ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
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
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 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 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
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.
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