Judge hears arguments in Imperial Oil megaloads appeal

Judge Ray Dayton of Anaconda heard two hours of arguments Thursday at the Missoula County Courthouse as to why he should and shouldn't.

At the end, he said he recognizes the company's desire for a speedy decision, but he'll be out of town next week moving his daughter to Alaska, and there's a lot of testimony to sift through after that.

Imperial Oil's attorney, Steve Brown of Missoula, argued that Dayton's July 19 preliminary injunction order was flawed because it didn't take into account evidence that showed the Montana Department of Transportation did all it could legally do to adhere to Montana Environmental Policy Act guidelines when it approved an environmental assessment of the project.

Brown said the ruling cited improperly introduced testimony by the four plaintiffs - Missoula County, the National Wildlife Federation, the Montana Environmental Information Center and the Montana Chapter of the Sierra Club.

"The only evidence that can be shown as far as a MEPA violation is evidence of the record, and the court can't go outside the record to find a MEPA violation," Brown said.

Deputy Missoula County Attorney James McCubbin and Kim Wilson of Helena, representing the three environmental groups that joined in the suit, disagreed with Brown's contentions.

"We think your ruling was well-rounded and well-insulated, if you will, because of the breadth of your findings," Wilson told Dayton.

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Brown started the proceedings by calling Ken Johnson to the witness stand. Johnson is project manager of the Kearl Module Transport Project, and stressed the company's need for at least a modification to the injunction.

Dayton has scheduled a hearing on all pending motions for Jan. 6, 2012, and a trial date for April 23.

Johnson said all the 200-plus modules Imperial is transporting from South Korea to Alberta are now in the U.S. While some have been hauled to the worksite in Canada, most are backed up either in Washington at the Port of Vancouver or Pasco, or at the Port of Lewiston in Idaho.

Winter's coming and deadlines loom at the Kearl Oil Sands construction site, and his company needs U.S. Highway 12 in Montana to get its processing equipment there.

"We need all the routes we can to move all the modules that we have in Idaho and Washington to the site," Johnson said. "We're behind in schedule and we have to accelerate the movements, and so we're looking at all available routes."

The company is suggesting Dayton lift his injunction on Highway 12 permits. In moving a test validation module to Lolo Hot Springs last spring and other loads up U.S. Highway 95 in Idaho to Interstate 90, Imperial found it overestimated the number of turnouts needed to comply with Montana's 10-minute traffic delay rule.

Johnson said the planned 14 turnouts between Lolo Pass and Lolo could be reduced to 12 and eliminate the need to build any new ones. The company can get along without turnouts planned at mileposts 6.9 and at 20.3 - the two that caused the most discussion because of their potential water issues.

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The original 33 modules at Lewiston have been reconfigured into "roughly 65 loads" so they can move on the interstates from Coeur d'Alene, Idaho, through Montana to the Port of Sweetgrass.

"We have moved 13 of those to date, and we have two more scheduled to move tonight" on an alternate route that involves all-interstate travel through Montana, Johnson said.

As originally designed, the company would have moved all over Highway 12, Montana Highway 200 and other two-lane highways in the state.

The director of the Idaho Transportation Department has issued a final order allowing the loads on that state's stretch of Highway 12 up the Clearwater and Lochsa Rivers to Lolo Pass. But Idaho won't issue permits until Montana says it's OK, and Dayton's ruling said it's not OK yet.

Johnson told Dayton he couldn't say how many loads the company would bring over Highway 12. It's simply asking the judge to allow MDT to issue Imperial oversize load permits on Highway 12, as it does to other companies on a regular basis.

"We don't expect that an environmental assessment is going to be necessary," said Brown. "The environmental impacts are minimal and they're already been addressed" in the previous review.

But McCubbin said the new proposal would need an environmental review, not the categorical exclusion that MDT normally grants when issuing 32-J permits. Imperial could send more modules on Highway 12 than were originally considered, the MEPA process would have to be followed.

"What is being proposed here is not a reduction of impacts, it's a complete change of impacts," he said.

Reporter Kim Briggeman can be reached at 523-5266 or at kbriggeman@missoulian.com.