Protecting Biosolids Recycling: Update on Local Bans and Tort Lawsuits

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Biosolids recycling and beneficial use enjoyed significant success on the legal front in recent years.  Efforts by local governments to ban land application of biosolids largely have been kept at bay. In February 2013, the California Court of Appeal dealt a likely fatal blow to Kern County’s effort to ban land application of biosolids when it ruled that state law prioritizing recycling preempted (overrode) a local effort to ban land application.  Los Angeles v. Kern County, 214 Cal. App. 4th 394 (2013).  Similarly, the efforts of plaintiffs’ lawyers to recover damages for alleged health and nuisance impacts of biosolids have achieved little.  In late 2012 in a closely watched case, a Pennsylvania trial court granted summary judgment to the defense on claims that odors from biosolids were a nuisance and caused personal injuries, ruling that state right to farm laws protect use of biosolids as a fertilizer.  Gilbert v. Synagro, 2012 Pa. Dist. & Cnty. Dec. LEXIS 323 (York Cnty. Pa. 2012).

Protecting land application and this helpful trend in the courts requires vigilance. New challenges to land application must be fought and clean water agencies must publicize the benefits of one of America’s largest recycling activities.

The current challenge occurs in Washington State, where Wahkiakum County, a rural county two hours south of Seattle, passed a ban on land application of class B biosolids.  The lawsuit seeking to overturn this ban is now before the Washington Court of Appeals and presents another opportunity to clarify and strengthen the trend that state biosolids programs should have primacy over local regulations.

Importantly, the lead biosolids regulator – the Washington State Department of Ecology – took the initiative to file the case against the Wahkiakum County ban, arguing that a local ban on class B biosolids creates an irreconcilable conflict with the state program that sets standards for land application and issues site specific permits.  The trial court in early 2013 issued a very short opinion upholding the class B ban on the grounds that the ban still allowed for class A biosolids land application, which represents a small percentage of biosolids recycling in Washington State.  The Department of Ecology has appealed that ruling and oral argument is expected in the spring of 2014. State of Washington v. Wahkiakum County, No. 44700-2-II (Wash. Ct. App.).

The Department of Ecology argues that the legislature created a statewide program following USEPA’s promulgation of the Part 503 land application rules in the 1990s, intended to maximize the use of land application as a management tool.  The State’s brief explains that the county’s ban on class B biosolids conflicts with and interferes with both this goal and the specific provisions of state law that allow class B land application.  The Department of Ecology has presented a factual record to the court that class A biosolids are not an economic or logistically viable substitute for class B land application for many agencies, and that class B land application with site restrictions is an equally safe management option.

The ruling in the Wahkiakum County case, expected in 2014, will be important nationally for land application.  Many state biosolids laws and programs are similar to Washington’s.  How the court applies the balance of state versus local authority in the face of a comprehensive state program will be influential as other localities across the country face occasional pressures from activists to try to override state biosolids programs.  The case also presents an opportunity for an appellate court to clarify that class B land application is essential for a functioning state biosolids program and that a class B ban does not leave rational options for agencies that must manage significant amounts of biosolids.  NACWA and other stakeholders will monitor closely the developments in this case.

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