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Raising A Stink

by Peter J. Haldeman, Esquire

The Supreme Court of Pennsylvania recently announced in Gilbert, et al vs. Synagro Central, LLC, et al. that a York County farm’s application of biosolids as fertilizer is a “normal agricultural operation” under the Pennsylvania Right to Farm Act (RTFA).  The RTFA provides that “no nuisance action may be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing the action where the conditions complained of have been substantially unchanged since the established date of operation and are normal agricultural operations.”  The RTFA’s definition of “normal agricultural operations” does not specifically include the application of biosolids.

Hilltop Farms in Shrewsbury Township literally raised a stink between March 2006 and April 2009 when it applied approximately 11,635 wet tons of biosolids to fourteen fields at the 220-acre farm.  Hilltop Farms’ conservation plan required it to use no-till agriculture.  Although no-till agriculture provides many environmental benefits, it also makes it impossible to plow biosolids under the soil – a major odor control strategy.  Neighboring residents reported offensive odors akin to dead, rotting animals following application of the biosolids at Hilltop Farms.  The smell was reportedly so intense that many residents claimed they were forced to stay indoors.  Some individuals reported physical symptoms such as burning eyes, sore throats, coughing, headaches, and nausea.

Thirty-four plaintiffs filed suit alleging that the spreading of the biosolids created a private nuisance, was negligently applied, and created a trespass to land.  After the trial court granted summary judgment in favor of the defendants that the spreading of biosolids is a normal agricultural operation, the plaintiffs appealed to the Superior Court which reversed and remanded back to the trial court for further proceedings on the trespass and nuisance claims. The Superior Court disagreed with the trial court’s holding that because fertilizer had been used in one form or another since the farm began operations in 1986, the use of biosolids in 2006 was not a “substantial change.”  The Superior Court held that whether the switch to biosolids in 2006 was a substantial change in use was a genuine issue of material fact that needed to be decided by a jury.  However, since the lawsuit was not filed until 2008, the plaintiffs still missed the one-year time limit to file a lawsuit because a substantial change in use only “resets” the one-year time limit from the time of the change, but does not eliminate entirely the one-year time limit.  The Superior Court also disagreed with the trial court that the application of biosolids is a “normal agricultural operation.”   The Superior Court felt that the record was not dispositive on this issue. and that a jury should decide whether the application of biosolids is a normal agricultural operation.

The Supreme Court granted review to determine two issues: 1) whether the applicability of the time limitation to file a nuisance actions under the RTFA is a question of fact for a jury or is a legal question for the court; and 2), if it is a legal question for the court. whether the application of biosolids constitutes a “normal agricultural operation” within the meaning of the RTFA.

On the first issue, the Court concluded that the RTFA is a statute of repose because it completely cuts off a cause of action after one year from the start of the farm activity that is complained about.  The farmer began spreading biosolids in 2006, and the neighbors filed their lawsuit in 2008.   Since the statute is one of repose, this is a legal question to be decided by the courts, and the Superior Court erred in concluding otherwise.  The Court further explained that this holding is consistent with the legislative intent of the RTFA, which states in pertinent part: “It is the purpose of this act to reduce the loss to the Commonwealth of its agricultural resources by limiting the circumstances under which agricultural operations may be the subject matter of nuisance suits and ordinances.”

On the second issue, the Court disagreed with the Superior Court’s conclusion that a material issue of fact existed as to whether Hilltop Farms’ use of biosolids was a “normal agricultural operation.”   In doing so, the Court relied on the well-developed record setting forth the long history of many Pennsylvania farms using biosolids as fertilizer.  The Court also found that the definition of “normal agricultural operation” under the RTFA should be read expansively, and that the legislature intended to include future advances in farming techniques, including the application of biosolids.  The Supreme Court found to hold otherwise would mean that the definition of what is a normal agricultural operation could change from jury to jury.  The Court found that the trial court correctly concluded that the neighbors’ nuisance claims were barred by the RTFA, and that the defendants were entitled to summary judgment on the nuisance claims.  The Court’s decision effectively ends the long-standing debate over whether the application of biosolids is a “normal agricultural operation” covered by the RTFA.