Legal Issues Impacting Land Application: Critical Regulatory and Litigation Developments

This paper and presentation will survey and analyze the latest lawsuits and regulatory developments affecting the beneficial use of biosolids to provide wastewater and residuals professionals current information that will help inform their decisions on risk, liability, management, and planning. Slaughter and Silton regularly defend land application in litigation, and they are currently working on behalf of a major land application contractor-and its farm partners-to challenge a Pennsylvania locality's attempt to restrict land application. The speakers will discuss the challenges posed by local ordinances, tort litigation, and the ongoing campaign to regulate per- and polyfluoroalkyl substances (PFAS). This talk will outline potential risks, while also highlighting potential strategies for managing land application and discouraging attacks on beneficial use in the face of a changing legal environment and local communities that may be hostile to land application. Slaughter and Silton will first address the interplay between state and local regulation by exploring several case studies involving local attempts to restrict or ban land application. Their discussion will cover California, where decade-long litigation over a local biosolids ban resulted in a trial and settlement striking down the ban. City of Los Angeles v. Kern County, 2017 WL 1292822 (Tulare Co. Super. Ct. Mar. 14, 2017). Among other things, the Kern trial resulted in findings that land application poses few risks after hearing evidence concerning minimal concentrations of PFAS in soil and groundwater beneath a farm where biosolids had been land applied for decades. The speakers will also address recent developments in other states, including Pennsylvania, where the speakers are currently challenging application of a local waste ordinance to land application. Second, the speakers will survey risks to land application posed by tort law suits. Cases in which plaintiffs' lawyers have alleged nuisance conditions caused by land application will be discussed, including the important decision of the Pennsylvania Supreme Court in Gilbert v. Synagro Central, LLC, 131 A.3d 1, which ruled that farming with biosolids is a normal agricultural operation entitled to protection under Pennsylvania's Right to Farm Act. The speakers will also discuss a case brought in Maine, Stoneridge Farms v. 3M, in which a dairy farmer alleges that land application resulted PFAS contaminating his land, groundwater, and dairy cows. This case was voluntarily dismissed but portends a new generation of tort litigation seeking to challenge land application. Third, the talk will assess the regulatory landscape for land application. Legislators and regulators, at the behest of many advocacy groups, have turned their focus to trace chemicals that may be found in biosolids, including PFAS. These efforts have included stepped-up efforts to designated PFAS as a hazardous substance for the purposes of the federal Superfund statute, a regulatory change that could pose risks to land appliers and POTWs. Silton and Slaughter will highlight recently regulatory developments and their implications for POTWs, biosolids service providers, and farmers. The presentation will conclude with how stakeholders in land application-POTWs, contractors, and farmers-can collaborate to reduce their risks and navigate a challenging, dynamic legal and regulatory landscape.