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State judge upholds Wheatfield’s ban on using biosolids on farm fields

WHEATFIELD – The town’s law that bans the spreading of biosolids on farm fields is legal, a judge has ruled.

State Supreme Court Justice Frank Caruso’s ruling, dated May 6, was distributed to attorneys in the case Thursday. The 12-page ruling came 10½ months after attorneys argued the issues in his Niagara Falls courtroom.

Quasar Energy Group, operator of units in Wheatfield and West Seneca that turn organic waste into methane gas, had challenged the legitimacy of Wheatfield’s 2014 ban on a variety of grounds, but Caruso rejected all of them.

He said the town is allowed to contradict regulations from the state Department of Environmental Conservation as long as its measure is not inconsistent with state law.

The plants, called anaerobic digesters, use microbes to convert food waste and sludge from sewage treatment plants into methane, which can be used to produce electricity or compressed natural gas. The process leaves behind a black, watery byproduct which the company calls “equate.” It’s rich in nitrogen, and the company offers it for farmers for use as fertilizer, a use endorsed by the DEC and the Department of Agriculture and Markets.

But Caruso was unimpressed by Quasar’s argument that DEC permits for spreading biosolids, granted to Milleville Brothers Farm in Wheatfield, should supersede the town’s law.

“The state gives broad powers to local municipalities to manage their own waste, and (a town) is not required to allow an action simply because it has been approved by the DEC,” Caruso wrote. “In fact, the town remains free to impose additional standards or prohibit the action altogether.”

“That’s certainly good news,” Wheatfield Supervisor Robert B. Cliffe said. “That’s exactly what our position was.”

Opponents of Quasar’s process contended that the possible presence in equate of human waste, pharmaceuticals or anything else that can be flushed down a toilet makes the use of biosolids as fertilizer a risk to human health. That’s a contention Quasar has vigorously denied.

Former Town Attorney Roberta J. O’Toole, who wrote the local law, hailed Caruso’s ruling. “I think it’s great news for the residents of the Town of Wheatfield and for residents all across New York State. It will set a precedent,” she said.

“The Town of Wheatfield didn’t pull any punches. It saw a significant public health threat and took action,” said Steven J. Ricca, of Bond Schoeneck & King, the attorney who handled the town’s arguments before Caruso.

Quasar has 30 days to decide whether to appeal.

“We have not yet had the opportunity to review the decision in any detail,” said Nathan C. Carr, a Quasar project developer. “We need to review and discuss internally prior to making any decisions on an appeal.”

Caruso said the town’s procedures for passing the law and subjecting it to environmental review were correct. He said Quasar lacked standing to challenge the law because it affects farming and it doesn’t own land in an agricultural district or operate a farm.

State law bars unreasonable restrictions on farming, but Caruso said that the law doesn’t do anything to protect companies that sell materials to farmers.

The judge said that it’s not his place to decide whether the town’s law constitutes an unreasonable restriction, noting that enforcement is up to the commissioner of Agriculture and Markets. The Millevilles were not parties to the suit.

Caruso noted that the DEC issued permits for biosolids use on Milleville-owned land in other towns, so Quasar was not harmed by Wheatfield’s ban “because one 37.6-acre farm is now off-limits.”