Booker T. Gipson and LaTonya Gipson
Alabama Department of Environmental Management and Perry County Associates, LLC
from Montgomery Circuit Court (CV-18-900481)
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 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
"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)
"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 those
"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
"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
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. 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
"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
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 ...