Pave Paradise and Put up a Parking Lot

This fall, I took the family to Yellowstone National Park. Breathtaking.

The most intriguing stop was at the Artist and Foundation mudpots. They spew and spit a thick brackish pudding, ranging in colors from a smokey gray to grizzly bear brown. Bubbling is periodically is interrupted by a belch, where the devilish stuff is hurled, coming perilously close to curious onlooker who venture too near.


As I hoisted my son onto my shoulders, it occurred to me that public policy issues also simmer along and then suddenly belch onto an unsuspecting public. And, like the odor at the pots in the Park, the contents are usually accompanied by a rotten egg smell.

One such issue that is about to belch is "gravel pit" siting and regulation.

Like the mudpots, the issue of where we mine gravel, aggregate and sand quietly seethed until late 2006.


Let's face it: Some parts of Montana have been “discovered.” More folks want to join us. They want houses, streets, sidewalks, school buildings, playgrounds and shopping centers. All of these require either concrete or asphalt, or both.

The primary ingredients, sand, gravel and aggregate, come from sites that range from huge excavations of several hundred acres to huge holes occupying several acres. Gravel is present in only a comparatively small number of places, most often on the alluvial river valley floors and glacial valleys.

The tough part is exactly where the pits are to be located, permitted and operated.

If you do not live adjacent to or on an access road leading to and from one of them, life in paradise is wonderful. If you are unfortunate enough to live in the wrong place, watch out. You’re about to be spattered.


Perfect Storm

Sand and gravel, like all of our resources, is finite. Rapid growth and the sharp escalation in demand require that more of the stuff be mined. When the gravel begins to play out, operators have three primary options: expand an existing “ gravel pit,” re-open and old one, or open a new one.


A couple of facts. More than half of Montana’s existing “gravel pits” are operated by a governmental entity, principally counties.

Political and judicial battles are being waged in four fast-growth counties: Lewis and Clark; Gallatin; Missoula and Flathead counties. It is here that the demand for materials and property rights intersect. Under permits that are supposed to be granted by the Department of Environmental Quality (DEQ), "gravel pits" are expanding and new ones are either opening or are on the drawing board.

The only thing that will slow the onslaught is an economic downturn of the type Bush and his greedy "haves" have brought us.

Homeowners wring their hands and shake their heads in disbelief that their life savings may be wiped out because of a de-valuation of property resulting from the presence of a “gravel pit.” There’s the dust, the heavy-duty truck traffic, the smell, the dust, the noise, and the eyesore, plus, the impact of the operation on the water table and the fine, invisible mica particulates on the health of children. County commissioners, with very little legal authority, are the ones caught in the middle, trying to balance property rights of those own adjacent or nearby with who own the land and want to develop the gravel deposits it holds.

Here is where it gets interesting.

The Open Cut Mining Law was enacted in 1971, when “gravel pits” were just that, a pit. In those simpler, slower times, a dump truck might appear several times a day and the driver would load it with a front-end loader and leave. The law today remains pretty much as written, now, some 37 years ago. Oh, wait, the legislature "streamlined" it, along with MEPA which was entirely gutted in 2001, a few times to meet the "concerns" of industry. Property-owners, remember, don't have lobbyists.

The industry and the technologies it uses to operate, of course, have not stood still. The law barely allows for real regulation of the actual on-the-ground operations.


In 2008, “gravel pits” are still sources of sand, gravel and aggregate all right. But, they have become major industrial operations in their own right. Crushers, batch plants, asphalt plants, along with belly dumps and dump trucks (making dozens of trips each day), dozers and loaders, are strategically located throughout each site and operated the maximum number of hours to offset the massive capital investments these machines and operations represent. Each movement is carefully choreographed. A veritable beehive of activity.


Historically, the business community, including the Montana Contractor’s Association (MCA), which most of our state's contractors belong to, have sided with efforts to protect property rights. Like Governor George Wallace once said, “A man’s home is his castle.”

Message: Don’t mess with me, my family and my property. Land use planning and zoning are bad for property-owners and an infringement on property rights.

In fact, during the late 80’s and early 90’s, the Legislature dealt with “takings,” where the right wing argued that property-owners should be reimbursed if their fortunes were adversely affected by action of a governmental entity. Now that industry is butting against real property-owners whose lives and well-being, both financially and physically, are being drastically altered, they have changed their tune. Never mind those quarrelsome property-owners.

The rights of industrial interests and businesses apparently trump those of homeowners and small-fry property-owners.

In his nasally, snotty commentary on KUFM in May 2008, Cary Hegreberg, the director of the MCA, called the impacts of these industrial operations an “inconvenience." In reference to a gravel pit that was denied a permit by the Missoula County Commissioners, he said, “In this era of enlightened environmentalism, the state agency charged with protecting air quality and conserving natural resources is forcing a company to unnecessarily to burn an extra 12,000 gallons of diesel fuel so as to not inconvenience a few people who sent letters and attended hearings.”


[It must noted that the letterhead inadvertently contains the wrong year in the date on the MCA letter with a verbatim transcript of his remarks. It says "2009," perhaps an indication of things to come.]

http://www.montax.org/index.php?pr=comment_cary_nov


Cary and his legions don’t want “govmint” to meddle and 'regalte.' No, instead, modifying a slogan from an insurance company (another industry whose reputation has been sullied to the point most of us would rather put our faith in the word of a used car salesman), he says the industry can self-regulate, through something called a “Good Neighbor Policy.” We promise to be good. No, really. Trust us.

Sounds good on paper. "Gosh, honey, do you think for once industry will truly be compassionate and caring? And, take care of us?"

[If there is any doubt about the political leanings of the MCA, with several exceptions, in 2008, it sent the maximum campaign contribution of $160.00 to only Republican candidates for the legislature. Check with the Commissioner of Political Practices for a complete listing.]


In fairness, there are a few good industry operators who really do care about how their operations affect property-owners. They work hard to make the best of a bad situation.

But, just as fairly, there are far more who do not.

They routinely violate the terms and conditions of their permits. And, if adjacent property-owners complain about noise and dust and hours of operations (you get the idea), the DEQ has no staff to investigate in a timely and effective manner.

The DEQ cannot actually deny an open cut permit. It may require the applicant to rework the application until each deficiency is corrected. [Consequently, in a sick kind of way, the state employees, who are supposed to regulate the industry, become consultants to the industry.]

The DEQ Director, Richard Opper, is a nice man and competent administrator. In 2005, he inherited an underfunded agency in complete disarray. The Stephens, Racicot and Martz bunch had underfunded and turned it (and its predecessor agencies) into a rubber stamp for all sorts of permits (air; water; landfill; gravel; you name it) from industry applicants. In fact, the permit applicants were referred to as "customers." The Open Cut program was no exception.

Opper dutifully attended to the other squeaking wheels of the agency. He might have made it to the Open Cut had it not been for a booming construction economy and an insatiable demand for sand, gravel and aggregate. Old sites were playing out, forcing industry to start expanding existing "gravel pits" or opening new ones in what were once "remote" locations. Where homeowners had plunked down big bucks to have their slice of paradise, not knowing what lay beneath: Sand. Gravel Aggregate.

Suddenly, the industrial age in all of its glory arrived. In backyards, across the road or just down the road a piece. And, the back-up alarms began clanging a half-hour before sunrise every day. The dust and noise followed. "Honey. I just listed our property . . ."

Like a wave, it hit, starting in late 2006. First in Missoula. Then, in the Flathead. Lewis and Clark. And, more recently, Gallatin County, which is now the apparent epicenter. Because of a huge backlog of permits in Gallatin County, industry went to court, arguing the DEQ was in violation of the 60-day timetable ("streamlined" by industry to make a meaningful environmental review nearly impossible) spelled out in state law. And, it won. Over and over again.

The facts and findings of each case varied, but the courts generally ordered the DEQ to grant permits that had been reviewed by DEQ and found to be incomplete. In others, the court ordered that even permits that were in the initial stages of review to be granted without regard to the potential impact on public health and safety and the environment.

In Missoula, a proposed "gravel pit" just west of town near the historic Council Groves was opposed and stopped by a group of citizens. The proposal was so bad that even some industry groups quietly assisted in its demise. In another case, using emergency zoning, the county commission stopped a proposed "gravel pit" slated to be opened just north of Lolo. It is during the fight over this "gravel pit" that Hegreberg penned and uttered the missive cited above.

At about this time, legislators weighed in. The Legislative Audit Committee ordered a performance audit. To no one's surprise, the audit was an indictment. Among other findings, the audit disclosed the Open Cut program was in such disarray that, while the auditors felt there might be a need for additional staff, there were insufficient management systems in place to measure the workload to make the case.

Sensing a political advantage, in 2007, the industry convinced Ralph Heinert, a Republican from Libby, to introduce a bill (HB 557) that would have completely emasculated what little power county commissioners over where "gravel pits" are excavated and operated. The bill eked through the House with almost every Republican vote along the way, only to meet a timely and fortunate death in the Senate.

So, where does that leave us two months before the '09 session?

Stay tuned.

Oh, and don't worry. Paradise is still being paved, just not as fast. But, not because of regulation. It's the George Bush economy.