The question of whether or not spreading a fertilizer made from recycled sewage sludge, known as biosoilids, on a York County farm constitutes a “normal agricultural practice” should be left to a jury, the state Superior Court has ruled.

A split three-judge Superior Court panel ruled April 15 that questions of fact existed as to whether the farm’s use of the fertilizer, which the more than 30 plaintiffs in the case alleged caused severely noxious smells and posed a health hazard, constituted a normal practice under the Right to Farm Act.

The ruling overturned the trial court’s decision to toss the case, Gilbert v. Synagro Central, as barred under the act’s statute of repose, which bars nuisance claims involving actions found to be normal under the act.

According to Judge Christine L. Donohue, who wrote the majority opinion, the fact that state regulators have permitted the use of biosolids on farms did not indicate that the practice was a “normal agricultural practice” under the act.

“While it is undoubtedly true that the application of biosolids on farmland is closely regulated by the [Pennsylvania Department of Environmental Protection], nothing in the definition suggests that governmental regulation of the practice should play any substantial role in determining whether it is a ‘normal agriculture operation’ under the [act],” Donohue said. “The residents, on the other hand, pointed to evidence indicating that the particular use of biosolids in this case was not normal or routine and failed to conform to accepted [U.S. Environmental Protection Agency] and industry practices.”

Donohue was joined by Judge Paula Francisco Ott. Judge William H. Platt dissented, arguing that the suit was barred because it was not timely filed.

According to Donohue, the plaintiffs all own or reside on property adjacent to a 220-acre farm owned by defendant George Phillips, portions of which were leased to another defendant. Synagro, which contracts with municipalities to recycle and transport biosolids for land applications, received a permit in 2005 from the state DEP to apply the biosolids to the farm, Donohue said. From March 2006 until April 2009, approximately 11,635 wet tons of the material was applied to the farmland.

In July 2008, the residents filed complaints alleging the farms failed in their duty to properly handle and dispose of the biosolids, the use constituted a tresspass onto their land, and the use was a nuisance, as it created a health hazard. The residents sought an injunction, punitive damages, counsel fees and costs.

The York County Court of Common Pleas granted the defendants’ motion for summary judgment, determining that the nuisance count was barred by the statute of repose outlined in Section 954(a) of the Right to Farm Act, and the residents failed to establish a prima facie case regarding the negligence and tresspass.

The statute of repose in Section 954(a) bars a nuisance action if the agricultural operation at issue had an established date of operation at least one year before the suit was filed, the conditions forming the basis of the nuisance claim existed unchanged since the established date of operation and the circumstance leading to the action is a “normal agricultural operation,” as defined in 3 P.S. Section 952, Donohue said.

On appeal, the residents argued that the claim did not meet the three requirements outlined in the act.

The trial court, Donohue said, found that organic fertilizers had been used since at least 1986 on the farm, and that biosolids are just another form of organic fertilizers; therefore, no substantial change had occurred in the year before the action.

Donohue, however, said that while there had been a substantial change to the operation, as the biosolids resulted in allegedly extremely foul odors and health effects, the allegations still met the second requirement of the statute of repose, since the use of biosolids began more than one year before the suit was filed.

Regarding whether spreading biosolids constituted a “normal agricultural activity,” the defendants noted that in 1998 the state General Assembly changed the definition of “normal agricultural operations” to include “new activities, practice, equipment and procedures consistent with technological development within the agriculture industry,” and therefore the application of biosolids on farmlands was part of normal operations, Donohue said. The trial court agreed.

Donohue, however, noted that the language did not suggest the inclusion of biosolids.

“A specific mention of biosolids was undoubtedly an option available to the legislature at the time, since other practice … and types of equipment … are clearly identified,” Donohue said. “As such, we cannot agree with the contention that the legislature’s amendment of the definition in 1998 was specifically intended to incorporate the application of biosolids as a “‘normal agriculture operation.’”

The defendants also argued that the use of biosolids is one of the largest and most successful recycling undertakings in the country and state, and that, over the past 20 years, the state DEP has permitted 1,500 sites, including farms, to apply biosolids, Donohue said.

The residents countered that 700 farms constitutes only about 1 percent of the farms in the state, and therefore biosolids were not as normal or widespread as the defendants indicated, Donohue said.

While the trial court found the defendant’s argument persuasive, Donohue said neither numbers nor regulations were persuasive in determining whether an action is “normal” under the act.

“We note that just as the definition is silent as to numbers, it is also silent with regard to the effect, if any, of governmental regulation,” Donohue said.

According to Donohue, testimony from the residents about the smells and health concerns and from plaintiffs experts regarding usage of the biosolids established that questions of fact existed.

“We strongly support that and have argued that since the beginning of the litigation,” said plaintiffs attorney Christopher Nidel of Nidel Law in Washington, D.C. “It seems clear that the lack of application of sewage sludge [in the act] left it open for a jury to determine.”

Synagro Central’s attorney, James B. Slaughter of Beveridge & Diamond in Washington, D.C., said in a statement that Synagro disagreed with the majority’s holding on normal agricultural operations.

“Synagro believes the dissenting opinion and the trial court correctly found that recycling biosolids to farmland for fertilizer and soil improvement is a normal agricultural operation as a matter of law,” Slaughter said in the statement. “Synagro is reviewing the opinion and anticipates it will petition the Pennsylvania Supreme Court for review.”

George Phillips’ attorney, Curtis Stambaugh of McNees Wallace & Nurick, did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 36-page opinion in Gilbert v. Synagro Central, PICS No. 14-0570, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •