Booker T. GIPSON and Latonya Gipson
ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT and Perry County Associates, LLC.
from Montgomery Circuit Court (CV-18-900481)
Bradley Marshall of Earthjustice, Tallahassee, Florida;
Catherine M. Kaiman of Earthjustice, Miami, Florida; and
David A. Ludder, Tallahassee, Florida, for appellants.
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.
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
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.
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
"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. There are no laboratory tests which indicate
saturation of either the weathered or unweathered Selma
"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
"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
"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
"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
"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
"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
"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."
the hearing officer made the following pertinent conclusions
"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.
"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
Landfill and that they were not aggrieved parties.
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.
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. 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.
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
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
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.
Lauren Ross, a consulting engineer, testified on behalf of
the Gipsons as an expert witness. Dr. Ross testified that
groundwater 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.
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%.
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 ...