03/15/13

Two Legal Victories in Defense of Biosolids: York County, PA • Kern County, CA

A York County, PA court has dismissed a legal case brought by neighbors against Synagro, a farmer, and a landowner regarding the use of biosolids on a 220-acre farm in New Freedom, PA.

Meanwhile, a Court of Appeals in Fresno, CA supported an injunction against Kern County’s biosolids ban.

A York County, PA court has dismissed a legal case brought by neighbors against Synagro, a farmer, and a landowner regarding the use of biosolids on a 220-acre farm in New Freedom, PA.

This case is one of several that have happened over the years in which neighbors around land application sites have attempted to claim harm, trespass, and/or nuisance because of a landowner's use of biosolids.  The court's findings and statements in this case are significant arguments in support of the agricultural use of biosolids in Pennsylvania.   But, because they are well-reasonded arguments clearly stated in the court's decision, they are also instructive for other jurisdictions.    

Details of this case...

According to the court decision, "plaintiffs allege that the Defendants engaged in a combination of activities at or near the Farm during 2007, including farm operations, and hauling, spreading and applying 'sewer sludge.'"  The case was filed in July, 2008.  The Defendants filed motions for summary judgment in July 2011 and July 2012, requesting the Court dismiss the case, which it did on December 28, 2012 after hearing oral arguments on December 5th.  The PA Dept. of Environmental Protection (PA DEP) joined the case through a friend-of-the-court brief – and the Attorney General's office also weighed in – in support of the defendants' motion for summary judgment.

The plaintiffs (neighbors) claimed harm from malodors generated at the farm, alleging interference "with their right to the use and enjoyment of their properties and homes and that they suffered various medical problems."  In addition, they alleged negligence, in that "Defendants failed in their duty to properly handle and dispose of the biosolids, despite that they knew of and could have avoided a potential harm."  Lastly, the plaintiffs alleged that "Defendants' activities constitute a trespass onto their land."  The plaintiffs hoped the Court would place an injunction on the farm's use of biosolids and award punitive damages and attorneys' fees. This did not happen.

In its discussion of the case, the Court noted that summary judgment requires that there is no disagreement about material facts; i.e. the parties agree about what happened.  In addition, the Court is required to view the evidence "in the light most favourable to the non-moving party" - the farm neighbors, in this case; they are given the benefit of the doubt.

The Court reviewed each of the three major allegations: 

Regarding the private nuisance claim, the Court cited the state's Right-to-Farm Act, which protects normal farming operations from "nuisance suits and ordinances."  Evidence reviewed by the Court indicated that more than 1500 sites had been permitted for land application of biosolids in PA over the past 20 years (more than 70 in York County), with more than 700 having active permits.  In addition, PA DEP provides thorough regulation of the practice.  Thus, the Court found biosolids use to be a normal farming operation.

As part of the nuisance claim, the neighbors argued that the defendants' conduct was illegal, citing  three notices of violation by DEP.  Two of these violations were for spreading biosolids in buffer areas; one was for tilling the field too soon after application.  All three were quickly addressed at the time by the farmer and land applier, to DEP satisfaction.  The

Court found that these violations and one alleged by the plaintiffs under the Solid Waste Management Act were not relevant to the nuisance claim.

Regarding the negligence claim, the Court rebuffed the plaintiffs' claim that those managing the biosolids should have prevented odors, flies, and particulates from entering their properties.  "Plaintiffs failed to allege a legally recognized duty" - and the Court found no law requiring such a duty or obligation - "requiring Defendants to conform to a certain standard of conduct for the protection of Plaintiffs" from such things.

Lastly, the Court dismissed the neighbors' claim that the farmer committed trespass because odors, particles, and runoff purportedly entered neighbors' property.  It found that such allegations were more appropriately considered under the concept of nuisance, not trespass - and the nuisance claim was already dismissed earlier in the Court's decision.  In addition, it found no evidence that the defendants intentionally meant for anything to end up on neighbors' land or in their air, and intentionality is a requirement for trespass, under PA law.  "We believe that finding a trespass for odors from a farm would undoubtedly expose any agriculatural operation, especially those located near more suburban areas, to much vexation.  The Court in Guarina...stated 'the person who lives in the middle of a city cannot, of course, ask to be immunized from the effects of turbulence, traffic and noises which are inevitably part of urban life.'.... Correspondingly, a person who lives in an area that is more rural or zoned agricultural cannot ask to be immunized from the effects of odors and insects which are inevitably part of agricultural life.'"

Setting precedent...

James Slaughter, attorney with Beveridge & Diamond PC, who argued the case for the defendants, notes: "The Peter Angelos Firm out of Baltimore prosecuted the case for the plaintiffs,  assisted by three other firms, and I think their defeat here will deter plaintiffs anywhere from claiming that biosolids cause injury or are a nuisance. Of course, Synagro deserves credit for running a good land application operation and aggressively defending the case."

Contact the NEBRA office for a copy of the court's decision.

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Meanwhile, a Court of Appeals in Fresno, CA supported an injunction against Kern County’s biosolids ban. In mid February, the Court affirmed the preliminary injunction issued by a Tulare County court in the Kern County biosolids ordinance litigation.  The County court had issued the injuction to stop any enforcement of Kern County's ban on biosolids land application while the ban is being litigated.

Background: Voters in Kern County approved Measure E in 2006, banning the land application of biosolids. The City of Los Angeles, CASA, and other affected entities challenged the ordinance - first in federal court, and since 2011, in state court. Following the original granting of the preliminary injunction by the lower court, which allows land application to continue while litigation is ongoing, Kern County chose to appeal the injunction rather than wait for a trial on the merits of their ordinance (Measure E).

The Court of Appeals in Fresno upheld the lower court's injunction, stating that Los Angeles and all are likely to prevail on their claims that the ordinance conflicts with the state's Integrated Waste Management Act (IWMA) and exceeds Kern’s police power.

Greg Kester of CASA's biosolids program notes: "All of the legal team, especially Jimmy Slaughter (City of LA) and Paul Beck (LACSD) deserve strong congratulations. This is a huge victory for California public agencies and for the effective recycling of biosolids in the state."

See this article in The Bakersfield Californian.

During the first week of March, Kern County Supervisors voted to appeal the case to the CA Supreme Court.  See details here and here.