ORONO, Maine — Town leaders decided Monday to become plaintiffs in a lawsuit against the majority owner of the Penobscot Energy Recovery Co. in Orrington over $1.2 million spent, so far, on lobbying fees.
“The Orono … stake in this matter amounts to approximately $29,640 — a figure that will continue to rise if left unabated,” a summary of the lawsuit in the Orono agenda packet states.
The town is part of the Municipal Review Committee, an Ellsworth-based entity that represents 187 towns that send trash to the waste-to-energy plant in Orrington. In April 2014, the MRC sued USA Energy Group of Minneapolis, Minnesota, the majority owner, claiming a breach of the plant’s partnership agreement.
The MRC, a part owner of PERC, claims that under the partnership agreement it has a legal right to approve or deny how partnership funds are spent. It sued USA Energy Group to recover legal and consulting bills that stem from a legislative lobbying effort in Maine that the towns opposed.
According to court documents, USA Energy Group hired Augusta law firm Doyle & Nelson to lobby for the passage of LD 1483, which became law in March 2014. The law requires licensed waste facilities to align with the state’s solid waste management hierarchy. The hierarchy requires recycling first with landfilling as the last option for waste. The bill that passed was scaled back significantly from the original version, which would have added landfill fees to fund a solid waste stabilization account to support waste-to-energy plants, including PERC.
USA Energy Group controls approximately 52.7 percent of the incineration plant, PERC Holdings owns 24.3 percent and the other 23 percent is controlled by the original member towns and cities that became part of the Municipal Review Committee Inc. before 1998.
“The MRC believes … that having a party of the stature of Orono (as a primary player in the Orono group that holds about 2.47 percent of all the [Equity Charter Municipality] assets and a town staff member being duly elected to the MRC Board of Directors) join the case would add weight and credibility to its claim,” the Orono agenda documents state.
Councilors Cynthia Mehnert, who is the chairwoman, Thomas Spitz, Sam Kunz and Mark Haggerty reviewed the three-page summary and then voted unanimously to support Orono adding its name to those joining the lawsuit.
“They felt the towns needed to be represented,” Nancy Ward, assistant to the Town Manager Sophie Wilson, said Tuesday.
Orono town leaders learned during the meeting that Fairfield town leaders also had voted to become a plaintiff, Ward said.
The original lawsuit was filed in Hancock County Superior Court in Ellsworth but later was transferred to U.S. District Court in Bangor and then remanded back to state court under the Business and Consumer Court docket. Superior Court Justice Andrew Horton is handling the case, and Bangor attorney F. David Walker IV is representing USA Energy.
A message left for Walker on Tuesday was not immediately returned.
USA Energy earlier this year filed a motion to dismiss the case, saying the MRC lacked standing to bring the lawsuit because it only represents the communities that have ownership, but Horton disagreed and ruled the MRC does have standing.
Horton also ruled that if communities joined on as plaintiffs, it would “eliminate any issues of standing.”
There is no upcoming court date scheduled, which would give the parties time to prepare for their upcoming sworn interviews, William Devoe, attorney for the MRC, said in a Tuesday email.
“I fully expect the parties will engage in meaningful discovery, mostly in the form of depositions of some of the key figures,” Devoe said. “The court will also require the parties to undertake some sort of alternative dispute resolution, most likely mediation.”
When the lawsuit was filed, Walker said his client believed LD 1483, as initially proposed, would have benefited all parties.
“The total amount paid [Doyle & Nelson] to date is approximately $1,200,000,” the Orono summary states. “About 41 percent of funds expended would have flowed to the Equity Charter Municipalities.”