State Open Cut Mining Redux, Part 215: Audit Exposes Deficiencies

by jhwygirl

Prompted by a Great Falls Tribune article titled Audit digs up problems with gravel pit program, written, incidentally, by former Missoula Independent write and newspaper reporter extraordinaire John S. Adams, I went searching for the legislative audit referred to in the article.

Boy, if you were pissed off about DPHSS employees playing solitaire on their computers, get this: Even though DEQ has a backlog of open cut mining (gravel pit) permits and courts are issuing these things within 30 days, irregardless of review, DEQ employees are drafting the applications for the mine operators.


More? How about this: A key tax, which is supposed to be collected by the Department of Revenue, isn’t being collected, mainly due to the lack of notification of the issuance of these open cut mining/gravel pit permits by DEQ.

Now, 92% of the funding for the open cut mining/gravel permit program come from the Resource Indemnity and Groundwater Assessment Tax (RIGWAT), yet 94% (94%?!) of the operators were not paying the tax.

There’s plenty more, but let me just point out one more tidbit: While these permits can have enormous impact on a community, and more specifically, a neighborhood and surrounding private property values, health and air quality, and rights, there is no legally explicit requirement for public notification. MEPA requirements result in some notification during scoping, but selection as to whom is notified is informal, and varies depending on a variety of factors. Further, considering the permits-must-be-issued-in-60-days rule that is currently the rage in state district courts, lack of laws and process for public notification may be effectively neutralized.

Ahh, the sad state of DEQ and the Montana Environmental Protection Act.

Someone needs get our legislators an attorney or two, and tell them that they actually have to listen to them. Whoever put the word “shall” into the 60-day permitting requirement should be strung up by his toes and dipped in Lake McDonald. In mid-January.

A summary of the legislative audit is here. The full report, here.

In another aside, Helena Sand & Gravel, which was issued a gravel permit under court order due to the passing of the 60-day deadline, promptly violated its permit by utilizing a residential road for access. Neighbors complained, Sand & Gravel was told by DEQ to halt, and yet they continued to roll through the neighborhood. DEQ Director Opper is “frustrated” and says that the firm may be penalized for violating its permit.

How about shall be penalized, Director Opper? What’s good for the goose should be good for the gander.

  1. Carol

    Nice that other folks are finally realizing the preposterous things that folks in the vicinity of gravel operations have been dealing with. I was apoplectic when I first saw that DEQ staff wrote the initial applications and made the maps for pits in our neighborhood.

    Here are some more entertaining ones for you:

    (1) The pit across the road from me illegally discharged to surface water for 3 to 6 years (we can’t tell how long, because they don’t keep the operations log that ARM 17.24.218(d)requires). This illegal discharge was to a ditch that enters Fish Creek, one of the more important trout-spawning tributaries of the Gallatin River.

    (2) When the pit got their dragline bucket stuck 75 feet below the surface, and their permit was for excavation to 35-feet, DEQ did not consider this to be a violation — just told them to amend their plan of operations to state that they were excavating to 75 feet.

    (3) This pit within 1/2 mile of the Gallatin River has excavated deeply into the alluvial gravel aquifer, and yet there has never been a hydrogeological investigation of the impact of the creation of that pit to the river (which is, by the way, in a basin closed to any additional surface water rights).

    (4) and if you want to talk about trucks — until public uproar last summer, approximately 200 gravel trucks per day leaving this pit proceeded along a road wtihin 50 feet of the Gallatin Gateway K-8 school!

    We are sick and tired of the cavalier attitude that this industry takes toward the laws of the state and neighbors property rights. Hopefully the audit report will lead to chages at DEQ that make them a REGULATING agency concerning Evironmental Quality issues, rather than a mine permitting agency.

    (did you notice the audit report points out that DEQ Opencut Mining Division considers the mining industry to be the client that they serve?)

  2. Carol – thanks so much for your input. Gallatin County is apparently facing an onslaught of these things, because of the huge amount of growth.

    Government seems to forget that it is “of the people, by the people, and for the people” not “of business, by business and for business” – – rights and laws seem so heavily weighted towards business anymore, I wonder why (or if) we aren’t just outsourcing the whole darn capitol to business lobbyists.

  3. Ochenski

    What about accountability?

    Just wondering, folks, why the silence from the Governor’s Office is so deafening on this issue — and the latest court-ordered water right for a Big Sky subdivision from DNRC for the same reasons — they missed a statutory deadline.

    You would think Schweitzer, who has an opinion on anything and everything and plenty of hot air to push them out there, would maybe notice that while he is so busy “running the state” (as he said this week) that it was not running so very well. The other audit issued this week was on the state’s mini-Superfund program, which is also plagued with problems and somehow just can’t seem to get the job done. What, no one is accountable? No department heads roll? What’s the deal? Had all this occurred under Judy Martz, the progressives and enviros would have been on her daily. Instead, it’s happening under our “New Day” Democrat-Repub Gov and is a shameful reflection on just how poorly the administration is actually “running the state.”

    Sooner or later, the lefties will have to recognize that there is no credibility in ignoring reality — no matter which political party is responsible — and start holding our own accountable.

    Which brings to mind the shameful votes by the Demo Congress this week on spying and funding the war. Now, who we gonna blame — the Bushies? Give me a break. The Dems passed those bills because they don’t want those issues before them in an election year — and that, too, is shameful. People will die, billions will be wasted, and our own citizens will be illegally spied on by their own government just so the spineless Dems don’t have to address the real issues facing the country while they’re campaigning.

  4. Thanks George – and you are completely right.

    I did plan on doing the water story too – it’s just that I got so many out yesterday, something had to go in a ‘hold’. I will get to it tonight, though – because, as you point out – they all fit together.

    Who the hell allows laws to be written that REQUIRE permits to be issued? Even when denied? Why even have a permitting process if they are required to be permitted?


    And why are these judges looking only at MCA and ignoring constitutional obligations under MEPA? How does that happen?

    Isn’t this something our AG should be looking at, too?

    Honestly. The whole gravel pit thing, in listening to Opper testify at one of the last committee meetings, is apparently OK to let sit until AFTER the ’09 legislative session. Frankly, he even says that in his response – the last chapter of the full audit report. That they’ll hold off on looking at most of issues until after the next legislative session.

  5. Ochenski

    jwhygirl – it’s unbelievable. Both Opper’s poor excuses and worse judgment, and the Governor’s apparent lack of interest (coal must still be more important — or maybe parading on the national stage).

    Who wrote those laws, by the way, was the legislature during the 16 years of Republican domination of the state. The real question to ask is why they haven’t been changed in the 4 years of the Schweitzer administration. And if they don’t have the votes to change them (their endless excuse), then manage the department correctly so they REJECT incomplete applications instead of having state agency personnel that should be working on the environmental impacts associated with the permits filling them out for the applicants — thus adding to their overload, their inability to meet time frames, and their failure to protect both the present and future for Montanans. As you said, they say their “clients” are the permit seekers – but shouldn’t they be working to uphold the constitution and protect Montanans first? Of course they should.

  6. goof houlihan

    I’m not buyin the partisan stuff. But…

    My explanation, the lawyers have done took over the DEQ.

    Just my personal $.02 and probably worth less than that. I’d say more, but none of it fits the four way test.

  7. I think George is fairly pointing out that this is happening under Schweitzer’s watch – and while the root cause of these events began festering long ago – it doesn’t appear that he (or, as I point out, the DEQ) is doing anything to attempt to mitigate the circus.

    Now, you are certainly correct -the lawyers have taken over. The lobbyists for the mining and building industry laid the groundwork out long ago, and now the lawyers are stepping in to do their damage.

    I got nothing against business – although I can hear the laughs – and believe what you will – but I believe that laws have steadily tilted in favor of business at the expense of individuals for too long. That is not fair. Everyone has rights, and all rights should be equal.

    This stuff is mentally exhausting. It’s no wonder it just seems to slog along, with nary an outcry. The recent court decision on the community water permit – right there in your backyard, goof – is just another example of more lawyers walking in to do their damage.

    I ask again – how can these decisions be made based on how the law (MCA) is written, ignoring the supreme document to it, the Montana Constitution?

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