Judge recuses himself from Surry biogas case

Published 4:04 pm Thursday, November 3, 2022

Circuit Court Judge Carson Saunders Jr. recused himself on Nov. 2 from hearing former Surry County Supervisor Michael Drewry’s petition to overturn the Board of Supervisors’ approval of a controversial biogas facility.

According to Drewry, who is acting as his own attorney, Saunders said he had to work with the county and did not want the conflict. Virginia’s Supreme Court will need to appoint a new judge to hear the case.

Align RNG, a joint venture of Dominion Energy and Smithfield Foods, received the board’s 2-1 approval on June 2 to construct a regional processing facility near Drewry’s home at the Surry-Sussex county line that would turn methane from hog manure, also known as biogas, into pipeline-quality natural gas. The facility would serve as a hub for participating Smithfield Foods farms in Sussex, Surry, Isle of Wight and Southampton counties.

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Drewry cast the dissenting vote. He then resigned from the board’s Dendron District seat on July 11, one week after filing his Circuit Court complaint. His complaint asks the court to declare the board’s vote “null and void” on grounds that the county Planning Commission allegedly “did not follow” procedures required under state law when vetting the project in 2021.

Supervisor Robert Elliott and Board Chairwoman Judy Lyttle had each described Drewry’s actions as suing the board, though Drewry contended in an August letter to the editor of The Smithfield Times that his filing was “not a criminal, civil or monetary lawsuit.”

Drewry’s complaint contends Surry neglected to provide the written notice required by state law to all owners of abutting properties, including four in neighboring Sussex County, ahead of the Planning Commission’s Sept. 27, 2021, public hearing on Align’s requested permit. The complaint further contends the Planning Commission neglected to issue a finding of Align’s project being “substantially in accord” with the county’s comprehensive plan, which lists the 22.8-acre site as “rural preservation,” ahead of recommending the project’s approval to the supervisors. According to the complaint, state law requires a “substantially in accord” determination for any public utility project other than an underground natural gas facility before the project can be authorized or constructed.

Drewry contends in his complaint that the project, if allowed to proceed, will “result in water pollution, air pollution and noise pollution,” impairing his “right to quiet use and enjoyment of his real and personal property” due to the “concentrated release of carbon dioxide from industrial hog farms and potential release of methane and hydrogen sulfide.”

Methane, if emitted into the atmosphere, acts as a potent greenhouse gas, but according to Align officials, emissions from farms can be captured using an anaerobic digester and covered lagoons. From there, it would travel through a 65-mile pipeline network that would cross the Blackwater River and two swamps before ending up at the Surry site, where the collected gas would pass through membranes to remove hydrogen sulfide and carbon dioxide, leaving 99% pure natural gas.

Align contends the reduction in greenhouse gas emissions from participating farms will be roughly equivalent to taking 22,000 vehicles off the road, even with the facility re-releasing an estimated 12 tons of extracted carbon dioxide annually.

Company officials have also acknowledged that not all of the extracted hydrogen sulfide will be turned into solid sulfur and hauled away. The amount that escapes the membranes will be fed into a thermal oxidizer – essentially an incinerator – where intense heat will transform the gas into less-harmful sulfur dioxide. Align anticipates the facility emitting around 8 tons of sulfur dioxide per year.

Drewry, when casting his dissenting June 2 vote, cited repeated opposition to the project from residents and a lawsuit Align had settled with the North Carolina-based environmental group Clean Aire NC in 2021 concerning alleged violations of that state’s air quality regulations at a similar processing facility at the border of Duplin and Sampson counties. According to the settlement, Align agreed to request that North Carolina’s Division of Air Quality modify the si te’s permit to “add limitations on raw biogas flow,” impose “reporting requirements” for the facility’s sulfur dioxide and hydrogen sulfide emissions and “ensure a program of methane leak detection and repair is implemented at all farm operations supplying biogas” in exchange for Clean Aire NC agreeing to drop the case.

Align’s Surry facility would serve 20 Smithfield Foods farms. Align’s North Carolina facility, by comparison, would serve 19. Align contends the estimated emissions at the Surry facility will fall below the threshold where a Virginia Department of Environmental Quality permit would be required.

Despite serving fewer farms, Align’s North Carolina facility received an air permit from the state’s Division of Air Quality on Jan. 12 capping sulfur dioxide emissions at 100 tons annually — well above the company’s estimate for the Surry facility.

Dominion spokesman Aaron Ruby told the Times in July that while the number of farms is roughly the same for the two projects, they are different types of farms and produce different amounts of biogas.

Surry’s Waverly project, named for the nearby Sussex County town, “will produce less than two-thirds the amount of biogas as the North Carolina project,” Ruby said. “Additionally, we’re using a different conditioning technology at Waverly, so there will be fewer emissions.”