Wheatfield will attempt to move the lawsuit challenging the town’s biosolids law to a court in Niagara County, Town Attorney Robert J. O’Toole says.
Quasar Energy Group filed suit in Erie County in the first week of December, and the case was assigned to State Supreme Court Justice John L. Michalski, who scheduled an argument for Jan. 14.
O’Toole said the town intends to file a motion to move the case to a judge who sits in Niagara County. Three State Supreme Court justices sit in Niagara Falls and one in Lockport.
“There’s case law and several provisions in the Civil Practice Law and Rules and the Town Law that any action against a town has to be in the county where the town is located,” O’Toole explained.
Quasar’s attorneys say that they were entitled to bring the case anywhere in eight counties of the 8th Judicial District.
O’Toole said he decided to seek the change of venue after Quasar’s attorneys refused his request to agree to move the case. Michalski is being asked to rule on the change-in-venue motion.
“I understand the judges are district-wide, but I think it sets a bad precedent to have an action against a town heard outside the county,” O’Toole said. O’Toole said he expects the Jan. 14 argument on the merits of the biosolids law to be postponed.
Quasar built anaerobic digesters, which are designed to use microbes to convert food waste and sewage sludge into methane gas, in Wheatfield and in West Seneca. The gas is used to generate electricity or compressed natural gas, but the process leaves behind a nitrogen-rich watery byproduct that the company calls “equate.” Quasar made deals to supply the equate to farmers for use as crop fertilizer.
After a public outcry in Wheatfield and surrounding towns over the use of the processed sewage sludge on fields, the town passed a law banning its use, even by farmers such as Milleville Brothers in Wheatfield, who have permits from the state Department of Environmental Conservation to spread the material on their fields. The DEC considers equate safe for such use.
Quasar, which brought suit under the name of its local subsidiary Sustainable Bioelectric, said the law unfairly interferes with its lawful operations and exceeds the town’s authority.
The state Department of Agriculture and Markets also has questioned the legality of Wheatfield’s law, asserting that it illegally interferes with farming. O’Toole said the town has replied and expects to hear back from Albany in two months or so.