BIDDEFORD — A civil complaint filed by Saco resident Mark Johnston, alleging the waste-to-energy incinerator in Biddeford’s downtown produced a nuisance odor, was dismissed April 16 by York County Superior Court Justice Paul A. Fritzsche.

The case against Maine Energy Recovery Company was dismissed with prejudice, meaning it cannot be filed again in Superior Court.

Johnston can, however, appeal Fritzsche’s decision to the Maine Supreme Judicial Court, something, he said, he is considering.

“We are extremely pleased,” said Joseph Fusco, a spokesman for Casella Waste Systems, Inc., the parent company of Maine Energy. “It’s a significant victory. It’s one more brick in our argument that (Maine Energy) is a legitimate, permitted company,” he said, and that “it is not a nuisance.”

Johnston said he was disappointed by the judge’s decision. His interpretation of Fritzsche’s decision, said Johnston, was: “I’m sorry, small little citizen, I can’t help you.”

Johnston, a downtown business owner and former Saco mayor, sought damages and abatement of the nuisance, requiring it to shut down if the odor emanating from Maine Energy wasn’t eliminated within a certain time frame.

His complaint was based on Maine statutes that allow a person to sue for damages if a nuisance, including odor, “injures” his or her “comfort, property of the enjoyment of his estate.”

Odors from the incinerator invaded his home, claimed Johnston, and have reduced the value of his property.

According to Maine statute, stated Fritzsche in his decision, Johnston cannot seek damages based on the odor as a public nuisance because only government officials can do that.

In addition, he wrote, no legal basis for establishing liability was presented so a remedy for abatement was not authorized.

The laws regarding nuisance, wrote Fritzsche, “In the context of a long operating regulated industrial facility ”¦ do not easily provide the remedies that Mr. Johnston has persistently sought.”

Instead of going through the judicial system, Fritzsche stated, Johnston should deal with the odor problem through “Regulation, negotiation, eminent domain or legislation.”

However, as private citizen and former mayor of Saco, Johnston said he tried to formulate policy for the more than 20 years the incinerator has been operating to regulate it, to no avail.

By not allowing the case to proceed and witnesses to testify about the affects of the odor from Maine Energy on their lives, Fritzsche “shortchanged the process,” said Johnston.

However, he said, “We haven’t given up.” Johnston said he and his attorney, Eric Cote, will discuss whether to appeal the case.

Meanwhile, other avenues are being pursued to close the incinerator or reduce the odor emitted from the facility.

Odor emanating from Maine Energy is blamed by city officials and business owners on both sides of the Saco River for stagnating economic growth in the twin cities’ downtowns.

Last week, State Sen. Barry Hobbins (D-Saco) introduced legislation that would prevent the automatic transfer of an incinerator’s solid waste license in the event of a sale. Casella has acknowledged it is soliciting offers from potential buyers.

Biddeford city officials are also seeking to include conditions on Maine Energy’s air emissions license from the state, which expired in December 2005, aiming to establish more protections for the city.

In addition, a task force to discuss the closure of the facility, which will include city officials from Biddeford, Saco and the state, representatives from Casella and other stakeholders, is slated to begin meeting as early as next week.

— Staff Writer Dina Mendros can be contacted at 282-1535, Ext. 324 or dmendros@gwi.net.