According to York County Superior Court Justice Paul Fritzsche, “David” is not quite able, at this time, to slay “Goliath.”
In laymen’s terms, the nuisance odor lawsuit, filed by Saco City Councilor and attorney Eric Cote on behalf of former Saco mayor Mark Johnston, was dismissed with prejudice. Instead of ruling that the Maine Energy Recovery Company incinerator, located on Lincoln Street in Biddeford and smelled for miles around, was a nuisance, particularly to Johnston and his fellow neighbors and tenants living within the shadow of the stack, Fritzsche passed the buck on to municipal authorities with legislative powers, or the Maine Supreme Court.
The Justice said that the laws on the books just do not apply, in this case, to a regular citizen attempting to change his or her fate, or the fate of loved ones or neighbors. The power, according to the court, to regulate or shut down Maine Energy can only happen within the walls of City Hall, the Legislature or the court on behalf of a municipality.
I can’t say that I am surprised by the outcome. Though many were pulling for Johnston and his lawsuit in hopes of yet another nail in Maine Energy’s coffin, now the incinerator’s ownership, Casella Waste, is saying the decision is “another brick in the wall” solidifying Maine Energy’s status in the community.
I can’t say that I agree with the sentiment.
Casella Waste has been very proactive through Jim Bohlig in being a part of the media as of late, more so than even during the hotly-debated contract hearings of two years ago. Bohlig continues to speak of the viability of the incinerator, the potential of a sale and the overall alleged cluelessness of those involved in opposing keeping Maine Energy or the facility open.
Strangely, much of this media presence has come after mountains of news piled upon the heap.
The facility still lacks an emissions license, though it is allowed to operate until the current application is verified by the Maine Department of Environmental Protection. Legislation is pending to possibly change that process.
The facility received its first ever state odor violation, something that Bohlig has openly stated is an ongoing and nearly impossible problem to fix. With summer coming quickly, it is hard to tell how many more violations might occur.
The facility received violations from the Codes Enforcement Department for safety issues, something not known in the past.
Yes, the shooting down of a private citizen’s lawsuit might be a “brick” in an unknown wall, but, as I see it, there aren’t many of those bricks to count.
I have to say that I am proud of Mark for his effort. Not many people in the private sector (though his years of public service have toughened him up) would put themselves in a similar position of judgment. Even though he did not win his case, the ruling, which puts to onus on the Legislature or the twin cities to act, clarifies any misconceptions of the past.
Perhaps now is the time for the cities to sue again, knowing that odor does exist (the state and Bohlig himself have verified it) and the odor statutes might apply, then.
I, and the citizens of the twin cities, will wait and see.
— Questions? Comments? Contact Publisher Drew McMullin at 282-1535, Ext. 326 or dmcmullin@gwi.net, or Managing Editor Nick Cowenhoven at 282-1535, Ext. 327 or cityeditor@gwi.net.
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