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Judge dismisses class-action suit against WTI

Journal Staff Writer

LISBON - A class-action lawsuit claiming Waste Technologies Industries has harmed the environment and property values was dismissed due to lack of evidence.

County Common Pleas Court Judge Douglas Jenkins on Tuesday granted the motion of WTI and dismissed the 1997 lawsuit filed by 32 people who live or own property in the vicinity of the plant.

"There is nothing to indicate that anything the facility is doing (other than its stigma by merely existing) has directly affected the plaintiffs in this cause of action," Jenkins wrote in his opinion.

He concluded by saying, WTI "has not been shown to have an inherently dangerous facility, nor should it be forced to continue with the expense of litigation, which has now been ongoing for a significant number of years, on the mere allegations of certain plaintiffs."

The property owners have 30 days to appeal the decision.

The lawsuits dates back to January 1997, when the class-action lawsuit was filed against WTI on behalf of the 32 residents and/or property owners. They claimed the incinerator had hurt property values by harming the air, water and land.

After numerous delays, the lawsuit was finally scheduled for trial Sept. 8.

Jenkins noted the emission data submitted by WTI during the course of the pretrial proceedings indicated a lack of odors and particulates of any "perceptible nature" coming from the plant. He also noted there are other industries in the area along the Ohio River that serve as a potential source of air pollution.

"Other than the opinions of plaintiffs, there is no quantifiable evidence that any air pollution described ... including odors, originate from the WTI facility as opposed to other pollution sources in the vicinity," he wrote.

The property owners claimed WTI was engaged in trespassing since air pollution from the plant was escaping off-site, creating a public nuisance. They also accused WTI of negligently operating the incinerator.

Jenkins noted WTI violated Environmental Protection Agency regulations on three occasions, and during the trial burn in 1993 there was an indication the incinerator exceeded the amount of allowable mercury to be discharged into the air.

"Neither plaintiffs' experts nor plaintiffs have presented a scintilla of evidence that either the emissions during the approximately three EPA violations, more or less, created any potential or unreasonable risk of harm to their properties, or in fact, caused any of the plaintiffs' complaints.

"Nowhere can this court find evidence that odors complained of actually emanated from (WTI) ... There is no evidence that any of the dust or dirt that settled on any plaintiffs' residence came from (WTI)," he continued.

WTI, on the other hand, presented expert testimony showing the any airborne pollutants and/or odors were minimal, Jenkins said. Nor was any evidence presented indicating the various regulatory agencies were not doing their job.

"Though there my be great public debate and concern for safety of incinerating toxic waste, those issues need to be addressed to the public authorities for ... there is not sufficient basis to warrant this court in prolonging litigation in this case by allowing this matter to go to trial before a jury upon mere allegations of misconduct that are not warranted," he wrote.

WTI spokesman Mike Parkes was obviously pleased with the decision.

"I hope the judge's decision will put a stop to the continuing harassment by this small group of activists," he said.

After the class-action lawsuit had been filed, WTI filed a counter-lawsuit seeking $1 million in damages from each of the 32. Three months ago WTI dropped its countersuit, but Parkes said it may be revived if the property owners prolong the litigation by appealing Jenkins' decision.

"What they do will have an effect on what we do," he said.

WTI opponent Terri Swearingen, who was a party to the lawsuit, could not be reached for comment.

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