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Court rules biosolids law legal

Fri, May 20th 2016 03:50 pm

By Lauren Zaepfel

Tribune Editor

Wheatfield's biosolids law to ban the spread of human waste byproducts on town land has been ruled legal by State Supreme Court Justice Frank Caruso.

The ruling came after Sustainable Bioelectric LLC, a subsidiary of Quasar Energy Group, argued against the legitimacy of the town's law, which prohibits the use of biosolids (or other material derived from human waste) on town land.

However, Caruso wrote the town's biosolids law was "properly passed with the appropriate amount of scrutiny and without violating the rights of the petitioner. Therefore, the respondent's motion to dismiss the petition is hereby granted in all respects."

Caruso said the court determined the town followed proper procedure in creating the law and that it took an appropriate "hard look" at environmental concerns.

Supporters of the law have argued there are health issues associated with the use of biosolids on farmland, however the company maintains it is safe.

Caruso said Quasar "lacks standing" to challenge the law, as it is does not own or operate farmland; rather it is a waste management and renewable energy company.

Quasar uses anaerobic digesters to convert biosolids (or sewage sludge) and other materials, including grease and food waste, into methane. A byproduct of this digestion process is known as equate. Quasar sells equate to farmers to use as fertilizer, which has been approved by both the New York State Department of Environmental Conservation and Department of Agriculture and Markets.

Specifically, the company has obtained a permit from the DEC to operate its anaerobic digester facility, as well as approval to spread equate on certain areas within the town, including farm fields owned by Milleville Brothers Farms.

Although the town's law is stricter than that of the state, Caruso said, it is not inconsistent. "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," Caruso wrote. "In fact the town remains free to impose additional standards or prohibit the action altogether. ... So the mere fact that permits were acquired by the petitioner does not prohibit the town from imposing other restrictions, or even a complete ban."

Caruso also said, "It is not considered impermissible for a town to prohibit what the state may allow as they have broad home rule authority to protect public health and safety."

"The town is the government body closest to the people," Town of Wheatfield Supervisor Robert B. Cliffe said in an email Friday. "We have the best handle on what it takes to keep our residents safe."

Despite the ruling, Quasar still has time to appeal.

"There's always a possibility of appeal. That being said, the decision was very favorable," said Town Attorney Matthew E. Brooks said.

He added, "We have to commend Judge Caruso. It did take him a long time, but he went through (it) very methodically ... and came up with a very well-reasoned decision. So, I would think that that certainly is in the town's favor."

Nate Carr, biomass account executive at Quasar Energy Group, said company officials were expected to meet with their lawyer Wednesday to evaluate their options and discuss what steps they may take going forward.

Cliffe said he does not believe there will be an appeal. "I was reading the decision. ... I don't see anything where they have much chance of running an appeal," he said. "They basically have no standing."

Besides the possibility of an appeal from Quasar, the Department of Agriculture and Markets may also address the law.

"One of the things that we are very anxious to see is the result of the New York State Department of Agriculture and Markets review of Wheatfield's law," Carr said. "It's been under review for probably a year now."

He added, "If Ag. and Markets is to make a final determination that the law does represent an unreasonable restriction to farmers, well, that's not something that can be superseded by local law."

"It's very hard to say how this court decision may influence them," Brooks said. "It may inspire them not to do anything or to step up an effort or to make an opinion either in favor or contrary. We just don't know. We haven't heard a peep out of them with regard to the decision."

To view Caruso's entire statement, visit www.wheatfield.ny.us.


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