Ochenski 

The pits: Opper, DEQ suffer another embarrassing blow

The debacle at the state’s Department of Environmental Quality (DEQ) continues this week with District Court Judge Jeffrey Sherlock issuing a stay on his April ruling that required the department to permit gravel pits without first doing environmental analyses. While Sherlock’s latest action swings the pendulum toward environmental protection, he once again takes DEQ to task over its abject failures.

Those who have been following the story will recall that Sherlock’s earlier order required DEQ to “immediately” issue gravel pit permits in response to a lawsuit filed by Cameron Springs, LLC, and Spanish Peaks Sand and Gravel, LLC, against DEQ and Richard Opper, the agency’s director. Both companies had been waiting months beyond the statutory deadlines for the agency to act on their applications.

That ruling, which was echoed only days later by District Judge Dorothy McCarter on another gravel pit, sent shockwaves through the state. Environmentalists were stunned that DEQ was in such disarray that, for the first time in recent history, the courts were ordering permits to be issued without environmental analysis. Meanwhile, residents who lived in areas of the proposed pits were dismayed because the court order took effect before they were able to impose emergency county zoning on the pits and left them with no idea of what kind of environmental damage might be done, what mitigation could be required or what health risks they might face from blowing dust and groundwater pollutants.

In the ensuing months, two Gallatin County residents challenged Sherlock’s order and moved to stop the permits because they suddenly found themselves surrounded by gravel pits. Sherlock’s latest ruling is based on their contention that the operation of the pits “would seriously impact not only their property values but the environment that exists in and around the proposed pits.”

It’s important to note that Sherlock takes a hard look at an amendment to the Montana Environmental Policy Act (MEPA) made by the 2003 Legislature that defines MEPA as “procedural” and says that following the procedures required under MEPA constitute an “adequate review of state action in order to ensure that environmental attributes are fully considered.”

According to Sherlock, the Legislature basically blew it through numerous amendments to the bill as it made its way through the House and Senate, which resulted in a law that is “subject to numerous interpretations” and leaves judges with “the ambiguity here in question.” That ambiguity, writes Sherlock, “presents this Court with a serious conundrum.”

Sherlock then gives DEQ a legal tongue-lashing, writing that the agency “did not present any of the constitutional analysis in its original brief which has now been presented by the landowner-Intervenors.” He continues the criticism, saying, “the DEQ is doggedly refusing to do anything to review the permits. The DEQ has not only violated the Legislature’s mandate…but it has not even bothered to start the environmental assessment process. Further, it has not even extended the time period involved, nor has it issued findings that would allow it to withhold the requested permits…”

Noting that DEQ “could amend the permit under certain conditions,” Sherlock writes: “As far as the Court knows, the DEQ has done nothing to investigate whether the permits should be amended. Instead, the DEQ merely states that it is understaffed and cannot get the work done.” He then reminds the agency that it could “avoid issuing a permit under MEPA by making a written finding as set forth in that statute,” but adds, “The DEQ has not even bothered to make such a finding.”

Sherlock goes on: “This is particularly alarming in light of the fact that Cameron Springs, both before and after the writ of mandate hearing before this Court, has offered to pay for an environmental analysis. It has suggested that the DEQ could select and supervise the expert conducting the environmental analysis and Cameron Springs would pay for the entire analysis. The DEQ has even refused this rather generous offer by Cameron Springs, which would have resolved many of the issues now before this Court.”

Sherlock says he has been presented with “an impossible situation where the Intervenors have shown their constitutional rights might well be violated” by his earlier ruling, but laments “DEQ’s dogged refusal to even begin the process to process [the applications] or to evaluate the Intervenors’ environmental rights.” In a scathing rebuke, Sherlock concludes, “One might suggest more is expected of an eponymous agency created to ensure environmental quality.”

In the end, Sherlock struck a balance of sorts by staying the enforcement of his initial order to DEQ to issue the permits, noting that the Supreme Court will ultimately decide the case. Thus, if the decision goes with the landowners, their right to a clean and healthful environment will be upheld because the gravel pits will not be built. But if it goes with the gravel pit operators, they will still have their permit to operate.

While the pendulum of justice appears to have swung somewhat toward protection of the environment, there can be little doubt that DEQ remains a focus of frustration for all parties involved, including Sherlock.

The good news is that, after a threat by the U.S. Environmental Protection Agency, Gov. Brian Schweitzer has ordered DEQ to immediately hire 12 new employees—something he could have done long ago. But those employees are slated for the water quality bureau, not the open cut mine bureau, which processes gravel pit applications.

Schweitzer needs to get this embarrassing agency in order now. If he can find the funding for a dozen new water quality employees, he can certainly find the wherewithal to fix the gravel pit mess. But moreover, Schweitzer needs to take Sherlock’s admonitions to heart regarding the management and legal failures of his DEQ. When the companies offer to pay for the environmental analysis and the agency still doesn’t act, there’s simply no excuse for allowing bureaucratic incompetence to continue putting our citizens and environment at risk.

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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