Ruling paves way for Ameren coal ash landfill in Franklin County

Jan 11 - McClatchy-Tribune Regional News - Jeffrey Tomich St. Louis Post-Dispatch

A judge Friday morning rejected claims that the Franklin County Commission acted unlawfully by approving a zoning amendment that would enable Ameren Missouri to develop a new coal ash landfill next to its Labadie power plant.

The lawsuit was filed by the Labadie Environmental Organization, an environmental group, and a group of 11 Franklin County residents who live near the power plant. The lawsuit sought to overturn the commission's decision that enables Ameren to move forward with the project.

Associate Circuit Court Judge Judge Robert D. Schollmeyer had already dismissed five of six counts in the lawsuit earlier this year. And he wasted little time during Friday's hearing announcing his decision in favor of the county and Ameren on the remaining count.

Schollmeyer said the law gives the county commission "wide latitude" to make decisions that affect residents and that plaintiffs failed to prove that the zoning amendment was "arbitrary and unreasonable."

Several plaintiffs said after the ruling that they intend to appeal, insisting that coal ash shouldn't be stored in a floodplain.

"We're going to fight until we don't have any recourse," Nancy Campbell said outside the courtroom.

Campbell, whose grandparents sold Ameren land for the Labadie plant, raises alpacas on her three-acre property less than a mile from away. "I have a deep connection to this land," she said.

Ameren spokeswoman Rita Holmes-Bobo said the utility is pleased with Friday's ruling and is certain it will withstand appeal.

St. Louis-based Ameren is seeking to build the 400-acre coal waste landfill just east of the Labadie plant on what's now farmland. It insists the facility will be safe, with ash stored dry, in cells, and protected by a system of liners and a perimeter berm.

The utility originally proposed the landfill in 2009, saying its existing ash disposal ponds are running out of room.

The ponds, one of which is more than 40 years old and unlined, were constructed before the county adopted its existing land use regulations. The regulations in 2009 didn't include a provision for utility waste landfills, so Ameren proposed an amendment.

After two years of contentious debate and against strong opposition from dozens of residents, the commission voted in October 2011 to change zoning regulations to allow coal waste landfills.

The Labadie environmental group and plant neighbors filed the lawsuit a month later.

Opponents cited the potential contamination of groundwater and the Missouri River, which provides drinking water to communities downstream. They said the landfill elevated flood risk because it is in the Missouri River floodway, a designated pathway for the river in the event of a severe flood.

Many of the concerns raised by the Labadie Environmental Organization are similar to those being discussed nationally following the 2008 collapse of a coal ash impoundment in Tennessee.

The disaster prompted the Environmental Protection Agency in 2010 to propose two rules to regulate coal ash disposal. But the EPA, facing strong opposition from the utility industry, has yet to finalize either rule.

Ameren wasn't named in the Franklin County lawsuit, but later intervened to help defend the commission. In a November court filing, the utility's attorneys said arguments against the zoning amendment were based on a series of "what-ifs" and "Chicken Little scenarios."

In his six-page order, Schollmeyer said the commission was reasonable to rely on testimony from experts such as Lisa J.N. Bradley, a toxicologist who appeared on Ameren's behalf. Bradley said during a public hearing that the proposed landfill and heavy metals in the coal ash itself posed no risk to public health or the environment.

The judge even cited Bradley's testimony that a child could consume coal ash every day and have no increased exposure to arsenic, one of the contaminants left behind in ash when coal is burned to generate electricity.

Ameren intends to ask the Missouri Department of Natural Resources later this month for a permit to construct the landfill. DNR will have a year to consider the application, Holmes-Bobo said.