Case Law Update: PA Supreme Court Rules in Favor of Biosolid Land Application

Written by M. Sean High – Staff Attorney

On December 21, 2015, the Supreme Court of Pennsylvania held that: 1) the Pennsylvania Right to Farm Act (RTFA) contains a one-year statute of repose barring nuisance suits, and application of the one-year statute of repose is a question of law for courts to decide; and 2) the land application of biosolids as fertilizer meets RTFA’s definition of a “normal agricultural operation.” (Gilbert v. Synagro Central, LLC, No. 121 MAP 2014).

According to the Court, RTFA’s one-year bar regarding nuisance suits operates as a statute of repose (which is a time limit on when an action may be brought that is not related to when an injury actually happened, as opposed to a statute of limitation which is a time limit on when an action may be brought based on when an injury actually happened or was discovered), and “that, generally, statutes of repose are jurisdictional and their scope is a question of law for courts to determine.” As a result, the Court proclaimed that “[h]aving courts [as opposed to juries] apply RTFA’s definitions achieves the meaningful degree of legal certainty, uniformity, and consistency that the RTFA was intended to provide to farms.”

In deciding that the land application of biosolids meets RTFA’s definition of “normal agricultural operation,” the Court stated that the legislative policy of RTFA is to protect Pennsylvania agriculture and that this purpose is best achieved by broadly interpreting a “normal agricultural operation” so as to take “into account new developments in the farming industry,” which includes the land application of biosolids as fertilizer.  The Court further reasoned that “[t]he statistics and facts relating to the history of biosolids land-use also support the conclusion the use of biosolids as fertilizer is a 'normal agricultural operation.’”

Finally, the Court asserted that when deciding what qualifies as a RTFA “normal agricultural operation,” the focus should be placed on the “practice in general, not on whether the defendant in [a] particular instance conducted the practice with accepted industry standards and regulations.” Chief Justice Saylor disagreed with this assertion, and as a result, filed a concurring opinion stating that while he agreed with the majority in the present case, “if the manner in which a farming practice is carried out deviates substantially from the norm and has unusual adverse effects upon neighboring properties, at some point that particular method of implementing the practice should be viewed as a distinct practice whose agricultural normalcy should be independently evaluated.”