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Thurston faces uphill battle defending its sewage sludge ban: Will state heed town’s warning of PFAS risk?

  • / Updated:
  • Peter Mantius 

Legal precedent is not on the side of the Town of Thurston as it prepares to defend its law banning the spread of sewage sludge on fields in a bid to protect public health.

In the past decade, towns in Clinton, Wyoming and Niagara counties have each had enforcement of their local sludge laws blocked by the state Department of Agriculture and Markets (AGM), which is charged with protecting the interests of farmers. When one of those rulings was appealed, a state court upheld it.

But Thurston will argue that its case is different because it has the hard evidence that they lacked of an imminent threat to public health.

lawsuit challenging Thurston’s sludge ban, filed in February, was recently put on hold until August to allow time for the AGM to weigh in. The department plans to rule on a petition by Leo Dickson & Sons Inc. to have the town’s law declared an “unreasonable restriction on a farm operation.”

The Dickson family has spread sewage sludge on its fields for several decades. 

In July 2022, family companies sold or leased about 2,790 acres in the towns of Thurston, Cameron and Bath to Vermont-based Casella Waste Systems Inc. The Dicksons continue to grow crops on the fields, but Casella now holds the state permit to spread sludge there. Casella has renamed the sludge-spreading operation Bonny Hill Organics.

Casella has sued the Town of Thurston over a law that restricts business at Bonny Hill Organics.

Those developments alarmed Thurston officials last year as they were learning about widespread reports that sewage sludge is often laced with PFAS “forever chemicals.” 

In responding to the perceived threat, they enacted their law banning local sludge spreading in October. Four months later, a Casella subsidiary and the Dicksons sued the town in Steuben County Supreme Court in a bid to invalidate the law.

Two weeks ago, attorneys for both sides agreed to suspend that court case until August. Meanwhile, AGM is expected to hear testimony from the Dicksons and Thurston town officials — but not from Casella or town residents —and then rule under the authority of Agriculture and Markets Law Section 305-a.

In that departmental proceeding, the town has a steep burden of proof, according to a letter AGM’s Michael J. Latham wrote to local activist Wayne Wells on March 22, 2024. Latham wrote: “… (I)f the department finds that the local law is unreasonably restrictive … it is the town’s burden to demonstrate the health or safety threat” in order to uphold the local law.

“Land-applied biosolids” is government language for municipal sewage sludge spread on farm fields.

The three towns that had their sludge bans shot down — Bennington, Ellenburg, and Wheatfield — all failed to prove to the satisfaction of the department that spreading sewage sludge was causing a local harm.

— Bennington, a Wyoming County town of about 3,000 roughly 30 miles east of Buffalo, sought to impose restrictions on a farm that planned to apply Equate — a fertilizer product made up of food waste and sewage sludge — to fields. Among other things, the law banned the spreading of sludge generated outside the town. But AGM Commissioner Richard A. Ball ruled in June 2016 that the town “did not demonstrate that the public health or safety is threatened” by the spreading of Equate, and he ordered the town to permit it.

— Ellenburg, a Clinton County town of about 1,750 less than 10 miles from the Canadian border, sought to apply its sludge-spreading law to activities of a dairy farm that was spreading Fertilimer — a mixture deemed to fit the law’s ban on “sludge (or derivatives) of biosolids.” While the town argued that each load of Fertilimer should be tested, AGM found that it had failed to provide “information showing any public health or safety threat.” In December 2016, Ball ordered the town to allow the use of Fertilimer.

— Wheatfield, a Niagara County town of about 18,000 roughly 15 miles north of Buffalo, sought to apply its law against spreading biosolids within the town to a dairy farm seeking to spread Equate on its fields. In May 2017, AGM’s Ball ordered the town to allow it, noting in his ruling: “Based upon the lack of evidence that [state and federal] biosolids land application regulations are inadequate for the protection of public health, New York State Department of Health has concluded that additional health studies are not necessary.”

Wheatfield appealed Ball’s ruling to the state Supreme Court in Albany, where Acting Supreme Court Justice Kimberly A. O’Connor upheld it in July 2018.

The rulings against the local laws cited chemical monitoring rules of the federal Environmental Protection Agency and assurances from Sally Rowland, a scientist at the state Department of Environmental Conservation. 

For example, the 2018 state court order in the Wheatfield case found that based on Rowland’s input, it was “not unreasonable to conclude (that spreading sludge on fields) is a safe method of recycling organic wastes into valuable fertilizer … nor was it irrational of AGM to conclude that the papers and studies cited by the town were either irrelevant or scientifically flawed.”

The court’s sweeping dismissal of evidence contradicting Rowland applied to a 24-page power point presentation on the potential health hazards of sludge spreading by Cornell University professor Murray McBride, a soil and crop sciences specialist.

In his presentation, McBride said that sewage sludge is loaded with unregulated “emerging” chemicals, and he noted “many anecdotal reports of illness.” He said the EPA’s rules for regulating toxic chemicals, pathogens and heavy metals in sludge were outdated and inadequate.  

His points were driven home two years later in a critical 2018 report from EPA’s Inspector General entitled “EPA Unable to Assess the Impact of Hundreds of Pollutants in Land-Applied Biosolids on Human Health and the Environment.”

“Land-applied biosolids” is government language for field-spread sewage sludge.

Earlier this month, a non-profit environmental group filed notice of intent to sue the EPA within 60 days for its failure to address dangerous levels of PFAS “forever chemicals” in sewage sludge. Public Employees for Environmental Responsibility (PEER) said it will allege violations of the Clean Water Act.

Brett Dickson explained to members of the Cameron Town Board last spring that spreading sewage sludge is a protected practice under the state’s Right to Farm law.

The Thurston Town Board enacted its ban on sludge spreading over objections from Casella and the Dicksons. It had the support of the vast majority of people who attended town board meetings.

In taking their action, the board members noted that Maine had banned the practice statewide only months earlier — after several farms that had relied on sludge spreading for years had to be shut down due to PFAS-contaminated, soil, water, crops and milk.

New York has taken the opposite approach, doubling down on its stance that sewage sludge is a cheap and efficient fertilizer with minimal health risks. 

A draft New York State Solid Waste Management Plan now proposes to boost the rate of recycling (primarily field-spreading) of all sewage sludge generated statewide from 22 percent 2018 to 57 percent by 2050. 

And at a public hearing in Campbell attended by Thurston officials August, Rowland warned that local sludge spreading bans risked violating the state’s Right to Farm law. “The premise of our (DEC) program … is that these materials are beneficial to farms,” Rowland said.

Not all observers agree. Last June, the Albany Times-Union newspaper editorialized about New York State’s slow recognition of the dangers of PFAS in using sewage sludge as a fertilizer in an opinion piece called “A Toxic Lapse.”

PFAS is used in a host of everyday products.

Public awareness of the dangers of PFAS in sludge is a relatively new development driven by recent studies by environmental groups and state regulators. 

For example, when the Sierra Club conducted tests for PFAS in fertilizers made out of sewage sludge, it found the toxic compounds in every product tested. And yet, the group estimates, half of sewage sludge generated nationally is spread on land — often without any testing.

Health effects of PFAS ‘forever chemicals.’

PFAS is shorthand for a class of thousands of man-made per- and poly-fluoroalkyl substances used in many household non-stick and stain-resistant products. Exposure to even tiny concentrations has been linked to cancers and a host of other health problems. They do not break down readily, and they accumulate in the body. 

The EPA has now acknowledged that its 2016 guideline for a safe lifetime exposure to two key PFAS compounds was nowhere near strict enough. 

The year that AGM nixed enforcement of sludge spreading bans in Ellenburg and Bennington, the EPA established said a safe lifetime exposure to PFOA and PFOS in drinking water of 70 parts per trillion. But in 2022 the agency slashed that lifetime health advisory for PFOS to 0.02 ppt and for PFOA to 0.004 ppt.

The Thurston Town Board said it needed to act to regulate PFAS in sludge because the state would not. 

To bolster its case, the board encouraged local Sierra Club members to test for PFAS chemicals in water drawn from sources near Dickson fields that have been spread with sludge.

An initial round of tests relied on results from uncertified laboratories. A second round included results from 83 samples processed by both certified and uncertified labs.

In Sierra Club tests of water from sources in and around Thurston, five of the 10 highest PFAS totals were recorded in certified tests results produced by Eurofins Labs.

According Elizabeth Donderewicz, who coordinated Sierra Club testing, water wells, streams and ponds adjacent to fields spread with sludge had PFAS levels nine times higher than sources near non-adjacent fields.

PFAS concentrations ranged up to 82 ppt.

“Based on the findings,” Donderewicz said during a power point presentation, “we urged the DEC to investigate water contamination adjacent to land-spreading and in regions of associated runoff.”

Thomas West, an attorney for Casella, has called the Sierra Club tests “wanting at best” and criticized the town for submitting uncertified test results.

“Beyond that,” West wrote in a Aug. 28, 2023 letter to Thurston Town Supervisor Michael Volino, “while the town cites articles regarding general concerns about PFAS, it provides no bona fide evidence that land application of biosolids in Steuben County has created any impairment of public health and safety (including as to PFAS).”

Brett Dickson, in his October 2023 petition to AGM, summarized what was at stake for his family, writing: “This law violates my ability to spread Class B biosolids, an organic fertilizer we depend on. This law violates my ability to right to farm. I request your immediate review of this law.”