“Zoning is the tool the state has provided for these issues,” said John Tubbs, Water Resource Division administrator.
And the gravel pit site isn't zoned.
The gravel pit is part of an industrial operation proposed by JTL Group Inc. alongside U.S. Highway 93 about eight miles south of Missoula, on land owned by Ken Allen.
The deadline to comment on the proposal is now Dec. 2.
While agreeing to extend the comment period a second time, the state chose not to hold a public meeting in Lolo as originally requested by the commissioners, said Lisa Peterson, DEQ spokeswoman.
Missoula County indicated it was satisfied that two DEQ representatives attended last Tuesday's packed Lolo Community Council meeting, she said.
But no matter how many people comment in the next three weeks, DEQ officials say they cannot deny JTL's application for an open cut gravel and mining permit based on public sentiment alone.
Neither can state transportation and water resource officials nor the Missoula County Health Department, which issues air quality permits. All of these agencies may, at some point, influence the project, but none has the authority to deny it outright.
Whether it's too late for zoning - the means indicated by Tubbs - depends upon whom you ask.
Fights over gravel pits are happening all across the state.
Last week, residents in Lewis and Clark County voiced concern about a 111-acre gravel pit proposed by Helena Sand and Gravel near Canyon Ferry Road.
And Gallatin County commissioners recently denied a request by angry residents who wanted to enact emergency zoning to keep several gravel pits from setting up shop in the Amsterdam-Churchill and Gallatin Gateway areas.
In each case, residents said they didn't know about the gravel pit until the last minute.
State law requires DEQ to pay for legal notices in the local newspaper. But critics say that's not enough.
“I have to admit that I don't regularly read the legals,” said state Sen. Greg Lind, D-Missoula.
Both Lind and Rep. Bill Nooney, R-Missoula, believe the public notice requirements in state law need to be revisited.
“It makes any existing problem worse when you find out at the last minute,” said Nooney, who is looking into the matter.
More research is needed, because every time a law is changed, it places unintended consequences on someone else. “You have to look at the big picture, but something like that won't happen until (the 2009 Legislature).”
Even if residents had known early on about gravel pit proposals, it's extremely difficult to stop projects planned for land that's not zoned.
“If a company comes in Š and they dot their i's and cross their t's we are obliged to grant the permit,” said Rod Samdahl, a reclamation specialist with DEQ.
In the 16 years Ben Schmidt has worked as an environmental health specialist at the Missoula City-County Health Department, he can't remember ever denying an air quality permit if the company met all requirements.
It's not that public comment is immaterial. It's very much the opposite, in fact.
DEQ's Opencut Mining Section, which reviews gravel pit proposals for the entire state, consists of three reclamation specialists and a section supervisor.
Samdahl has 171 applications for an open cut gravel and mining permit awaiting his attention and some are a year old, he said.
Considering the heavy caseload, Samdahl depends heavily on public comment. All concerns are researched, he said.
Then those concerns are incorporated into the permit - such as restricting the hours of operation - but don't lead to outright denial of the permit.
“To my knowledge, we've never said no to a development,” said Dwane Kailey, Missoula administrator for the state transportation department. “There are multiple options they can use to mitigate the impacts to preserve the level of service and safety.”
Normally, it boils down to whether the developer can afford the improvements, which are often expensive.
“We have no mechanism to deny a gravel pit,” Kailey said.
This summer, the state awarded JTL a contract for the $3.6 million repaving of U.S. Highway 93 between Lolo and Missoula.
So local officials suspect most of the gravel mined at the proposed gravel pit outside Lolo will go toward improving that heavily used stretch of highway.
The main access to Allen's property is by a farm road.
JTL has not yet asked MDT for permission to access the highway using that route. However, it's possible that if the gravel operation is strictly for the repaving project, Kailey said, a temporary traffic solution could include flaggers and traffic control.
MDT spokeswoman Charity Watt Levis acknowledged the conflict of interest between granting JTL highway access and completion of the state's road project, but said the agency's first priority is safety.
“We'd look at it independently of the project,” she said.
If JTL applies for a groundwater permit with the state Department of Natural Resources and Conservation, it's possible residents who own nearby water rights could protest if they could prove it would adversely affect them, Tubbs said.
Normally, for gravel pit operations alone, most contractors don't need a water right, he added.
At full operation, the proposed project calls for a gravel pit, asphalt plant, pug mill, concrete plant, wash plant, and crushing and screening facilities.
Myra Shults, a neighbor upset that she soon may live next to an industrial operation, has asked the county commissioners to emergency-zone the neighborhoods that sandwich Allen's property - and the site of the proposed gravel operation.
As a land-use attorney, Shults knows that's the most effective way to stop the gravel pit. She presented two petitions last week to Missoula County: one for interim zoning, the other for permanent zoning.
Deputy County Attorney Mike Sehestedt is looking into whether zoning only a small part of Lolo could be challenged as “spot zoning.”
“It's a stopgap measure to prevent an operation that was never anticipated,” Shults said. “That's the only thing you can do in an emergency. You can always rezone later.”
DEQ will draft a final environmental assessment sometime after the first of the year.
Reporter Chelsi Moy can be reached at 523-5260 or at Chelsi.Moy@Missoulian.com.
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