Delays in plans to move more than 200 oil-field modules through Montana and Idaho are sending a figurative chill across the Kearl Oil Sands in northern Alberta.
"Right now, we're readjusting our plans, but we're getting to the point where we're going to be doing out-of-sequence work," Ken Johnson said in Missoula District Court on Tuesday afternoon. "In addition, we're going to have to assemble them in the wintertime."
Johnson is Imperial Oil's manager for the Kearl Module Transport Project. He was the first witness called to the stand by the defense on the second day of an injunction hearing against the Montana Department of Transportation and intervener Imperial Oil/ExxonMobil.
Missoula County and co-plaintiffs representing the National Wildlife Federation, the Sierra Club and the Montana Environmental Information Center think further environmental review is in order. They filed for the preliminary injunction in early April to stop work on the project, and subsequently obtained a temporary restraining order from District Judge Ray Dayton of Anaconda that remains in effect until the injunction request is decided.
Johnson explained the nuts and bolts of the Kearl project, including the transportation plan through Montana that he said is constantly being tweaked and probably will be even after the first few modules move through.
Under questioning by Missoula attorney Stephen Brown of Garlington, Lohn and Robinson, Imperial's lead attorney, Johnson said three of the 33 modules that stretch some 30 feet high have been successfully cut in half at Idaho's Port of Lewiston because of delays in the permitting processes in both states.
The idea is to make the loads low enough - 15 feet, 10 inches - to fit under interstate overpasses so they can travel a route other than over U.S. Highway 12 and other two-lanes in Montana.
Johnson said it'll cost his company more than $500,000 each to first disassemble the modules, then reassemble them near Edmonton before they're sent on to the Kearl construction site.
"When you're working on a multibillion dollar project, you need to do this so you don't impact other schedules in the project," he said.
Those reconfigured modules have yet to be cleared by the Idaho Transportation Department to travel a route from Lewiston to Interstate 90 at Coeur d'Alene. ITD finished last Wednesday a contested hearing case that stretched over three weeks to air protests against the Kearl transport. It'll be at least a couple of more weeks before the hearing officer makes a ruling.
The preliminary injunction hearing started Monday, and on Tuesday afternoon Dayton - staring at a docket of at least six defense witnesses - urged counsels to try to wrap it up Wednesday.
The last of the plaintiffs' six witnesses were county surveyor Greg LaZerte and his boss, Missoula County public works director Greg Robertson.
For the most part Dayton has adopted a demeanor of quiet contemplation. But at one point during Robertson's testimony Tuesday morning the judge interjected his own question.
"So Highway 12 is in the floodplain?" Dayton asked Robertson.
"At this location, yes," came the reply.
Missoula County is trying to build its case that the environmental assessment conducted by Imperial/Exxon and its contractors, and approved by the Montana Department of Transportation, is inadequate.
Robertson, a professional engineer, explained why he found erroneous the EA's conclusion that the project would have no significant impact on the floodplain. Imperial/Exxon must build or enhance several turnouts on U.S. Highway 12 west of Lolo and elsewhere.
One proposed turnout is roughly 13 miles up Lolo Creek, at mile marker 20.3. It's at a spot where, according to Robertson, the floodplain reaches all the way across the highway.
That's based on revised federal floodplain rules prompted by Hurricane Katrina, he explained. Floodplain maps updated in 2009 with the new regulations don't consider highway fill as levees, Robertson explained.
"Highway embankments can't function as levees, so it's not certified as one here," Robertson said.
The environmental assessment didn't identify milepost 20.3 as encroaching on floodplain, he added. "In fact, nowhere along Highway 12 did it identify that."
Later, under questioning by Deputy County Attorney James McCubbin, Robertson called the engineering design inadequate. He also maintained that Montana's 10-minute rule - no traffic delays over that period of time - is mathematically impossible to uphold in some places, given the required stops and slow starts at bridges.
Brown wondered why Missoula County didn't raise the issues of floodplain encroachment and the 10-minute rule during a public comment period in April-May 2010, so they could have been addressed in the final environmental assessment. Robertson said that onus lies on the engineering consultant to wheedle out the details, not the county.
McCubbin, speaking at a recess after Robertson's testimony, agreed.
"I think we established the fact that the environmental assessment had a number of deficiencies and gaps," he said. "I think the fact that they're trying to blame the county for not pointing out the deficiencies is really reflecting some problems with this EA process."