It’s the pits: Lincoln County residents frustrated at new opencut mining law

The flurry and fury of the 2021 Montana Legislature saw plenty of bills and proposals that drew controversy – from a raft of laws aimed at abortion, to where citizens can carry firearms, to how the state treats LGBTQ children.

While those high-profile bills drew a lot of media and public attention, Montana residents are still waking up to the full effects of more than 500 bills that became laws. One of those bills that avoided a lot of scrutiny was passed in the final hours before “transmittal,” when bills must official clearly one of the state’s two lawmaking bodies in order to have a chance at passage.

House Bill 599 was pitched by Rep. Steve Gunderson, R-Libby, as one that would cut the red-tape of environmental laws and reviews to allow for “high and dry” open-cut gravel and mining operations. However, a closer reading of the law shows that it substantially changed how the state regulates sand and gravel pits, including those nearby residential areas.

Gunderson defends the changes and points the finger at the Montana Department of Environmental Quality, which he said may not be interpreting it correctly.

Meanwhile residents in his own district of Libby are outraged at the new law because of a proposed gravel operation there. They said the new law handcuffs the DEQ, changes the way property owners can object, and strikes down a number of different state restrictions that used to control hours of operation or even protect land against acid mine drainage, the toxic byproduct of water and certain exposed minerals at mine sites.

Gunderson said that Montana’s growing infrastructure needs, including more housing and more roads, means the need for more sand and gravel.

“The closer an opencut operation to an area building roads or foundations, the more it saves private citizens as well as citizens tax dollars used in construction,” Gunderson told the Daily Montanan. “Who wants to pay exorbitant prices for sand and gravel to be brought up to a job site hundreds of miles away? Today’s sky-high fuel prices are a rationale to put those costs into perspective.”

He also said property owners’ rights are a “two-way street,” pointing out that designating land as residential through the zoning process would have stopped the gravel operation, but in Libby’s case, the area is not zoned “residential.”

“There was no preemptive zoning in the area and the original property owner did not stipulate covenants or restrictions when the property was sold,” Gunderson said.

Gunderson, the bill’s sponsor, said the legislation was only meant to affect gravel pit operations in “high and dry” areas – those that were far away from other land owners, higher up in elevation, without water contact.

However, the bill also moved the water assessment and evaluations away from the mining division of Montana’s Department of Environmental Quality to a different division and to the Department of Natural Resources and Conservation. DEQ officials told the Daily Montanan that now the responsibility for assessing any groundwater impacts could happen in three different divisions, instead of one.

“This is not efficient for the public,” said Melissa Nootz, advocacy director for the Montana Environmental Information Center. “It’s absurd. They have made it impossible for the average Montanan to follow this.”

The requirements for a public meeting to be held about a proposed operation also changed. Instead of requiring the Department of Environmental Quality to hold a public meeting and take comment, now the law will only require a public meeting if there are 10 or more owner-occupied dwelling units within a half-mile of the boundary of the permit. And then, at least 51% of the owners must request the meeting. If not, no public meeting will be required.

The DEQ said it’s not aware of any other permitting process that requires a notice to only owner-occupied units. Nor are they aware of other cases where a public meeting isn’t mandatorily required for siting a mining operation.

Moreover, it is unclear how the public would find notice of a proposed open-cut operation without looking on the DEQ website, or watching for county zoning hearings. HB 599 still requires the potential mine operator to comply with county zoning laws.

The approval process could move quickly, too. For example, the law requires the DEQ to make a decision about whether an application is complete within five working days. If it is complete, then the department could approve the permit within 30 days without a public meeting.

“It’s all a rush. Rush, rush, rush,” said Anne Hedges, the policy and legislative director for the Montana Environmental Information Center.

She believes the process for permitting these operations was sped up so that the public wouldn’t have time to review the specifics. For example, she said that the new timeline, while cutting out some water protections, wouldn’t even allow for a hydrologist to study and make a report on a proposed site.

“By the time you know something is wrong, you must go to court, but the people are kind of out of luck because once you start mining, it’s hard to go back and say, ‘Well, you shouldn’t have,’” Hedges said.

Even then, Hedges pointed out, the cards are stacked against the average citizen.

In Montana, a mining company can challenge a state decision, for example one issued by the DEQ, in court; but if a citizen wants to sue over an open-cut mining dispute, they must file an “industrial bond” to commence a lawsuit to stop an operation.

“A lawsuit like this could cost you $100,000 and there’s still no guarantee you’re going to win. And who has a spare $100,000?” Hedges asked.

The new law also states that only property owners, not just residents, count toward the vote of a public meeting, which sets up the potential for landlords to not notify tenants about a proposed site. Even if residents object, the law states that only the property owner’s vote shall count.

The law also allows a mine operator to change the mine permit without public notice or a public meeting requirement so long as it does not increase the permitted acreage by more than 50%.

DEQ officials said that in reality, permitting takes longer than 15 to 30 days. They have five days to review an application, 30 to respond to its completeness, and time to send back and forth. That allows the public time to research the project. However, they admit the law made many changes, including the public input process.

“That’s something for the author of the bill,” said Sonja Nowakowski, air, energy and mining division administrator for the DEQ.

In addition to striking language about acid mine drainage, the law also struck language that would have restricted open burning at the sites or required a fire prevention plan in cases of “range and wildland fires.”

The new law also struck portions of existing law that required a reduction of visual and noise pollution, including berms, vegetation screens and cut language about “reasonable limits on hours of operation.”

HB 599 also prevents the DEQ from implementing any other procedures or monitoring that would “prevent significant physical harm to the affected land or adjacent land, structures, improvements or life forms.”

During testimony of the bill, the DEQ said it decided to neither oppose nor support the measure, instead just appearing as an informational witness.

“The developers saw an opportunity to get everything they wanted, and they got it,” Hedges said.

Gunderson said that the legislation was only intended for “rural high-and-dry” operations, not ones that impacted water or residential areas.

He’s already looking to the next session for modifications.

“Threading the needle on whose property rights trump whose property rights will be the most difficult,” Gunderson said. “I envision rewriting the permit classifications and implementing a new ‘residential area’ permit that will allow for more input for residential areas where an opencut operation impacts residential areas, but there still needs to be preemptive zoning protections put in place to adequately protect residential areas.”

He said that will spur on a conversation about transportation costs and the cost of infrastructure like roads, which rely on sand and gravel.

“There will need to be a conversation about a balance between the transportation costs of materials mined from an opencut operation and moving operations farther and farther from where they are needed,” Gunderson said. “This impacts not only consumers but will add costs to every citizen tax-funded project.”

History repeating itself … in Libby?

Few communities in Montana have been more affected by the toxic aftermath of mining than Libby and its history with the W.R. Grace Company. Asbestos continues to claim the lives of residents who did nothing more than live in the area.

However, residents have been roiled by a new proposal there – an open-cut gravel permit, and the changes made to state law by their own representative, Gunderson.

Mike Fantasia, who has lived outside of Libby for more than 30 years, is about 2 miles away from the proposed site. He worked for years as a land appraiser for the United States Forest Service before joining the entertainment business.

“For the past 32 years, I couldn’t wait to get back to Libby,” he said.

He’s helping to organize a group of residents that has been shocked and angered to learn about the changes to Montana’s law. After a successful citizens push against a planned Lewis and Clark County gravel pit, they had hoped to do the same thing, but were surprised at how the new legislation made that nearly impossible. They tried contacting the DEQ, thinking the state would be sympathetic, only to be told most of the oversight, even down to the water regulations, had been stripped from the department.

“Most are just overwhelmed by the process,” Fantasia said. “I have no problem with sand and gravel operations. I like roads and houses just as much as the next guy, but this is in the middle of 50 homes. There are people there who are second and third generation.”

He said that he was surprised when reading over the new law.

“Everybody’s pissed off, but you have to deal with the law. But then I see that this law was eviscerated,” Fantasia said. “Even before the law, nothing was going to stop this guy from getting a permit.”

However, Fantasia said even with a permit there could have been property owner concerns, monitoring and oversight that could have helped. Now, Fantasia said, nothing.

He said he contacted Gunderson to show him what was happening in his own district. And, he said that Gunderson seemed sympathetic, but insisted the legislation was just for “high and dry” operations. Fantasia, the DEQ and environmental advocates say the bill goes much farther than remote, hidden operations.

“Why go through the environmental process if you’re not going to take anything into consideration,” Fantasia said.

He said that with the requirements stripped and the oversight provisions gutted, that it’s forced the department into a single choice – if the area is zoned correctly, it must permit it – often without even a public hearing.

“This process is a sham and so is the public participation portion,” Fantasia said. “(Concerns) go in, but they never go anywhere.”

Fantasia worries about water in the increasingly dry West. Since no one is required to monitor it, no one will know how the gravel pit operations affect the wells the residents rely upon for water. Without a baseline, they won’t know if something is wrong, and they won’t be able to prove it.

“No one wants to live next to a property like a gravel pit,” Fantasia said.

He said residents offered to buy the property from the landowner, even add in a bit extra. Fantasia said that offer was rejected.

“Don’t let it happen is a better plan than having to step in and clean it up,” Fantasia said.