Biosolids Down & Up in Western New York
On May 6, 2016, a lower court in Niagara Falls, NY upheld the Town of Wheatfield's ban on use of biosolids, which was created in July 2014. Sustainable BioElectric LLC, a quasar energy group company, had petitioned the court to annul the ordinance.
But, one month later, on June 9th, the New York State Department of Agriculture and Markets (NYSDAM) ordered Wheatfield not to enforce its ordinance in agricultural districts, because it unreasonably restricts a local farm's operation in violation of the state's "right-to-farm" law. NYSDAM stated that "the Town has not demonstrated that the public health or safety is threatened by the farm operation's land application of Equate biosolids on land used for crop production."
Nate Carr, NY Manager for quasar (photo above) said that quasar is pleased with the NYSDAM ruling and is considering next steps regarding the court's decision.
Wheatfield has until July 9th to confirm with NYSDAM that the local ban on biosolids use "will not be imposed on the farm operation."
The court case
In his May decision in support of Wheatfield's biosolids ban, Judge Frank Caruso gave the following arguments:
1. Sustainable Bioelectric does not have standing under the state “right-to-farm” law (Agriculture and Markets Law 305-a), because it is not a farming entity. In addition, “enforcement of any claimed violation of this section [of Law 305-a] is vested solely within the authority of the commissioner [of the Dept. of Agriculture & Markets) and it is not for the petitioner, or this Court, to step into his shoes and ask for relief.” (NYSDAM provided this relief in its June 9th order.)
2. Sustainable Bioelectric argued that the permits it had received from the NY Dept. of Environmental Conservation supersede any local regulation. But, the judge said, citing case law: “The state gave broad powers to local municipalities to manage their own waste... and it is not required to allow an action simply because it has been approved by the DEC.... In fact the Town remains free to impose additional standards or prohibit the action altogether."
3. Sustainable Bioelectric claimed that the Town of Wheatfield failed to follow proper procedures under zoning law and laws regarding procedures for adopting local ordinances (Municipal Home Rule law). The judge did not accept these arguments either, stating that the Town complied to a reasonable degree with the pertinent laws. In addition, the judge found “When combined with the public hearings, the Town clearly had a great deal of information before it prior to passing the law in question here.”
4. Sustainable Bioelectric claimed that, through its sizable investments in producing biosolids, the Town’s action was taking away some of the company’s vested rights, in particular by not allowing one permitted 37.6 acre farm in Wheatfield to receive biosolids. Judge Caruso also controverted this claim, writing “Here, the actions taken by the petitioner and the permit they hold allow them to produce their product within the Town and use it elsewhere. It cannot be said that the actions of the Town has rendered Sustainable's actions in obtaining a permit or building their facility valueless because one 37.6 acre farm is now off limits…. [T]here is no violation of any vested rights.”
Finally, Judge Caruso made it clear that his decision had nothing to do with the benefits or risks of biosolids use. This court action was focused on procedural and legal matters, not technical concerns regarding biosolids. “It cannot be stressed enough that it is not the role of the Court to examine this information and come to its own conclusion as to what the proper answer is. The only determination to be made is if the procedure has been properly followed and the result is not arbitrary or capricious…. Here, the Court determines that the Town followed proper procedures and took the appropriate ‘hard look’ at the environmental concerns.”
As Carr and legal professionals have pointed out, this court decision has minor impact: it is a first step in the legal process and does not set legal precedent for any other jurisdiction. An appeal would further test the validity of Judge Caruso's decision.
However, the decision was hailed as a victory by those opposed to biosolids use in Wheatfield, and it may embolden other towns to go out on a limb and take similar actions to ban biosolids. As the Buffalo News noted, Wheatfield Supervisor Bob Cliffe said of quasar / Sustainable BioElectric: "They haven't had a loss, they had nothing to sue for, we didn't put them out of business.... [I]t's certainly vindication for our position. It's good news, it may not be the last battle, but it certainly puts us in a nice position."
The right-to-farm ruling
Any emboldening created by Judge Caruso's court decision was offset by the June 9th letter to Mr. Cliffe and Wheatfield from Michael Latham, Director of NYSDAM.
NYSDAM has the authority and responsibility to enforce the state's "right-to-farm" law, which, according to the NYSDAM letter, "prohibits local governments from enacting and administering laws that would unreasonably restrict farm operations within a county-adopted, State-certified agricultural district, unless the locality can show a threat to the public health or safety." Milleville Farm, which planned to use biosolids from the Sustainable BioElectric facility on 37.6 acres of permitted land in Wheatfield, asked NYSDAM to review the local ordinance in September, 2014. On May 1, 2015, NYSDAM agreed that Milleville Farm had a reasonable case and proceeded with the requested review. In response, Wheatfield sent letters to NYSDAM in July and December of 2015, arguing that local public health and safety would be threatened by local biosolids use.
But NYSDAM found the Town's arguments to be lacking:
- In response to Wheatfield's argument that biosolids regulations are outdated, NYSDAM said that the Department of Environmental Conservation (DEC) "regulations are not outdated, that DEC revised the Part 360 biosolids regulations in 2003 and EPA continues to assess - but has seen no need to update - the Part 503 regulations. Both EPA and DEC believe that the current regulations are protective and appropriate for the concentration of pollutants that may be present in biosolids.... In addition, the New York State Department of Health (NYSDOH) has indicated that based upon the lack of evidence that the biosolids land application regulations are inadequate for the protection of public health, the NYSDOH does not believe additional health studies are necessary."
- When Wheatfield argued that only a relatively small amount (37.6 acres) of Milleville Farm land was affected by the biosolids ban, NYSDAM stated: "The Department supports a farm operation's lawful use of biosolids as part of its farm operation, regardless of the amount of land on which the farm chooses to use such biosolids. Indeed, under the Town's approach, essentially identical parcels and practices would be treated differently, based on the size of the farm — a wholly irrational result."
- And in response to Wheatfield's arguments that biosolids threaten public health and safety, citing statements by Dr. Murray McBride of Cornell University and others who have expressed opposition to biosolids use, NYSDAM stated: "The DEC regulations minimize the potential contamination of food, animal forage and groundwater. Dr. McBride's presentation did not include any examples where issues arose with the land application of biosolids in New York State, when done in compliance with the DEC and EPA regulations.... the Town of Wheatfield did not provide any new information demonstrating that the existing DEC and EPA regulations for the land application of biosolids in New York have not been adequate to protect the public health and safety."
Attached to the NYSDAM letter is a letter from Sally Rowland, PhD, P.E. of DEC, which summarizes the minimal risk posed by biosolids use on farms in accordance with state and federal regulations. NYSDAM also included a letter from the state Department of Health to State Representative John Ceretto, dated June 25, 2015, in which that Department stated:
- "Land application of biosolids is a common and widely accepted practice statewide that has been governed by New York State Department of Environmental Conservation (DEC} regulations since the early 1980s;"
- "While EPA and DEC regulation of biosolids recycling is effective, the rules continue to undergo regular review;" and
- "Credible evidence of adverse health effects associated with biosolids land application sites in New York State has not come to the attention of the Department. In addition, the Department has reviewed scientific literature and has not found any published studies that provide clear evidence of significant human exposures or unusual adverse health effects
caused by biosolids land application. Nuisance dust and odor complaints sometimes occur near these sites, and should be investigated individually by the regulatory authority (DEC) to assure that proper operational and site-management protocols are being followed. However, given the lack of clear evidence that the current biosolids land application regulations are inadequate for protection of public health, as well as the ongoing EPA activities validating and enhancing the biosolids regulatory program,the Department does not see the need for a health study at this time."
NYSDAM's order pertains only to Wheatfield's ban on biosolids use. However, it makes clear that a locality can adopt reasonable further local requirements that go above and beyond state regulation. For example, it mentions that the Town could require monitoring of the required 24-inch separation of biosolids from groundwater.
The Milleville Farm request for NYSDAM review was not the first. Last year, the nearby Town of Bennington was similarly ordered by NYSDAM not to enforce its ban on biosolids. There are also biosolids bans in the nearby towns of Wales and Marilla. A farm in Marilla asked NYSDAM to review that town's ordinance, and a letter similar to that provided to Wheatfield is expected soon.
The heated debates about biosolids use in western New York - which began nearly three years ago - led to impulsive, reactionary local actions driven by concerned town citizens. Now the debates are maturing and becoming more reasoned, with state agencies and other experts weighing in to find the proper balance between citizen concerns about biosolids and farmers' rights to use them.
In the courts, Quasar has filed for appeal, potentially seeking a reversal of Judge Caruso's lowest-court decision. And Wheatfield has hired a law firm to review NYSDAM's order. So this most recent down and up for biosolids recycling in western New York is likely not the end of the story. But it is an important step in the process.