The above-captioned case was scheduled for hearing on September 29, 2009 at 1:00 P.M. At that time, Chairman Coutu, Vice Chairman Newbrook and Commissioners Preiss, Jasparro, Dias, Blackburn and Pearson were present.  The fire service was represented by Assistant Deputy State Fire Marshal Timothy Lutz of the Providence Fire Marshals Office.  A motion was made by Vice Chairman Newbrook and seconded by Commissioners Jasparro and Dias to grant the Applicant relief as outlined herein.  The motion passed with Commissioner Blackburn abstaining.

FINDINGS OF FACT
	The numbers of the Decision below correspond with those of a June 29, 2009 plan review report complied by the Providence Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the Fire Marshals Office during the September 29, 2009 hearing on this matter.  Accordingly, the Board hereby incorporates the June 29, 2009 plan review report as its initial findings of fact.  Any modification of the Boards findings, such as correction of a deficiency by the Applicant, shall be noted herein. 
	Any deficiency understood by the Board to have been corrected, which is not so corrected, shall be immediately corrected by the Applicant.  The term approved, as used herein, shall be understood to mean in accordance with the specific provisions related to the particular subject as are contained in this code, or as approved in particular by the state fire marshal or his or her designee.

CONCLUSIONS AND VARIANCE REQUESTS
1.	It is the understanding of the Board that Deficiency 1 is informational in nature. It is the further understanding of the Board that the Applicant is in the process of correcting  Deficiency 1 by working directly with the Providence Fire Marshals Office in addressing its concerns relating to the proposed fueling operation. Accordingly, the Board directs the Applicant to continue to work with the Providence Fire Marshals Office, and address any remaining concerns of that office, prior to the bringing the proposed facility online.  
2.	It is the understanding of the Board that the Applicant has also corrected Deficiency 2 and provided the Providence Fire Marshals Office with the requested review.
3.	During the September 29, 2009 hearing on this matter, the parties advised the Board that the Applicant has addressed, or will address, all of the cited deficiencies with the exception of section 11.4.6 of NFPA 30A. The Board notes that the Providence Fire Marshals Office properly cited the above section as the applicable standard in this case and properly determined that a variance, from the Board, would be necessary to allow the proposed operation to proceed. 
The Board notes that section 11.4.6 of NFPA 30A provides in pertinent part: 

.Dispensing devices shall not be supplied by aboveground tanks located in the bulk plant. Marine motor fuel dispensing facility storage tanks shall not be connected by piping to aboveground tanks located in the bulk plant.

	However, the Board further notes that section 11.1.2(3) appears to limit the above restriction to marine craft of less than 300 gross tons. Section 11.1.2 provides in pertinent part:
		11.1.2 this chapter shall not apply to the following:

					

(3) Marine motor fuel dispensing facilities where liquids used as fuels are stored and dispensed into the fuel tanks of marine craft of 300 gross tons (272 metric tons) or more.  

	Neither the Applicant nor the Providence Fire Marshals Office have been provided with the rationale for the NFPAs decision to prohibit the Applicants commercial tug boats (marine craft with an approximate average 150 ton weight) from fueling where larger commercial craft (300 tons or more) would be allowed to fuel. The parties have speculated that the restriction may have been designed to prevent non-commercial (pleasure / recreational) craft from fueling through piping connected to aboveground tanks. However, the Board had no such official rationale before it during the hearing.
	The Applicant did provide the Board with the following reasons for granting the requested relief:
1.	The Bulk plant is located approximately  mile away from the fuel storage area.  
2.	Valves are provided at the tank and pump locations in the storage area. 
3.	Valves at the refuel station provide both manual and emergency flow control. Fuel flow will be stopped in the event of an emergency or loss of power by a valve that is in the normally closed position located at the fueling site. 
4.	All controls for the refuel operation are located at the refuel site. The operation of the refuel site does not impact the bulk storage terminal day-to-day operations. 
5.	The design and implementation of the refueling site is based on other marine fueling operations already in operation at several of our other bulk terminals. 
6.	This fueling operation is for large commercial vessels and not for recreational vessels.
7.	Those operations, as well as this site, have been inspected by the US Coast Guard and found to meet their regulations.
8.	We see this as a stand alone operation, with minimal impact and exposure to the bulk terminal.  

In light of the above safeguards and restrictions agreed to by the parties, the Board hereby grants a variance from the provisions of NFPA 30A, section 11.4.6, in order to allow the Applicant to refuel commercial tug boats, weighing less than 300 tons, at the above-captioned facility. This variance is contingent upon the Applicant continuing to adhere to the safeguards and restrictions outlined above at the direction and to the satisfaction of the Providence Fire Marshals Office. 
In granting this variance, the Board finally notes that the Providence Fire Marshals Office was neither opposed nor in support of the requested relief.  Rather, in the absence of a specific rationale from NFPA for the restriction, the Providence Fire Marshals Office advised the Board that it would remain neutral in this matter.   

STATUS OF DECISION AND APPEAL RIGHTS
	This Decision represents a comprehensive, integrated plan of fire safety for the above-captioned facility under the above-cited use or occupancy.  Accordingly, every variance granted is conditioned upon the Applicants timely and continued compliance with all of the directives of the Board. Every variance granted is further conditioned upon the continued use or occupancy of this facility under the above-cited classification reviewed by the Board. ( See: Board Rules and Regulations, section 6-2-17).
	Failure of the Applicant to initially comply with the full Decision of the Board, within the stated time frame, shall void all variances granted herein. (See: Board Rules and Regulations, section 6-2-18)  In the event of complete, timely and continued compliance with the full Decision of the Board, the above-cited variances shall be deemed to have vested in the above-captioned facility.  As long as this facility is in continued compliance with the full Decision of the Board, the above-cited variances shall remain with this facility in the absence of any change in use or occupancy mandating review under a separate classification of the Fire Code or a revision of the above-cited classification. . (See: Board Rules and Regulations, section 6-2-19).  Such changes in use or occupancy of this facility, or failure to continually comply with the Boards Decision shall void all variances granted under the above-cited use or occupancy.  If such change creates a new use or occupancy as outlined in R.I.G.L. 23-28.1-6, all variances granted under the original use or occupancy are void and this facility shall be reviewed under the newly created use or occupancy. . (See: Board Rules and Regulations, section 6-2-20).
	The Applicant may appeal the Boards Decision, within thirty (30) days of the mailing date of this Decision, by commencing an action against the State Fire Marshal in the Sixth division of the District Court.  Commencement of such an action does not operate as an automatic stay of this Decision [R.I.G.L. 42-35-15(c)].