Thomas Prohaska | The Buffalo News
A Court of Appeals ruling last week that allowed individual towns to ban hydrofracking could have an impact on the fight over the spreading of biosolids on farm fields in Niagara County.
At least, that’s what State Sen. George D. Maziarz, R-Newfane, thinks.
Attorneys for towns such as Wheatfield and Pendleton have expressed doubts about the legality of a ban on the spreading of “equate,” the term used by Quasar Energy Group for the nitrogen-rich byproduct of its food waste digestion process.
Quasar made an agreement with Milleville Farms of Wheatfield to take the material and use it as fertilizer. But residents protested, because one of the raw materials for Quasar’s anaerobic digestion process is sludge from sewage treatment plants, so the equate could contain anything that’s dumped down the sewer.
Quasar has anaerobic digestion plants in Wheatfield and West Seneca, but the Wheatfield issue erupted over storage for equate. The neighboring Town of Cambria refused to let a 10-million-gallon equate lagoon be dug on a farm, and the company withdrew a plan for smaller lagoons, or a 5-million-gallon above-ground storage tank on its own property, in the face of the outcry.
Pendleton, where Milleville Farms has a state permit to spread equate, is planning a July 14 public hearing on a restrictive law regarding equate. Wheatfield is working on a ban, but Town Attorney Robert J. O’Toole said this week it may not be ready for a vote until July 28.
Maziarz, citing support for his position from Assemblyman John D. Ceretto, R-Lewiston, and Wheatfield residents Monica Daigler and Julie Otto, said the ruling by the state’s top court in the fracking cases bolsters his position that equate could be legally banned and not just controlled.
The Court of Appeals ruled 5-2 that towns in Otsego and Tompkins counties were within their rights to ban fracking in their towns and even to invalidate permits granted by state or federal agencies.
Maziarz said the ruling shows the court “will give wide deference to home rule authority as it relates to banning practices that local governments consider to be harmful.”
Nathan C. Carr, spokesman for Quasar, said Maziarz got it wrong. He said the fracking case dealt with whether the provisions of the state Oil, Gas and Solution Mining Law supersede local rules. But the equate issue, he said, is a right-to-farm question.
“There is absolutely no relationship between the circumstances faced by the hydrofracking industry and a clearly agricultural activity such as the land application of fertilizer produced by anaerobic digestion,” Carr said.
During a public meeting in Pendleton on May 1, Town Attorney Claude A. Joerg cited an Appellate Division ruling from 1999, in which Butternuts, a town in Otsego County, was barred from prohibiting the spreading of the output of residential and restaurant septic tanks on farm fields.
That court ruled the state Agriculture and Markets Law, which prohibits towns from unreasonably restricting farming, outweighed any local law.
Charles Grieco of Buffalo’s Jaeckle Fleischmann & Mugel law firm, who is working with Wheatfield on its proposed law, said there’s been a lot more scientific work on the issue since 1999.
“The statutory authority under which the town is acting relates to solid waste management,” Grieco said. He said the state Environmental Conservation Law doesn’t prevent towns from making a law in that area that’s tougher than state regulations.
Joerg said laws can be made at the town level against the concentration of heavy metals that could be found in sewage sludge. He said the state Department of Agriculture and Markets upheld limitations on the use of materials containing such metals instituted by the Town of Palermo in Oswego County.
Grieco said there are exceptions to the ban on farming regulation when public health is endangered. He said one aspect that he believes permits Wheatfield to ban equate use is “the unique hydrology of the Town of Wheatfield, where the water is very close to the surface or is on the surface. … That is why the town believes they have the authority to do this.”