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Gipson v. Alabama Department of Environmental Management

Alabama Court of Civil Appeals

December 13, 2019

Booker T. GIPSON and Latonya Gipson
v.
ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT and Perry County Associates, LLC.

         Appeal from Montgomery Circuit Court (CV-18-900481)

Page 449

          Bradley Marshall of Earthjustice, Tallahassee, Florida; Catherine M. Kaiman of Earthjustice, Miami, Florida; and David A. Ludder, Tallahassee, Florida, for appellants.

          Steve Marshall, atty. gen., and Paul Christian Sasser, Jr., and Anthony Todd Carter, asst. attys. gen., Alabama Department of Environmental Management, Office of General Counsel, for appellee Alabama Department of Environmental Management.

          Michael D. Smith of Smith & Staggs, LLP, Tuscaloosa, for appellee Perry County Associates, LLC.

         MOORE, Judge.

         Booker T. Gipson and Latonya Gipson appeal from a judgment of the Montgomery Circuit Court ("the trial court"), affirming an order of the Alabama Environmental Management Commission ("the AEMC") that concluded that an administrative action of the Alabama Department of Environmental Management ("ADEM") was supported by substantial evidence. We affirm the trial court's judgment.

         

Page 450

          Procedural History

         On March 17, 2017, Esther Calhoun, Benjamin Eaton, Booker T. Gipson, Latonya Gipson, Mary Leila Schaeffer, and Ellis Long ("the petitioners") filed a request for a hearing before the AEMC to contest an administrative action of ADEM dated February 10, 2017, approving the renewal and modification of Solid Waste Disposal Facility Permit 53-03, issued to Perry County Associates, LLC ("Perry County Associates"). The petitioners asserted that the permit allowed Perry County Associates to operate, modify, and expand the Arrowhead Landfill in Perry County, including the expansion of the Arrowhead Landfill into new tracts, without first complying with a number of ADEM's rules and regulations. The AEMC assigned the request to a hearing officer to conduct hearings and to make a recommendation to the AEMC regarding the matter.

         Following the hearing, which was conducted over a number of days and included the presentation of testimony and exhibits by the petitioners, ADEM, and Perry County Associates, as an intervenor, the hearing officer issued his report on January 24, 2018. That report included the following pertinent findings of fact:

"1. Petitioner, Latonya Gipson, lives across County Road 1 from the Arrowhead Landfill and Petitioner, Booker T. Gipson, frequents this location everyday in order to check on Ms. Latonya Gipson's home.

"....

"11. [The] Arrowhead [Landfill] was initially permitted by ADEM in 2006 for the operation of a Municipal Solid Waste landfill. The permit allowed the landfill to receive municipal solid waste (garbage), construction/demolition waste and special waste that would be approved by ADEM.

"....

"13. In 2011, ADEM renewed the Perry County Associates, LLC permit without challenge to that Administrative action.

"14. In addition to renewing Permit 53-03, Perry County Associates, LLC seeks modification to allow it to raise the bottom elevation of the new [disposal] cells to avoid the cost of excavating the Selma chalk.

"15. The landfill is located in a geological formation known as the Selma chalk group consisting of two chalk layers, the Demopolis, at the surface, and the Mooreville, lying immediately underneath.

"16. The Selma chalk formation has very low permeability (10-8 cm/sec.) and extends four to over five hundred feet below the surface.

"17. The Selma chalk is a confining unit, overlaying the Eutaw Aquifer[,] which is a source for drinking water in the area.

"18. There is a 40 to 50 foot thick clay formation between the Eutaw and Coker aquifers that acts as a lower confining unit to the Eutaw aquifer such that there is no interconnection between the two aquifers.

"19. At the surface, there are areas of weathered chalk at depths varying from zero feet to just over twenty (20) feet.

"20. There are no laboratory tests which indicate saturation of either the weathered or unweathered Selma chalk.

"21. Neither the weathered nor the unweathered Selma chalk act as an aquifer.

"22. There is no evidence that either the weathered or the unweathered Selma chalk is capable of full saturation except under extreme pressure in a controlled laboratory environment.

Page 451

"23. Shallow monitoring wells were drilled in 2007 and 2012; they were dry when drilled and remained so for from two months to well in excess of a year.

"24. In some instances, the original, pre-construction topography lay beneath the water levels shown in wells drilled at those very locations. Petitioners have provided no evidence of the existence of lakes or wetland areas in those locations.

"25. Sixty acres lying between multiple shallow wells have been excavated below the water levels shown to exist in the shallow wells to construct the landfill disposal cells. No groundwater appeared in the excavated areas and no saturated soils were excavated.

"26. Petitioners have failed to show, by a preponderance of the evidence, that a zone of saturation extends for any significant distance outside the radius of the bore hole for any of the shallow wells on the Arrowhead property.

"27. Petitioners have failed to show, by a preponderance of the evidence, that there is any interconnection between the shallow wells.

"28. Petitioners have failed to show, by a preponderance of the evidence, that there is any communication between any of the shallow wells.

"29. Petitioners have failed to show, by a preponderance of the evidence, that there exists a potentiometric surface or water table that can be mapped by reference to the elevation of water found in the shallow wells.

"30. Evaluating all of the testimony, evidence and the demeanor of the witnesses, the Petitioners have failed to show, by a preponderance of the evidence, that there is a continuous zone of saturation within the weathered Selma chalk.

"31. While the deep monitoring wells in the Eutaw [Aquifer] are separated by the chalk formation, they serve as the highest standard (drinking water) to compare any statistically significant increase found in the shallow wells.

"32. Thus, the first zone of saturation is in the Eutaw aquifer, more than four hundred feet below the bottom elevation of the bottom liner of the landfill and it has been adequately characterized pursuant to applicable ADEM rules and regulations."

         Additionally, the hearing officer made the following pertinent conclusions of law:

"2.... Latonya Gipson and Booker T. Gipson have proven a threat of injury from the landfill that could be redressed by a favorable decision in this matter. Petitioners Latonya Gipson and Booker Gipson are aggrieved parties and are appropriate parties to challenge this permit before the Commission under ADEM Admin. Code R. 335-2-1-.03....

"3. Perry County Associates, LLC and ADEM properly established the location of the first saturated zone and so they properly established the location of groundwater for the site, which is at least 400 feet below the surface in the Eutaw aquifer. See ADEM Admin. Code R. 335-13-1-.03(58), groundwater is water below the land surface in the zone of saturation.... ADEM Admin. Code R. 335-13-1-.03(121) defining saturated zone... as `that part of the earth's crust in which all voids are filled with water.'

"4. The permit complies with all of the groundwater standards in ADEM Admin. Code div. 13. Petitioners' Alleged Errors A through G are without merit."

(Emphasis in original.) The hearing officer concluded that the petitioners other than the Gipsons had failed to prove an actual or threatened injury that is caused by the current permitting of the Arrowhead

Page 452

Landfill and that they were not aggrieved parties.

         Having made his findings of fact and conclusions of law, the hearing officer informed the AEMC that ADEM's administrative action renewing and modifying Solid Waste Disposal Facility Permit 53-03 on February 10, 2017, complied with applicable law, and the hearing officer recommended that that action be approved. On February 16, 2018, the AEMC entered an order adopting the report of the hearing officer; it found that ADEM's administrative action renewing and modifying Solid Waste Disposal Facility Permit 53-03 on February 10, 2017, to Perry County Associates complied with applicable law, and it approved the permit renewal and modification.

         The Gipsons filed their notice of appeal from the final action of ADEM and the order of the AEMC on March 15, 2018. On May 10, 2018, the Gipsons filed in the trial court a brief outlining their arguments and requesting oral argument. ADEM submitted its brief in response on May 31, 2018. Perry County Associates also submitted its brief to the trial court on May 31, 2018. The Gipsons filed a reply brief in the trial court on June 13, 2018. On February 27, 2019, the trial court set the case for oral arguments on March 1, 2019.[1] The Gipsons submitted a proposed order, and ADEM and Perry County Associates submitted a joint proposed order. ADEM and Perry County Associates filed an objection and point of clarification in response to the proposed order submitted by the Gipsons. On March 12, 2019, the trial court entered a final judgment adopting the proposed order submitted by ADEM and Perry County Associates; the trial court found that substantial evidence existed to support the decision of the AEMC and affirmed that decision. The Gipsons timely filed their notice of appeal to this court on April 23, 2019.

         Facts

         A number of factual findings made by the hearing officer are undisputed by the parties. The undisputed evidence indicates, among other things, that Latonya Gipson lives across County Road 1 from the Arrowhead Landfill in Uniontown in Perry County; that her father, Booker T. Gipson, frequents her home each day; that the Arrowhead Landfill was initially permitted by ADEM in 2006 for the operation of a municipal solid-waste landfill by Perry County Associates; that, in 2011, Perry County Associates sought a renewal and modification of the permit to allow it to raise the bottom elevation of new disposal cells; and that ADEM approved the requested renewal and modification. The Gipsons challenge on appeal a number of the findings made by the hearing officer that were adopted by the AEMC and the trial court. We limit our recitation of the evidence to that related to the arguments raised on appeal by the Gipsons.

         James Mark Tanner, a geologist, testified on behalf of Perry County Associates that he had reviewed documents applicable to the geology and hydrogeology of the Arrowhead Landfill site in preparation for his testimony before the hearing officer. Tanner testified that, at the surface, the Demopolis chalk formation and the underlying Mooreville chalk formation are both a part of the Selma chalk formation. He stated that the Selma chalk formation, which is primarily chalk, acts as a confining unit for the underlying Eutaw formation, which is an aquifer consisting of a

Page 453

sandy unit with some clays and a source of drinking water. According to Tanner, beneath the Eutaw aquifer is a 40- to 50-foot-thick clay unit that confines an underlying aquifer, the Gordo formation, and that beneath the Gordo formation is another aquifer unit, the Coker formation. Tanner stated that a confining layer or a confining bed is a unit of low permeability that acts as an aquitard and retards the movement of water through that unit.

         Dr. Lauren Ross, a consulting engineer, testified on behalf of the Gipsons as an expert witness. Dr. Ross testified that groundwater[2] exists in saturated and unsaturated conditions; that unsaturated means that not all the void space in the soil material is filled such that there are pockets of air within the soil; and that saturated means that all the voids are filled with fluid. Dr. Ross explained that the easiest way to determine the location of groundwater is by the installation of a groundwater-monitoring well, which monitors water levels and/or the presence of contamination in the groundwater. She testified that, if you place a well into an unsaturated zone, the water will not enter the well because it is held in the pore space under tension. According to Dr. Ross, saturated conditions means that all the affected void space in the subsurface is full of water or liquid.

         Dr. Ross testified that 13 groundwater-monitoring wells had been installed at the Arrowhead Landfill site, that Wells 1 through 6 represented the deep wells, the depth of which were approximately 500 feet below the ground surface, and that Wells 12 through 18 represented the shallow wells, the depth of which ranged between approximately 25 and 30 feet below the ground surface. Dr. Ross testified that, based on her review of piezometers and wells that had been installed in approximately 2001 at the Arrowhead Landfill site, saturated conditions had been present in the Selma chalk formation to a depth of between 11 and 20.5 feet. She stated that saturation tests had been performed during the construction of the wells in 2001, which, she said, had indicated saturation percentages of 55.8% and 61.1% at different locations. Dr. Ross testified, however, that, in order to be saturated, the saturation rate would have to be 100%.

         Mark Preddy, a geologist employed by Bunnell-Lammons Engineering, testified on behalf of Perry County Associates that his company had been approached to assist with the development of the Arrowhead Landfill in 2007 and that his company installed the initial groundwater-monitoring wells. Preddy testified that he had set up, supervised, and managed the installation of the wells. According to Preddy, JJ& G, a company that had prepared a hydrogeologic assessment of the Arrowhead Landfill site in 2005, had determined in its report that the first saturated zone at the site was the groundwater in the Eutaw formation. Preddy stated that, after his company drilled its own monitoring wells at the landfill site, he had concurred in that determination. He testified that he had been present for the drilling of the wells, that the shallow wells had been dry, and that the soils coming out of ...


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