Wednesday, February 11, 2009

Gravel Week in the House of Representatives Natural Resources committee

Gravel pits and gravel mining have been contentious issues for a while, but in the past few years, the conflicts between these heavy industrial uses and other neighboring uses have come to a head.

This week in the Montana House of Representatives committee is what I've dubbed "Gravel Week". The committee is hearing a variety of bills that propose improvements to gravel permitting, environmental monitoring, state agency response, and county authority to mitigate impacts of pits.

I'm bringing five of the eight bills. It's a busy week.

For some background, here's the opening statement I made to the committee Monday. The remainder of the bills will be heard this afternoon.

You can listen to audio recordings of the committee proceedings here: http://leg.mt.gov/css/Audio/audio_broadcast.asp


My opening:

Today and Wednesday, our House Natural Resources committee will consider several bills about gravel pits, also known as opencut mines. With the permission of Chairman Milburn and with the indulgence of the committee, before we begin the hearings on individual bills, I’d like to give some background of the Opencut Mine Permitting Process, recent gravel pit proposals, court decisions, and county land use plans and zoning actions to bring everyone up to speed on how we got here, what the situation is, and the proposals we have before us.

The Opencut Mining Program is in the Department of Environmental Quality, the DEQ, and issues permits for opencut mines that produce gravel, sand, bentonite, clay, peat, soil and other materials, but the vast majority is gravel. 92 percent of opencut mining is gravel pits and their related operations, like gravel crushing, gravel washing, concrete mixing, and asphalt batch plants.

Over the last several legislative sessions, a number of bills have been proposed for the Opencut Mining Program, for local governments, and for gravel operations. Few of those bills passed, and over the years, what was once a manageable process at our state agency has become absolutely overwhelmed.

The process is now broken. It doesn’t have the predictability or timeliness for applicants who want to open or continue gravel pits and conduct business, make bids for projects, do commercial operations, or mitigate their operations. The process doesn’t work for residents, for public participation to address livability issues. The process doesn’t work for county governments, who know the need for certain conditions to be met so that people and gravel pits can exist together, and so that those local governments can manage infrastructure like roads as well as land use planning to help minimize conflict. And the process is broken for our state agency, the Opencut Mining Program, which is underfunded, understaffed, and unable to process a backlog of applications or keep up with new applications, inspections, or expansions. Over the years, gravel pit applications have gotten more complicated, with bigger operations, longer terms of operation, and more consideration for impacts to water and air quality and to growing communities. The Opencut Mining Program is operating with four people, essentially the same number of people in that division for more than 20 years, who are responsible for more than 2000 gravel pits in Montana, as demand for our gravel resources, growth in the state, and the scale and complexity of gravel operations increases.

The most contentious proposals have happened in our western counties, where we’ve seen wonderful growth over the past decade. That’s where conflicts between heavy industrial uses and residential or agricultural uses have brought this problem out. It’s ironic that the thousands of new homes, miles of new streets, new businesses and schools and offices, all use gravel or concrete or asphalt. We could not have grown into bigger communities without the gravel resources to build these things. But as our communities grew and people came to make their homes and livelihoods in Montana and we increased the need for gravel, people live closer to gravel pits, the industry wants to locate close to projects to minimize costs, and we have conflicts. I’m proud that we can provide our gravel resource for ourselves; we just need to do it so that one use doesn’t damage its neighbors’ uses.

The reason that we, the Legislature, must remedy this problem is because no one else has, or can. They’ve tried. Local governments that would condition operations don’t have the authority to do so unless we provide that in statute. The department needs clarity on formalizing its permitting process and environmental review as required in our state constitution. Gravel pit operators need predictability about how and when their applications are complete, what conditions will apply to their operations, and when they can start digging gravel. And the citizens of Montana who will live and work alongside gravel operations have their constitutional right to participate, but the process now doesn’t provide even for public notice or public hearings.

The courts have tried to fix some of this, but judges have overturned their own decisions about granting permits. That happened just this past summer. Two district court judges in Helena issued judgments for the DEQ to issue permits because a 60-day timeframe had passed, even though required environmental review for gravel operations hadn’t been completed. Not long afterward, one of those judges reconsidered and overturned his own decisions. Some cases have gone from county boards to district court to the Montana Supreme Court, only to find in part for the plaintiff, in part for the defendant, and to be returned to the lower court again.

The process is broken for everybody. We need to clarify the process. In appeals to the governor this past summer, a resident from Gallatin Gateway, where three new pits were proposed, said, “it is imperative that our legislature resolve the legal loopholes that force the DEQ to issue permits without analysis or public input.” In a decision by district court judge Dorothy McCarter May 1, 2008, the judge said, “the legislature has not authorized the department to withhold permits pending environmental assessments…Legislative action may be required to extend the time limits currently imposed upon the department to enable it to conduct its environmental analysis...” And at the annual convention of the Montana Association of Counties in Hamilton this past spring, “Department of Environmental [Quality] officials sa[id] that if Montana county governments want a new way for the state to license gravel pits, then they’ll have to ask the legislature.”

Last but not least, our own Legislative Audit Division completed a review of the DEQ’s Opencut Mining Permit Process and made many, many recommendations for improvement, including, “We recommend the department seek legislation clarifying…public notification of opencut mine applications.”

It’s up to us to help this situation. There are a number of remedies, and committee members, I ask that you consider the bills to fix the process for everyone.

This is a statewide problem, no matter which district you represent, because gravel pits anywhere must go through this department and this same application process. The western counties that have experienced amazing growth over the past decade have seen the most conflict, and that’s where a lot of the proposals for a better process have come from. County governments, citizen groups, and gravel pit owners and operators are working out processes. There are at least two task forces working on this issue right now. We can adopt those solutions or authorize them in our state laws.

Gravel pits can be controversial, but we can shape this into a much better process. As we get into the specifics of these bills, please do consider them carefully. If we don’t pass legislation to help this situation, this broken process will continue through the courts, through emergency zoning in counties, through neighbor conflict, through delayed applications for gravel pits, but we can help this.
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Everyone, this is just the kind of situation I'm proud to try to remedy. I hope I can effect some change for the better. All my best from the Capitol. - - JP

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