By Ashley Ellixson
This article first appeared in the January 26th Edition of the Delmarva Farmer.
On December 21, 2015 the Pennsylvania Supreme Court ruled, overturning the Superior Court that the land application of biosolids as fertilizer is a protected agricultural activity and protected from litigation based on Pennsylvania’s Right To Farm Act (RTFA). The original lawsuit began when a group of landowners in York County filed a complaint against Synagro Central, a sustainable waste management company. The landowners complained of unpleasant odors arising from farmland where Synagro was conducting biosolid operations near where the landowners lived. Biosolids are nutrient-rich materials produced from sewage sludge and are often used as fertilizer on farmland across America.
The trial court in York Country granted Synagro’s motion for summary judgment on the grounds that the landowners had not filed their lawsuit within the RTFA’s one-year statute of repose. Unlike a statute of limitations, a statute of repose provides a date when the cause of action no longer exists, whether or not it has ripened by that date, and entirely cuts off an injured person’s right of action before it is developed. On appeal, the Superior Court of Pennsylvania reversed this ruling and determined that the jury would have the responsibility of deciding whether the use of biosolids was a “normal agricultural application” as defined and protected by the RTFA.
The Supreme Court of Pennsylvania rejected the lower court’s decision in its entirety. The justices determined “that, generally, statutes of repose are jurisdictional and their scope is a question of law for courts to determine” and thus not up to the juries.” In making its decision on whether the land application of biosolids fits the RTFA’s definition of “normal agricultural operation,” the Court reasoned that the policy of the RTFA is to protect Pennsylvania agriculture and must take “into account new developments in the farming industry.” Further, the Court also states that when making its decision on what qualifies as a RTFA “normal agricultural operation,” it must look to the “practice in general, [and] not whether the defendant in [a] particular instance conducted the practice with accepted industry standards and regulations.”
The Supreme Court of Pennsylvania acknowledged in numerous statistics and briefs that the widespread use of biosolids in agriculture is common practice not only in Pennsylvania but also across America. Thus, the Court found that the use of biosolids as fertilizer fits the definition of “normal agricultural operation,” entitled to protection under Pennsylvania’s RTFA. The Court’s opinion has implications not only for the state of Pennsylvania but for many other states when the question of biosolids as fertilizer comes up as an issue.
To read the majority opinion of the case see http://www.bdlaw.com/assets/htmldocuments/2015-12-21%20Gilbert%20v%20Synagro%20-%20Majority%20Op.pdf
And the concurring opinion: http://www.bdlaw.com/assets/htmldocuments/2015-12-21%20Gilbert%20v%20Synagro%20-%20Concurring%20Op.pdf