Montana Transportation Department says it will fight megaload ruling

2011-07-21T06:30:00Z 2012-01-23T06:34:39Z Montana Transportation Department says it will fight megaload rulingBy KIM BRIGGEMAN of the Missoulian missoulian.com
July 21, 2011 6:30 am  • 

What comes next in Montana's big rig saga?

Montana Department of Transportation officials vowed Wednesday not to give up the fight, while those who've sued them to halt the transport of hundreds of megaloads across Montana two-lanes hailed a District Court judge's decision Tuesday that does just that.

"MDT has reviewed the Judge's order and is preparing to move forward when a trial date is set by the Court," Lori Ryan, the Transportation Department's public information officer, said by email.

"I can't really comment because it's still in court process. If you have any questions, you can ask the judge," said the department's director, Jim Lynch, when reached by phone late Wednesday afternoon.

The department and intervener Imperial Oil/ExxonMobil were on the losing end of a preliminary injunction imposed in Missoula District Court by Judge Ray Dayton of Anaconda.

The ruling could set up another courtroom showdown on a lawsuit filed against the two last spring by Missoula County, the National Wildlife Federation, the Montana Environmental Information Center and the Montana chapter of the Sierra Club.

"The case is probably ripe for summary judgment because we've already got in the evidence that is probably going to be ultimately considered," Missoula County deputy attorney James McCubbin said. "So that's most likely the next step."

Dayton's decision called into question MDT's application of the Montana Environmental Policy Act when approving an environmental assessment of Imperial/Exxon's Kearl Module Transportation Project.

Specifically, Dayton said the assessment left it "unclear" how MDT concluded that an interstate route was an infeasible alternative, and that the department didn't assess wetlands or floodplain information provided by Imperial's consulting firm, Tetra Tech.

In addition, he wrote, MDT didn't seem to adequately consider impacts of new turnouts along the route because it didn't determine which ones would be permanent.

***

The ruling threw another wrinkle into Imperial/Exxon's plans to begin mining the tar sands in the Kearl Lake area of northeastern Alberta by late 2012. It's the first phase of what the company says will ultimately be a $23-billion project. It hoped to have all 207 modules on site by this fall. At least 150 have yet to arrive.

Pius Rolheiser, spokesman for Imperial Oil, said it was too early to determine whether the company will continue to fight for the right to transport the modules - many of them 24 feet wide, more than 200 feet long and three stories high - over U.S. Highway 12 and state Highway 200 in western Montana.

It has already sent one downsized module on the interstate route, and is preparing dozens of others that are stranded at the Port of Lewiston in Idaho for the same.

"Hopefully, Exxon Mobil is rethinking its options and realizing that Montana is not going to be a pushover for anything a big oil corporation wants," said John Wolverton of the Montana Chapter of the Sierra Club.

Wolverton said Dayton's conclusions were "quite clear and obvious."

In conjunction with the spill of Exxon Mobil's pipeline across the Yellowstone River near Laurel, "it illuminates the concerns that a lot of the public has about too cozy relationships between Gov. Schweitzer, Director Lynch and the big oil companies."

"I think it's such a strong opinion, they'll think twice before taking it to the Montana Supreme Court," said Tom France of the National Wildlife Federation.

McCubbin said it would be difficult to challenge the preliminary injunction order with an appeal while the case is still pending. But no one is certain how the oil company will respond.

Imperial's lead attorney at the preliminary injunction hearing in May, Stephen Brown of Garlington, Lohn and Robinson in Missoula, didn't respond to an interview request Wednesday.

"We're dealing with the second-largest corporation in the country," Missoula County Commissioner Bill Carey pointed out. "Exxon is huge, and they've got the wherewithal to deal with a lot of things."

***

France said the injunction order underlined that the highways in question "just weren't designed to handle this kind of industrial transportation."

"Judge Dayton recognized that the state had simply ignored the potential (of a permanent high-wide corridor) and had not taken any steps toward analyzing it," said France.

In a finding of no significant impacts, or FONSI, of the environmental assessment, MDT said it can control future use of the corridor by oversized loads.

MDT "has the authority to direct Imperial Oil to remove turnouts which would inhibit the future use of the route by other oversized loads," the FONSI states. "Imperial Oil has signed a Memorandum of Agreement with MDT that requires Imperial Oil to do so, if requested by MDT. Furthermore, MDT required Imperial Oil to post a surety bond to cover the cost of removing and reclaiming the turnouts."

But Dayton said it was unclear how the department "could fully evaluate the significance of impacts associated with (the Kearl transportation project) without making an initial decision regarding the permanency of turnouts."

The department said in the FONSI that a route along Interstate 90 and Interstate 15 was rejected "since approximately 25 existing overpasses are too low and have no bypass ramps or feasible detours to allow passage of the modules."

Dayton noted in his ruling that the company was paying for the construction or modification of 75 turnouts, utility line modifications at 572 locations, and other alterations along the route. Yet the environmental assessment "contains no analysis of whether construction at a similar cost could make the Interstate Route a feasible alternative," he wrote.

While it's acceptable for a private company to hire a consultant to compile the environmental assessment, Dayton said it was incumbent on MDT to thoroughly review the assessment.

In at least one case, he said, MDT failed to do that. Eric Thunstrom, from its environmental services division, testified that the department didn't independently assess wetlands or floodplain information along the route "because it was the responsibility of Imperial Oil's consulting firm," wrote Dayton.

That "raises a substantial question as to whether MDT took the requisite ‘hard look' at the potential environmental impacts," he said.

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