Labadie Plant courtesy of Ameren UE

A judge dismissed several counts of a lawsuit challenging a proposed coal ash waste landfill in the Labadie bottoms this week including a claim that the Franklin County Commission didn’t provide adequate public hearings on the issue.

Associate Circuit Judge Robert Schollmeyer dismissed five of the six counts of the lawsuit which was filed by property owners who live near the proposed landfill site.

They sued the Franklin County Commission in November after it passed a land use regulation that could allow Ameren Missouri to build a 400-acre landfill adjacent to its power plant.

However, Judge Schollmeyer let stand the property owner’s central claim that the county’s new utility regulation is illegal because it doesn’t promote the health, safety and general welfare of Franklin County — a requirement all new land use amendments must meet.

The lawsuit alleged that both the Franklin County Planning and Zoning Commission and the commission prevented the public from specifically addressing Ameren’s landfill proposal at the public hearings it held on the issue.

Property owners argued the hearings were a sham because officials refused to allow comment on the true subject of the zoning amendment — Ameren’s proposed landfill.

Schollmeyer dismissed that claim and other procedural challenges to the land use regulation.

Lawyers in the case were back in court Wednesday to argue a motion by Ameren to appoint a referee to take additional evidence and expert testimony in the case to refute specific claims in the lawsuit.

James Virtel, a lawyer for Ameren, argued that since the plaintiffs in the case have raised concerns over specific issues including groundwater contamination, the toxicity of coal ash and additional truck traffic in the Labadie area, the court should appoint a referee to oversee additional evidence in the case.

“The court needs to deal with fact nor fear,” Virtel said. “(a referee) would give this court all of the opportunity to make a confident decision regarding the science involved in the case.”

Maxine Lipeles, a lawyer for the property owners, argued Wednesday against the appointment of a referee in the case. She said that Ameren was seeking a second chance or a “do-over” to submit additional expert testimony which is not permitted under the law in this type of case.

In an unusual turn of events, the county sided with the plaintiffs in the hearing on the appointment of a referee.

“We believe that Count I, challenging the legality of the County’s public hearing, is a strong claim and are evaluating our options,” Lipeles said Friday when asked if she was going to appeal Schollmeyer’s ruling dismissing a portion of her client’s lawsuit.

About 20 people, including members of the Labadie Environmental Organization, also a plaintiff in the case, attended Wednesday’s hearing.

Schollmeyer took the motion for a referee under advisement. He could rule on this motion and another motion by Ameren to inspect the groundwater on plaintiffs property in July.

Lawyers familiar with the case have said it could take years to resolve all of the legal issues involved in the dispute.