Tommy Davis' plans to crush rock on Chalk Mountain appear to be on the rocks.
The State Office of Administrative Hearings has issued a “proposal for decision” that concludes that Davis “could not meet his burden of proof” in his application for a new Air Quality Permit that would allow him to crush rock on the Parham property on the east side of Chalk Mountain. An administrative law judge, Craig R. Bennett, has recommended that the Texas Commission on Environmental Quality deny Davis' request.
A date for the commissioners' consideration of the proposal for decision has not been set yet.
The recommendation, if finalized, would be a victory for the Chalk Mountain Foundation initially formed to fight Davis' plan.
“If the commissioners honor the recommendation of the ALJ, and I think they will, celebration would be reasonable,” said David Frederick, the Austin attorney hired by the foundation to fight Davis' application. “There are always risks, but this is a victory.”
Indeed, the TCEQ, by its staffers' own admission at the first hearing in Glen Rose several years ago, told residents that it rarely denies a rock crushing permit.
Darrell Best, president of the Chalk Mountain Foundation, said that the people of Glen Rose who turned out for hearings and last year traveled to Austin to show their solidarity at a TCEQ meeting were instrumental in getting the commission's attention.
“If the commissioners follow what the ALJ recommended and we get the permit denied, we should all be very, very proud because we were told that our chance of success was about 1 percent,” Best said. “It was all stacked against us.
Had people not turned out in large numbers to protest, to point out that Chalk Mountain is habitat for endangered bird species and to show that they cared, the permit may have been granted long ago, Best said.
“But they did pay attention,” he added. “In the end, they did listen.”
Davis filed his application with the TCEQ on July 25, 2008. A preliminary hearing was held in Glen Rose in September 2010. Bennett ordered Davis to prefile testimony and exhibits by Jan. 7 of this year. Davis' filing, however, did not include any evidence, the State Office of Administrative Hearings found.
After Davis did not comply with the order, the Chalk Mountain Foundation filed a motion for summary disposition. Bennett subsequently issued an order on Jan. 21 requiring Davis to respond to the motion and explain how he planned to meet his burden of proof in the case. Davis was encouraged to consult with an attorney or a knowledgeable “expert” or consultant in the field of air quality permitting.
Davis filed a short, terse letter on Feb. 3 accusing TCEQ of being “more concerned with paperwork to obtain the permit than the actual quality of air that is emitted” and saying that the commission is “neither protecting the environment nor facilitating business in Texas.”
The letter went on to state that Davis considered himself an expert because he has operated mining sites in Valera, Desdemona, Galveston, Brownwood, Hearne and Glen Rose on the Corky Underwood lease across the U.S. Highway 67 from the Chalk Mountain permit site on the Parham property. Three TCEQ inspections took place on the Underwood lease with no citations issued, Davis said.
“Why does TCEQ question me now when this agency has never questioned my mining knowledge in the past?” Davis asked. “This is unfair, prejudiced politics.
“I might suggest that TCEQ consult an attorney, not necessarily one in their employment, to ensure that the 14th Amendment is understood and practiced by their agency.”
The 14th Amendment includes a clause that guarantees due process and has been interpreted by some legal experts as providing for a "right to contract."
Davis closed the letter with “Sick of TCEQ,” and signed his name.