Gilbert v. Synagro 

On December 21, 2015, the Pennsylvania Supreme Court issued a unanimous decision in support of the land application of biosolids.  The decision in Gilbert v. Synagro addresses whether the land application of biosolids is an agricultural activity that is protected under Pennsylvania right-to-farm laws and represents the first time that any state supreme court has addressed the role of biosolids land application practices under right-to-farm acts (RTFAs).

The Supreme Court opinion underscores both the breadth of the Pennsylvania RTFA's protections and the widespread use of recycled biosolids in Pennsylvania and nationally.

Background & NACWA Involvement
The plaintiffs in this case were claiming that land application is not a normally accepted farm practice entitled to right-to-farm protections but is instead an exotic and dangerous activity to dispose of toxic waste in a manner that threatens public health. 

In December 2014, NACWA joined the Pennsylvania Municipal Authorities Association (PMAA) in filing an amicus curiae brief  in the litigation. Ensuring that land application is considered a normal agricultural practice under right-to-farm laws is critical for clean water utilities because it provides land application programs with additional legal protection from lawsuits challenging the practice, similar to protections enjoyed by other agricultural fertilizers. 

In the joint brief, NACWA and PMAA provided an authoritative clean water utility view on the history, success and importance of land application of biosolids from both the national and state perspective. The brief outlined the large body of literature, facts, and state and federal policies and law demonstrating that land application is an accepted farm practice across the United States. 

Supreme Court's Analysis
The court held that §954 of the Pennsylvania RTFA contained a statute of repose, which is designed to bar actions after a specified period of time has run from the occurrence of some event. In this case, the three key requirements for the statute of repose to bar a nuisance action are: "(1) the agricultural operation against which the action is brought must have lawfully been in operation for at least a year prior to the filing of the action; (2) the conditions or circumstances that are the basis for the action must have existed substantially unchanged since the established date of operation; and (3) the conditions or circumstances are normal agricultural operations as defined in § 952 of the RTFA."

The court quickly dispensed with the first two requirements holding that whether "agricultural operation" refers to the farm or to the farming process, § 954(a)'s one-year requirement is met because the farm began lawfully operating in 1986 and the challenge was not filed until 2008. Furthermore, even if the change to biosolids in 2006 was a substantial change from prior operations, such change occurred more than two years prior to the challenge, rendering the suit untimely.

The court then turned to the last prong:  Whether the application of biosolids is a normal agricultural operation. 

Normal Agricultural Operation
The Court held that the RTFA's definition of a normal agricultural operation calls for broad, categorical determinations regarding a challenged activity; the analysis should focus on the practice in general, not on whether the defendant in this particular instance acted in accordance with accepted industry standards.

The court noted that "the fact that biosolids use is not specifically mentioned in the RTFA's definition is not determinative… the definition is broadly drafted, aimed at protecting farms now and in the future; enumerating specific activities would render the definition outdated as farming technology progresses." The court went on to hold "interpreting 'normal agricultural operation' to include technological advancement in fertilizing methods, such as the use of biosolids, is consonant with the RTFA's purpose."

Although the Court acknowledged that the RTFA sets "no quantitative threshold regarding how many farms must employ a practice for it to be considered 'normal,'" the opinion favorably cites a range of statistics on biosolids use, including: the number of sites permitted for biosolids application, and Philadelphia's history of producing biosolids, as well as national biosolids statistics.

The court also concluded that a history of regulation should be considered in applying the RTFA.  The opinion cites the relevant provisions of the state Solid Waste Management Act and Pennsylvania Department of Environmental Protection (PADEP) regulations, inter alia, to show that biosolids use "is and has been an accepted farming practice in Pennsylvania."  The Court then cites the amicus support from the PADEP, Pennsylvania Attorney General and state Department of Agriculture, as yet more evidence "that the land application of biosolids is an accepted, well-regulated farming practice."

Thus, the court concluded that the application of biosolids was a normal agricultural operation in accordance with the RTFA.

Value to NACWA Members
While this precedent is only binding in Pennsylvania, all fifty states have enacted some form of RTFA. This decision will be very influential nationwide in future RTFA cases involving land application of biosolids.

As NACWA has successfully done in past land application litigation efforts in California and Washington State, the Association's participation in this case provided a vital national clean water perspective to the court as it examined this important legal issue. In fact, the court specifically cited to the briefs filed by NACWA and other amici in determining whether the biosolids application was a "normal agricultural operation;" this demonstrates the value of NACWA's involvement.

NACWA will continue to actively engage in the fight against land application bans across the country.  This precedent will bolster our position in future challenges. 

Related Documents (posted in PDF  )
 

• Appellants Opening Brief, 12/23/2014
• NACWA/PMAA/ALCOSAN Amicus Brief, 12/23/2014
• City of Philadelphia Amicus Brief, 12/23/2014
• PA Attorney General/Dept. of Agriculture Amicus Brief, 12/23/2014
• PA Farm Bureau Amicus Brief, 12/23/2014
• Appellees Brief, 03/06/2015
• Earthjustice Amicus Brief, 03/06/2015
• Pennsylvania Association for Justice Amicus Brief, 03/06/2015
• Appellants Reply Brief, 04/06/2015
• PA Supreme Court Decision - Majority Opinion, 12/21/2015
• PA Supreme Court Decision – Concurring Opinion, 12/21/2015