Yes! -- Judge puts restraining order on big rig turnouts in Western Montana

Judge stops construction of big-rig turnouts in western Montana

By KIM BRIGGEMAN of the Missoulian


Its test load can come over Lolo Pass, but the Canadian oil company that seeks to haul a parade of massive loads through western Montana can't start building the needed king-size turnouts yet.

District Judge Ray Dayton of Deer Lodge County, in a ruling filed Monday in Missoula County District Court, said there's a "sufficient likelihood of irreparable harm" if Imperial Oil/ExxonMobil begins building or expanding turnouts along U.S. Highway 12 near Lolo Creek.

The Anaconda judge slapped a temporary restraining order on the roadside construction, as well as on further installation of underground utility lines, until the matter is resolved in a preliminary injunction hearing scheduled for May 16 in Missoula.

But Dayton denied a request by Missoula County and three other plaintiffs that would prohibit a high-and-wide test module from proceeding from Idaho to Lolo Hot Springs. He also allowed modification of existing traffic signals on Reserve Street in Missoula.

Both sides found positives in Dayton's decision.

"I think that he recognized the infrastructure impacts that could happen without a full review, and that it was important to stop that part," said Missoula County Commissioner Jean Curtiss.

"Imperial Oil is pleased with the decision, which will allow the transport of the Kearl test safety module to its intended destination near the Lolo Hot Springs," Imperial spokesman Pius Rolheiser said.

Resumption of the test move, which had been tentatively scheduled for Monday night, won't happen until Tuesday night at the earliest. The megaload has rested for the past week at the side of U.S. Highway 12 near Kamiah, Idaho, after experiencing multiple problems on its first move from the Port of Lewiston.

"Our plan is, pending favorable weather conditions and a couple of final signoffs that we expect from the Idaho Transportation Department, we'll resume moving the safety module tomorrow (Tuesday) evening," Rolheiser said.

Rolheiser said if the load moves Tuesday night after 10 p.m, PDT, it will reach a designated layover point at milepost 139 along the Lochsa River early Wednesday and reach Montana in the wee hours Thursday.

Dayton's ruling said no further movement of modules can proceed in Montana until all construction work has been completed.

The National Wildlife Federation, Montana Environmental Center and the Montana Chapter of the Sierra Club joined Missoula County in requesting the temporary restraining order. They're fellow plaintiffs in a lawsuit seeking to force the Montana Department of Transportation to do a more extensive environmental review of the Kearl Module Transportation Project.

MDT director Jim Lynch has said the need to build turnouts of varying sizes for traffic-clearing purposes along the two-lane highways, as well as to park the megaloads during the daytime, was the compelling reason for the department to require Imperial/Exxon to complete an environmental assessment.

Critics of the draft EA, including Missoula County commissioners, branded it insufficient and demanded a more extensive environmental impact study. MDT refused, citing guidelines set out by the Montana Environmental Policy Act.

Dayton was apparently convinced by a Missoula County official that plans for the turnouts needed further study, even though a state environmental agency signed off on them.

Peter Nielsen, environmental health supervisor for the Missoula City-County Health Department, testified at the TRO hearing Friday he thought some of the proposed turnouts pose threats to the water quality of Lolo Creek.

The creek is considered seriously impaired by the Montana Department of Environmental Quality, largely because of road sanding and sediment. Nielsen said 18 streams in the Blackfoot watershed in Missoula County are also listed as impaired.

Nielsen said he made a field examination of Highway 12 from Lolo Pass to Lolo last Tuesday.

"I have evidence that the turnouts are larger than characterized in the EA, they're closer to the stream, (and) they will involve more cutting and filling and vegetation removal ... than characterized in the EA," Nielsen said. "Therefore their impacts are difficult to mitigate."

He testified that no best-management practices, those designed to mitigate the movement of pollutants from the ground into the water, were mentioned in the EA, so he and the public had no way of gauging how the turnouts might impact the watershed.

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In his order, Dayton said the modification of traffic signals in Missoula is not likely to cause the plaintiffs irreparable harm. The company proposes to put the signals on swivels that would swing the lights out of the way to let the loads through, then immediately swing them back into place.

Dwane Kailey, MDT's chief engineer, testified that by restraining that work it would impact a separate project scheduled for this construction season to reduce congestion on Reserve Street.

"The one (such project) that I'm aware of is Mullan and Reserve," where the city and state are planning a construction project this summer, Curtiss said. "I imagine they'll do some signal changes, so it does make sense to do things together."

Rolheiser shed no light on how further delays in the Kearl transportation project will affect construction work in the Kearl Oil Sands. The company has an $8 billion project under way near Fort McMurray, Alberta, with plans to begin excavation of millions of barrels of tar-like bitumen in late 2012.

"Until we have clarity on the next steps ahead of that preliminary injunction hearing on May 16, it's difficult to talk about timelines," Rolheiser said.

He added he's unsure when and if the company will begin work on the traffic signal modifications in Missoula, saying, "We haven't yet developed a plan as to whether we'll proceed with that work."

The lawsuit follows MDT's decision in February to approve Imperial/Exxon's proposal to move, over the course of nearly a year, more than 200 oversized loads manufactured in South Korea from Lolo Pass to the Canadian border at the Port of Sweetgrass.

They're reportedly the largest loads to ever travel Highway 12. The test module weighs 490,000 pounds, stands three stories tall and 24 feet wide, and is nearly 250 feet long. All require 32-J oversized dimension permits from MDT, which Imperial/Exxon says it was assured by MDT could be secured.

The proposed route through Montana begins at Lolo Pass and passes through Missoula on Reserve Street, up the Blackfoot on Highway 200 to Rogers Pass, and along the Rocky Mountain Front to Cut Bank and the Port of Sweetgrass.