FAIRBORN — The legal counsel for Bath Township biodigester owners/operators Renergy Inc., and Dovetail Energy LLC asked the United States District Court to dismiss a lawsuit filed by the City of Fairborn and Bath Township.
In a motion filed on Monday, the attorneys argued that because of a lawsuit previously filed (and ultimately settled) by the State of Ohio in Greene County Common Pleas Court, the federal suit should be thrown out.
”No citizen suit may be commenced against an alleged violator of the CAA if the EPA Administrator or the state has commenced and is diligently prosecuting a civil action in a federal or state court to require compliance with the emission standard, limitation, or order which allegedly has been violated,” according to the filing.
The lawsuit alleges that Renergy and Dovetail violated the federal Clean Air Act by allowing the biodigester on Herr Road to emit significant quantities of ammonia without applying for and obtaining an air pollution permit, without controlling the ammonia emissions with the best available technology, and without following the mandates of Ohio’s air toxics law. Ammonia is an air toxic contaminant in Ohio.
The U.S. and Ohio environmental protection agencies are named as defendants for allegedly failing to enforce the Clean Air Act and Ohio’s air pollution laws by allowing Renergy and Dovetail to operate a digestate lagoon without first obtaining an air permit that includes air toxics protections and best available technology requirements.
“The complaint filed by the plaintiffs violates the express language of the Clean Air Act because it was filed after Renergy resolved the same issues with the State of Ohio in the Greene County litigation,” said Renergy COO Cari Oberfield. “This is sadly consistent with the way Bath Township Trustee Kassie Lester has undermined all good-faith efforts by Renergy, the Greene County commissioners and others to address any sincere concerns of Dovetail’s neighbors. Trustee Lester began falsely accusing Dovetail of causing widespread community odors only after Renergy declined her family’s request for preferential financial treatment. Since then, she has misled her constituents into harassing us with frivolous legal action, such as this.”
A call to Lester for comment was not returned by press time. An email was also sent to the City of Fairborn seeking comment.
Built in 2013, the biodigester uses a sealed anaerobic digestion tank to produce methane that is used to generate electricity. According to the state’s lawsuit, the plant’s operations result in the production of waste sludge, called digestate, that is stored “initially in a concrete tank and ultimately land applied by area farms as fertilizer.”
The state lawsuit claimed that the plant initially accepted only agricultural waste, but sometime between it’s opening and February 2018, “the company started introducing non-agricultural organic wastes into its process.” While pollutant permits for some aspects of the operations have been obtained, the lawsuit says “the company failed to obtain the required permit for the digestate storage tank at the time it started introducing non-agricultural organic wastes into the process and thus became subject to regulation.”
According to a consent order and final judgment entry filed in Greene County Common Pleas court after the settlement, Renergy Inc., and Dovetail Energy, LLC have 60 days to submit a “Permit to Install and Operate” application for biodigester’s lagoon where digestate from the biodigester process is stored. They have 180 days (or longer if approved by the Ohio Environmental Protection Agency) to complete installation and compliance of all measures in the PTIO.
The complaint, filed by Attorney General Dave Yost at the request of the EPA, said the facility stores waste sludge called digestate in an uncovered tank and emits “ammonia without a permit.”
According to court records, the initial submission of the application shall, at a minimum, include “sampling, as necessary, to support emissions calculations for ammonia, Volatile Organic Compounds, sulfur-based compounds and methane.” Renergy and Dovetail must also submit a best available technology evaluation for the waste tank to determine what measures are available to reduce the emissions, including the feasibility of both active and passive measures and operating procedures that minimize emissions including the physical modification and replacement of the waste tank.
The penalty to comply is $75,000, according to the order, but Renergy officials said they “will meet” the deadlines.