September 20, 2020

Searsport files suit against PERC > Pessimism prevails over mediation

SEARSPORT — Attorney Peter Mason said the town was forced to bring suit against Penobscot Energy Recovery Co. because the company willingly broke its contract with the town.

In a three-part suit filed by Mason in Waldo County Superior Court this week, Searsport charged PERC with breach of contract, requested an injunction to force PERC to accept trash at the contract price of $10 a ton, and demanded $2.8 million in damages.

The suit states, in part, that because of PERC’s actions Searsport “has been left with no reasonable place to dispose of its municipal waste.” The suit also states that the town had banked so heavily on the contract that it closed the town’s existing landfill.

Now that PERC has refused to take Searsport’s trash until it agrees to pay a $43 tipping fee, the suit states, the town, “is not able at this time to reopen its landfill and has been unable to locate or establish a reasonable means of disposal of its municipal waste.”

When asked to comment on the town’s suit, PERC attorney Charles Micoleau of the Portland firm Curtis, Thaxter, Stevens, Broder and Micoleau said Friday that the town had no grounds to file the suit.

“Basically, with respect to this suit and any other allegations that PERC has defaulted on any contract, we deny them,” Micoleau said. “The proper steps to take are not to go to court but to go to mediation. … We are invoking the mediation provisions of the existing contract.”

While Mason agreed that the original contract cited mediation as the method to resolve differences between the town and PERC, he predicted it would be a waste of time to even consider such a process. He noted, however, that the town will meet with PERC next week in an attempt to resolve their differences.

“We’re trying to schedule a mediation next week,” Mason said. “But they (PERC) have already informed us that under no circumstances are they going to budge one iota on the tipping fee issue. And obviously, that is the issue.”

Mason acknowledged that while PERC could always surprise him by proposing a better deal, “I firmly believe that they will not. If they did, all the other towns they have contracts with would feel they were subsidizing Searsport’s garbage removal.”

Micoleau agreed that it was unlikely PERC would be willing to accept the town’s trash at a lower price. He said that although PERC had not formally refused to accept Searsport’s trash, it accept the trash only if the town agreed to pay the increased tipping fee.

“The gates are closed to them under the pricing of the existing contract. If they are willing to pay the new price, it’s open,” Micoleau said.

He also noted that PERC was still uncertain whether it had enough towns under contract to keep the Orrington incinerator working. He described the company as being “between a rock and a hard place” with its investors and creditors. He said PERC has yet to total the tonnage committed by towns who approved the revised contracts.

“Besides the dozen or so towns who refused to sign, we still have a number who haven’t because of late town meetings,” Micoleau said.

As to the so-called “refuseniks,” Micoleau said, PERC remained committed to work something out with those towns.

“We still are hopeful that the process of mediation will work,” he said.

When informed of Micoleau’s position, Mason said that until PERC was prepared to live up to the terms of the original contract, the town would pursue its case in court.

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