Is Biosolids Use a "Normal Agricultural Operation?"
There is a Supreme Court decision brewing that will not only affect many wastewater treatment plants who produce biosolids for beneficial use but also the farmers who rely on the land application of these biosolids as fertilizer for their crops.
In 2014, Synagro, along with a group of landowners who had been sued by a citizen’s group for alleged water and air pollution due to the land application of biosolids, won a favorable judgment from the Court of Common Pleas of York County. The Court ruled that the use of biosolids in farming is a “normal agricultural operation” under the Pennsylvania Right to Farm Act, as a matter of law[i].
This status means that a one year “statute of repose” protects farms using biosolids from nuisance suits. In 2014, however, the citizen’s group appealed this decision to the Pennsylvania Superior Court. This Court reversed the lower court’s decision regarding the definition of “normal agricultural operation” and decided that municipalities must allow juries to make decisions about its meaning on a case by case basis. Since local definitions of “normal agricultural operation” may vary, under this ruling the beneficial reuse of biosolids on farms could be unprotected by the Right to Farm Act and therefore subject to tort suits. Historically, the Pennsylvania Right to Farm Act was created by the General Assembly in order to protect farmers from litigation (usually related to odors) over their normal agricultural operations. Synagro and the landowners contend that the Common Pleas Court was correct in their decision that biosolids application on farmland is a normal agricultural operation and requested that the Pennsylvania Supreme Court review this decision. Their request for a hearing was granted.
Kudos to the PWEA Board of Directors for taking action on behalf of its members. During the Superior Court case in 2013, Randall Hurst of Mette, Evans & Woodside was authorized by PWEA Board of Directors, MABA and PSMA to prepare a brief in support of Synagro. He has now been authorized by the same three entities to produce an Amicus Curiae Brief for submission to the Supreme Court supporting the beneficial use of biosolids and requesting that the Court include the use of biosolids on farmland in the definition of “normal agricultural operation” as it appears in the Pennsylvania Right to Farm Act.
In his brief to the Supreme Court, Randy states that sewage and septage, when processed as biosolids, has been proven to be a valuable resource to farmers when used as a fertilizer and its use is a widely accepted practice in the farming community. Over 700 farms in Pennsylvania currently use biosolids as a fertilizer and to improve soil quality. The brief explains that the “beneficial reuse of sewage sludge in the form of biosolids … is comprehensively governed by federal and state agricultural and environmental regulations.” As such, its use is regulated under the Pennsylvania Nutrient Management Act which requires that the application of biosolids must be limited to the “agronomic rate[ii]” of the crop to be grown, thus underscoring the agricultural nature of biosolids use. This is an important concept. The brief goes on to state that because of this regulation, the practice of land applying biosolids on farms “is functionally and legally indistinguishable from the application of chemical fertilizers and manure.”
In summary, the brief requests that the Supreme Court consider and review the laws and regulations regarding the use of biosolids as a fertilizer in order to reverse the decision of the Superior Court and reaffirm the decision of the Court of Common Pleas of York County. If, however, the Superior Court’s ruling is allowed to stand, the interpretation of biosolids use as a “normal agricultural operation” would be left up to each municipality to decide through the opinion of a jury on a case by case basis. The concern is that the risk of a jury finding that biosolids use is not a normal agricultural operation could dissuade farmers from accepting biosolids for recycling, thereby impacting the ability of POTWs to land apply biosolids.
At this writing, briefs in support of Synagro et al.’s position have been filed with the Pennsylvania Supreme Court by the City of Philadelphia and by the following groups: jointly by the Pennsylvania Municipal Authorities Association (PMAA), ALCOSAN and NACWA; jointly by the Pennsylvania Farm Bureau (PFB) and PennAg Industries Association; jointly by the Pennsylvania Attorney General and Department of Agriculture; and jointly by the Pennsylvania Water Environment Association (PWEA), the Pennsylvania Septage Management Association (PSMA) and the Mid Atlantic Biosolids Association (MABA).
The Pennsylvania Department of Environmental Protection filed a supporting brief in the Superior Court appeal but declined to do so with the Supreme Court appeal.
It is anticipated that an opinion from the Supreme Court will be rendered by the end of 2015.
Randy Hurst, Esq. did an excellent job preparing this argument on behalf of PWEA and the others for a very reasonable fee of $1000. If you have any questions or wish more information, contact Randy Hurst at firstname.lastname@example.org
[i] It is interesting to note that PA Act 101 (Municipal Waste Planning, Recycling and Waste Reduction Act) defines biosolids land application as a “normal agronomic practice.”
[ii] “Agronomic rate” refers to the measure of the nutrient needs of the crops to be grown, taking into consideration all of the nutrients supplied by biosolids, manure, and chemical fertilizers applied by the farmer.
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