A long-awaited trial over the use of biosolids, aka sewage sludge, in East Penn Township is set to take place in January.

But attorneys for the farmer and biosolids company have asked a state appeals court to step in, which could take away the county court’s power to decide the case.

East Penn Township sued the biosolids company, Synagro, and owners of the Never Done Farm/Cunfer Farm in 2018. The suit alleged that the company and farmers ignored a township ordinance, number 77, regulating biosolids.

Synagro is now asking the Commonwealth Court to overturn Judge Steven Serfass’ decision to reject their request to decide the case in its favor before trial.

In the two years that the case has worked its way to trial, both sides have asked Serfass to decide the case in their favor.

Serfass denied both “motions for judgment on the pleadings,” writing that the outcome of the case was uncertain, and that a trial was needed to decide it.

Meanwhile, Serfass’ 2018 order blocking the use of biosolids on the farm has remained in place.

In July, Synagro decided to appeal Serfass’ decision on their motion to Commonwealth Court. Their appeal says that the county court should have decided the case in their favor.

The lawyer for Synagro and the Cunfers says the trial is unnecessary because state law clearly states townships can’t regulate the use of biosolids. They’re appealing in hopes that the Commonwealth Court will apply the law as they see it.

“Pennsylvania’s well-established biosolids regulations do not allow the township to use a local ordinance to restrict what farmers have been doing across Pennsylvania for decades,” said attorney Andrew Silton.

The township has responded by asking the commonwealth court to dismiss the appeal. Next week, a Commonwealth Court judge will hear arguments from both sides.

Serfass weighed in on the appeal in a recent legal opinion. He said it is apparent that Synagro’s appeal appears to be an attempt to have the commonwealth decide whether Ordinance 77 is valid under state law.

If the appeals court makes a decision on the validity of Ordinance 77, the county court would have to abide by that decision.

The ordinance requires anyone using biosolids to register with the township, and includes regulations aimed at protecting water resources.

Synagro argues that Ordinance 77 is invalid because it violates Pennsylvania’s Solid Waste Management Act, and the state’s Agriculture Communities Rural Environment Act.

The Department of Environmental Protection approved the Cunfer farm’s plans to use biosolids in 2018.

The township also appealed that decision to the state Environmental Hearing Board. However that board has decided to let the case play out in county court before it makes a decision.

The Attorney General’s Office has also said that it believes Ordinance 77 violates state law, but it has not filed any legal action in the case.

Silton said if the case continues into next year, it will have prevented the Cunfers from using biosolids on their farm for a third growing season.

“Two years plus is far too long for the Cunfers to have been unable to use biosolids. They’re now facing yet another season where they could be land applying,” he said.