Helena Sand & Gravel suing DEQ
By LARRY KLINE - Independent Record - 05/29/08
Helena Sand & Gravel has filed a lawsuit against the Montana Department of Environmental Quality, asking District Judge Jeffrey Sherlock to order the agency to issue a permit for the company’s proposed 111-acre gravel pit north of East Helena.
If the company gets its way, DEQ will be forced to issue a permit before completing its environmental assessment.
At issue are two competing state laws, which contain different timelines for the issuance of gravel pit permits. Attorneys will argue their cases in court on Monday at 2 p.m.
Company attorneys and its vice president said they had no other choice — Helena Sand & Gravel has waited for nearly a year for the agency to reach a decision, and proposed citizen-initiated zoning regulations, which may be approved late next week, could be written to outlaw the operation, further complicating the issue.
“We’re running out of time,” company Vice President Scott Olsen said in an interview Wednesday. “DEQ is not issuing our permit. We feel like we’re being forced into this position. Next week, (residents) could potentially zone us out.”
He said in a statement that the company had complied with all requests from DEQ since it submitted its application in June 2007, and noted Helena Sand & Gravel had paid to hire an outside engineering firm to conduct the environmental study because of understaffing at DEQ. Olsen said the lawsuit doesn’t detract from the company’s intent to safely and responsibly operate the pit. Rep. Jill Cohenour, D-East Helena, who lives near the proposed operation, said she was disappointed with the company, whose officials have said for months they would work with area residents.
She said a conflict among state laws shouldn’t result in a green light for a project that has residents concerned about environmental and health effects. Soils at the site, located between Lake Helena and Valley drives, are contaminated with lead, cadmium and other toxins, and residents worry contaminated dust could harm households and schoolchildren.
They also worry the pit will contaminate and deplete groundwater supplies, drive down property values and keep residents up with all-night operations.
“I’m all for industry, but not at the expense of our entire neighborhood,” Cohenour said. “The fact that we’re drawing a line in the sand that some timeline is more important than the safety of the community — that’s not right.”
A spokeswoman for DEQ couldn’t discuss details of the case, but said the department’s arguments will be similar to those in three cases involving gravel pits in Gallatin County.
DEQ lost those cases and was forced to issue the permits. The department is appealing the decisions to the state Supreme Court, spokeswoman Lisa Peterson said.
“I don’t think anyone will be surprised if the decision goes down similar to the issue in Gallatin County,” she added.
Helena Sand & Gravel’s lawsuit hinges on two competing state laws, the Montana Environmental Policy Act and the state’s Opencut Mining Act. The former requires DEQ to conduct an environmental assessment of the proposed pit within 90 days of receiving a complete application. The latter requires the agency to issue a permit within 60 days of receiving that application.
DEQ officials, the company’s lawyers claim, have failed to meet either timeline. They also cited a state Supreme Court decision, which they argue means the Opencut Act takes precedence over the Environmental Policy Act.
A draft environmental assessment for the gravel pit was completed late last year. Residents and county Water Quality Protection District officials claim the study is erroneous and incomplete. DEQ officials initially said they would release a new version of the assessment last month but have since delayed the project.
The company’s attorneys, in a court document, said the draft assessment “addresses and resolves all environmental issues at this site.” Olsen declined to comment on the statement, noting he didn’t have the document with him during the telephone interview.
In his written statement, Olsen said the company has agreed to numerous conditions requested by residents and will continue to work to be “good neighbors to the community.”
Cohenour will hold a conference tonight at 6 p.m. at the Eastgate School for the press and the public to discuss issues surrounding the gravel pit.
Reporter Larry Kline: 447-4075 or larry.kline@helenair.com
If the company gets its way, DEQ will be forced to issue a permit before completing its environmental assessment.
At issue are two competing state laws, which contain different timelines for the issuance of gravel pit permits. Attorneys will argue their cases in court on Monday at 2 p.m.
Company attorneys and its vice president said they had no other choice — Helena Sand & Gravel has waited for nearly a year for the agency to reach a decision, and proposed citizen-initiated zoning regulations, which may be approved late next week, could be written to outlaw the operation, further complicating the issue.
“We’re running out of time,” company Vice President Scott Olsen said in an interview Wednesday. “DEQ is not issuing our permit. We feel like we’re being forced into this position. Next week, (residents) could potentially zone us out.”
He said in a statement that the company had complied with all requests from DEQ since it submitted its application in June 2007, and noted Helena Sand & Gravel had paid to hire an outside engineering firm to conduct the environmental study because of understaffing at DEQ. Olsen said the lawsuit doesn’t detract from the company’s intent to safely and responsibly operate the pit. Rep. Jill Cohenour, D-East Helena, who lives near the proposed operation, said she was disappointed with the company, whose officials have said for months they would work with area residents.
She said a conflict among state laws shouldn’t result in a green light for a project that has residents concerned about environmental and health effects. Soils at the site, located between Lake Helena and Valley drives, are contaminated with lead, cadmium and other toxins, and residents worry contaminated dust could harm households and schoolchildren.
They also worry the pit will contaminate and deplete groundwater supplies, drive down property values and keep residents up with all-night operations.
“I’m all for industry, but not at the expense of our entire neighborhood,” Cohenour said. “The fact that we’re drawing a line in the sand that some timeline is more important than the safety of the community — that’s not right.”
A spokeswoman for DEQ couldn’t discuss details of the case, but said the department’s arguments will be similar to those in three cases involving gravel pits in Gallatin County.
DEQ lost those cases and was forced to issue the permits. The department is appealing the decisions to the state Supreme Court, spokeswoman Lisa Peterson said.
“I don’t think anyone will be surprised if the decision goes down similar to the issue in Gallatin County,” she added.
Helena Sand & Gravel’s lawsuit hinges on two competing state laws, the Montana Environmental Policy Act and the state’s Opencut Mining Act. The former requires DEQ to conduct an environmental assessment of the proposed pit within 90 days of receiving a complete application. The latter requires the agency to issue a permit within 60 days of receiving that application.
DEQ officials, the company’s lawyers claim, have failed to meet either timeline. They also cited a state Supreme Court decision, which they argue means the Opencut Act takes precedence over the Environmental Policy Act.
A draft environmental assessment for the gravel pit was completed late last year. Residents and county Water Quality Protection District officials claim the study is erroneous and incomplete. DEQ officials initially said they would release a new version of the assessment last month but have since delayed the project.
The company’s attorneys, in a court document, said the draft assessment “addresses and resolves all environmental issues at this site.” Olsen declined to comment on the statement, noting he didn’t have the document with him during the telephone interview.
In his written statement, Olsen said the company has agreed to numerous conditions requested by residents and will continue to work to be “good neighbors to the community.”
Cohenour will hold a conference tonight at 6 p.m. at the Eastgate School for the press and the public to discuss issues surrounding the gravel pit.
Reporter Larry Kline: 447-4075 or larry.kline@helenair.com
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Reader Comments:
helenative wrote on Jun 2, 2008 2:06 PM:
" I think there are more than a few homes within a 3 mile distance of the current pit. Have I just missed all of the reports of crystalline silica poisoning over the past few years?
Helena Sand has been a good neighbor for a long time and I hope they win this one. "
Helena Sand has been a good neighbor for a long time and I hope they win this one. "
mykids wrote on Jun 1, 2008 12:10 AM:
" As a resident living near the proposed site, I am shocked that most people are willing to comment on an issue they do not fully understand. Everyone is shouting that we have the mind set of the "Not in my back yard" syndrome. Although for some, that may be, but for most of us who have taken the time to read the Environmental Assessment, and research Gravel pits, we TRULY understand that is not the case here.
One of the most dangerous things about a gravel pit is the crystalline silica dust that is created when mining. OSHA says that there is absolutely no SAFE way to mine gravel in a residential area. Silica dust has the same properties and effects as asbestos. Other facts on the OSHA website state that silica dust can travel up to three miles with a mild breeze and it can take up to ten years to fully settle. (Don't believe me? Google it!)
This mine will be surrounded by about 350 homes and is within a one mile radius of three schools.
THIS IS NOT SAFE!!!!!
No one in this community objects to economic growth or fixing of roads. What we do object to is putting the lives and health of our families at risk in order to obtain these things. No one person's life is worth that.
Helena Sand and Gravel has many other options and permits for areas around this town that are safer for our ENTIRE town to be mined. They want this area because there is more potential for profit. Bottom line.
The simple facts are this: Helena Sand and Gravel did as little as possible and failed to turn in a COMPLETE Environmental Assessment to MDEQ. They have NOT negotiated realistically with the residents. They have done nothing more than show up to the meetings and state what they are going to do whether we like it or not.
The State of Montana Constitution states that all residents have the right to a clean and healthful environment. Helena Sand and Gravel is trying to take that away.
I suggest that those of you who are out there and are speaking out about what we are saying, look at this from our side for once. We are trying to keep our families safe. We are trying to make sure the air we breathe and the water we drink is safe.
It isn't about "Not in my back yard!" A gravel pit isn't safe for ANYONE'S back yard! "
One of the most dangerous things about a gravel pit is the crystalline silica dust that is created when mining. OSHA says that there is absolutely no SAFE way to mine gravel in a residential area. Silica dust has the same properties and effects as asbestos. Other facts on the OSHA website state that silica dust can travel up to three miles with a mild breeze and it can take up to ten years to fully settle. (Don't believe me? Google it!)
This mine will be surrounded by about 350 homes and is within a one mile radius of three schools.
THIS IS NOT SAFE!!!!!
No one in this community objects to economic growth or fixing of roads. What we do object to is putting the lives and health of our families at risk in order to obtain these things. No one person's life is worth that.
Helena Sand and Gravel has many other options and permits for areas around this town that are safer for our ENTIRE town to be mined. They want this area because there is more potential for profit. Bottom line.
The simple facts are this: Helena Sand and Gravel did as little as possible and failed to turn in a COMPLETE Environmental Assessment to MDEQ. They have NOT negotiated realistically with the residents. They have done nothing more than show up to the meetings and state what they are going to do whether we like it or not.
The State of Montana Constitution states that all residents have the right to a clean and healthful environment. Helena Sand and Gravel is trying to take that away.
I suggest that those of you who are out there and are speaking out about what we are saying, look at this from our side for once. We are trying to keep our families safe. We are trying to make sure the air we breathe and the water we drink is safe.
It isn't about "Not in my back yard!" A gravel pit isn't safe for ANYONE'S back yard! "
ematt wrote on May 29, 2008 11:55 AM:
" If you build your house on a "cheap" lot out in the valley, where you know there is no zoning, you have to be prepared that your neighbor by right can set up a tire burning factory. The irony is that many of these same folks still don't want "the govenment tellin' me what I can do wit my propety." "
SW Montana wrote on May 29, 2008 9:56 AM:
" Ok. Now, I am just really, really embarrassed to be a Montanan. These gravel pit developers and operators own these properties. IT IS WITHIN THEIR OWN PRIVATE PROPERTY RIGHTS TO PROFITABLY DEVELOP THEIR OWN LAND!!!
Maybe all of you who own houses near these properties should have done your own research on the zoning surrounding your houses. Two words: Buyer Beware. "
Maybe all of you who own houses near these properties should have done your own research on the zoning surrounding your houses. Two words: Buyer Beware. "
purple wrote on May 29, 2008 8:52 AM:
" Here's an idea, just shut down the entire operation. Helena Sand and Gravel will go out of business and with it hundreds of HIGH PAYING jobs, which will have a ripple impact on the local economy.
How many know that Helena Sand and Gravel picks up the ENTIRE tab for health insurance of it's employees? Name other businesses in Helena which do the same thing! Not even state government does that.
When Helena Sand and Gravel shuts down, where will folks get their sand, gravel, concrete, asphalt, etc.? How much will those products then cost if they have to be trucked in?
Yep, NOT IN MY BACKYARD is working here.
The state rep from East Helena stated that Helena Sand and Gravel claimed they were willing to work with the local community, HOWEVER, can she say the same thing about East Helena? Seems to me the folks in East Helena ONLY wanted it THEIR way or NO way.
Soooo, how much more will that interchange on Custer Ave cost if the material to build it is no longer locally available. How much more will the Helena street department pay for asphalt for street repairs? "
How many know that Helena Sand and Gravel picks up the ENTIRE tab for health insurance of it's employees? Name other businesses in Helena which do the same thing! Not even state government does that.
When Helena Sand and Gravel shuts down, where will folks get their sand, gravel, concrete, asphalt, etc.? How much will those products then cost if they have to be trucked in?
Yep, NOT IN MY BACKYARD is working here.
The state rep from East Helena stated that Helena Sand and Gravel claimed they were willing to work with the local community, HOWEVER, can she say the same thing about East Helena? Seems to me the folks in East Helena ONLY wanted it THEIR way or NO way.
Soooo, how much more will that interchange on Custer Ave cost if the material to build it is no longer locally available. How much more will the Helena street department pay for asphalt for street repairs? "
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purple wrote on Jun 4, 2008 8:51 PM:
Every precaution is used to keep dust down throughout the time the crusher is operating.
Its now a mute point anyway, because elsewhere on the IR on-line edition is a story about how DEQ has issued a permit to Helena Sand and Gravel to begin operation on this new pit. There are limits to their hours of operation. "