Montanans oppose state’s new gravel pit rules, process

Laura Lundquist/Missoula Current

Under a new law, the Montana Department of Environmental Quality no longer considers citizens’ comments on proposed gravel pits and schedules very few hearings to hear comments.

So on Monday, Montanans took advantage of a DEQ rules' hearing as the only opportunity to air their concerns on proposed amendments related to gravel pit requirements that had been cut by House Bill 599.

On a party-line vote, the 2021 Legislature passed HB599, which eliminated several environmental safeguards and most public input on any new gravel pit. Since then, Montanans around the state have learned how damaging the bill was.

From Libby to the Helena Valley, and Victor to Shepherd northeast of Billings, 20 Montanans showed up or logged on Monday to oppose the rules, testifying about all the negative ways they could be or were being affected by gravel pits that are now allowed by HB599.

Many testified that they hadn’t been informed that gravel pits were proposed nearby, hadn’t been allowed to comment, or that no one had responded to their comments. Others worried how their property values would be affected by gravel pits that are now allowed to operate 24 hours a day and include asphalt plants, increased truck traffic and could potentially affect ground and surface water.

No one spoke in favor of the rules.

“It’s interesting that there’s been no one in support of the change. You have a very large community of people that have rallied as a grassroots effort because the communication has not been facilitated by the DEQ. People are getting together to let you know what is important to them,” said Leslie Millar of Arlee. “If the right of the citizens to talk about decisions that affect them is limited or removed, then you wonder where that’ s being pushed from.”

Archie Harper of the West Valley Community Alliance Network said the rules “took the meat-cleaver approach” to the original opencut mining law that had allowed the West Valley Community Alliance to weigh in on a gravel pit in the Helena Valley. In 2020, DEQ still had to consider their comments, which revealed many deficiencies in the pit’s proposal that could have affected their groundwater, since many have shallow wells. Now, HB599 has forced people to forfeit their Constitutional rights, Harper said.

“Failing to capture the public’s testimony on water resources at risk, we feel, violates the rights of neighboring landowners to participate and influence state decision making on projects that can affect Montanans’ right to a clean and healthful environment,” Harper said. “This is an appeal to the state Legislature to restore the conditions, laws and rules that uphold Montana’s right under the 1972 Constitution.”

Mandi Taylor of Shepherd said the rules and HB599 leave agricultural land and its water, particularly springs, unprotected, because only people with houses on their land within a half-mile of a pit are allowed to comment. She called the rules a “gross oversimplification that does more harm than good” and circumvents public involvement.

“Montanans don’t want unethical gravel companies - that seek to get out of following proper procedures set in place to protect citizens, agriculture and the environment - to be aided and abetted by a government that is supposed to be for, of and by the people,” Taylor said.

DEQ attorney Lee McKenna reminded the public several times that the hearing dealt only with the proposed amendments of the rule that were required by HB599 and three new rules dealing with soil reclamation, creating a 50-foot setback from water and information required for permit applications.

“I’d like to clarify that DEQ is a state agency so we’re allowing the public to testify regarding DEQ’s rulemaking. DEQ doesn’t have jurisdiction over the Legislature,” McKenna said.

Millar and Livingston City Commission Chair Melissa Nootz questioned McKenna’s claim that DEQ was fully at the mercy of the Legislature. Millar said DEQ is failing to enforce rules that already exist, let alone any new ones, and that had nothing to do with the Legislature.

Nancy Jacobsen and Kurt Vause of Victor illustrated the lack of enforcement, listing several ways that DEQ is failing to protect Montanans and state resources when permitting gravel pits. In Victor, residents have been fighting the Moody gravel pit since 2017 and are now in a drawn-out process of a DEQ appeal, Jacobsen said.

“After being appointed our fourth hearing examiner last February, we still have no decision for the hearing that took place at that time,” Jacobsen said. “We’ve been in the appeal process for two years and eight months. HB599 eliminates the right of the public, which will ultimately result in more lawsuits. As a citizen who has to live with the dust and the noise, it’s appalling that our rights are being totally ignored.”

DEQ has to turn laws into rules, but it falls under the executive branch of government, which isn’t beholden to the legislative branch. Nootz pointed out that DEQ had not only supported HB599 during the 2021 Legislature, but also, at the start of the hearing, DEQ Opencut Mining Supervisor Whitney Bausch backed the proposed rules without reservation.

“People are here giving DEQ specifics of the problem with the law. So this is directly related to how the rule will make things worse. The comments today should inform this body to make appropriate recommendations to the Legislative branch,” Nootz said. “At any time, DEQ could exert its authority to change this process, improve this process and stand up in support of Montanans and the DEQ mission during the Legislative session and between session, like right now.”

Rep. Steve Gunderson, R-Libby, who sponsored HB599, has said it was intended only for “high and dry” sites, but DEQ is applying it to all sites. Anne Hedges, Montana Environmental Information Center executive director, said Gunderson’s claims should give DEQ pause – when determining the intent of the bill, a judge would consider Gunderson’s statement in the event of a lawsuit.

“What’s left out of this rule is every bit as important as what is in this rule,” Hedges said. “DEQ’s deference to industry is reminiscent of the state’s acquiescence to the Copper Kings. Existing residential property owners be damned.”

Calling HB599 and the proposed rules a sham, Mike Fantasia of Libby said the Thompson Contracting gravel pit approved near his property was not compatible with a 50-unit residential area. He said he would be working with Gunderson to write a bill to repair the parts of the opencut law that put so many Montanans at a disadvantage.

“The process is a sham when an applicant is virtually assured of a permit once an application is received,” Fantasia said. “Allow residents to have an equal ability to influence decisions. It seems that contractors have the upper hand.”

Monday was the final day for public comment on the rules.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.