Oakville couple seeks $50,000 in suit filed against asphalt plant

By BURKE WASSON

While a County Council hearing to discuss the legality of an Oakville plant’s asphalt storage is indefinitely postponed, the company that owns the plant in question also faces a legal battle from a person it once sued for defamation and libel.

Oakville resident and Mehlville Board of Education member Tom Diehl recently revealed that he and his wife, Barbara, filed suit last summer against Fred Weber Inc. seeking more than $50,000 in damages.

The four-count lawsuit against Weber alleges intentional infliction of emotional distress, malicious prosecution, abuse of process and a prima facie tort in connection with its original suit against Tom Diehl.

That lawsuit was dismissed in March 2005 by the Eastern District Missouri Court of Appeals and the Missouri Supreme Court last June refused to hear the case.

A representative of the American Civil Liberties Union told a panel of Missouri legislators in July 2004 that Weber’s lawsuit against Tom Diehl was “a classic SLAPP (Strategic Lawsuit Against Public Participation) suit.” But attorneys for Fred Weber told that same panel that the lawsuit was not a SLAPP suit, but rather a legitimate defamation and libel lawsuit.

Tom Diehl said that Weber’s original $5 million libel and defamation suit, which was filed against him in February 2004, hurt his family’s funds, health and his business, CDS Consultants.

“I know the legal expenses were approaching $50,000,” he said. “There’s also been health costs related in there that I don’t want to go into. Business-wise, you know, my business is basically non-existent at this point because we no longer get the referrals and the inquiries that we used to get.”

Fred Weber Inc. also is making its own inquiries related to the Diehls’ countersuit.

The company has filed a motion to compel discovery from the Diehls to obtain the names of people who helped distribute the “trash terrorists” flyers in 2004 that protested the company’s efforts to build a trash-transfer station at its south quarry near New Baumgartner Road and sparked the original lawsuit against Tom Diehl.

“Because the discovery sought pertains to names of witnesses who were involved in the preparation and distribution of the flyer, as well as the coining of the term ‘Trash Terrorists,’ they are clearly relevant and material to the (issues) in this case and therefore discoverable as defined by Rule 57 of the Missouri Rules of Civil Procedure as well as the relevant case law,” according to Fred Weber’s motion to compel discovery.

Weber is represented by attorneys Lawrence Hartstein and Kimberly Maglin in the Diehls’ countersuit case.

Diehl, however, said he fears that Weber would simply use the names he is seeking in discovery to perhaps file lawsuits against other residents in opposition. Because he already has been down that road and is still seeking damages from its fallout, Diehl said he will refuse to provide those names.

“In (Weber’s) interrogatories, they were asking the same questions they were wanting to know in their previous lawsuit,” he said. “Who was involved in any aspect of that flyer and who all was involved in finding or opposing our permit applications? All the things that the appeals court had said, you know, they’re not entitled to. And so they’re still out there on their witch hunt trying to intimidate and scare people into submission … still trying to interfere with our rights as citizens to be involved in these governmental decisions.”

As for the proposed countywide ordinance concerning reclaimed asphalt pavement, or RAP, storage that the Diehls and 6th District County Councilman John Campisi, R-south county, claim would only accommodate the illegal piles at Weber’s Oakville plant, any action is indefinitely postponed. The matter was scheduled to be heard in May in a County Council Committee-of-the-Whole hearing, but pending results from environmental studies of the plant still are needed.

Diehl said he believes Metropolitan Congregations United requested in a letter that the hearing be moved to a later time so that results of an air-monitoring test on Weber’s Oakville plant are available.

“I think there’s just been some scheduling difficulties,” Diehl said. “And I know MCU sent a letter requesting that the hearing be postponed until the results from the air monitoring are in and I don’t recall exactly when that would be ready or available.”

The council eventually will consider whether to allow the storage of milled asphalt next to authorized asphalt plants — like Weber’s New Baumgartner Road plant now does. The St. Louis County Planning Commission recommended in February that the council amend a zoning ordinance to permit such storage. Third District County Councilman Skip Mange, R-Town and Country, originally introduced the bill to allow RAP piles to be stored next to quarry plants as an accessory use.

Campisi, who represents the district where Weber’s Oakville plant is situated, has said that the countywide ordinance proposal is not good for the entire area and is merely a way to fix Weber’s illegally piled 275,000 tons of RAP storage.

But Gary Feder, an attorney representing Weber on the RAP storage issue, said he believes it is unfair for Campisi and some Oakville residents to single out Weber’s plant when the proposed ordinance would affect all of St. Louis County.

“It involved the entire county … lots of different properties, not just Weber properties,” Feder said. “As far as I’m concerned, it really doesn’t matter what Weber thinks one way or another. It’s not our petition. It’s the county’s petition. And it’s a countywide ordinance, so I don’t know that Weber’s opinion is anymore meaningful than any of the other people who are in this business.”

Despite negative reaction to the RAP piles from Campisi, the county Department of Public Works and the county Board of Zoning Adjustment, Feder said he is still confident that such storage is legal.

In fact, he believes the Missouri Court of Appeals soon will agree with him because of the conditional-use permit on the RAP storage that the county has allowed Weber to use for years. Because county officials recently changed their interpretation of that conditional-use permit, Feder said their argument is on shaky ground. Therefore, even if the County Council were to reject the approval of such asphalt storage, the appellate court could overrule the council.

“We filed a lawsuit, the sole purpose of which was to ask a trial judge whether he agreed with the decision of the Board of Zoning Adjustment,” Feder said. “That trial judge said he did agree. We then took an appeal from that to the Missouri Court of Appeals. That decision is still pending, and we still believe there’s great likelihood we would prevail on that … that the interpretation of the board, and of course the interpretation of the director of public works initially, was an incorrect interpretation and that the CUP (conditional-use permit) has been in place for 30 years. The stockpile’s been there that long for a reason, and that’s because it’s authorized by the permit we’ve had all this time.”

But the Diehls have submitted more than 1,200 pages of documents and research to the county health and planning departments that claim the RAP storage is a health hazard to nearby residents. These include a study by the National Institute for Occupational Safety and Health that concludes that asphalt fumes cause irritation of the eyes, nose and respiratory tract. Studies submitted by Diehl from the Department of Natural Resources and the state health departments of Minnesota and Utah also show asphalt’s potentially damaging effects to people and habitats when stored near waterways and flood plains, which lie near Weber’s plant.

But the county Department of Health, the Missouri Department of Natural Resources and the Missouri Department of Health and Senior Services have studied the health effects of the asphalt piles on surrounding areas and concluded that their presence does not pose a health risk.

The county health department does, however, recommend that RAP storage should have limits in its amount, height, proximity to bodies of water and homes and also limits on the amount of time the asphalt is stored in one location.

The Planning Commission responded to the county health department’s recommendations on the piles’ height and proximity to homes in the proposed bill by moving that the zoning ordinance set a maximum stockpile height of 35 feet and a minimum distance of 300 feet to residentially zoned properties.

St. Louis County Planner Mike Zeek said homes in the area of Weber’s property are well outside of that minimum distance. He estimated that the closest home to the asphalt piles at Weber’s property is 680 feet away from RAP storage.

In conjunction with these requirements already in place by the county, Feder reiterated that even if the County Council rejects the RAP storage, Weber still has the option through the appellate court.

“We also have this interpretative lawsuit where we’ve asked the court to resolve it that way,” Feder said. “So at the moment, we’re still confident that this legislation will get passed. And if doesn’t get passed, the lawsuit that’s pending can address the problem. And if neither of those happen, I think we’ll deal with it when the time comes.”

In the meantime, Diehl said he would continue to refuse to give names of people who participated against Weber because he does not want Weber to file further suit against other citizens — like he has already experienced.

“The strategy behind (Weber’s) motion is to identify south county residents and whoever else they think would be opposing their trash-transfer station and doing whatever they can to intimidate them and scare them off,” Diehl said. “I mean … they haven’t learned any lesson from the action or the decision of the appeals court.”