Locals react to DEQ’s permit for Arlee gravel pit
(Missoula Current) The state has issued a permit for the development of the gravel pit and asphalt plant just outside Arlee but locals haven’t given up the fight to stop or curtail it.
On Monday, the Montana Department of Environmental Quality issued an open-cut mining permit to Missoula-based Riverside Contracting Inc. to develop a 157-acre gravel pit and asphalt plant near Arlee within a half-mile of the Garden of One-Thousand Buddhas and 23 other households.
The inconsistencies in the permit application have been corrected, and the company has posted the required reclamation bond for 40 acres, according to a DEQ release. The permit is valid until December 2047.
This appears to be the end of a process that started in May when some Arlee residents learned that the owner of Riverside Contracting, Marvin Rehbein, had applied to build the gravel pit at the end of White Coyote Road, and they had only 30 days to respond to DEQ about a public hearing. Since then, Arlee residents have done everything they could to deter the project: wrote comments, tried to get DEQ to hold a formal hearing, conduct an environmental assessment - which the department finally did in January - and paid for their own studies of groundwater and other environmental aspects of the area.
Realizing what they were up against, locals founded Friends of the Jocko to coordinate their grassroots opposition and reach out to Lake County commissioners to see if it was possible to get some zoning in the valley.
The residents didn’t have a few environmental safeguards that DEQ would have provided prior to the 2021 Legislature. The law used to require better public notice of gravel pit proposals and citizens used to have greater powers to stop a project. DEQ took more time to review gravel pit proposals and had to consider more environmental factors such as groundwater. Finally, once a project was approved, limits existed on the number of hours a day that excavators and asphalt plants could operate to reduce noise, air and light pollution.
The 2021 Legislature eliminated those protections when it passed House Bill 599, sponsored by Rep. Steve Gunderson, R-Libby. It was part of the GOP effort to cut red tape, but it comes at the expense of Montana citizens.
HB 599 sped up DEQ’s decision points, leaving less time for evaluation. For example, only residents within a half-mile of a gravel pit are allowed to request a public hearing; more than half of the homeowners have to make the request; and they have only 30 days to do it. But many in Arlee weren’t notified or got their notice late, because under HB599, instead of DEQ sending out notices, it’s up to the permit applicant to inform those affected. And sometimes, that hasn’t happened.
DEQ spokesperson Moira Davin said everyone, including those outside the half-mile boundary, can submit public comment to DEQ at any time throughout the permit review period. But comments submitted to the DEQ, either online or at a hearing, don’t tend to have much effect, because DEQ won’t deny a permit. During a March 2022 public hearing in Libby, Colleen Owen of DEQ’s open-cut mining program said that while DEQ can ask applicants to correct deficiencies, the end goal is always issuing a permit.
Owen also said the state used to have more authority to request environmental studies. Now, DEQ no longer conducts more in-depth environmental studies, relying instead on minimal environmental assessments and site information provided by the permit applicant.
During a September meeting with the Confederated Salish and Kootenai Tribes, DEQ Director Chris Dorrington said DEQ would decide if an environmental assessment was required based upon Rehbein’s application. Once the application is acceptable, DEQ could choose to do a more stringent analysis if significant criteria were triggered, but Dorrington said it’s “highly unlikely.”
“The DEQ is supposed to follow the Montana Environmental Policy Act. They’re supposed to analyze the potential impacts to the resources that are affected and one of those is water quality. They have taken the stance that their only role in this is to see that the permittee complies with the open cut mining act. So there’s a huge disconnect,” said Jim Coefield, Friends of the Jocko spokesman.
DEQ released an environmental assessment for the Marvin Rehbein site at the end of January but found no items that would prevent the gravel pit and asphalt plant from operating. Because the pit and asphalt plant can operate around the clock for 25 years, DEQ said “nearby residences would incur visual and noise impacts during operation” but the pit operator had proposed putting up berms to reduce the effect. The operator must also obtain an air quality permit for dust from the pit and air pollutants from the asphalt facility.
In February, Friends of the Jocko submitted several comments on the environmental assessment including independent studies of air quality and hydrogeologic conditions in and around the site.
Coefield said the group had expected the DEQ to take a little longer to consider the information provided before issuing Rehbein’s permit. Now, Friends of the Jocko are going to request a hearing from the Board of Environmental Review, which oversees DEQ. Meanwhile, attorneys for Friends of the Jocko are reviewing the DEQ’s environmental assessment to see if any public comments were incorporated.
“Our sense is DEQ is just operating as a rubber stamp in the permit process,” Coefield said. “It’s kind of like a poker game: They called our bluff and we’ll have to up the ante a little here. We already told them if they approved the permit that we would eventually meet in court. So that has been put in process.”
For a while, there was a faint hope that HB 599 could be overturned. In February, Rep. Laurie Bishop, D-Livingston, sponsored HB 581, which basically removed the changes HB 599 made to Montana’s open-cut mining law, restoring the language that existed before. But the bill met a quick death in the House Natural Resources committee, chaired by Gunderson who had carried HB 599 two years ago.
Coefield was one of about a dozen who testified on Feb. 20 in support of Bishop’s bill but he could tell it didn’t have a chance.
“They call it the ‘cutting red tape movement’ in the Legislature. During the hearing on HB 581, it became clear that the industries are really happy about what they see. The head of the Montana Contractors Association said they’ve managed to put the DEQ in the position of catering to the customer, and the customer is the developer and contractor,” Coefield said. “We think the DEQ’s job should be to protect the public resources and the health of people in the state. So it’s pitting the people’s rights and needs against the desires of corporations.”
Gunderson chose to take executive action on HB 581 on the same day it was heard and made it clear he opposed the bill.
“This is a little more than just a little change. It would require more (full-time employees) and a whole lot more of DEQ than what is already being done,” Gunderson said. “Open-cut is a reclamation bill, it’s not a property rights bill.”
Rep. Gary Parry, R-Colstrip, said HB 581 was only aimed at delaying the permit process, so he immediately moved to table the bill without any more discussion. The bill was tabled by a 10-5 vote and is probably dead.
On Thursday, Gov. Greg Gianforte celebrated the work of his Red Tape Relief Task Force to reform, roll back, or repeal the state’s regulations, saying “we’re making government more efficient and responsive and creating greater opportunity for hard-working Montanans.”
That leaves some hard-working Montanans with little recourse except to go to court, which is where Friends of the Jocko are headed, along with people fighting gravel pits near several other communities. Another HB 581 supporter, Helena attorney Kim Wilson, said he’s representing some residents near Ennis who are battling a gravel pit near the Madison River.
Coefield said Friends of the Jocko might not stop the Marvin Rehbein gravel pit, but their legal arguments might be strong enough to help other communities by dismantling HB 599.
“If the DEQ can’t mandate mitigation on environmental effects then they really aren’t doing the job. They’re no longer the Department of Environmental Quality,” Coefield said. “We joke that maybe with the next bill, they’ll just move DEQ’s mining bureau over to the department of commerce.”
Contact reporter Laura Lundquist at firstname.lastname@example.org.