Fairborn, Bath Twp. rip EPA for finger-pointing, lack of action in biodigester case

Company, EPA want local jurisdictions’ lawsuit thrown out; attorney replies, “If these governments don’t do their jobs, somebody has to.”

Lawyers for the Environmental Protection Agency, two local governments and the companies that run a controversial local biodigester facility traded arguments before a federal judge Wednesday.

Both Renergy and the U.S. and Ohio EPAs said that Fairborn and Bath Twp. government officials have stepped beyond the scope of their offices in filing suit against the government, while lawyers for the city argued that the regulatory agencies point fingers at each other while nothing gets done.

The hearing was related to a lawsuit filed by Fairborn and Bath Twp in Ohio’s U.S. Southern District Court in April.

The suit alleges that Renergy and Dovetail Energy, located in Bath Twp., have allowed a 5.5 million-gallon fertilizer digestate lagoon at the biodigester site to emit “significant quantities” of ammonia. The local governments say the companies have failed to obtain an air pollution permit, while residents have repeatedly complained about nuisance odors.

The city also sued the U.S. and Ohio EPA, claiming the agencies failed to enforce the Clean Air Act by allowing them to do so.

Lawyers for both the federal and state EPA argued that the idea that the agency has been deaf to residents’ complaints is inaccurate. Attorneys say the EPA cannot be sued for inaction when action was taken, citing a consent order filed in Greene County Common Pleas Court in April that required the company to obtain a “permit to install and operate” its digestate lagoon. The agency also issued a notice of violation in August, after finding that Renergy was operating outside its permits.

“EPA sympathizes with (Fairborn and Bath Twp’s) frustration,” said Alexandra St. Romain, who represents the U.S. EPA. “But the fact that plaintiffs might not be satisfied with the progress Ohio EPA and EPA made does not mean that they may seek an order from this court, forcing EPA to exercise its enforcement authority,”

“The key part is the ‘diligent prosecution’ bar is met here. What the plaintiffs are inviting you to do is ignore that,” Renergy attorney Terry Finn told Judge Michael Newman on Wednesday.

Diligent prosecution is the idea that citizens can’t file lawsuits for violations the government is already trying to enforce.

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Lawyers for the defense further argued that the United States has the right of sovereign immunity in this case, which means government agencies can’t be sued by private citizens under certain circumstances, a claim attorneys for Fairborn and the township rebutted.

“One of the foundational issues in the Clean Air Act is if these governments don’t do their jobs, somebody has to,” Fairborn attorney April Bott said. “Ohio EPA points the finger at U.S. EPA, U.S. EPA just pointed the finger back at Ohio EPA; guess what’s happening? Nothing.”

Fairborn attorneys further argued that the EPA’s enforcement actions have had no teeth. The EPA has granted Renergy extensions for certain parts of the permitting process, attorneys said, saying the facility needs more robust testing.

Originally, Renergy was required to submit its application 60 days after the consent order, which was filed in April. Since testing revisions were ordered by the Ohio EPA, Renergy is still compliant with its deadlines, but lawyers for Fairborn argue continuing to delay the permitting process is both unnecessary and has resulted in Dovetail’s pollution continuing unchecked.

“The idea that finding a testing method eight years after (Dovetail) started operating is ‘complicated,’ should tell you all you need to know about USEPA’s and the Ohio EPA’s enforcement here,” Bott said. “The fact that they’re saying you cannot hold them accountable for not doing their job defies common sense.”

Renergy and the EPA filed motions asking the judge to throw out the lawsuit earlier this year.

Newman did not make a decision on the arguments at Wednesday’s hearing.

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