By Lauren Zaepfel
The Town of Wheatfield's local biosolids law has, again, been deemed "unreasonably" restrictive by the New York State Department of Agriculture and Markets, according to a decision written by Michael Latham, director of the New York State Department of Agriculture and Markets.
The ruling follows David Milleville of Milleville Farms Inc.'s request to Ag. and Markets to review the law in 2014. He sought to use Quasar Energy Group's material derived from biosolids, known as equate, on a portion of his land on Nash Road.
Ag. and Markets first said Wheatfield's law was unreasonably restrictive in May of last year.
After releasing its decision in May 2015, Ag. and Markets offered the town an opportunity to provide any further evidence it may find to support its stance that using biosolids on town land could pose a threat to public health or safety.
After reviewing all submitted materials, including letters and studies from local government officials, Milleville Farms owners and other officials, Latham stated "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."
In an email Tuesday, Town of Wheatfield Supervisor Robert B. Cliffe said, "I am very disappointed with this decision; disappointed that our town government is not allowed to add basic protection to our residents, especially when so many of our residents are highly informed and actively seeking these protections for us and for our children yet to come."
The town argued several points against the use of biosolids on town land, one being the New York State Department of Environmental Conservation's biosolids-related regulations are based on those of the Environmental Protection Agency's, which are over 20 years old. The town contended the regulations do not address current pollutants that may be within present-day sewer sludge. Therefore, they could be outdated.
In response, Latham wrote the regulations are up to date. The DEC revised its biosolids regulations in 2003, and the EPA continues to assess its own and has not determined a need to update them.
The town maintained local farmers have been able to provide their land with nutrients for decades without having to resort to the use of municipal sewage sludge.
Furthermore, the town argued the portion of land on Nash Road (where the biosolids are to be used by its owners) only makes up a small portion of the entire Milleville Farms farmland. Therefore, the local law's restriction of the biosolids should not be found as an unreasonable restriction on the farm's ability to conduct its regular operations.
Latham countered this and wrote, "farmers often implement a change in operations on a limited number of acres and, if it is successful, then implement the change on increased acreage. As a result, while the local law only impacts a limited number of acres used for crop production in the Town of Wheatfield, it could have a greater economic impact on the future operations of Milleville Farms if it chooses to use biosolids as a nutrient source on other fields."
He further 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."
The town also brought up negative impacts associated with animal and human exposure to aerosols, pathogens and other contaminants when biosolids are applied to the land's "surface" Latham noted. But supporting studies provided via the town were "not applicable," because Milleville Farms' plans to inject the biosolids into farmland, not apply it to the surface as described in the research presented.
Latham added, "No information has been brought to the department's attention which documents impact to humans and animals as the result of the land application of biosolids in New York, particularly when biosolids were injected on cropland in accordance with DEC regulations."
Latham wrote the letters and supporting documents provided by the town did not prove the town's argument that the application of equate would pose a risk to public health or safety.
"In conclusion, 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," Latham wrote. "The town has not provided any studies relative to the specific crop production and application methods proposed by Milleville Farms."
With that, the Ag. and Markets has the "power to override local regulations when it determines that local governments unreasonably restrict or regulate farm operations within agricultural districts ... unless the local government can demonstrate that the public health or safety is threatened," Latham wrote.
As a result of the decision, Ag. and Markets has requested the town confirm within 30 days that the requirements of its law not be imposed on Milleville Farm's operation process.
If steps to comply are not taken, Latham wrote Ag. and Markets may take action to enforce the provisions of the law.
The town has not yet determined any possible further action.
"At this time, we are discussing our options with our legal counsel," Cliffe said Tuesday.
A complete copy of the Ag. and Markets decision can be found on the town's website at http://wheatfield.ny.us/DocumentCenter/View/1374.