the Planning Board’s list of conditions attached to its approval of the development’s site plan on July 11.

In addition to being prodded at public hearings last year, the Planning Board received frequent reminders about the need for the Fire Chief’s review from its independent third-party advisor, North Point Engineering, most recently on August 28.

Emails obtained through a request for public documents show that Fire Chief Harmon planned to review the SPCC in accordance with the zoning ordinance even though the Planning Board did not request it.

The emails show the Chief received the SPCC from Meena agent Horizons Engineering on August 24 with a note saying it was being provided in accordance with the zoning ordinance. Harmon replied that he would review the document with DES.

But in an email exchange with DES, agency official Matthew Jones told Harmon the state had “no jurisdiction” in the gas station matter because its SPCC regulations apply solely to above-ground petroleum storage tanks.

Pressed about the status of the Fire Chief’s review by an audience member at the Planning Board’s November 30 meeting, Chairman Bull said a review was not required.

There the matter stood until the board decided on January 18 that the Fire Chief should be removed from the SPCC process by rewriting the zoning ordinance.

Long-Term Impact
Critics of the Planning Board’s recommendation say removing the Fire Chief from SPCC reviews would be a mistake that would create uncertainty about the town’s future ability to control the use of regulated substances.

Ossipee Lake Alliance pointed to Section 2211 as an example. The board’s proposed change would replace the Fire Chief’s evaluation and oversight of SPCCs with a requirement only that the document meet DES’s SPCC standards.

But DES’s SPCC standards apply only to above-ground petroleum storage tanks, as the state informed the town in August. They don’t apply to underground petroleum storage tanks, and don’t apply to the storage and use of other controlled substances identified in the ordinance, including fertilizer, manure and compost.

“That would create a major loophole for developers,” said Alliance co-founder Susan Marks.

Marks said removing the Fire Chief from the SPCC review process would give the final word to special use permit applicants and their agents, amounting to outsourcing a key town responsibility for ensuring public health, welfare and safety.

“Even if the town obtained an independent review of every new SPCC, the result would still be environmental action plans that the Fire Chief had no hand in approving, but would be responsible for implementing in an emergency,” she said.

Local conservationist and retired environmental official Dana Simpson commented on the proposed changes by emphasizing the Fire Chief’s role as “incident commander” in an environmental emergency.

“He is the one who knows where all of the hazardous materials are in the town, how they’re stored, and what precautions are in place necessary to protect the public,” he said. “That’s his job.”

“I can’t imagine the Fire Chief not reviewing and approving SPCC plans. That’s like not having your doctor review your health record before operating on you.”

Changes to the zoning ordinance must be affirmed by a town vote after a warrant article has been posted.

An email from the Planning Board last week said the board will determine whether or not to put the proposed changes before voters after it holds the hearing on February 2.

The meeting will be at 6:30 p.m. at the Town Office, 68 School St. in Effingham. Green Mountain Conservation Group plans to provide Zoom access to the meeting at this link.