BATH TOWNSHIP — The Ohio and United States Environmental Protection Agencies are no longer defendants in a federal lawsuit regarding the Herr Road biodigester.

The City of Fairborn and Bath Township in April 2022, filed the lawsuit in United States District Court, Southern District of Ohio naming Renergy, Inc., Dovetail Energy, LLC, and the USEPA and Ohio EPA as defendants.

The lawsuit alleged that Renergy and Dovetail violated the federal Clean Air Act by allowing the biodigester 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 USEPA and Ohio EPA were 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 defendants filed motions to dismiss last year.

The Ohio EPA argued that the Sixth Circuit precedent forbids citizens from suing it in court because the suit only implicates its duties as a regulator, for which it cannot be sued. The USEPA claimed it retains sovereign immunity because citizens do not identify a non-discretionary duty that it purportedly violated.

Renergy and Dovetail petitioned for dismissal on the basis that the “diligent prosecution bar” was not met. The diligent prosecution defense provides that a citizen suit is barred when the government is already trying to enforce the alleged violations. A week before the federal lawsuit, the Ohio attorney general filed a lawsuit against Dovetail/Renergy in Greene County Common Pleas Court, later settling the case.

District Judge Michael J. Newman wrote that the court “empathizes with the citizens in this case.”

“But this Court is bound to apply the law as set forth by the Constitution and federal statutes, as these laws are the cornerstones that hold our nation together,” Newman wrote. “This Court’s duty ‘to say what the law is’ sometimes includes barring suits against the government where Congress has prevented the government from being sued.”

Built in 2013, the biodigester uses a sealed anaerobic digestion tank to produce methane that is used to generate electricity.

Contact Scott Halasz at 937-502-4507.