Klein v. Colonial Pipeline Co.

Liss, J., delivered the opinion of the Court. Colonial Pipeline Company, appellee herein, filed an application seeking approval from the Board of Appeals of Harford County for a conditional use permit and variance to allow the construction and use of two additional petroleum storage tanks and accessory equipment at Colonial’s Forest Hill, Maryland tank farm facility. Colonial obtained the original zoning change for the subject property in 1964 from an "A-l” agricultural classification to an "M-2” manufacturing classification in order to erect a "break-out” tank farm on which five tanks were subsequently erected. 1 The original five tanks were built pursuant to the issuance of a zoning certificate by the Board of Appeals on June 4, 1965. Subsequent to the construction of the tank farm, Colonial applied in 1976 for a conditional use permit and variance for ³²⁶ the construction of two additional tanks at the site.

The request was denied on April 4, 1977 by the Hearing Examiner based upon a finding that Colonial had not met its burden on the availability of fire-fighting equipment and that it had not complied with the screening conditions in the Board’s decision of 1965. Colonial appealed the Hearing Examiner’s decision directly to the Circuit Court for Harford County under provisions of the County’s Charter. The Circuit Court reversed the decision of the Hearing Examiner. On appeal of the Circuit Court’s decision, the Court of Appeals held in the case of Klein v. Colonial Pipeline Co., 285 Md. 76 , 400 A.2d 768 (1979), that the County’s creation of such a direct right of appeal to the Circuit Court was "ultra vires and in conflict with the'general public law.” Id., at 83 .

The Circuit Court was found in Klein to have no jurisdiction to hear the direct appeal due to the unconstitutionality of that portion of the County’s Charter. Accordingly, the judgment of the Circuit Court was vacated and that Court was ordered to "dismiss the appeal from the order of the Hearing Examiner.” The Hearing Examiner’s decision became final under the Harford County Zoning Ordinance since no request had been made for final argument before the Board of Appeals. Accordingly, Colonial filed a new application in 1979 for a conditional use permit and variance pursuant to Section 20.36 of the Zoning Ordinance. The matter was heard before the Zoning Hearing Examiner for the Board of Appeals who recommended approval of the variance and the conditional use permit subject to three conditions.

Ralph L. Klein, et ah, appellants herein, filed a request for final argument before the Board of Appeals for Harford County. The Board of Appeals rejected the recommendation of the Zoning Hearing Examiner and issued a final decision which denied the conditional use permit requested by Colonial. Colonial thereupon appealed to the Circuit Court for Harford County. Appellants own property in close proximity to the tank farm facility and participated in the proceedings before the Hearing Examiner and the ³²⁷ Board of Appeals.

They filed an answer to Colonial’s petition of appeal and participated in the Circuit Court proceedings as respondents. By order dated August 9, 1982, the Circuit Court reversed the decision of the Board of Appeals and remanded the proceedings to the Board of Appeals for the entry of an order granting the application of the appellee for a conditional use permit to erect the two additional petroleum storage tanks. Appellants timely noted their appeal to this Court and raise the following issues to be determined by this appeal: I. Did the lower court err in reversing the decision of the Board of Appeals where the Board of Appeals’ denial of Colonial’s application was based on substantial evidence and the issues presented were, at the very least, "fairly debatable”?

II

Did the lower court err in holding that the instant application by Colonial Pipeline Company for a conditional use permit is not barred by the doctrine of res judicata?

III

Did the lower court err in ordering the Board of Appeals to grant the requested conditional use where the evidence shows that Colonial’s application fails to meet the mandatory requirements of the Zoning Ordinance? I. Colonial presented evidence in the course of the several hearings which established the following facts. Colonial is an interstate transporter of gasoline and petroleum distillates. The petroleum product is shipped from origination points in Texas, Louisiana, and Mississippi through a main line system which terminates in Linden, New Jersey and delivers product being shipped for its customers at various points along that route through "lateral” lines.

The main pipeline is thirty inches in diameter as it enters Harford County. There is a lateral pipeline which is only eight inches in diameter from the Colonial facility at ³²⁸ "Aberdeen Junction” (the tank farm’s name) to a terminal in Baltimore where Colonial’s customers receive their product. Due to the hydrolics of transferring product from a larger to a smaller size pipeline, the flow of petroleum products cannot be directly switched from the main line to the lateral line, but has to be diverted to holding or "break-out” tanks where it remains, pending dispatch via the lateral line to the terminal. A break-out tank thus provides only temporary storage.

At the time of the hearings, Colonial was shipping 44,000 barrels per day of refined petroleum product through the Aberdeen Junction facility. However, Colonial is unable to meet the present demand from its customers for deliveries through Aberdeen Junction and has a 10,000 barrel per day short-fall. In order to meet this demand there must first be an expansion of the on-site break-out capacity at the tank farm. The petroleum products shipped by Colonial are held in two types of break-out tanks.

A "fixed roof tank” is a steel cylindrical tank with a permanent cone roof. It will hold petroleum distillate products such as fuel oil and diesel oil. The fixed roof tank is required to be constructed in accordance with the American Petroleum Institute (API) regulations as to standards and quality control as prescribed by the Federal Department of Transportation standards set forth at 49 C.F.R. Part 195. The standards call for a "weak seam” weld between the cone roof and the steel shell.

The weld is designed so that if a possible ignition were to take place within the tank, the weld would disintegrate causing the roof to separate from the shell, thus releasing any accumulated vapor pressure. The fixed roof tank is designed to contain the vapors given off by the petroleum distillates. Conservation vents in its roof operate to allow a portion of any vapors to escape after sufficient pressure has accumulated. The floating roof tank is designed to permit the roof of the structure to be suspended upon the petroleum product in the tank.

This design inhibits the accumulation of vapor by ³²⁹ reducing the vapor space within the tank. The flotation system has seals constructed of a synthetic rubber compound which prevent the escape of any accumulated vapors into the environment. The floating roof tank and the fixed roof tank are designed to hold petroleum products which have different chemical compositions and natures. Both gasoline and fuel oil are flammable but are classified as non-explosives.

The volatility of distillate fuel oil is less than that of gasoline, and is only required to be held in a fixed roof tank. The flash point of fuel oil is approximately 140°, which means that the fuel oil must be heated to that temperature before sufficient vapors are generated to be subject to a flash and ignition. The existing break-out capacity at the tank farm includes four floating roof tanks and one fixed roof tank. Each break-out tank holds only one product.

Both the proposed fixed and floating roof tanks are subject to various governmental regulations. They are to be constructed in accordance with standards of The American Petroleum Institute and the design, operation, and safety standards of the United States Department of Transportation, which regulates the proposed tanks. The Environmental Protection Agency with Maryland air quality rules and regulations also apply to the vapor emissions and the design of the two types of tanks. There was considerable testimony before the Board pertaining to the fire-fighting system to service the proposed additional tanks as well as the presently existing tanks.

Additionally, evidence was presented by Colonial with respect to the dynamics of a petroleum product fire as it bears upon optimal design and the function of a fire-fighting system. Since the distillate does not produce flammable vapors at ambient temperatures, a spark applied to a distillate product would not, as appellants’ expert stated, produce an ignition. A fuel oil fire ignition would have to take place at the point where the product meets the oxygen source, since only the vapors burn. Such a fire would burn at the surface and produce heat only at the surface.

Furthermore, the tank ³³⁰ shell would not lose its structural integrity or its ability to contain the product. Therefore, the tanks are designed to hold product even if on fire and it is not characteristic of refined petroleum fires to boil or spill over the sides of the tank. Both appellants and appellee agreed that the most likely source of ignition of a tank fire is lightning. To protect against this possibility, the Colonial facility maintains lightning arresters, which ground the tanks from lightning strikes.

As noted before the Hearing Examiner, the primary consideration in the design of a petroleum fire-fighting system is prevention. It is more desirable to design passive forms of fire protection, such as seals, vents, and arresters, than a system to extinguish a fire. The existing fire companies have the capability to mount an attack against a fully involved fire at the Aberdeen Junction site. The fire department could easily extinguish a grass fire; cool adjacent tanks; or extinguish the fire and save the product.

However, in the design of a fire protection system for petroleum storage facilities, one does not always plan on extinguishing the fire. It may be far better to simply let the product be consumed by the fire until it burns out. According to Coloniars experts, the area surrounding the Colonial facility would not have to be evacuated because any danger from a fire would be remote. The Board of Appeals found that no one lives within a 1/4 mile radius of Colonial’s facility.

The National Fire Code, as formulated by the National Fire Protection Association, and federal standards require the erection of earthen dikes surrounding the tanks. The present facility has a system of dikes. Originally, the dikes were used in the pipeline industry to contain the product if a tank collapsed. Since the advent of the welded tank replacing riveted tanks, there has not been a tank collapse but, the dike and its impoundment serve to prevent the possible spread of product in the event of a leak from whatever source, fire-related or otherwise. ³³¹ The present Colonial dike system is capable of holding 120% of the contents of the largest tank, which has a capacity of 150,000 barrels.

The capacity of the dikes, which will be increased with the addition of the two proposed tanks, is designed in conformance with the requirements of the National Fire Code. In the possible event that a fire is ignited with a spill involving both dikes and tank, it is an acceptable fire fighting alternative to allow the entire impoundment area to burn. Aside from the loss of a product, there would be no danger to the surrounding community. In addition to the tank design, siting, and the dikes, the Colonial tank farm is equipped with an on-site fire extinguishing system.

The system includes a pump which moves water from a retention pond into a 4-inch underground pipeline to hydrants located by the tanks. This water pipeline is entirely underground with the exception of the hydrants and valve stands. The pond holds 20,000 barrels of water and, by design, has the ability to retain 8,000 barrels of petroleum products should a spill somehow move beyond the tanks and the dikes. The Colonial system has the capability to pump water from the pond, through the pipeline, and introduce a foam concentrate into the system which is used in the fighting of petroleum product fires.

The foam is combined with the water to blanket a possible fire and deprive it of an oxygen supply. Foam solution can be spread over the roof of the floating roof tank by a pipeline affixed for this purpose. The line is a flexible line which rises and contracts with the movement of the roof. Appellant’s expert, Richard Woodward, testified that the system at Aberdeen Junction would be adequate to extinguish a fire.

The mechanics of combating a fire in a fixed roof tank differ from those employed on a floating roof tank. Foam lines do not run to the roof of a fixed roof tank nor would foam be generated directly into the tank from a pipeline. Rather, foam would be made available to a fixed roof tank through hydrants adjacent to the tank and hose lines would ³³² connect to the hydrants in order to generate the foam solution and spray it onto the tank. Although floating roof tanks are regulated to require a foam delivery system, the fixed roof tank is not required to have one either by Federal, State or industry standards.

The experience in the industry has shown that there is no necessity to provide a foam system to tanks which contain distillate fuels, diesel and fuel oils since these products have a high flash point and minimal vaporization. In the event of a fire in one of the fixed roof tanks, Colonial has protein foam already introduced in its fire extinguishing system. It has additional foam stored on-site, which can be delivered into the system. As a further back-up, Colonial has available to it- a supply of protein foam at its Dorsey Junction tank farm in Carroll County, as well as a contract with Rockwood Systems and 3-M companies to air-lift additional foam supplies to the site if such additional quantities of foam were required.

On the first report of a fire, the evidence showed that the Bel Air, Forest Hill and Jarrettsville Fire Departments would be dispatched. The Forest Hill Station, which was opened after the 1976 application by Colonial, would be the first to reach the scene, since it is only 3/4 of a mile from the Colonial property. The response time of the fire department at Forest Hill would be less than five minutes. The Forest Hill Station and the Bel Air Station each have foam capability and would be on the scene prior to the operation of the on-site system.

In addition, there are several other units in Harford County and the surrounding counties which approximate the Bel Air and Forest Hill fire companies in foam capability. No evidence was produced by either appellants or appellee of any superior tank farm fire-fighting system other than the one used by Colonial. In fact, Colonial was shown to have the only self-contained system in the pipeline industry and to be in conformance with all requirements of the National Fire Protection Association. ³³³ Appellants also raised objection at the hearings as to the location of the proposed Colonial tanks and dikes. Unrefuted testimony was presented by Colonial that the two proposed tanks will not encroach on the 200 foot set-back required by Section 15.02 of the Harford County Zoning Ordinance.

While the proposed dikes are within the 200 foot set-back, they are not used for petroleum storage, but are, rather, safeguards required by industry and federal standards. The Hearing Examiner found the dikes of sufficient importance to screening the site and safety to warrant granting the variance. The Circuit Court affirmed that decision by its order of August 9, 1982. After the 1976 Colonial application, Public Law 96-129 was enacted by Congress, Section 201 of which is the "Hazardous Liquid Pipeline Safety Act of 1979.” This Act was not in effect at the time of the Hearing Examiner’s decision on Colonial’s previous application in April, 1977 but was in effect prior to the Board of Appeals decision in 1981 on the application which is the subject of this appeal.

An additional change after the previous 1976 Colonial application was the construction of the Forest Hill fire substation. Further, Colonial offered testimony that extensive additions of buildings and equipment to Harford County’s fire departments took place between the two applications giving greater fire-fighting protection to the tank farm. Appellant’s expert witness, Mr. Woodward, was qualified as an expert concerning fire fighting and fire protection. He was the president of the Bel Air Volunteer Fire Department and was involved in the sale and design of fire-fighting equipment.

Mr. Woodward testified that the on-site system now in place at the tank farm facility is designed primarily to handle rim fires on the floating roof tanks. However, he stated his opinion to be that the on-site system now at the tank farm facility is fixed and does not have the mobility necessary to contain and fight a fire which occurs outside the limitations of the fixed system. Mr. Canavan, Colonial’s ³³⁴ expert, agreed with this assessment. Mr. Woodward explained that, in the event a fire gets outside of the dike or a fire which occurs around the pumping station where the pumps and filters are, there is going to be a need for rapidly deployed mobile lines.

The mobile capability would be necessary in the event of a spill in order to control the fire. Mr. Woodward testified that it would be necessary to deliver foam at a rate of 2,000 gallons per minute. Colonial’s on-site equipment includes only two 60 gallon per minute nozzles. Colonial’s system only