The Board of Ada County Commissioners is set to decide on Wednesday whether to exercise a clause in Dynamis’ contract that requires the energy company to pay back money the county gave it to design a waste-to-energy facility.

If two of the three commissioners approve the action, the county can legally demand the $2 million.

The item is on the commissioner’s 1 p.m. open business meeting agenda.

In June 2010, the county signed a “professional consulting services” contract with Dynamis. The county agreed to pay it $2 million to design a site-specific facility at the county-owned landfill. Dynamis is supposed to build, own and operate the plant on land leased from the county.

Under the contract, once the facility design is complete and Dynamis wants to start construction, it must purchase back its design plans from the county for $2 million.

The design is complete and Dynamis has been saying since early this year that it is ready to start construction as soon as it gets an air quality permit from Idaho Department of Environmental Quality.

DEQ does not know when it will issue a draft permit because it still needs additional technical information from Dynamis before it can complete the application review. In August, Dynamis gave the county building permit applications for two shell structures — foundation, walls and a roof.

On Thursday, Idaho Citizens for Safe Environment and Transparent Government filed a lawsuit against Ada County over the Dynamis project. Included in the complaint is a claim that the $2 million the county gave Dynamis constitutes a loan, and it is illegal for counties to loan money to businesses.

Cynthia Sewell: 377-6428, Twitter: @CynthiaSewell