Residents living near Chalk Mountain took some verbal jabs from two rock crushers at last week's public hearing to consider expanding the list of people who oppose rock crushing operations on the scenic, historic plateau.
The State Office of Administrative Hearings held the preliminary hearing Thursday regarding Slick Machines' air permit application to begin crushing rock on Chalk Mountain. The Texas Commission on Environmental Quality ordered the matter reviewed by the SOAH and a response back within a year from the commissioners meeting that was held at the end of June in Austin. The air permit application was filed by Tommy Davis, a Brownwood businessman.
Anyone who previously was denied status as an "affected party" was allowed to come forward at the hearing and explain to the administrative law judge, Craig Bennett, why he or she would like to be included in the case. Generally, the TCEQ has considered anyone living within a mile of a rock-crushing operation to be an "affected party."
Four people opposing the application asked the judge to add them to the list, which he agreed to do. One, Steve Allen, said he lived within a mile of the proposed site, while Jean Lane estimated she lived 1.2 miles away and Francine Singletary estimated her property was 1.5 miles away. Another person, Lee Clauser, said he lived 3.5 miles from the proposed site but conducted birding tours and took care of Charles Brown's property, which was adjacent to the site.
The judge aligned them with the Chalk Mountain Foundation, the lead group opposing Slick Machines' application, since their interests are similar. Members of the group have said the opposed the permit application because of concerns related to health — several people in the group said they suffer from asthma — impact on their property values, effect on wildife and concerns about noise and vibration.
The application, however, primarily is concerned with air quality and the particulate matter produced from crushing rock and how it may affect neighboring or nearby properties.
Two people supporting the application, John Yearwood, a rock crusher from Georgetown who operates under a temporary permit on the Underwood property on Chalk Mountain, and Larry Parham, who owns the land on Chalk Mountain where Slick Machines wants to crush rock, requested to be added and also were granted status as affected parties. They were aligned with Davis, who was representing himself without a lawyer. The Chalk Mountain Foundation has retained an Austin law firm that specializes in environmental issues to help it fight the application.
Because it was a preliminary hearing, the judge did not hear direct testimony at the meeting.
However, the brief exchanges between Yearwood, Davis and Bennett grew testy at times as the rock crushers made it clear they were irritated at the continued delays to their business. Yearwood, Davis and Parham have said they view the challenges by Chalk Mountain residents as an unfair attack on property rights and their right to make a living.
Yearwood questioned whether TCEQ had any authority to consider endangered species in the application since the Endangered Species Act is administered by the U.S. Fish and Wildlife Service. Opponents to Slick Machines' application have said that two bird endangered species, the black-capped vireo and the golden-cheeked warbler — nest on Chalk Mountain on properties near the proposed rock-crushing operation and could be threatened.
When Yearwood began arguing that the TCEQ should not be considering the impact on endangered species in making its decision whether to grant the application or not, Bennett stopped him.
"I need to maintain order," the judge said.
A TCEQ attorney present at the hearing noted that endangered species had been addressed in previous public meetings about the application and that the agency "has jurisdiction to address animal and birds."
"The issues are the issues — the commissioners made that decision," she added.
Davis had several questions about the proceedings, including some about topics the commissioners already had decided.
"These are very, very complex issues," Bennett told him. He suggested that David might want to hire an attorney since experts and other witnesses will be needed to testify at the upcoming trial over the application.
"I would expect you'll need air quality experts and an attorney," the judge said.
"I'm sure y'all want me to spend a lot of money," Davis shot back. "I understand your pocketbook issues."
Yearwood told the judge he wanted to be added as a party to Davis' side because he was concerned that if opponents convinced TCEQ commissioners to oppose Slick Machines' application, his operations could be threatened as well.
"I feel I will probably be adversely affected if it's turned down," Yearwood said. "If they're successful in getting Mr. Davis' permit outlawed, they'll come after me.'
Later in the hearing, he lashed out at the opponents in the audience.
"In Texas, as I understand it, anybody can sue anybody for anything," Yearwood said. "We seem to have a group here who have nothing else to do" than make trouble for people trying to earn a living. "If they're successful in this thing, it may affect my land I've got in Williamson County…TCEQ really shouldn't have anything to do with endangered species."
Once the parties agree on a schedule to gather information, a time will be set for a hearing and arguments. Then the judge has 60 days to issue his recommendation to commissioners. The TCEQ will then set a hearing and its three commissioners will make a ruling.
"You're looking at a minimum period of six months," before a final decision is made on the permit application, Bennett said. That will be determined in part by the agreed-upon schedules between the two sides.
"Mine's simple," Davis said. "ASAP."