Judge rules today on four mega-loads

Courtroom Monday is crowded with people opposing shipments on pristine river corridor

By Elaine Williams of the Tribune

Tuesday, August 24, 2010

Four mega-loads of oil-processing equipment potentially bound for Billings, Mont., on U.S. Highway 12 are still waiting for the green light following a hearing Monday where 2nd District Judge John Bradbury issued no ruling.

Bradbury said he expects to make a decision in the case no later than noon today after listening to about two hours of testimony from Boise-based attorneys representing Advocates for the West, the Idaho Transportation Department and ConocoPhillips.

A standing-room-only crowd of more than 50 was present for the proceeding, including two of the plaintiffs, Linwood Laughy and Borg Hendrickson, who sat with their attorneys from Advocates for the West. Many in the crowd wore T-shirts registering their opposition to the loads.

Laughy and Hendrickson, a married couple who reside in Idaho County, and Peter Grubb, an Idaho County entrepreneur, filed a lawsuit in District Court last week seeking a restraining order against the shipments.

The plaintiffs claim the ConocoPhillips’ loads would threaten public safety, damage tourism and pose a risk to the pristine river corridor.

ITD issued permits for the loads Friday, but indicated it won’t let the cargo, which is at the Port of Lewiston, be transported until Bradbury makes a decision.

If loads don’t get across the Arrow Bridge on Highway 12 by Sunday, they’ll have to wait for weeks because of the construction schedule for that bridge, according to ITD. One side of the bridge has been resurfaced and there’s a break before work on the second side starts, which isn’t planned to be done until October.

Much of Monday’s debate centered around whether ITD considered interests other than those of ConocoPhillips as it looked at the loads that will take up two lanes of traffic and be between 180 and 227 feet long.

At least two times during Monday’s hearing, Bradbury asked Erik Stidham, an attorney for ConocoPhillips, why his client would spend in the neighborhood of $9 million on the project if the oil company didn’t know it would get the permits. That size of investment without assurances would be “odd,” Bradbury said.

ConocoPhillips hoped or “had a sense” the permits would be issued, but didn’t know until Friday when the permits were issued, Stidham said, underlining last week the oil company and ITD were working on details.

The only way the logistics for this could have worked was if his client moved forward in spite of that unknown, Stidham said.

Natalie Havlina, an attorney for Advocates for the West, argued the memorandum ITD issued with the permit on Friday was simply an explanation of a decision made months earlier.

ITD limited its examination to basics such as if the loads would “crash” into a river going over a bridge or “bash” into a cliff, Havlina said.

That review didn’t adequately consider issues such as public safety and convenience as required by Idaho code, Havlina said. “ITD has abandoned its responsibility to protect the public’s health.”

The record doesn’t support “the notion that ITD rubber-stamped the permit,” Stidham said.

ITD is requiring ConocoPhillips to fill numerous requirements such as providing a $10 million bond to cover any damage to the road, said Tim Thomas, a state deputy attorney general assigned to the transportation department.

The loads must pull over every 15 minutes as they travel with off-duty Idaho State Patrol troopers to help coordinate emergency responses as well as provide repair crews for the rigs carrying the cargo, according to the ITD memorandum, which was provided to the Tribune by Advocates for the West.

The company will have to provide a police escort to the hospital for any private vehicle carrying someone with a medical emergency, Stidham said.

“Two years of negotiations helped us create a plan that was in the public’s best interest,” Thomas said.

In this instance, the public’s interest involved issues outside the state’s border, according to the ITD memorandum.

“ConocoPhillips is not able to continue using its existing equipment without a safety risk, potential interruptions in the refinery’s operation and increased maintenance costs,” according to the memorandum.

The drums will replace ones that are 20 years old at a refinery that provides fuel to Idaho, Montana and the surrounding region, according to the memorandum.

The only “viable option” for transportation was the one using the “nearest navigable water” through Idaho’s panhandle, according to the ITD memorandum.

Routes through Canada or the Panama Canal into the Gulf of Mexico provided alternatives, Havlina said.

More than once during the hearing, attorneys referenced Idaho code. One such exchange involved a rule that limits traffic delays to 10 minutes. Havlina argued that provision alone is grounds for Bradbury to send the permits back to ITD since the travel plan calls for delays of 15 minutes.

But Thomas argued the 10-minute rule isn’t relevant to this case. It is intended for limited instances such as catastrophes where ITD wouldn’t require a travel plan like it did for ConocoPhillips, since the months needed to create one wouldn’t be available, Thomas said.

Bradbury questioned that interpretation, noting how drivers get impatient on Highway 12 when they’re stuck behind slow-moving vehicles, like logging trucks, that only block a single lane. “They start doing things they shouldn’t do.”

Idaho law gives ITD broad authority when it comes to interpreting code that’s applicable to the agency, Stidham said. “The department has to have the discretion to make the decisions.”

Bradbury’s expected ruling today applies only to the ConocoPhillips loads. Imperial Oil has proposed sending more than 200 oversized loads on the same route on their way to the Kearl Oil Sands in Alberta, Canada.

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Williams may be contacted at [email protected] or (208) 848-2261.