Gunderson’s open cut law leaves neighbors in the dust

I read the story on the proposed Fire open cut mine near Libby with great interest and frustration. Libby Representative Steve Gunderson’s HB 599 is now paving the way for Thompson Contracting Inc. to develop a 14.4-acre gravel pit near his constituents’ homes, regardless of their concerns about noise, dust or water quality impacts.

Honestly, the whole situation reminds me of Frankenstein: Dr. Frankenstein worked so hard to create something he could be proud of that he didn’t realize he created a monster. And just like in Frankenstein, if the cause of the suffering isn’t dealt with, it’s just going to get worse.

During the 2021 legislative session, people across Montana labored to defeat HB 599 due to the harmful impacts it would have on air quality, water rights, water quality, noise, dust and property rights.

The legislature turned a deaf ear to overwhelming public concern, even after hearing that a neighbor to a Gallatin County gravel pit had an appraiser decrease her property value by 50% after an open cut operation opened near her home.

The majority of legislators, including Rep. Gunderson, shrugged off these community concerns or claimed they were false. Proponents wrongly (and somewhat callously) said that only rural Montana would suffer the consequences of this misguided bill.

They were wrong. All Montanans near proposed open cut gravel operations will suffer from the consequences of changes in the law, regardless of whether they are in rural areas or in more populated parts of the state.

I’m sorry to see the people of Libby suffer the same fate as others across this state. Due to the passage of HB 599, the Montana Department of Environmental Quality has fewer tools available to protect Montanans.

The new law eliminates DEQ’s ability to protect people from the noise or visual blight of an open cut gravel mine, regardless of its size or location. DEQ can no longer mitigate fire danger or dangerous traffic impacts to communities. It can no longer limit operating hours, leaving neighbors to suffer through late night or early morning heavy equipment noise and truck traffic on their roads.

Rep. Gunderson’s bill also eliminated the open cut permitting program’s ability to consider surface or groundwater impacts and offsite sedimentation. When we took a closer look, we were told that another section of DEQ deals with water issues, but most of those water pollution discharge permits are called “general permits,” meaning the public has no opportunity to comment on water issues related to a specific open cut mining operation.

When all of these concerns were raised before the legislature, they were ignored. Worse, we were told these issues weren’t true and they only applied to “rural” areas. It’s clear that legislators failed to read the bill before pulling the lever to create a monster.

The problem is so much worse than Frankenstein, however. Instead of just one monster, there are about 1,869 open cut mining operations in this state, and many have an abysmal record. After the legislature passed this harmful legislation, MEIC started investigating whether open cut mines are complying with reclamation requirements.

After reviewing documents received in a public information request, we analyzed the DEQ’s data. What we found was disturbing.

The state seems more focused on issuing permits than with following up to make sure the operator is following the law, complying with its permit, and reclaiming the property. Among other things, a review of DEQ’s open cut mine files shows there are: 778 open cut mines with expired reclamation dates; 169 mines that were mining past their reclamation date from 2015 through 2020; and 185 operators with “permitted sites” that failed to even submit their annual reports by the deadline.

These numbers should give legislators, DEQ and the people of Libby serious pause. Legislators gutted the law last session. But what the legislature takes away, it can also restore.

The legislature can fix the problems that were caused by HB 599, and they should do so for the sake of the folks in and around Libby, as well as all Montanans impacted by these mines near their homes and businesses.

We would like to work with Rep. Gunderson to fix his law in order to protect public health, water quality, water quantity and property rights. We would like him to restore DEQ’s ability to say no to mines in the wrong location or to mitigate the harm a mine may cause to nearby landowners.

Let him have the courage to fight his own monster as Dr. Frankenstein never did.

Anne Hedges is the director of policy and legislative affairs for the Montana Environmental Information Center.