LAW OFFICE OF

DAVID A. LUDDER
A Professional Limited Liability Company

May 30, 2013
Overnight Delivery
Ms. Vicki Simons, Director
Office of Civil Rights
U.S. Environmental Protection Agency
Mail Code 1201A
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Re:

Title VI Civil Rights Complaint and Petition for Relief or Sanction - Alabama
Department of Environmental Management Permitting of Arrowhead Landfill in
Perry County, Alabama (EPA OCR File No. 01R-12-R4)

Dear Ms. Simons:
This Complaint is filed pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§
2000d to 2000d-7, and 40 C.F.R. Part 7. 40 C.F.R. § 7.35(b) provides:
A recipient [of EPA financial assistance] shall not use criteria or methods of
administering its program which have the effect of subjecting individuals to
discrimination because of their race, color, national origin, or sex, or have the
effect of defeating or substantially impairing accomplishment of the objectives of
the program with respect to individuals of a particular race, color, national origin,
or sex.
Complainants allege that the Alabama Department of Environmental Management
(ADEM) violated Title VI and EPA’s implementing regulations by reissuing and modifying, on
September 27, 2011 and February 3, 2012 respectively, Solid Waste Disposal Facility Permit No.
53-03 authorizing Perry County Associates, LLC to construct and operate the Arrowhead
Landfill, a municipal solid waste landfill in Perry County, Alabama which has the effect of
adversely and disparately impacting African-American residents in the adjacent community.
Complainants request that the EPA Office of Civil Rights accept this Complaint and
conduct an investigation to determine whether ADEM violated Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d to 2000d-7, and 40 C.F.R. Part 7. If a violation is found and ADEM is
unable to demonstrate a substantial, legitimate justification for its action and to voluntarily
implement a less discriminatory alternative that is practicable, Complainants petition EPA to
initiate proceedings to deny, annul, suspend, or terminate EPA financial assistance to ADEM.

9150 McDougal Court  Tallahassee  Florida 32312-4208  Telephone 850-386-5671
Facsimile 267-873-5848  Email DavidALudder@enviro-lawyer.com  Web www.enviro-lawyer.com

 I. Title VI Background
“Frequently, discrimination results from policies and practices that are neutral on their
face, but have the effect of discriminating.” Interim Guidance for Investigating Title VI
Administrative Complaints Challenging Permits (EPA, Feb. 5, 1998) (“Interim Guidance ”) at 2
(footnote omitted); Draft Revised Guidance for Investigating Title VI Administrative Complaints
Challenging Permits , 65 Fed. Reg. 39667, 39680 (2000) (“ Draft Guidance ”).1 “Facially-neutral
policies or practices that result in discriminatory effects violate EPA’s Title VI regulations unless
it is shown that they are justified and that there is no less discriminatory alternative.” Interim
Guidance at 2.
A complete or properly pleaded complaint must (1) be in writing, signed, and provide an
avenue for contacting the signatory ( e.g., phone number, address); (2) describe the alleged
discriminatory act(s) that violates EPA’s Title VI regulations ( i.e., an act that has the effect of
discriminating on the basis of race, color, or national origin); (3) be filed within 180 calendar days
of the alleged discriminatory act(s); and (4) identify the EPA financial assistance recipient that
took the alleged discriminatory act(s). Interim Guidance at 6; Draft Guidance , 65 Fed. Reg. at
39672. In order to establish a prima facie case of adverse disparate impact, EPA must determine
that (1) a causal connection exists between the recipient’s facially neutral action or practice and
the alleged impact; (2) the alleged impact is “adverse;” and (3) the alleged adversity imposes a
disparate impact on an individual or group protected under Title VI. Yerkwood Landfill
Complaint Decision Document , EPA OCR File No. 28R-99-R4 (July 1, 2003) at 3; New York
City Envtl. Justice Alliance v. Giuliani , 214 F.3d 65, 69 (2nd Cir. 2000); Draft Policy Papers
Released for Public Comment: Title VI of the Civil Rights Act of 1964: Adversity and
Compliance With Environmental Health-Based Thresholds, and Role of Complainants and
Recipients in the Title VI Complaints and Resolution Process , 78 Fed. Reg. 24739, 24741
(2013).
“If a preliminary finding of noncompliance has not been successfully rebutted and the
disparate impact cannot successfully be mitigated, the recipient will have the opportunity to
‘justify’ the decision to issue the permit notwithstanding the disparate impact, based on the
substantial, legitimate interests of the recipient.” Interim Guidance at 11. See Draft Guidance ,
65 Fed. Reg. at 39683. “Merely demonstrating that the permit complies with applicable
environmental regulations will not ordinarily be considered a substantial, legitimate justification.
Rather, there must be some articulable value to the recipient in the permitted activity.” Interim
1

On June 27, 2000, EPA published Draft Revised Guidance for Investigating Title VI
Administrative Complaints Challenging Permits , 65 Fed. Reg. 39667-39687 (2000). The
Preamble to the Draft Guidance states that “[o]nce the Draft Revised Guidance for Investigating
Title VI Administrative Complaints is final, it will replace the Interim Guidance for Investigating
Title VI Administrative Complaints Challenging Permits (Interim Guidance ) issued in February
1998.” 65 Fed. Reg. at 39650. The Draft Guidance has never been made final and consequently,
the Interim Guidance issued in February 1998 has not been replaced.
2

 Guidance at 11. “[A] justification offered will not be considered acceptable if it is shown that a
less discriminatory alternative exists. If a less discriminatory alternative is practicable, then the
recipient must implement it to avoid a finding of noncompliance with the regulations.” Id. See
Draft Guidance , 65 Fed. Reg. at 39683.
“In the event that EPA finds discrimination in a recipient’s permitting program, and the
recipient is not able to come into compliance voluntarily, EPA is required by its Title VI
regulations to initiate procedures to deny, annul, suspend, or terminate EPA funding.” Interim
Guidance at 3 (footnotes omitted) (citing 40 C.F.R. §§ 7.115(e), 7.130(b), 7.110(c)). “EPA also
may use any other means authorized by law to obtain compliance, including referring the matter to
the Department of Justice (DOJ) for litigation. In appropriate cases, DOJ may file suit seeking
injunctive relief.” Id.
II. Complainants
“A person who believes that he or she or a specific class of persons has been discriminated
against in violation of this part may file a complaint. The complaint may be filed by an authorized
representative.” 40 C.F.R. § 7.120(a). 2
The names, addresses and telephone numbers of the persons making this complaint are as
follows:

2

The Draft Guidance purports to establish more stringent standing requirements than are
contained in 40 C.F.R. § 7.120(a). The former establishes the following standing requirements:
(a) A person who was allegedly discriminated against in violation of EPA’s
Title VI regulations;
(b) A person who is a member of a specific class of people that was
allegedly discriminated against in violation of EPA’s Title VI regulations; or
(c) A party that is authorized to represent a person or specific class of
people who were allegedly discriminated against in violation of EPA’s Title VI
regulations.
Id., 65 Fed. Reg. at 39672. Notably, the Draft Guidance requires that a complainant be the
victim of the alleged discrimination or a member of the protected class discriminated against. The
Draft Guidance omits the option in 40 C.F.R. § 7.120(a) that any person – including a person
who is not a member of a protected class – who believes that a specific class of persons has been
discriminated against in violation of 40 C.F.R. Part 7 may file a complaint. An agency
construction of its regulations that is inconsistent with the plain language of those regulations is
unlawful. Legal Envtl. Assistance Found., Inc. v. U.S. Envtl. Prot. Agency , 276 F.3d 1253, 1263
(11th Cir. 2001); Sierra Club v. Johnson , 436 F. 3d 1269, 1274 (11th Cir. 2006).
3

 Latonya Gipson
James Gipson
Booker T. Gipson
3820 Central Mills Road
Uniontown, AL 36786
(334) 715-1744
(334) 327-9270
(334) 231-5013

Grady J. Williams
4701 Central Mill Road
Uniontown, AL 36786
(334) 628-2961

Willie Johnson
319 Shaw Road
Uniontown, AL 36786
(334) 581-5577

Arthur Johnson
Modestine Johnson
25 Shaw Road
Uniontown, AL 36786
(334) 628-4446

Bertha Drew
84 Day Lilly Lane
Uniontown, AL 36786
(334) 509-9284

Mary Dangerfield
667 Shaw Road
Uniontown, AL 36786
(334) 327-1740

James Gibbs
Valerie Milton Gibbs
861 Shaw Road
Uniontown, AL 36786
(334) 628-8808

Robert Thomas
3316 Central Mill Road
Uniontown, AL 36786
(334) 628-6636

Dora Williams
Ronald Jenkins
3910 Central Mills Road
Uniontown, AL 36786
(334) 419-5413
(334) 581-5032

Bennie Carter
3940 Central Mills Road
Uniontown, AL 36786
(205) 210-2291

Joe Williams
Mary Williams
4060 Central Mills Road
Uniontown, AL 36786
(334) 628-8275

Ruby Holmes
110 Shaw Road
Uniontown, AL 36786
(334) 628-3913

Arthur Fikes
Minnie Agee
570 Shaw Road
Uniontown, AL 36786
(334) 410-4988
(334) 341-7756

Jerry Holmes
Cynthia Thomas-Holmes
30 Shaw Road
Uniontown, AL 36786
(334) 628-9009

Rev. James R. Murdock
Ella White Murdock
4115 Central Mills Road
Uniontown, AL 36786
(334) 628-3620

Lorenza Tucker
Dorothy Tucker
113 Shaw Road
Uniontown, AL 36786
(334) 628-3445

Ethel L. Abrahams
3044 Central Mills Road
Uniontown, AL 36786
(334) 628-8126
(770) 355-9228

Chester Fikes
Pamela Fikes
251 Carroton Road
Uniontown, AL 36786
(334) 628-2754

4

 Esther Calhoun
P.O. Box 523
Uniontown, AL 36786
(334) 267-9763

Ellis B. Long
Mar Leila Schaeffer
P.O. Box 878
Uniontown, AL 36786
(334) 628-8278

Rev. Mark Johnston
105 DeLong Road
Nauvoo, AL 35578
(205) 387-1806

John Wathen
5600 Holt Peterson Rd.
Tuscaloosa, AL 35404
(205) 507-0867

Rev. J. Thompson Brown
4157 Winston Way
Birmingham, AL 35213
(205) 870-4244

Many of the Complainants are African-Americans who live within one mile of the Arrowhead
Landfill and who believe that they have been discriminated against by ADEM in violation of Title
VI and 40 C.F.R. Part 7. Figure 1. A few of the Complainants are members of the AfricanAmerican race who, though not themselves discriminated against by ADEM, believe that AfricanAmericans as a class have been discriminated against by ADEM in violation of Title VI and 40
C.F.R. Part 7. In addition, several of the Complainants are not members of the African-American
race who, though not themselves discriminated against by ADEM, believe that African-Americans
have been discriminated against by ADEM in violation of Title VI and 40 C.F.R. Part 7. The
undersigned is the authorized representative of the Complainants. All contacts with the
Complainants should be made through the undersigned or with the express permission of the
undersigned.
III. Recipient
EPA awards grants on an annual basis to many state and local agencies that
administer continuing environmental programs under EPA’s statutes. As a
condition of receiving funding under EPA’s continuing environmental program
grants, recipient agencies must comply with EPA’s Title VI regulations, which are
incorporated by reference into the grants. EPA's Title VI regulations define a
“[r]ecipient” as “any state or its political subdivision, any instrumentality of a state
or its political subdivision, any public or private agency, institution, organization,
or other entity, or any person to which Federal financial assistance is extended
directly or through another recipient . . ..” Title VI creates for recipients a
nondiscrimination obligation that is contractual in nature in exchange for accepting
Federal funding. Acceptance of EPA funding creates an obligation on the recipient
to comply with the regulations for as long as any EPA funding is extended.
Under amendments made to Title VI by the Civil Rights Restoration Act of 1987,
a “program” or “activity” means all of the operations of a department, agency,
special purpose district, or other instrumentality of a state or of a local
government, any part of which is extended Federal financial assistance.

5

 Figure 1
PROXIMITY OF AFFECTED AFRICAN-AMERICAN
COMPLAINANTS TO ARROWHEAD LANDFILL

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Therefore, unless expressly exempted from Title VI by Federal statute, all
programs and activities of a department or agency that receives EPA funds are
subject to Title VI, including those programs and activities that are not
EPA-funded. For example, the issuance of permits by EPA recipients under solid
waste programs administered pursuant to Subtitle D of the Resource Conservation
and Recovery Act (which historically have not been grant-funded by EPA), or the
actions they take under programs that do not derive their authority from EPA
statutes (e.g., state environmental assessment requirements), are part of a program
or activity covered by EPA’s Title VI regulations if the recipient receives any
funding from EPA.
Interim Guidance at 2-3 (footnotes omitted).
ADEM was a recipient of financial assistance from EPA at the time of the alleged
discriminatory acts. For example, EPA recently awarded grants to ADEM as shown in Exhibit A
(EPA Grants to ADEM).
IV. Discriminatory Acts
The first alleged discriminatory act is the reissuance (renewal) of Solid Waste Disposal
Facility Permit No. 53-03 by ADEM to Perry County Associates, LLC on September 27, 2011.
Exhibit B (Permit No. 53-03, Sept. 27, 2011). 3 The permit authorizes Perry County Associates,
LLC to construct and operate the Arrowhead Landfill, a municipal solid waste landfill. Permit
No. 53-03 authorizes the disposal of “[n]onhazardous solid wastes, noninfectious putrescible
wastes including but not limited to household garbage, commercial waste, industrial waste,
construction and demolition debris, and other similar type materials” from thirty-three states. Id.
The permit authorizes the disposal of 15,000 tons of waste per day – the largest authorized waste
disposal volume in Alabama. Figure 2. The authorized disposal area is 256.151 acres. The
facility is located in Perry County, Alabama at approximately Latitude 32.4115  North, Longitude
87.4675 West. Figure 3.
The second alleged discriminatory act is the modification of Permit No. 53-03 by ADEM
on February 3, 2012. Exhibit C (Permit No. 53-03, Feb. 3, 2012). The permit modification
authorizes Perry County Associates, LLC to expand the disposal area at the Arrowhead Landfill
by 169.179 acres (66%). 4
3

“Generally, permit renewals should be treated and analyzed as if they were new facility
permits, since permit renewal is, by definition, an occasion to review the overall operations of a
permitted facility and make any necessary changes.” Interim Guidance at 7.
4

“Permit modifications that result in a net increase of pollution impacts, however, may
provide a basis for an adverse disparate impact finding, and, accordingly, OCR will not reject or
dismiss complaints associated with permit modifications without an examination of the
circumstances to determine the nature of the modification.” Interim Guidance at 7.
7

 Figure 2
AUTHORIZED WASTE DISPOSAL VOLUMES AT ALABAMA LANDFILLS (TPD)
Source: Permitted Solid Waste Landfills in the State of Alabama (ADEM, June 29, 2011)
(available at http://www.adem.alabama.gov/programs/land/landforms/MSWLFMasterList08-11.pdf)

8

 Figure 3
LOCATION OF THE ARROWHEAD LANDFILL
PERRY COUNTY, ALABAMA

 

 

 

     

 

 

 

 

 

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V. Timeliness
40 C.F.R. § 7.120(b)(2) requires that a complaint alleging discrimination under a program
or activity receiving EPA financial assistance must be filed within 180 days after the alleged
discriminatory act. The reissuance of Solid Waste Disposal Facility Permit No. 53-03 to Perry
County Associates, LLC occurred on September 27, 2011. A complaint dated January 3, 2012
was received by EPA 101 days after the permit was reissued, i.e., on January 6, 2012. Exhibit D
(Letter from Rafael DeLeon to David A. Ludder dated June 14, 2012 Re: Acceptance of
Administrative Complaints ). The modification of Solid Waste Disposal Facility Permit No. 53-03
was granted to Perry County Associates, LLC on February 3, 2012. A complaint dated February
16, 2012 was received by EPA 18 days after the permit was modified, i.e., on February 21, 2012.
Id.
On September 26, 2012, EPA dismissed the above-referenced complaints without
prejudice to refiling “within 60 days following termination or conclusion of” litigation styled Ethel
L. Abrahams, et al. v. Phill-Con Services, LLC , No. No. 2:10-cv-00326-WS-N (S.D. Ala.) and
Ethel L. Abrahams, et al. v. Phill-Con Services, LLC and Phillips & Jordan, Inc. , Adv. Proc. No.
10-00075 (Bankr. S.D. Ala.). Exhibit E (Letter from Rafael DeLeon to David A. Ludder dated
September 26, 2012 Re: Dismissal without prejudice of Administrative Complaint ). The
foregoing litigation was terminated on April 16, 2013. Exhibit F (Ethel L. Abrahams, et al. v.
Phill-Con Services, LLC , No. 2:10-cv-00326-WS-N (S.D. Ala. Apr. 16, 2013), Doc. 44).
Accordingly, refiling of this complaint is timely if received by EPA on or before June 15, 2013.
VI. Litigation
As previously noted by EPA,
[I]n 2010, certain residents of Perry County filed a civil action in the U.S. District
Court for the Southern District of Alabama, Northern Division, against Phill-Con
Services, LLC, the operator of the Arrowhead Landfill, to enforce an emission
standard or limitation under the Clean Air Act, 42 U.S.C. 7401–7671q, and to
enforce a standard, regulation, requirement, or prohibition under the Solid Waste
Disposal Act, 42 U.S.C. 6901-6992k. Also in 2010, certain residents of Perry
County filed a civil action in state court against Phill-Con and Phillips & Jordan,
Inc. (a contractor at the landfill), asserting state law claims including negligence,
wantonness, nuisance, and trespass resulting from the construction and operation
of the landfill. In addition to other remedies, the Plaintiffs seek a permanent
injunction that the landfill ceases operating in such a manner as to cause certain
impacts. Both of these actions were subsequently removed to the U.S. Bankruptcy
County for the Southern District of Alabama, Selma Division, where the litigation
has been consolidated. OCR understands that the litigation is still ongoing.

10

 Exhibit E (Letter from Rafael DeLeon to David A. Ludder dated September 26, 2012 Re:
Dismissal without prejudice of Administrative Complaint ) at 1. On the basis of these findings,
EPA dismissed the January 3, 2011 and February 16, 2012 complaints without prejudice pending
results of the litigation.
OCR may choose not to proceed with a complaint investigation if the allegations in
the complaint were actually litigated and substantively decided by a Federal court.
For example, if a Federal court reviewed evidence presented by both parties and
issued a decision that stated the allegations of discrimination were not true, OCR
may choose not to investigate allegations in the complaint that deal with those
same issues. In addition, if a state court reviewed evidence presented by both
parties and issued a decision, then OCR may consider the outcome of the court’s
proceedings to determine if they inform OCR’s decision making process.
Generally, OCR may choose to investigate if the complaint raises issues
that were not actually litigated or substantively decided by a Federal court, or if it
raises unique and important legal or policy issues.
Draft Guidance , 65 Fed. Reg. at 39673.
On April 16, 2013, the foregoing litigation was dismissed with prejudice on motion of the
parties. Exhibit F (Ethel L. Abrahams, et al. v. Phill-Con Services, LLC , No.
2:10-cv-00326-WS-N (S.D. Ala. Apr. 16, 2013), Doc. 44). The Court did not review any
evidence, make any findings of fact, or otherwise decide any substantive issues. Accordingly, the
now terminated litigation does not present an impediment to EPA investigation and disposition of
this Complaint. 5
5

The permittee of the Arrowhead Landfill, Perry County Associates, LLC., was not a
party to Ethel L. Abrahams, et al. v. Phill-Con Services, LLC , No. No. 2:10-cv-00326-WS-N
(S.D. Ala.) or Ethel L. Abrahams, et al. v. Phill-Con Services, LLC and Phillips & Jordan, Inc. ,
Adv. Proc. No. 10-00075 (Bankr. S.D. Ala.). Perry County Associates, LLC was a “debtor” in
bankruptcy. In re Perry County Associates, LLC , No. 10-00277 (Bankr. S.D. Ala. filed Jan. 26,
2010). The only asset possessed by Perry County Associates, LLC was Permit No. 53-03. The
landfill itself was owned by Perry-Uniontown Ventures I, LLC, which was also a “debtor” in
bankruptcy. In re Perry-Uniontown Ventures I, LLC , No. 10-00276 (Bankr. S.D. Ala. filed Jan.
26, 2010). Perry-Uniontown Ventures I, LLC was the sole member of Perry County Associates,
LLC. Phill-Con Services, LLC and Phillips and Jordan, Inc. ceased doing work at the landfill in
October 2011. The Arrowhead Landfill is now owned by Howling Coyote, LLC, a wholly-owned
subsidiary of Green Group Holdings, LLC. Exhibit G (Letter from T. Shane Lovett to David A.
Ludder dated November 5, 2012 ). An application for permit transfer from Perry County
Associates, LLC to Howling Coyote, LLC was submitted to ADEM on or about January 4, 2012.
Exhibit H (Application for Transfer of Permit dated December 27, 2012 ). “A notification must
be submitted to and approved by the Department prior to any proposed transfer from one person
11

 VII. Impacts
The impacts resulting from the activities authorized by Permit No. 53-03 include the
following:
A.
The frequent emission of odors from the landfill that are unpleasant to persons and
that cause lessened human food and water intake, interference with sleep, upset appetite, irritation
of the upper respiratory tract (nose and throat) and eyes, headaches, dizziness, nausea, and
vomiting among many of the Complainants; and interference with outdoor activities and the
enjoyment of property of many of the Complainants. See e.g., Exhibit J1 (2010 Odor
Complaints), Exhibit J2 (2011 Odor Complaints), Exhibit J3 (2012 Odor Complaints), and
Exhibit J4 (2013 Odor Complaints).
B.
Increased populations of flies in and around the homes of many of the
Complainants that are bothersome and that may be carriers of dozens of infectious viruses,
bacteria, and parasites. Exhibit K (2013 Fly Complaints).
C.
Increased populations of birds around the homes of many of the Complainants that
deposit droppings and that may be carriers of dozens of infectious viruses, bacteria, and parasites.
Exhibit L1 (Video), Exhibit L2 (2011 Bird Complaints), Exhibit L3 (2012 Bird Complaints),
and Exhibit L4 (2013 Bird Complaints).
D.
Increased noise from operation of heavy machinery ( e.g., steel wheel compactor,
bulldozer, excavator, off-road haul truck, small farm tractor, clamshell buckets, railcars) 24-hours
per day, 7-days per week causing headaches and interference with sleep, conversations, television
and radio listening and other activities within and without the homes of many of the
Complainants. Exhibit M1 (2010 Noise Complaints), Exhibit M2 (2011 Noise Complaints),
Exhibit M3 (2012 Noise Complaints), and Exhibit M4 (2013 Noise Complaints).
E.
The frequent emission of fugitive dust from the landfill that causes particulate
deposition on personal and real property of many of the Complainants, including homes, porches,
vehicles, laundry, and plantings. See e.g., Exhibit N1 (2010 Dust Complaints), Exhibit N2
(2011 Dust Complaints), Exhibit N3 (2012 Dust Complaints), and Exhibit N4 (2010 Dust
Video).

or company to another or name change of any permitted facility.” Ala. Admin. Code R. 335-135-.07. There is no evidence in the ADEM eFile system that ADEM ever approved the transfer of
Permit No. 53-03 to Howling Coyote, LLC. Perry County Associates, LLC was dissolved on
October 31, 2012. Exhibit I (Articles of Dissolution dated October 11, 2012 ). If the permit
transfer has not been approved by ADEM, the Arrowhead Landfill is being operated by a party
that does not have a permit.
12

 F.
Decreased property values of many of the Complainants. See e.g., Exhibit O1
(Affidavit of Diane Hite), Exhibit O2 (Cameron, T.A. “Directional Heterogeneity in Distance
Profiles in Hedonic Property Value Models,” Journal of Environmental Economics and
Management 51(1) (2006): 26-45), Exhibit O3 (Guntermann, K.L. “Sanitary Landfills, Stigma
and Industrial Land Values,” Journal of Real Estate Research 10(5) (1995): 531-542), Exhibit
O4 (Hirshfeld, S. et al. “Assessing the True Cost of Landfills,” Waste Management and Research
10 (1992): 471-484), Exhibit O5 (Hite, D. “A Random Utility Model of Environmental Equity,”
Growth and Change 31(4) (2000): 40-58), Exhibit O6 (Hite, D. “Information and Bargaining in
Markets for Environmental Quality,” Land Economics 74(3) (1998): 303-316), Exhibit O7 (Hite,
D., et al. “Property Value Impacts of an Environmental Disamenity: The Case of Landfills,”
Journal of Real Estate Finance and Economics 22 (2001): 185-202), Exhibit O8 (Kinnaman,
T.C. “A Landfill Closure and Housing Values,” Contemporary Economic Policy 27(3) (2009):
380-389), Exhibit O9 (Lim, J.S., et al. “Does size really matter? Landfill scale impacts on
property values,” Applied Economics Letters 14 (2007): 719-723), Exhibit O10 (Nelson, A.C.,
et al. “Price effects of landfills on house values,” Land Economics (1992)), Exhibit O11 (Ready,
R.C., “Do Landfills Always Depress Nearby Property Values?,” Journal of Real Estate Research
32(3) (2010): 321-339), Exhibit O12 (Reichert, A.K., et al. “The Impact of Landfills on
Residential Property Values,” Journal of Real Estate Research 7(3) (1992): 297-314), Exhibit
O13 (Wilson, S.E., “Evaluating the potential impact of a proposed landfill,” Appraisal Journal
77 (2009): 24-__), and Exhibit O14 (Spector, K., et al. “Review of Current Property Valuation
Literature,” Industrial Economics, Inc. (1999)).
See also Exhibit P1 (EPA Listening Session Invitation), Exhibit P2 (EPA Listening Session
Video, June 15, 2011), and Exhibit P3 (ADEM Public Hearing on Permit Renewal, July 14,
2011) 6 and Exhibit P4 (Nov 2012-May 2013 Written Complaints).
VIII. ADEM Authority
EPA guidance provides that “OCR will accept for processing only those Title VI
complaints that include at least an allegation of a disparate impact concerning the types of impacts
that are relevant under the recipient’s permitting program.” Interim Guidance at 8; Draft
Guidance, 65 Fed. Reg. at 39678. “In determining the nature of stressors ( e.g., chemicals, noise,
odor) and impacts to be considered, OCR would expect to determine which stressors and impacts
are within the recipient’s authority to consider, as defined by applicable laws and regulations.”
Draft Guidance , 65 Fed. Reg. at 39678. See id., 65 Fed. Reg. at 39670, 39671. Complainants

6

In the complaints filed on January 6, 2012 and February 21, 2012, Complainants also
alleged “the frequent tracking of dirt and other solids from the landfill onto County Road 1 where
through traffic causes the dirt and other solids to become airborne particulates resulting in
particulate deposition on personal and real property of many of the Complainants, including
homes, porches, vehicles, laundry, and plantings. See Exhibit M (Mud in Road Sign).”
Subsequently, the Arrowhead Landfill relocated its entrance to Tayloe Road off U.S. Highway 82.
Exhibit Q (Letter from William F. Hodges to Scott Story dated October 30, 2012 ). This
relocation has eliminated tracking of dirt on County Road 1.
13

 submit that both the Interim Guidance and Draft Guidance are wrong as a matter of law on this
point.
40 C.F.R. § 7.30 provides that “[n]o person shall . . . be subjected to discrimination under
any program or activity receiving EPA assistance on the basis of race . . ..” In addition, 40 C.F.R.
§ 7.35(b) provides that “[a] recipient shall not use criteria or methods of administering its
program or activity which have the effect of subjecting individuals to discrimination because of
their race . . ..” To establish discrimination under these provisions, EPA must find that “first, a
facially neutral policy casts an effect on a statutorily-protected group; second, the effect is
adverse; and finally, the effect is disproportionate.” Sandoval v. Hagan , 197 F.3d 484, 508 (11th
Cir. 1999) (citing Elston v. Talladega County Bd. of Educ. , 997 F.2d 1394, 1407 (11th
Cir.1993)), revs’d on other grounds , Alexander v. Sandoval , 532 U.S. 275 (2001). In Sandoval,
the Director of the Alabama Department of Public Safety had imposed an English-only language
requirement for giving driver’s license examinations. Sandoval sued contending that the
requirement violated Title VI of the Civil Rights Act of 1964. The Court held that Sandoval was
correct – the English-only language requirement resulted in discrimination based on national
origin because “the inability to drive a car adversely affects individuals in the form of lost
economic opportunities, social services, and other quality of life pursuits.” Id. Although these
adverse effects were not within the authority of the Department to consider, the Court recognized
them as sufficient to establish disproportionate adverse effects on a group protected by Title VI.
As discussed below, ADEM has express authority under the Alabama Administrative
Code to regulate landfill practices that may cause odor and disease vectors. It also has express
authority to establish buffer zones to protect against adverse aesthetic impacts ( e.g., noise, odor,
and fugitive dust). ADEM does not, however, have express authority to address reductions in
property values that often occur as a consequence of landfill operations. Nevertheless, the
permits granted by ADEM which authorize the construction and operation of the Arrowhead
Landfill have had the disproportionate adverse effect of subjecting persons of a protected race to
reductions in the value of their property. This adverse economic effect is cognizable under Title
VI, notwithstanding EPA’s contrary pronouncements in the Interim Guidance and Draft
Guidance. To hold otherwise would allow state legislatures and state administrative agencies to
define what is and is not actionable discrimination under Title VI and would frustrate the purpose
of Title VI.
A.

Odors

ADEM has ample authority to regulate and control odor emissions from landfills. For
example, Ala. Admin. Code R. 335-13-4-.22(3)(a) provides:
(a) Owners or operators of all MSWLFs must ensure that the units do not
violate any applicable requirements developed under a State Implementation Plan
(SIP) approved or promulgated by the Administrator pursuant to Section 110 of
the Clean Air Act, as amended.

14

 Ala. Admin. Code R. 335-3-1-.02(1)(d), 335-3-1-.02(1)(e), 335-3-1-.02(1)(ss) and 335-3-1-.08,
discussed below, have been approved by the Administrator of the U.S. Environmental Protection
Agency as part of the State Implementation Plan for Alabama under section 110 of the Clean Air
Act, 42 U.S.C. § 7410. See 40 C.F.R. §§ 52.50, 52.53. 7
Ala. Admin. Code R. 335-3-1-.08 provides:
No person shall permit or cause air pollution, as defined in Rule 335-3-1-.02(1)(e)
of this Chapter by the discharge of any air contaminant for which no ambient air
quality standards have been set under Rule 335-3-1-.03(1).
“Air Pollution” means “the presence in the outdoor atmosphere of one or more air contaminants
in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal
or plant life, or property, or would interfere with the enjoyment of life or property . . ..” Ala.
Admin. Code R. 335-3-1-.02(1)(e) (emphasis added). “Air Contaminant” means “any solid,
liquid, or gaseous matter, any odor, or any combination thereof, from whatever source.” Ala.
Admin. Code R. 335-3-1-.02(1)(d) (emphasis added). “Odor” means “smells or aromas which are
unpleasant to persons or which tend to lessen human food and water intake, interfere with sleep,
upset appetite, produce irritation of the upper respiratory tract, or cause symptoms or nausea, or
which by their inherent chemical or physical nature or method or processing are, or may be,
detrimental or dangerous to health. Odor and smell are used interchangeably herein.” Ala.
Admin. Code R. 335-3-1-.02(1)(ss).
Ala. Admin. Code R. 335-13-4-.22(1) provides:
Daily Operation.
(a) All waste shall be covered as follows:
1. A minimum of six inches of compacted earth or other alternative cover
material that includes but is not limited to foams, geosynthetic or waste products,
and is approved by the Department shall be added at the conclusion of each day’s
operation or as otherwise approved by the Department to control disease vectors,
fires, odors, blowing litter, and scavenging.
(Emphasis added). 8

7

Permit No. 53-03 provides that “[t]his landfill may be subject to ADEM Admin. Code
Division 3 . . . and the Federal Clean Air Act.” Exhibit B (Permit No. 53-03, Sept. 27, 2011) at
Section VI; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section VI. The Arrowhead Landfill
Permit Renewal Application and Arrowhead Landfill Permit Expansion Application provide that
“[t]his facility will comply with all Clean Air Act requirements.” Exhibit R1 at 2-33; Exhibit S1
at 2-33.
8

Permit No. 53-03 grants a variance from the requirement to use compacted earth as
daily cover and authorizes the use of alternative cover materials (petroleum contaminated soil,
automotive shredder residue, synthetic tarps and posi-shell). Exhibit B (Permit No. 53-03, Sept.
15

 Ala. Admin. Code R. 335-13-4-.22(1)(b) provides:
All waste shall be confined to as small an area as possible and spread to a
depth not exceeding two feet prior to compaction, and such compaction shall be
accomplished on a face slope not to exceed 4 to 1 (25%) or as otherwise approved
by the Department. 9

27, 2011) at Section III., H.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section III., H.
Alternative cover materials may be inferior to compacted earth cover in the control of odors. In
any case, the use of alternative cover materials is contrary to Alabama law. Ala. Code § 22-272(23) defines a “municipal solid waste landfill” as a “sanitary landfill.” Ala. Code § 22-27-2(32)
defines “sanitary landfill” as “[a] controlled area of land upon which solid waste is deposited and
is compacted and covered with compacted earth each day as deposited, with no on-site burning of
wastes, and so located, contoured, and drained that it will not constitute a source of water
pollution as determined by the department.” (Emphasis added). ADEM is authorized to “adopt
such rules and regulations as may be needed to meet the requirements of this article” and to
“[a]dopt rules to implement this article.” Ala. Code §§ 22-27-7 and 22-27-12(1). Ala. Code Title
22, Article 1 provides for no exceptions or variances from the requirement to use compacted
earth as daily cover. Therefore, that language in Ala. Admin. Code R. 335-13-4-.22(1) which
purports to permit ADEM to authorize the use of alternative cover materials is unlawful and void.
See Ex parte Crestwood Hosp. & Nursing Home, Inc. , 670 So.2d 45, 47 (Ala. 1995) (“It is settled
law that the provisions of a statute will prevail in any case in which there is a conflict between the
statute and a state agency regulation”); Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala. 1991)
(“An administrative agency cannot usurp legislative powers or contravene a statute. A regulation
cannot subvert or enlarge upon statutory policy.”); Jefferson County v. Alabama Criminal Justice
Information Ctr. Comm’n , 620 So.2d 651, 658 (Ala. 1993) (an administrative agency cannot
“claim implied powers that exceed and/or conflict with those express powers contained in its
enabling legislation”). The variance in Permit No. 53-03, Section III., H. is also unlawful and
void.
Permit No. 53-03 currently authorizes six inches of compacted earth, petroleum
contaminated soil, and automotive shredder residue as daily cover. Exhibit B (Permit No. 53-03,
Sept. 27, 2011) at Section III., H.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section III., H.
Greater depths of cover material are authorized and may be necessary to effectively control odors.
Permit No. 53-03 currently authorizes the same minimum cover frequency as provided in
ADEM rules, i.e. daily cover. Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section III., H.;
Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section III., H. See Ala. Admin. Code R. 335-134-.22(1)(a)1. More frequent application of cover material is authorized and may be necessary to
effectively control odors.
9

Permit No. 53-03 requires that “[a]ll waste shall be confined to an area as small as
possible . . .. Arrowhead Landfill is granted a variance to operate two working faces: one for the
placement of MSW/Construction and Demolition waste, and one for the placement of coal ash
waste (See Section X., A.). Each of the two working faces should still be confined to as small an
16

 Ala. Admin. Code R. 335-13-4-.13(2)(f) provides:
Buffer zones, screening and other aesthetic control measures. Buffer zones
around the perimeter of the landfill unit shall be a minimum of 100 feet in width
measured in a horizontal plane. No disposal or storage practices for waste shall
take place in the buffer zone. Roads, access control measures, earth storage, and
buildings may be placed in the buffer zone. 10
Finally, Ala. Admin. Code R. 335-13-4-.22(3)(b) provides:
Notwithstanding this Rule, additional requirements for operating and
maintaining a MSWLF may be imposed by the Department, as deemed necessary,
to comply with the Act and this Division. 11
The foregoing authorize ADEM to require that landfill operations not result in offensive
odors. In addition, the foregoing authorize ADEM to require the use of compacted earth as
cover, to require that the depth of cover be more than six inches, to require that waste be covered

area as possible.” (Emphasis added.). Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section
III., J.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section III., J. The Arrowhead Landfill
Permit Renewal Application and Arrowhead Landfill Permit Expansion Application indicate that
the maximum size of each of two working faces shall be 200 feet by 200 feet when waste receipts
equal or exceed 1,500 tons per day and 150 feet by 100 feet when waste receipts are less than
1,500 tons per day. Exhibit R1 at 2-28; Exhibit S1 at 2-28. Reducing the size of the working
face is authorized and would reduce the solid waste exposed to the air and thus odor emissions.
10

Permit No. 53-03 contains no specific requirements for buffer zones. However, Permit
No. 53-03 provides that the permittee shall operate and maintain the disposal facility consistent
with ADEM Admin. Code Division 13. Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section
II., A.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section II., A. Thus, the minimum buffer
zone for all aesthetic impacts is 100 feet. Ala. Admin. Code R. 335-13-4-.13(2)(f). The
Arrowhead Landfill Permit Renewal Application and Arrowhead Landfill Permit Expansion
Application indicate that “[a] 100 foot minimum waste disposal buffer zone has been established
around the perimeter of the site.” Exhibit R1 at 2-3; Exhibit S1 at 2-3. Buffer zones for landfill
odor impacts can be scientifically determined. See e.g., Exhibit T1 (Cooper, David C.,
Atmospheric Dispersion Modeling for Odor Buffer Distances from Florida Landfills , University
of Central Florida (Report # 16207042, June 2009), Exhibit T2 (Figueroa, V.K., Determining
Florida Landfill Odor Buffer Distances Using Aermod , University of Central Florida (Masters
Thesis, Summer 2008), and Exhibit T3 (Tarr, J., An Evaluation of Particulate Matter, Hydrogen
Sulfide, and Non-Methane Organic Compounds from the Arrowhead Landfill (Aug. 2012)).
11

Permit No. 53-03 provides that “[t]he Department may enhance or reduce any
requirements for operating and maintaining the landfill as deemed necessary by the Land
Division.” Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section III., T.; Exhibit C (Permit
No. 53-03, Feb. 3, 2012) at Section III., T.
17

 more frequently than once each day, to prohibit leachate recirculation, 12 and to further restrict the
size of the working face. Moreover, the foregoing authorize ADEM to establish a larger buffer
zone for aesthetic purposes, including odor reduction.
B.

Flies and birds

ADEM has ample authority to regulate and control disease vectors such as flies and birds.
For example, Ala. Admin. Code R. 335-13-4-.22(1) provides:
Daily Operation.
(a) All waste shall be covered as follows:
1. A minimum of six inches of compacted earth or other alternative cover
material that includes but is not limited to foams, geosynthetic or waste products,
and is approved by the Department shall be added at the conclusion of each day’s
operation or as otherwise approved by the Department to control disease vectors ,
fires, odors, blowing litter, and scavenging. 13

12

Permit No. 53-03 currently authorizes leachate recirculation and states that leachate
distribution should be at a rate and manner that does not cause odor. Exhibit B (Permit No. 5303, Sept. 27, 2011) at Section VII; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section VII .
Recirculation accelerates organic decomposition and generates more off-gases. EPA “recognizes
that potential operational problems associated with leachate recirculation, such as increase in
leachate production, clogging of the leachate collection system, buildup of hydraulic head within
the unit, increase in air emissions and odor problems, and increase in potential of leachate
pollutant releases due to drift and/or run-off, may result in adverse impacts on human health and
the environment.” 56 Fed. Reg. at 51056 (1991). See Solid Waste Disposal Facility Criteria
Technical Manual (EPA530-R-93-017, Nov. 1993) at § 3.10.3 (“In some cases, [leachate]
discharge points have been a source of odor.”).
13

Permit No. 53-03 provides that “[t]he Permittee shall provide for vector control as
required by ADEM Admin. Code Division 13.” Exhibit B (Permit No. 53-03, Sept. 27, 2011) at
Section II., Q.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section II., Q. The Arrowhead
Landfill Permit Renewal Application and Arrowhead Landfill Permit Expansion Application
state that “[v]ectors shall be controlled by compaction and the use of daily cover, or approved
ADC materials.” Exhibit R1 at 2-32; Exhibit S1 at 2-32.
Permit No. 53-03 currently authorizes the use of alternative cover materials (petroleum
contaminated soil, automotive shredder residue, synthetic tarps and posi-shell). Exhibit B
(Permit No. 53-03, Sept. 27, 2011) at Section III., H.; Exhibit C (Permit No. 53-03, Feb. 3,
2012) at Section III., H. Such alternatives are not authorized under Alabama law. See supra n.
8. Moreover, requiring compacted earth cover is an authorized and recognized method for
controlling disease vectors. Solid Waste Disposal Facility Criteria Technical Manual
(EPA530-R-93-017, Nov. 1993) at § 3.4.3.
Permit No. 53-03 currently authorizes six inches of compacted earth, petroleum
18

 (Emphasis added).
Ala. Admin. Code R. 335-13-4-.22(2) (d) provides:
Measures shall be taken to prevent the breeding or accumulation of disease
vectors. If determined necessary by the Department or the State Health
Department, additional disease vector control measures shall be conducted. 14
Ala. Admin. Code R. 335-13-4-.22(1)(b) provides:
All waste shall be confined to as small an area as possible and spread to a
depth not exceeding two feet prior to compaction, and such compaction shall be
accomplished on a face slope not to exceed 4 to 1 (25%) or as otherwise approved
by the Department. 15
Finally, Ala. Admin. Code R. 335-13-4-.22(3)(b) provides:

contaminated soil, and automotive shredder residue as daily cover. Exhibit B (Permit No. 53-03,
Sept. 27, 2011) at Section III., H.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section III., H.
Increasing cover thickness is an authorized and recognized method for controlling disease vectors.
Solid Waste Disposal Facility Criteria Technical Manual (EPA530-R-93-017, Nov. 1993) at §
3.4.3.
Permit No. 53-03 currently authorizes the minimum cover frequency provided in ADEM
rules, i.e. daily cover. Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section III., H.; Exhibit
C (Permit No. 53-03, Feb. 3, 2012) at Section III., H. See Ala. Admin. Code R. 335-13-4.22(1)(a)1. More frequent application of cover material is an authorized and recognized method
for controlling disease vectors. Solid Waste Disposal Facility Criteria Technical Manual
(EPA530-R-93-017, Nov. 1993) at § 3.4.3.
14

EPA has recognized that “if cover material requirements prove insufficient to ensure
vector control, this criterion would require that other steps be taken by the owner or operator to
ensure such control.” 53 Fed. Reg. at 33336. “[O]ther vector control alternatives may be
required. These alternatives could include: reducing the size of the working face; other
operational modifications (e.g., increasing cover thickness, changing cover type, density,
placement frequency, and grading); repellents, insecticides or rodenticides; composting or
processing of organic wastes prior to disposal; and predatory or reproductive control of insect,
bird, and animal populations.” Solid Waste Disposal Facility Criteria Technical Manual
(EPA530-R-93-017, Nov. 1993) at § 3.4.3.
15

See supra n. 9. EPA has recognized that reducing the size of the working face may be
appropriate to control disease vectors. Solid Waste Disposal Facility Criteria Technical Manual
(EPA530-R-93-017, Nov. 1993) at § 3.4.3.
19

 Notwithstanding this Rule, additional requirements for operating and
maintaining a MSWLF may be imposed by the Department, as deemed necessary,
to comply with the Act and this Division. 16
The foregoing authorize ADEM to require that landfill operations incorporate controls on
disease vectors, such as flies and birds, in addition to daily cover.
C.

Noise

ADEM has ample authority to regulate and control noise impacts. For example, Ala.
Admin. Code R. 335-13-4-.13(2)(f) provides:
Buffer zones, screening and other aesthetic control measures. Buffer zones
around the perimeter of the landfill unit shall be a minimum of 100 feet in width
measured in a horizontal plane. No disposal or storage practices for waste shall
take place in the buffer zone. Roads, access control measures, earth storage, and
buildings may be placed in the buffer zone. 17
In addition, Ala. Admin. Code R. 335-13-4-.22(3)(b) provides:
Notwithstanding this Rule, additional requirements for operating and
maintaining a MSWLF may be imposed by the Department, as deemed necessary,
to comply with the Act and this Division. 18
The foregoing authorize ADEM to require buffer zones exceeding 100 feet where
necessary to control adverse impacts on aesthetics from landfill operation. Such aesthetics are not
limited to visual aesthetics. They include auditory aesthetics. Thus, ADEM is authorized to
require an increased buffer zone to reduce disturbing noise at the Complainants’ residences

16

See supra n. 11.

17

Permit No. 53-03 contains no specific requirements for buffer zones. However, Permit
No. 53-03 provides that the permittee shall operate and maintain the disposal facility consistent
with ADEM Admin. Code Division 13. Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section
II., A.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section II., A. Thus, the minimum buffer
zone for all aesthetic impacts is 100 feet. Ala. Admin. Code R. 335-13-4-.13(2)(f). The
Arrowhead Landfill Permit Renewal Application and Arrowhead Landfill Permit Expansion
Application indicate that “[a] 100 foot minimum waste disposal buffer zone has been established
around the perimeter of the site.” Exhibit R1 at 2-3; Exhibit S1 at 2-3. Buffer zones for landfill
noise impacts can be scientifically determined. See e.g., Exhibit U1 (ARM Group Inc., Noise
Impact Assessment Resource Recovery Landfill (ARM Project 04117, Mar. 2006)) and Exhibit
U2 (Barton & Loguidice, P.C., County of Franklin Solid Waste Management Authority Proposed
Landfill Expansion Noise Assessment , (Sep. 2008)).
18

See supra n. 11.
20

 D.

Fugitive Dust

ADEM has ample authority to regulate and control fugitive dust emissions from landfills.
For example, Ala. Admin. Code R. 335-13-4-.22(3)(a) provides:
(a) Owners or operators of all MSWLFs must ensure that the units do not
violate any applicable requirements developed under a State Implementation Plan
(SIP) approved or promulgated by the Administrator pursuant to Section 110 of
the Clean Air Act, as amended.
Included in the EPA-approved State Implementation Plan is Ala. Admin. Code R. 335-3-4-.02.
40 C.F.R. § 52.50(c); http://www.epa.gov/region4/air/sips/al/content.htm. Rule 335-3-4-.02, as
it appears in the approved State Implementation Plan, provides:
Fugitive Dust and Fugitive Emissions
(1) No Person shall cause, suffer, allow, or permit any materials to be
handled, transported, or stored; or a building, its appurtenances, or a road to be
used, constructed, altered, repaired, or demolished without taking reasonable
precautions to prevent particulate matter from becoming airborne. Such
reasonable precautions shall include, but not be limited to, the following:
(a) Use, where possible, of water or chemicals for control of dust in the
demolition of existing buildings or structures, construction operations, the grading
or reads, or the clearing of land;
(b) Application of asphalt, oil, water, or suitable chemicals on dirt roads,
materials stock piles, and other surfaces which create airborne dust problems;
(c) Installation and use of hoods, fans, and fabric filters (or other suitable
control devices) to enclose and vent the handling of dusty materials. Adequate
containment methods shall be employed during sandblasting or other similar
operations.
(2) Visible Emissions Restrictions Beyond Lot Line. No person shall
cause or permit the discharge of visible fugitive dust emissions beyond the lot line
of the property on which the emissions originate.
Although ADEM’s fugitive dust rule was declared to be unconstitutional by the Alabama
Supreme Court in Ross Neely Express, Inc. v. Alabama Department of Environmental
Management, 437 So.2d 82 (Ala. 1983), Alabama has neither repealed the rule nor sought or
obtained EPA approval of a revision of the State Implementation Plan. Accordingly, the rule
continues to be included in the “applicable implementation plan” under the Clean Air Act. See
e.g., Gen. Motors Corp. v. United States , 496 US 530, 540 (1990) (“There can be little or no
doubt that the existing SIP remains the “applicable implementation plan” even after the State has
21

 submitted a proposed revision.”); Safe Air for Everyone v. United States Envtl. Prot. Agency , 475
F.3d 1096, 1105 (9th Cir. 2007) (“[A] state may not unilaterally alter the legal commitments of its
SIP once EPA approves the plan”).
In addition, Ala. Admin. Code R. 335-13-4-.13(2)(f) provides:
Buffer zones, screening and other aesthetic control measures. Buffer zones
around the perimeter of the landfill unit shall be a minimum of 100 feet in width
measured in a horizontal plane. No disposal or storage practices for waste shall
take place in the buffer zone. Roads, access control measures, earth storage, and
buildings may be placed in the buffer zone. 19
In addition, Ala. Admin. Code R. 335-13-4-.22(3)(b) provides:
Notwithstanding this Rule, additional requirements for operating and
maintaining a MSWLF may be imposed by the Department, as deemed necessary,
to comply with the Act and this Division. 20
The foregoing rules authorize ADEM to require controls on fugitive dust emissions and
buffer zones exceeding 100 feet where necessary to control adverse impacts on aesthetics from
landfill operation. Thus, ADEM is authorized to require reductions in the adverse impacts of
fugitive dust at the Complainants’ residences.
E.

Property values

As explained above, Title VI and its implementing regulations at 40 C.F.R. Part 7 do not
limit the scope of cognizable discrimination to those adverse effects within the authority of the
financial assistance recipient to regulate. Sandoval v. Hagan , 197 F.3d 484, 508 (11th Cir. 1999),
revs’d on other grounds , Alexander v. Sandoval , 532 U.S. 275 (2001). In Sandoval, the Court
held that the Alabama Department of Transportation’s English-only language requirement for

19

Permit No. 53-03 contains no specific requirements for buffer zones. However, Permit
No. 53-03 provides that the permittee shall operate and maintain the disposal facility consistent
with ADEM Admin. Code Division 13. Exhibit B (Permit No. 53-03, Sept. 27, 2011) at Section
II., A.; Exhibit C (Permit No. 53-03, Feb. 3, 2012) at Section II., A. Thus, the minimum buffer
zone for all aesthetic impacts is 100 feet. Ala. Admin. Code R. 335-13-4-.13(2)(f). The
Arrowhead Landfill Permit Renewal Application and Arrowhead Landfill Permit Expansion
Application indicate that “[a] 100 foot minimum waste disposal buffer zone has been established
around the perimeter of the site.” Exhibit R1 at 2-3; Exhibit S1 at 2-3. Buffer zones to protect
against adverse aesthetic impacts, such as from fugitive dust, are authorized. It may be possible
to model these impacts. See e.g., Exhibit T3 (Tarr, J., An Evaluation of Particulate Matter,
Hydrogen Sulfide, and Non-Methane Organic Compounds from the Arrowhead Landfill (Aug.
2012)).
20

See supra n. 11.
22

 motor vehicle license testing resulted in discrimination based on national origin in violation of
Title VI because its adversely affected individuals in the form of lost economic opportunities,
social services, and other quality of life pursuits. Similarly, the construction and operation of the
Arrowhead Landfill, with all its associated odor, noise, birds, flies, and fugitive dust, has an
adverse effect on the property values of Complainants and other members of the AfricanAmerican race in the community. ADEM cannot escape its obligation to ensure that its actions
do not have discriminatory effects merely because it does not have authority to regulate or
consider property values. ADEM does have authority to regulate landfill construction and
operation (including buffer zones) which directly impact property values.
VIII. Disparate Impacts
“EPA [compares] the percentage of African Americans in [the] affected population with
the percentage of African Americans in the service area of [the] landfill and in the State to
determine whether African Americans near the landfill[] [are] disproportionately affected by
potential impacts.” Yerkwood Landfill Complaint Decision Document , EPA OCR File No. 28R99-R4 at 5. See Investigative Report for Title VI Administrative Complaint File No. 28R-99-R4
(Yerkwood Landfill Complaint) (June 2003) at 10.
The adverse impacts described above have fallen and continue to fall disparately upon
members of the African-American race. This is illustrated by the 2010 census block data included
in Figure 4. The impacted census blocks are 87 to 100 percent African-American.
The designated service area for the Arrowhead Landfill is thirty-three states. Exhibit B
(Permit No. 53-03, Sept. 27, 2011) and Exhibit C (Permit No. 53-03, Feb. 3, 2012). The
predominant race in these states is White. Figures 5 and 6 . The percentage of AfricanAmericans among the total population in the designated thirty-three state service area is only
15.1%. The percentage of African-Americans among the total population in Alabama is 26%.
Inasmuch as the percentage of African-Americans impacted by the Arrowhead Landfill far
exceeds the percentage of African-Americans in the service area and State of Alabama, the alleged
impacts are “disparate” impacts. See Yerkwood Landfill Complaint Decision Document , EPA
OCR File No. 28R-99-R4 at 5.

23

 Figure 4
AFRICAN-AMERICAN POPULATION IN 2010 CENSUS
BLOCKS SURROUNDING THE ARROWHEAD LANDFILL
Source: http://1.usa.gov/10MLwGe

24

 Figure 5
LARGEST RACIAL AND ETHNIC GROUPS IN SERVICE AREA STATES
Source: http://projects.nytimes.com/census/2010/map

Figure 6
PERCENT AFRICAN-AMERICAN AND WHITE
POPULATIONS IN SERVICE AREA STATES
Source: http://projects.nytimes.com/census/2010/map and Exhibits B and C

82
75
67

71

65
58 56

94

89 86

76 77

64

60

94 93

92
83

81

81
59 58

58

55

69

65

83

79 76

76
64
Black

45
32

30

26

21
9

15

White

29

28
21

14

9

3

14

8
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6

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11
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37

25

 IX. Justification and Less Discriminatory Alternatives
“If the recipient can neither rebut the initial finding of disparate impact nor develop an
acceptable mitigation plan, then the recipient may seek to demonstrate that it has a substantial,
legitimate interest that justifies the decision to proceed with the permit notwithstanding the
disparate impact.” Interim Guidance at 4. “[T]here must be some articulable value to the
recipient [ADEM] in the permitted activity.” Id. at 11. “The justification must be necessary to
meet ‘a legitimate, important goal integral to [the recipient’s] mission.” Investigative Report for
Title VI Administrative Complaint File No. 28R-99-R4 at 60. “Even where a substantial,
legitimate justification is proffered, OCR will need to consider whether it can be shown that there
is an alternative that would satisfy the stated interest while eliminating or mitigating the disparate
impact.” Interim Guidance at 4. “Facially-neutral policies or practices that result in
discriminatory effects violate EPA’s Title VI regulations unless it is shown that they are justified
and that there is no less discriminatory alternative.” Id. at 2 (footnote omitted). “[M]erely
demonstrating that the permit complies with applicable environmental regulations will not
ordinarily be considered a substantial, legitimate justification.” Id. at 11. And, “[i]f a less
discriminatory alternative is practicable, then the recipient must implement it to avoid a finding of
noncompliance with the regulations.” Id.
ADEM has not articulated a value to ADEM or the State of Alabama in the permitting of
the Arrowhead Landfill. It is not likely that ADEM or the State of Alabama has a substantial,
legitimate interest in the permitting of the Arrowhead Landfill.
Less discriminatory and practicable alternatives to the Arrowhead Landfill are available for
the disposal of municipal solid waste generated in Perry County.
The BFI-Selma Transfer Station is located at 1478 Ala. Hwy. 41 in Selma, Alabama
(Latitude 32.34773  North, Longitude 87.00067  West), approximately 31miles east-southeast of
Uniontown. “Marion and unincorporated Perry County’s use of BFI-Selma assures them access
to a facility that will be able to accommodate the changing MSW needs of its residents throughout
the life of this plan. * * * BFI-Selma is expected to remain an active disposal option to the City of
Marion and unincorporated Perry County through 2014.” Exhibit V (10-Year Solid Waste
Management Plan [for] Perry County, Alabama (Nov. 2004)) at 22,. “[G]iven their market
share and financial resources, BFI is not likely to run out of space to dispose of waste collected at
BFI-Selma during the life of this plan.” Id. at 38. There appear to be no more than a few
residences within one mile of the BFI-Selma Transfer Station.
The Pine Ridge Landfill is located at 520 Murphy Road in Meridian, Mississippi (Latitude
32.37677 North, Longitude 88.61435  West), approximately 70 miles west of Uniontown. “The
City of Uniontown send[s] waste generated within its jurisdiction and the Town of Faunsdale to
the Pine Ridge Landfill. Pine Ridge is a Subtitle D facility located approximately 75 miles west of
Uniontown in Meridian [Mississippi] . . ..” Id. “Pine Ridge’s Landfill Operations Manager
estimated that the facility has enough remaining capacity to dispose of waste for at least the next
30 years.” Id. at 23. There appear to be a number of residences within one mile of the Pine
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 Ridge Landfill along Murphy Road and Sweet Gum Bottom Road. 2010 census data for Census
Blocks 106.4000 and 106.5000 indicate that the African-American population surrounding the
Pine Ridge Landfill is significantly less than that surrounding the Arrowhead Landfill.
The Choctaw County Regional Landfill is located at 1106 Fire Tower Road in Butler,
Alabama (Latitude 32.04541  North, Longitude 88.27016  West), approximately 52 miles
southwest of Uniontown. The Choctaw County Regional Landfill is authorized to accept solid
waste from all of Alabama. The Choctaw County Regional Landfill is located in an unpopulated
area.
X. ADEM’s Assurances and Defenses
With each application for EPA financial assistance, ADEM is required to provide
assurances that it “will comply with the requirements of” 40 C.F.R. Part 7 implementing Title VI.
40 C.F.R. § 7.80(a)(1). See Standard Form 424B (“As the duly authorized representative of the
applicant, I certify that the applicant: * * * Will comply with all Federal statutes relating to
nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of
1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; . .
..”).21 As mentioned above, 40 C.F.R. § 7.35(b) prohibits ADEM from using criteria or methods
of administering its program(s) in a manner which has the effect of subjecting individuals to
discrimination on the basis of race.
In this case, as in others, ADEM alleges that it grants permits in accordance with
applicable laws and regulations without regard to the racial composition of any impacted
communities. See Exhibit X (Letter from Lance LeFleur to Rafael DeLeon dated July 19,
2012). This allegation is, in essence, a claim that ADEM’s permitting actions do not intentionally
have adverse impacts on racial minorities. While this may be so, it fails to recognize ADEM’s
obligation under Title VI to avoid unintentional discriminatory effects. “Frequently,
discrimination results from policies and practices that are neutral on their face, but have the effect
of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate

21

Effective January 23, 2013, EPA is requiring that grant recipients (including states)
agree to the following grant condition:
In accepting this assistance agreement, the recipient acknowledges it has an
affirmative obligation to implement effective Title VI compliance programs and
ensure that its actions do not involve discriminatory treatment and do not have
discriminatory effects even when facially neutral. The recipient must be prepared to
demonstrate to EPA that such compliance programs exist and are being
implemented or to otherwise demonstrate how it is meeting its Title VI
obligations.
Exhibit W (Civil Rights Obligations ).
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 EPA’s Title VI regulations unless it is shown that they are justified and that there is no less
discriminatory alternative.” Interim Guidance at 2 (footnote omitted).
Often, ADEM asserts that it grants permits in accordance with applicable laws and
regulations (“criteria”) that are designed to protect human health and the environment.
Compliance with these “criteria,” ADEM suggests, ensures that racial minorities are impacted no
differently than other races. See Exhibit X (Letter from Lance LeFleur to Rafael DeLeon dated
July 19, 2012). This allegation ignores the fact that members of the African-American race are
disparately affected by the Arrowhead Landfill, notwithstanding ADEM’s alleged compliance with
the applicable criteria. Exhibit Y (Draft Title VI Guidance Documents Questions and Answers )
at 4.22
ADEM has also been known to allege that it does not make landfill siting decisions and
that its permitting of a landfill cannot cause adverse impacts on Complainants. See Exhibit Z
(Summation of Comments Received and Response-to-Comments, Proposed Arrowhead Landfill
Renewal, Permit 53-03 (Sept. 27, 2011) ) (“[A]ny alleged discriminatory impact would come as a
result of the actual siting of the landfill near an area whose residents are protected by Title VI.
ADEM, however, does not site landfills; that responsibility lies with the local host government.”).
This position ignores several facts. First, the permit granted by ADEM to Perry County
Associates, LLC is to construct and operate a landfill at a specific site – Sections 21, 22, 27, and
28, Township 17 North, Range 6 East in Perry County. Exhibit B (Permit No. 53-03, Sept. 27,
2011) and Exhibit C (Permit No. 53-03, Feb. 3, 2012). But for the ADEM permit authorizing
construction and operation of the landfill at this specific site, adverse impacts to Complainants
might not result. Second, ADEM determined that the landfill site is compliant with ADEM’s
“Landfill Unit Siting Standards” at Ala. Admin. Code R. 335-13-4-.01. But for ADEM’s
determination that the landfill site is compliant with the siting standards, the landfill might not
have been constructed at the site and might not result in adverse impacts to Complainants.
Finally, ADEM has imposed or failed to impose, permit conditions on the operations of the
landfill that have allowed odors, leachate recirculation, minimal cover depth, minimal cover
frequency, alternative daily cover, disease vectors (birds and flies), working face areas, noise,
22

EPA’s Draft Title VI Guidance Documents Questions and Answers states:

13.

Does compliance with existing Federal and state environmental regulations
constitute compliance with Title VI?
A recipient’s Title VI obligation exists independent from Federal or state
environmental laws governing its permitting program. Recipients may have
policies and practices that are compliant with Federal or state regulations
but that have discriminatory effects (such as an adverse disparate impact)
on certain populations based on race, color, or national origin, and are
therefore noncompliant with Title VI.

Exhibit Y (Draft Title VI Guidance Documents Questions and Answers ) at 4.
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 nighttime and weekend operations, fugitive dust, minimal buffer zones and property devaluation.
Operation of the landfill under these conditions causes adverse impacts to the Complainants.
XI. Request
Based upon the foregoing, Complainants request that the U.S. Environmental Protection
Agency - Office of Civil Rights accept this complaint and conduct an investigation to determine
whether ADEM violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to 2000d-7,
and 40 C.F.R. Part 7 in the issuance and modification of Solid Waste Disposal Facility Permit No.
53-03 on September 27, 2011 and February 3, 2012, respectively. If a violation is found and
ADEM is unable to demonstrate a substantial, legitimate justification for its action and to
voluntarily implement a less discriminatory alternative that is practicable, Complainants further
petition the EPA to initiate proceedings to deny, annul, suspend, or terminate EPA financial
assistance to ADEM, and after the conclusion of those proceedings, deny, annul, or terminate
EPA financial assistance to ADEM.
Sincerely,

___________________________
David A. Ludder
Attorney for Complainants
Enclosures:
Compact Disc 1 of 5 (Exhibits A thru L4)
Compact Disc 2 of 5 (Exhibits M1 thru O14)
Compact Disc 3 of 5 (Exhibits P1 thru R1)
Compact Disc 4 of 5 (Exhibits R2 thru S1)
Compact Disc 5 of 5 (Exhibits S2 thru Z)

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