Montana's ability to regulate gravel pits is limited

A recent zoning decision that eliminates Flathead County's ability to regulate most new gravel pits leaves residents here at the mercy of an industry-friendly state permitting process, according to a local homeowners group.

The state regulators say they can address some of the group's concerns - but admit they're so busy overseeing almost 2,000 gravel pits statewide that they might not be able to enforce any conditions in a timely manner.

Sunrise Terrace Neighbors Inc. has appealed the zoning decision to the Flathead County Board of Adjustment. The board will hold a public hearing on this matter Thursday night at 7 p.m. in the second floor conference room of the Earl Bennett Building.

The neighbors are concerned about the potential impacts from a new gravel pit that JTL Group wants to build along the east bank of the Flathead River, immediately south of Montana 35. The 33-acre site is adjacent to two other gravel pits the company owns, one of which borders the west side of the Sunrise Terrace subdivision.

Flathead County Zoning Administrator Forrest Sanderson recently reversed a decade-long practice of requiring conditional use permits for new gravel pits. Because the JTL property is zoned suburban agricultural, Sanderson said state law prohibits the county from regulating the operation in any way.

Unless it's overturned, the ruling applies to JTL's new pit, as well as to any future or existing gravel pit located in a non-residential zoning district - including those that have already gone through the conditional use process.

"The fact that I'm not wild about this is irrelevant," Sanderson said. "The word of law is crystal clear: We can't regulate gravel pits, and we can't impose conditions on asphalt or concrete plants."

He said the solution to this problem is for the Montana Legislature to give counties the authority to regulate such operations - either that, or ask the Department of Environmental Quality to do a better job of mitigating impacts.

"There's no doubt it can legally impose these same conditions," Sanderson said.

However, Jerry Burke with DEQ's Open Cut Mining office, which handles mining permits for new gravel pits, said the state is limited in the type of issues it can address.

"We can address certain aspects of the operations, such as requiring noise buffering or dust suppression," Burke said. "We can look at the aesthetics of these operations and we can establish hours of operation. When it comes to big issues like adding an asphalt plant, though, there isn't much we can do if the application meets the requirements of the law."

It isn't clear if JTL wants to locate an asphalt or concrete plant on the new site. The company's initial permit application indicated that it planned to operate a crusher, asphalt plant, wash plant and other facilities, but Burke said the "asphalt plant" box wasn't checked on its latest application.

JTL officials declined to comment for this story.

Burke said he was somewhat surprised by Sanderson's zoning decision, given that other counties around Montana do impose conditions on gravel pits.

"Missoula County has done it. Yellowstone County has a designated 'gravel corridor.' Gallatin County is looking at it for a pit near the airport," he said. "There are certain conditions that counties could put on that would exceed the requirements of the Open Pit Mining Act. If it goes beyond the scope of our authority, it would be up to the county to impose and enforce those conditions."

Sunrise Terrace homeowner Todd Spangler said the county's conditional use process also requires a more thorough evaluation of neighborhood impacts than the state's permitting process.

For example, the state doesn't consider compatibility with adjoining land uses, or conformance with the existing growth policy or neighborhood plan, he said, whereas the conditional use process treats these as primary concerns.

"The state is essentially required to give operators a permit unless there's something very unusual in their application," Spangler said. Consequently, "the importance of having these operations go through local zoning review can't be stressed enough."

Spangler also suggested that the county does a better job of enforcing conditions and protecting local citizens, given how busy DEQ's staff is.

Local DEQ official Rod Samdahl "handles more than 120 gravel pits in Flathead County and more than 400 in Northwest Montana," Spangler said. "The agency has 3.5 people to cover almost 2,000 permits statewide. This overload increases their response time to complaints and severely limits their enforcement capabilities."

Several phone calls to Samdahl over the last week were not returned. His voice mail message indicated that he was traveling out of the area.

"Rod has a terrific area to cover, with lots of conflicts," said Burke, Samdahl's supervisor. "He covers everything west of the Divide - Flathead, Lake, Lincoln, Sanders, Mineral, Missoula, Ravalli and Granite counties. The workload is tremendous. There are four of us in this office, and about 1,900 permitted pits in Montana. It's impossible for us to cover them all the way we'd like to."

Even if the agency were in a position to respond quicker, Spangler and others fear the Open Cut Mining Act is so industry-friendly that the public's concerns will never be fully addressed.

For example, the Sunrise Terrace group says the old JTL pit next to the subdivision has been mined out. It was first permitted in 1972, and they feel it's high time for the area to be reclaimed.

However, DEQ officials say it's still being used for "mine-related activities." Consequently, there's no need to reclaim anything.

"The fact that this area hasn't been reclaimed, even though the permit was issued more than 30 years ago, doesn't mean the department is failing to enforce reclamation obligations," said DEQ Director Jan Sensibaugh in a May 12 letter. "The Open Cut Mining Act requires reclamation to be completed within one year after mining and related activities have ceased, [but] the majority of this area is still being used for mine-related activities, including the location of a haul road, gravel stockpiles, equipment storage and other facilities."

(JTL acquired the 1972 permit area from McElroy and Wilken Inc. two years ago. Burke said the company intends to start reclaiming the area soon, although no deadline has been established.)

Given DEQ's severe staffing shortfall and the limitations of the Open Cut Mining Act, Sunrise Terrace homeowners say their only hope is for the county to stay involved in the regulatory process.

"Conflicts between the gravel industry and local residents will only increase with time," homeowner Jerry Nix said. "The gravel corridor here is the valley's development corridor. So the county's involvement in the review process is vital. The cumulative impact of reasonable controls on gravel pits will make this a better place to live - and when you consider all the state statutes in combination, I think the county has a moral obligation to defend its zoning laws and protect the health, safety and welfare of its citizens."

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com