Great Falls Tribune
December 13, 2008
SME wins permit battle By KARL PUCKETT Tribune Staff Writer
Construction of the Highwood Generating Station eight miles east of Great Falls remains on track following a decision by a county board in its favor Friday.
After the hearing, opponents vowed to keep fighting, with the coal-fired power plant developer's CEO saying the company is up to the challenge.
The Cascade County Board of Adjustment, by a 3-1 vote, denied the appeal of a location conformance permit that developer Southern Montana Electric Generation & Transmission needs to complete the $850 million plant. The county issued the permit Oct. 24.
The Montana Environmental Information Center and neighboring property owners filed the appeal, saying the permit should not have been issued before its 10 conditions are satisfied.
Those conditions include having approved plans in place to ease Highwood's impact on local roads and a historic trail used by explorers Meriwether Lewis and William Clark more than 200 years ago.
However, SME and Cascade County officials, citing county regulations, said the deadline for meeting those conditions isn't until the plant is finished, which could be four to five years.
"It's a process," SME attorney Mary Jaraczeski said.
Board Chairman Tim Wilkinson said he may have done a few things differently in crafting the permit, if it had been up to him, but said, "I can't see anything that is wrong or is in error."
SME broke ground on the project in mid-October. There currently are between 30 and 40 workers are on the job, with employment expected to ramp up to 550 as construction progresses.
It was the second consecutive victory for SME in its seesaw regulatory and legal battle with opponents. Last month, a District Court judge ruled that the county's rezoning of the farmland for Highwood to an industrial use was not illegal. MEIC and landowners challenged the rezoning because they believed it represented spot-zoning.
After Friday's meeting, SME General Manager Tim Gregori said members of the Board of Adjustment ruled objectively, rather than relying on what he called "cherry-picked" facts used by power plant opponents.
He predicted additional challenges, but said SME will meet each one "until the day we energize that facility." Approximately 65,000 Montanans need the power that plant would provide, he added.
MEIC's Anne Hedges criticized the county for "abdicating its duty to represent itself," instead, allowing SME consultants to defend the County Commission's decision to issue the permit.
Despite the setback, opponents will continue the fight on other fronts, she said. Hedges noted that opponents plan to appeal the November District Court decision on the rezoning issue to the state Supreme Court, and challenges already have been filed in District Court and before the state Board of Environmental Review over SME's state-issued air-quality permit.
"These are not technical deficiencies," Roger Sullivan, the attorney for MEIC and the landowners, said to begin the 6.5 hour meeting that convened shortly after 9 a.m. He also told board members they had broad powers to regulate what he described as a massive industrial complex.
Construction of the plant already is causing impacts to roads, and, later, will cast a shadow on a "precious" historic portage used by Lewis and Clark, he said. A traffic impact mitigation plan, which is required by the state Department of Transportation, should have been in place before the permit was issued, he said.
Additionally, a consultation process required to hammer out ways that impacts to the historic trail can be softened isn't completed, he said.
Sullivan also took issue with the $300,000 letter of credit the county required from SME as security against damage to Salem Road, where the plant is being built, saying that condition called for a $2.3 million deposit.
At one point, Sullivan called organic farmer and potential power plant neighbor Bob Lassila as a witness to bolster his position that SME is not being required, as the permitting process dictates it should be, to consider the psychological duress of neighbors.
"We continually wonder if we can maintain our (organic) certification under the shadow of the stack, so to speak," Lassila said.
One after another, SME consultants and attorneys rebutted the accusations, saying SME has gone above and beyond what's required to be a good neighbor, with plans in the works to limit the impact of traffic and the plant's footprint on the historic portage site.
"What you need to do here is use your good ol' common sense," SME attorney Gary Zadick told board members, accusing opponents of throwing everything against the wall to see what would stick.
Cascade County Planner Brian Clifton said SME still is required to come up with the $2.3 million to pave Salem Road within a year of substantial completion of the project. He said he decided to ask for an additional $300,000 now to ensure that the gravel road is fixed to its current condition should the project fail to be completed.
"The (Cascade County) Planning Department followed the regulations," he said.