A case to decide whether an East Penn Township farmer can use treated sewage sludge aka biosolids as fertilizer was back in court Friday.

Meanwhile, an injunction remains in place blocking farmer Dennis Cunfer from using biosolids processed by Synagro, a company which processes and markets the material.

Synagro and the township are currently involved in a suit to determine whether farmer Cunfer can use the material on his farm off Smithlane Road. Synagro and Cunfer have DEP approval to go ahead, but the township successfully sought an injunction while the court case plays out.

The township is fighting the project on behalf of residents who protested the use of biosolids on the Cunfer’s farm when it was proposed almost a year ago. Cunfer’s wife, Deanna, a township supervisor, stopped attending supervisors meetings after a series of heated public meetings where residents objected to the project.

Judge Steven Serfass is currently weighing whether Synagro has to follow the borough’s ordinance to regulating the use of biosolids. Both sides made arguments before Serfass Friday afternoon.

Synagro says that state law clearly prohibits the township from having its own ordinance.

But the township says that only an appeals court can overturn their ordinance, known as Ordinance No. 77.

The ordinance, which has been on the books since 1996, requires applicants to get a permit from the township when hauling and disposing of waste, including biosolids.

Drew Silton, one of three attorneys representing Synagro and the Cunfers, argued that the appeals courts have thrown out several other townships’ ordinances regulating biosolids. The courts have decided that the state’s law on biosolids pre-empts any local ordinance.

Silton said that the Cunfers and Synagro intend to comply fully with state law regarding biosolids, which is laid out in the state’s solid waste management act. He said ordinance 77 basically creates a parallel set of regulations, which violates state law.

Silton said that the East Penn ordinance is more restrictive than a lot of the other ordinances, which have been overturned by the state for violating the state’s Agricultural Communities Rural Education law.

In particular, there is a section in Ordinance No. 77 that allows the supervisors to require a permit holder to pay to restore any water quality that may be impacted. Silton said the requirement is vague and open ended.

Robert Frycklund, solicitor for the East Penn Township board of supervisors, said Silton’s argument is irrelevant, because Judge Serfass doesn’t have the authority to throw out the township’s ordinance. That would be the job of a state appeals court, he said.

The state attorney general’s office says it believes the ordinance has been subsequently pre-empted by the ACRE act. But the AG’s office has only threatened legal action, and no lawsuit has been filed.

Frycklund argued that Judge Serfass’ decision is solely based on whether or not Synagro has to comply with Ordinance 77.

He said the ordinance exists so the township can assess an applicant’s environmental impact on the community before they start hauling waste through the township.

Before Friday’s hearing, both parties submitted briefs summarizing their arguments. Synagro submitted more than 300 pages of documents supporting its case.

Serfass said he would take Friday’s arguments under advisement, and did not provide a time line for his decision.

Meanwhile, East Penn Township also appealed Synagro’s DEP permit to the state’s environmental hearing board. That case has been stayed until Judge Serfass’ decision is finalized.