November 19, 2010 in Idaho

Lawyers spar over Highway 12 megaloads

By The Spokesman-Review
 
Betsy Russell photo

Crowd at ITD hearing Friday on ConocoPhillips megaloads
(Full-size photo)

BOISE - Lawyers for opponents and backers of the first four mega-loads of oil equipment proposed to travel north-central Idaho’s U.S. Highway 12 faced off in a crowded Idaho Transportation Department auditorium on Friday, sparring over whether more hearings must be held before the four loads can roll.

ConocoPhillips, which wants to truck the four giant loads to its Billings Refinery so it can replace aging coke drums there, argued that the opponents’ protest is too late to be considered, that residents and business owners along the route have no real stake in the issue, and that if further hearings are held, the opponents should have to put up a $2 million bond to protect the company against any further losses from delays in the shipments.

“We’re facing a situation that really is about politics and not about this refinery in Billings,” attorney Erik Stidham, representing ConocoPhillips, told hearing officer Merlyn Clark, a Boise attorney and former head of the Idaho State Bar.

The room was filled with more than 50 Billings refinery employees wearing T-shirts touting the project; they rode over with their plant manager on a bus for the hearing, though it was an 11-hour trip.

“They’re concerned about their jobs. They’re concerned about our refinery and our community,” said plant manager Steven Steach.

The Billings refinery provides 7 percent of Idaho’s gasoline and 25 percent of Montana’s, Steach said; it has 10 percent of the refinery capacity in the Rocky Mountain region.

The ConocoPhillips mega-loads are the first of more than 200 proposed to travel the route; ExxonMobil wants to truck 207 loads of oil equipment across the route, through Montana and up to its Alberta oil sands project in Canada over the next year. The loads are so big that, traveling at night, most will take up both lanes of the twisting, scenic two-lane highway, blocking all traffic.

Clark told the attorneys and crowd, “I am limiting my scope of examination today to the four loads that are proposed for this permit. I am not considering the fact that there may be 200 more loads from another applicant on another date.”

Laird Lucas of Advocates for the West, attorney for three residents and business owners along the route who oppose the mega-loads, said he takes exception to that approach, in part because the Conoco loads couldn’t travel but for extensive prep work done along the route by ExxonMobil, which plans the larger project. That firm has rebuilt turnouts, raised or buried power lines, and removed foliage to prepare the route for the extra-wide loads.

“Because they’re the first ones they’re really important,” Lucas said. “We believe they’re going to set a precedent.”

In legal filings with the ITD, Lucas submitted affidavits from 10 more residents and business owners along the route who have similar concerns to those of the three who sued to block the loads. They maintain the big loads will damage their use and enjoyment of their property, hurt their businesses, impact their own use of the highway and threaten their “health, safety and welfare.”

ITD, in its own legal filings, argued that the residents’ concerns are “speculative” and really are more about the larger Exxon proposal than about the four ConocoPhillips loads.

ITD attorney Tim Thomas said Friday that the residents do have a “direct and substantial interest” in their own health and safety and in their use of the route on which they live and do business, “no doubt about that … it would be silly to say otherwise.” But he said that just isn’t impacted by the four ConocoPhillips loads.

In its brief, ITD wrote, “It is difficult to imagine how four trips over four days, traveling at night, will turn Highway 12 into a ‘high and wide’ corridor.”

One of the concerns residents along Highway 12 have raised is about blockage of the road during medical emergencies, when a resident might need to travel the route quickly to get to the emergency room - as one of the plaintiffs did while suffering anaphylactic shock. Conoco, in its filings with ITD, committed to have an ambulance follow every load, at its expense, to address that concern.

Clark said he plans to review the case over the weekend and issue a ruling before the Thanksgiving holiday.

If he permits the opponents to intervene, a contested-case hearing, in which each side presents evidence, would be convened. If he doesn’t, the permits would be final - but the opponents could appeal them in court.

When the opponents sued earlier, 2nd District Judge John Bradbury revoked the permits, saying ITD had violated its own regulations in issuing them, but the Idaho Supreme Court overturned that decision, saying courts had no jurisdiction because ITD had not issued a final order after a contested-case process.

The two giant coke drums, which have been split in half to make four mega-truckloads, would replace 20-year-old drums at the Billings refinery that have bulged and cracked from years of heating and cooling, Steach said. Conoco is hoping to get the drums to Billings in time to be welded back together and ready to install during a planned plant shutdown this spring. The maintenance and repair work that’ll go on during the shutdown will bring in 1,700 contract workers, Steach said.

“Our desire is to get ‘em moving before the end of the year in order to meet the current shutdown schedule,” Steach said. If that doesn’t happen, he said, “We’ll have to re-evaluate.”

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