Laura Lundquist/Missoula Current

Arlee area residents are still resisting a gravel pit and asphalt plant planned near the Garden of A Thousand Buddhas. But the state won’t help them or any other Montanans concerned about gravel pits going in next door, thanks to a recent law.

Since learning of the Marvin Rehbein gravel pit planned within a half-mile of her Arlee farm, Jennifer Knoetgen has undergone a crash course in mining and property law. In early July, she and her neighbors started a nonprofit, Friends of the Jocko Valley, to take action to stop the pit from going in.

Within the past week, they’ve appealed to the Lake County commissioners and the Legislative Environmental Quality Council to take their concerns seriously. The commissioners heard their proposal for zoning to prohibit industrial development and sent a letter asking the Department of Environmental Quality to hold a public meeting about the pit.

But it’s all probably too late.

“Zoning is a very slow thing. Apparently, according to the commissioners, there hasn’t been that kind of zoning in our county for quite some time. So everybody’s going to be rusty at it,” Knoetgen said. “And most of Montana is not zoned. So that’s not going to be the solution to make sure that we’re all protected in the way we should be.”

The Environmental Quality Council dedicated almost two hours last week to a review of gravel pits and the new law that applies to all gravel pits proposed since May 2021. The discussion revealed that even Republican legislators who voted for the new law – House Bill 599 – didn’t fully understand the changes or acknowledge their effect. But the committee took no action.

“I have numerous constituents who are interpreting things the way they’d like to have them,” said Rep. Steve Gunderson, R-Libby, who sponsored HB 599. “Whose property rights trump whose property rights? It’s a simple question. Who has the upper hand on property rights?”

After being notified of the proposal in early May, Knoetgen worked to rally her 23 affected neighbors within 30 days to request a hearing on the Arlee gravel pit proposal. They had several concerns about how they would be affected, including reduced air quality, heavy truck traffic on a narrow county road, 20-hour-a-day industrial noise and lights, and threats to groundwater.

Rehbein’s company, Riverside Contracting, applied for the permit on April 7. The plan is still to dig to 12 feet below the existing sprinkler pivot across 160 acres of Rehbein’s property. One corner of the section will house a rock crusher and mobile asphalt plant. The permit would require the company to return the section to cropland 25 years from now.

Knoetgen knew of at least 11 neighbors who commented. But then they learned DEQ wouldn’t hold a public hearing because they’d missed the new requirement of needing comments from 51% of landowners within a half-mile of the pit. HB 599 not only increased the required percentage of comments from 33% of landowners, but also limited comments to one person per piece of property with a house. For example, if three adults live on a property, only one is allowed to comment.

The neighbors were disappointed that they wouldn’t be heard, especially when they later learned of some discrepancies in the new process. Former Confederated Salish and Kootenai Tribes council leader Shelly Fyant - who couldn’t send comments to the DEQ because she lives just outside the half-mile radius from the proposed pit - told the EQC that three people had submitted comments that weren’t counted.

DEQ said they didn’t receive two and they ignored a third because the man didn’t have a documented residential address. But Fyant said the man just built a house there this year. She and neighbor Doug Olsen testified that Rehbein didn’t post signs around his property notifying people of the proposed pit as required. The law requires the developer to do all the public notification and DEQ doesn’t check on property postings.

“It seems like this process, that is supposed to speed up DEQ’s process, is totally forgetting about DEQ’s mission and that’s to protect the environment,” Fyant said. “Missoula County was very smart when they said no more gravel pits. But guess what? Those contractors are now coming to the Flathead Indian Reservation for their gravel. That’s a concern.”

Under the new law, Rehbein could have started working on his gravel pit as soon as the 30-day comment period was over, because DEQ doesn’t stop a permit based on the comments.

Sonja Nowakowski, DEQ Mining Division administrator, told the EQC the Open Cut Mining Law has priority over Montana’s public process. With the streamlined process that allows less time and opportunity for public comment, Nowakowski said standard permits now take two months less to approve, which frees up her staff of five scientists who need to oversee 1,851 gravel pits.

She added that more than 750 pits have expired permits and may or may not have been restored.

“It’s all a matter where the Legislature sets the policy. With this change in policy, with the reduced time spent on the permitting process, we’ve been able to redirect our resources toward doing more inspections and this reclamation,” Nowakowski said.

Plus, gravel pit permits only have to meet mining requirements, Nowakowski said. Scientists don’t have to consider other risks. If there are issues with water or air quality or water quantity, people should contact the air or water quality divisions of DEQ or the water rights division of the Department of Natural Resources and Conservation, Nowakowski said.

Anne Hedges, Montana Environmental Information Center executive director, told the Current there was no coordination between any of those divisions so problems could easily drop through the cracks.

“Instead of the Republican mantra of ‘one-stop permitting’ to be as efficient as possible for everybody, they have made it an impossible process for the public to follow. They’ve made it as inefficient as it could possibly get,” Hedges said. “Everyone can point the finger at somebody else. Nobody has responsibility for the overall problems that these things are creating. And the public is left with nowhere to turn.”

A month ago, the Friends of the Jocko Valley learned that Rehbein still didn’t have a permit but only because of deficiencies in his application. Nowakowski said DEQ keeps reviewing changes in the proposal until the deficiencies are corrected. So it’s just a matter of time, and Knoetgen is worried DEQ will do even less once Rehbein’s permit is finally granted.

“Even if I take a narrow focus, the DEQ is not doing the compliance work they’re supposed to. Either they’re understaffed and overworked or there’s a law problem,” Knoetgen said. “If they can’t deal with these tiny compliance issues with this particular permit, what’s going to happen if there’s a fuel spill or something bigger? If DEQ can’t even slap them on the wrist for not putting up public signage, what’s going to happen when something bigger happens? That makes me feel like DEQ is not doing its job.”

Knoetgen is far from the only one who feels that way.

During the EQC meeting, Dixie Osbourne of Shepherd testified that Riverside Contracting had been operating the Donnes gravel pit and asphalt plant since 2019 less than a mile from the Shepherd School. That was prior to HB 599 going into effect. But since then, DEQ has issued four letters of deficiency to Rehbein.

The proposal called for a pit 20 feet deep, 24-7 operation and a request to dump wastewater into Crooked Creek and eventually into the Yellowstone River. Osbourne said groundwater would rise in the summer to fill the pit, so Rehbein built a 3,000-foot trench to shunt 370,000 gallons a day onto neighboring property. A judge ordered Rehbein to stop the flow of water, but Rehbein has ignored the order, Osbourne said.

“During this timeframe of dewatering, 24 Shepherd neighbors’ water wells went dry, had sand issues or ruined their appliances. Numerous households were completely without water. Others have had to install cisterns where they’ve lived for the past 40 years. A 100-year-old spring with water rights went dry for the first time ever,” Osbourne said. “Montanans don’t want less stringent applications for open cut mines or to provide them with exemptions. We want more stringent laws to protect our neighbors and our water.”

During the EQC meeting, some public commenters called for a moratorium on HB 599. Rep. Marilyn Marler, D-Missoula, read suggestions from Mike Fantasia, a Libby resident affected by a new gravel pit.

They included dropping the number of public comments required to initiate a public meeting back to 33%; deleting the requirement for an affected landowner to have an occupied dwelling; and reinstating DEQ’s bonding authority. Gunderson said that wasn’t necessary – if a landowner could demonstrate they were harmed by a gravel pit, they could work it out in court.

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