There’s a new twist in the legal wrangling over Ameren’s plans to build a coal ash landfill in Franklin County.
On Tuesday, Ameren and Franklin County together filed a lawsuit against the Labadie Environmental Organization, a nonprofit made up of area residents opposing the landfill.
The suit argues that because Ameren already has approval from the Missouri Public Service Commission, the county's regulations governing coal ash landfills no longer apply.
Patricia Schuba is the Labadie Environmental Organization's president. “We're shocked that the county would join in a lawsuit with Ameren against its own citizens and basically abdicate its jurisdiction over this landfill site,” Schuba said.
In its ruling, the Missouri Supreme Court sent the case back to the Franklin County Circuit Court for a hearing that will determine the validity of those county regulations.
Those local requirements matter because Ameren needed to meet them before the Public Service Commission and the Missouri Department of Natural Resources could grant their approvals for the landfill project.
Here are some relevant excerpts from the Commission's approval and the state statutes (emphases ours):
After considering all the evidence offered in this case, including that the Labadie Energy Center is Ameren Missouri’s largest generator of electricity, that the existing coal ash ponds will be at capacity by approximately 2016, that the coal ash must be deposited somewhere, that Ameren Missouri already owns the land on which it proposes to build a landfill, and that MDNR and local zoning authorities have approved the location and design of the proposed coal ash landfill, the Commission concludes that approving Ameren Missouri’s application for a certificate of convenience and necessity to expand the boundaries of its Labadie Energy Center to allow room to construct and operate a coal ash landfill will promote the public interest.
260.003: Notwithstanding any provision of this chapter, the department of natural resources shall require that before any permit, license, or grant of authority is issued or renewed by the department of natural resources pursuant to this chapter, the local jurisdiction shall verify that the person and activity which is the subject of such permit, license, or grant of authority, is in compliance with all applicable local zoning, building, and health codes, ordinances, and orders with regard to the person and activity regulated pursuant to this chapter. Failure of the local jurisdiction to respond to a request from the department of natural resources for such verification within thirty days of such request shall be deemed to be verification of local compliance.
260.205.5(3): The applicant for a permit to construct a solid waste disposal area shall provide the department with plans, specifications, and such other data as may be necessary to comply with the purpose of sections 260.200 to 260.345. The application shall demonstrate compliance with all applicable local planning and zoning requirements. The department shall make an investigation of the solid waste disposal area and determine whether it complies with the provisions of sections 260.200 to 260.345 and the rules and regulations adopted pursuant to sections 260.200 to 260.345. Within twelve consecutive months of the receipt of an application for a construction permit the department shall approve or deny the application. The department shall issue rules and regulations establishing time limits for permit modifications and renewal of a permit for a solid waste disposal area. The time limit shall be consistent with this chapter.
In addition, in granting Ameren's construction permit, the DNR said it would check again to see that the landfill was still in compliance with local regulations before allowing it to go into operation (see the bottom of permit p.8, here).
But in its new lawsuit, Ameren maintains that the Public Service Commission's approval supersedes Franklin County's requirements for the design, construction, operation, inspection, monitoring and operation of coal ash landfills.
"Under existing case law, approval from the PSC regarding the landfill preempts the need for the County ordinance," Ameren said in a statement to St. Louis Public Radio. "Therefore, we are asking for a court determination that the ordinance is preempted."
The company's statement went on to say that Franklin County's interests still would be protected. "We have entered into an agreement with Franklin County confirming that the landfill will be designed and built in accordance with the County's criteria," Ameren said. "The landfill is a much-needed project to ensure that Labadie Energy Center continues to provide safe, reliable and reasonably priced energy for our customers."
Franklin County did not respond to repeated requests for comment.
You can read that agreement between Ameren and the county, here.
No obvious legal answer
So does Public Service Commission approval override county landfill regulations? When we asked the PSC, a spokesperson said it does not comment on pending litigation.
But Douglas Williams, an environmental law professor at Saint Louis University, said Missouri law could be interpreted to exempt utility projects approved by the PSC from local zoning ordinances. "But the statute is ambiguous on that question," Williams said in an email. "The general rule is that, in the absence of a statute that specifically provides that the PSC's orders supersede local regulation of the utility, the local ordinances will apply to the utility. So, the question really turns on how the statute is interpreted."
With two cases involving local landfill regulations now headed to Franklin County Circuit Court, there will be plenty of opportunity for interpretation.
In the meantime, Ameren has already begun breaking ground on its coal ash landfill in Labadie.
Follow Véronique LaCapra on Twitter: @KWMUScience