Odors, Nuisance and Current Legal Challenges to Beneficial Use

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Odors, Nuisance and Current Legal Challenges to Beneficial Use

WASHINGTON, DC MARYLAND NEW YORK MASSACHUSETTS NEW JERSEY CALIFORNIA TEXAS


Legal Highlights Around theCountry• L.A. v. Kern County – California Court of Appealaffirms preliminary injunction against the Kern Countybiosolids ban• Gilbert v. Synagro – Pennsylvania trial courtdismisses nuisance, negligence, and trespass claimsagainst land application, applying state Right to Farmlaw• Texas considers rulemaking on land application;stakeholder hearings August 2013• Challenge to EPA sewage sludge incinerator (SSI) airrule continues, decision possibly this summer2


City of Los Angeles v.Kern County, California3


Green Acres Farm 18 miles fromBakersfield, CA4


Biosolids Ban: Federal Litigation• 2006: Passage of Measure E, a ballot initiativeto ban land application in Kern County,California• 2006-07: Federal district court grantedpreliminary and then permanent injunction,ruling that the ban violated CA recyclingmandates and the federal Commerce Clause• 2009: Ninth Circuit dismissed the CommerceClause claim for lack of standing• 2010: Supreme Court denied certiorari5


Biosolids Ban: State Litigation• 2011: Challenge re-filed in state court; courtgranted preliminary injunction– Ban likely exceeded the County’s police powersbecause of its impacts on out-of-county interests– Ban was likely preempted by state recyclingmandates– Experts: Kester, Pepper, Gerba, Page, Johnson• 2013: California Court of Appeal affirmedpreliminary injunction6


Expert Findings“LA presents declarations from qualified individuals withfirst hand knowledge of the sites and, particularly as to[Green Acres], who have studied the test reports relatingto the subject biosolids. These experts opine thatcontinued biosolid applications will not [affect] thegroundwater; will not [affect] the water banks nearby;that metals will not leach down anywhere near the waterlevel. They opine that the net effect of the application is abenefit to Kern, in that it improves the soil and allowsmarginal land to grow crops. . . .“Kern presents no evidence of any actual harm to theenvironment: to the air, water, or soil, as a result of LA’scontinued application of biosolids.”7


Plaintiffs CoalitionplusResponsible Biosolids Management, Inc.R&G Fanucchi FarmsSierra TruckingShaen Magan8


Amici Curiae Have Played KeyRole Throughout Case9


Preemption of Local BiosolidsBans the Law in Many States• Pennsylvania: Synagro-WWT v. RushTownship, 299 F. Supp. 2d 410 (M.D. Pa.2003)• Virginia: O’Brien v. Appomattox County,213 F. Supp. 2d 627 (W.D. Va. 2002)• North Carolina: Granville Farms, 170 N.C.App. 109 (2005)• Texas law accords significant deference tolocal law10


Gilbert v. Synagro11


Farm with Plaintiffs on Perimeter12


Gilbert State Court Complaint• Lawsuit filed in 2008 in York County, PA by 34individual plaintiffs living near farm• Alleges nuisance, negligence and trespass andseeks over $2.5 million in damages for odorsover four years– alleges inconvenience plus physical injuries, e.g. sorethroats, eye irritation, nausea, sinus infection,migraines, nose bleeds, diarrhea, rashes, and variousdegrees of respiratory irritation and congestion• Plaintiffs’ strategy to target farmers and serviceproviders, not generators13


Gilbert Case Timeline• August 2008: Defendants remove case to federalcourt based on Clean Water Act preemption;unsuccessful• October 2008: Defendants move to dismiss thelawsuit on preemption grounds because biosolidsare regulated under state rules (motion denied)• 2011-13: Extensive discovery; all 34 Plaintiffsdeposed14


Gilbert Experts• Professor Herschel A. Elliott, Ph.D., P.E.– agronomy, land application• Professor John Novak, Ph.D.– biosolids odors, duration• Michael Wardell, M.S.– land application• Pamela Dalton, Ph.D., MPH– odor perception• Lawrence Hentz, P.E.– wastewater treatment plant processes, biosolids• Paul Knight, M.S., Penn State Climatologist– meteorological and climate conditions and transport of odors• Marisa Kreider, Ph.D.– Toxicology of biosolids15


Current Odor Science• Odor typically will not cause sickness• Individuals will mistakenly link odor tosickness• Individuals will overestimate duration andintensity of odors• Need more data on odors at landapplication sites16


Gilbert Summary JudgmentMotion Granted• Key rulings:– Land application of biosolids is a “normalagricultural operation” protected by the PA Rightto Farm Act from nuisance claims, as well asnegligence claims based on the same facts asnuisance claims– Under negligence, no legally recognized duty orstandard of conduct to prevent off-site odors– No trespass for odors from a farm• Plaintiffs appeal to PA Superior Court17


Amici Curiae on Appeal18


Texas Right to Farm Act• TX law like PA – no nuisance suit one yearafter ag operations commenced. Tex.Agric. Code § 251.001-006• TX also has two year statute of limitationsfor “permanent” nuisance• Several Texas court decisions protectingranches and farms19


Toxic Tort Suits – To Date• Other toxic tort suits In New Hampshire, Virginiaand Tennessee have yielded little for plaintiffs• No case to date has linked biosolids to humanhealth problems through a court-approvedexpert report, court finding, or jury verdict• EPA: Denied petition to ban land application indetailed December 2003 decision• Two National Academy of Sciences reportssupporting land application (2002 and 2004)• California 2004 Environmental Impact Review20


Texas Petition for Rule Making21


Texas Stakeholder Meetings onLand Application• Pending petition for bracketed rule makingto establish 3 mile buffers between landapplication and 14 cities in Ellis County• Stakeholder meetings in four locations inAugust 2013• Broad agenda includes non-rule makingoptions for odor control23


Strategies for Texas Stakeholderson Land Application• Include municipalities, farmers, neighbors,conservationists• Emphasize recycling benefits; not disposal• Emphasize science and experience;national practice• More data and transparency on odors24


EPA’s SSI Rule - Background• Final Rule released in March 2011– SSIs at WWTPs regulated under Clean Air Act(CAA) Section 129– Unlike Part 503, the rule:• Covers HCl, Hg, CO, NOx, SO2, PM and totalPCDD/PCDF• Is technology-based as opposed to risk-based• Distinguishes between new and existing SSIs• Distinguishes between incinerator types (MH/FB)– EPA denied reconsideration of the Rule in 201225


Lawsuit in Progress Against SSI Rule• NACWA and others have filed suit in D.C.Circuit against EPA over SSI rule; SierraClub intervened seeking stricter limits• Arguments that CAA 112exclusively regulates SSIs, notstricter 129 and that data usedto set rules for SSIs are flawed• Oral argument held May 3, 201326


WASHINGTON, DC MARYLAND NEW YORK MASSACHUSETTS NEW JERSEY CALIFORNIA TEXAS

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