Ochenski 

Disaster without review: Gravel mines’ quick approval is a nightmare

Every Montana governor for the last quarter century, including Brian Schweitzer, has shamelessly kow-towed to extractive industries and trumpeted their intent to “streamline” state industrial permitting processes. Likewise, virtually every legislature has seen attempts to cut corners on environmental reviews so those industries can tear what they want from the Treasure State as quickly as possible. Last week, however, a ruling by District Judge Jeffrey Sherlock showed the true folly of “streamlining” and exposed the state to significant environmental damage, which is likely to happen at a breathtaking pace, much to the detriment of our citizens.

The case on which Judge Sherlock ruled was brought by Cameron Springs, a company that wants to operate a gravel pit immediately south of Interstate 90 in Belgrade. Last October the
company applied for an operating permit from the Montana Department of Environmental Quality (DEQ), which processes permit applications for open-cut mines. In January, the state agency notified the company that its application was “acceptable,” and stated that an environmental assessment would have to be completed before the permit would be issued.

Due to a backlog of open-cut permit applications, the DEQ did not even start its environmental analysis of mining impacts before it found itself in court. Cameron Springs, citing current law, sued the state agency for missing the statutory timelines that give the state 30 days after accepting a complete application to develop the environmental review and issue the permit. State regulators are allowed a 30-day extension of that time frame but the state didn’t even bother to request the extension. This ridiculously short time frame was approved in the Republican-dominated 2001 Legislature during the disastrous Martz administration.

To make a long story short, Sherlock ruled that the state had not met its “clear legal duty” by missing the mandatory deadlines defined in the law and, although he lamented the lack of staff and funding, he summarily ordered the DEQ to issue the operating permit “forthwith.”

What that means, in simplest terms, is that the state agency charged with protecting Montana’s environment will now have to issue the permit for the mine with no environmental review whatsoever, no inkling of what the consequences of the operation may be and, of course, no chance for the public to weigh in on the issue.

For proponents of streamlining, what could be better, easier, and quicker than no environmental review at all? The DEQ says it will comply with the court order and issue the permit this week, and will not appeal the decision.

Now comes the really scary part. There are more than 100 open-cut permit applications currently awaiting environmental review by the state. At least 15 of those applications are for gravel pit operations in Gallatin County similar to the one on which Sherlock ruled. A mere week after Sherlock’s ruling was issued, a hearing has already taken place before District Judge Dorothy McCarter on a similar lawsuit brought by two other gravel pit operators. As of April 28, the DEQ was served with a similar lawsuit for three more gravel pit applications—two for expanded operations and one for a new pit—by yet another operator.

Given the precedent set by Sherlock’s ruling, it’s possible that every one of those 100 or so permit applications pending review by the DEQ may wind up in court. And every one of them that’s been sitting around for more than 30 days—60 at most—will likely be ordered by the court to be issued immediately, with no environmental review. Thanks to streamlining, the state agency charged with environmental protection simply doesn’t have the time to actually protect Montana’s environment.

What’s that mean to citizens? Well, at a Gallatin County Commission hearing, people whose homes will literally be surrounded by a 250-acre gravel pit operation did an effective little piece of guerrilla theater. After giving testimony seeking immediate interim zoning to block the gravel pits, the citizens turned on a blender to demonstrate 90 decibels—the sound of one gravel crusher. While continuing to talk over the noise, homeowner Kathy Brekke told the commission: “When you do this at home, please use at least 10 blenders so you get the cumulative effect of the huge amount of equipment that will be in our neighborhood. Also, please run this test from 7 a.m. to 8 p.m. Monday through Saturday for the next 20 years. While you are doing this test, please note how you feel on Saturday morning at 7 a.m. when this noise begins, how you will help your child with homework at 4 p.m., and how your dinner was at 6 p.m.”

The nightmare facing our state is that Brekke’s testimony could easily be multiplied by
100 times—or more—as anyone wishing to operate a gravel pit tosses in an application, waits for 30 days of inaction by the DEQ and gets their court-ordered operating permit with no environmental review.

If there’s any hope in this sad situation, it’s that someone will likely appeal these decisions to the Montana Supreme Court. Although the streamlining provisions are the law, issuing permits with no environmental review whatsoever flies in the face of the Montana Constitution, which, in Article IX, requires that: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

Unfortunately, Supreme Court appeals take time and time is one thing that is not on the environment’s side right now. Dozens, perhaps all, of the pending permits may be issued and already in operation if and when the Court rules.

This is no way to run a state—especially Montana. The “new day” we were promised by Gov. Schweitzer appears to be dawning in the din and dust of unregulated mines. Schweitzer could call a special legislative session to change the law immediately. The question is: Will he?

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.
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