FAIRBORN — Both Renergy Inc. and the Ohio Environmental Protection Agency have asked a United States District Court to throw out a lawsuit filed by the City of Fairborn and Bath Twp over Renergy’s biodigester lagoon emissions.
In motions filed Monday, the Ohio Attorney General’s office, which represents the Ohio EPA in this case, and lawyers for Renergy say that because the state previously filed and settled a lawsuit in Greene County, the federal suit should be thrown out.
Fairborn and Bath Twp’s lawsuit “fail(s) as a matter of law,” the state’s filing says, arguing that the Clean Air Act doesn’t allow people to sue the Ohio EPA in its role as regulator. They say the lawsuit further fails because the state has already “prosecuted the underlying violations.”
The state had filed its lawsuit against Renergy in Greene County Common Pleas Court three days before Fairborn and Bath Twp. filed theirs.
“By filing their complaint ... plaintiffs have ignored the express language in the Clean Air Act that bars such an action when the state has already commenced an enforcement action in state court,” Renergy’s filing says.
Per the filing, the state’s lawsuit sought compliance with the same three allegations described in the city’s complaint: that Renergy/Dovetail installed and operated the digestate lagoon without first applying for a permit, operated the lagoon without using “best available technology” to curb emissions, and violated air pollution laws by installing a “source of toxic air contaminants” without first finding the source or performing air toxic modeling for ammonia.
The settlement between Renergy and the state filed in Greene County Common Pleas Court last month requires Renergy to obtain a “Permit-to-Install and Operate” order for its 5.5 million-gallon digestate storage lagoon, documents show. Renergy is currently in the scientific testing phase of obtaining the permit, and is following the timeline prescribed by the EPA, company officials said.
Bath Township trustees maintained that in spite of Ohio’s lawsuit in state court last month, Dovetail’s biodigester continues to operate in violation of both the federal Clean Air Act and state air pollution laws.
“The Bath Township Trustees have an obligation to protect the health and safety of the Township’s citizens,” the township said in a statement. “The Trustees will continue to work diligently to fulfill that obligation as it pertains to the Dovetail biodigester.”
“Dovetail’s non-compliance has been ongoing for the past eight years. It’s long past time for that to change. The Township’s hope is that the lawsuit that’s been filed in federal court will finally bring about that change,” Trustees said.
Fairborn and Bath Twp’s lawsuit alleges that Renergy and Dovetail have allowed a lagoon to emit “significant quantities” of ammonia from a 5.5 million-gallon fertilizer lagoon and have failed to obtain an air pollution permit. The city also sued the U.S. and Ohio Environmental Protection Agencies for allegedly failing to enforce the Clean Air Act and Ohio’s air pollution laws by allowing the companies to operate the lagoon without an air permit.
The facility at 1156 Herr Road has been a source of controversy for years, as neighbors have complained of odors, and Bath Twp. officials have pursued zoning controls. In January, the Ohio Second District Court of Appeals ruled in favor of Renergy, upholding a ruling that the Dovetail biodigester is a public utility, exempt from township zoning regulations. The township then appealed the Ohio Supreme Court, which on May 10 formally declined to hear the case.
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