By William L. Spence of the Tribune | Tuesday, July 12, 2011, 12:00am
Opponents have asked a hearing officer to reconsider his recommendation the Idaho Transportation Department allow ExxonMobil/Imperial Oil to ship more than 100 megaloads of equipment to Montana along U.S. Highway 12.
In a petition filed Monday, the opponents said Hearing Officer Duff McKee made “several clear errors of law and fact” when he concluded the oil company shipments should be allowed to proceed.
McKee, a retired judge, decided opponents had failed to prove their case during a two-week hearing on the megaloads.
In his June 27 decision, McKee wrote “none of the complaints or issues raised by the protesting parties are sustained … There was no testimony of any real danger, no testimony of any accident or damage, and no testimony of any harm to any of the witnesses.”
The petitioners, however, said McKee arrived at these conclusions by incorrectly thinking opponents “stipulated” to the feasibility of the shipments, and by erroneously comparing the oversized loads to standard commercial traffic, rather than considering the safety and convenience of the general public as he should have. They also faulted him for substituting his own judgment when evaluating the potential impact on the region’s tourism economy, rather than relying on the testimony provided during the hearing.
“We believe he (McKee) misapplied the legal standards we raised under ITD regulations, and we want to give him a chance to correct his decision,” said Laird Lucas, an attorney with Advocates for the West, which is representing opponents.
For example, one of the major concerns raised by the opponents was whether having up to three megaloads traveling U.S. 12 at any point in time would create a “continuous rolling roadblock” that would prevent access to emergency services in Orofino and Lewiston.
Opponents said public safety and convenience should have been the paramount consideration in evaluating the impact of the loads, yet McKee faulted them for not providing any statistical evidence to support this fear.
Had he applied the correct legal standard, the petition said, then “he should have determined whether ITD investigated the likelihood of medical emergencies, in order to assess how the megaloads could impact this aspect of public safety. But ITD did not undertake any such investigation … (which) corroborates other evidence that public safety was not ITD’s primary concern.”
The petition continues, “In failing to address how the megaloads may impact the safety and convenience of the general public, and instead focusing on comparisons between megaloads and standard commercial traffic, (McKee’s decision) misapplied the legal standard.”
The petition also asks that McKee remove any references in his decision to federal legal issues, since none were raised during the contested case hearing. Those items are pending in a separate federal lawsuit brought by Idaho Rivers United.
McKee has 21 days to rule on the petition. ITD Director Brian Ness will then have 56 days to decide whether the loads should be allowed to proceed.
Spence may be contacted at [email protected] or (208) 848-2274.