County, Ecology ready to argue biosolids case

Attorneys for Wahkiakum County and the Washington State Department of Ecology will present oral arguments next week in their dispute over the county's ordinance to regulate the application of biosolids.

The case is set for hearing at 1 p.m. on September 30 in Cowlitz County Superior Court.

Wahkiakum County Prosecuting Attorney Dan Bigelow said it is possible that the judge hearing the case may listen to arguments, adjourn the hearing and reach a decision at a later date after going over the briefs in the file.

Ecology has asked for a summary judgement on whether the county's ordinance conflicts with the laws of the state.

Biosolids became an issue in the county in 2010 after a Long Beach company made arrangements to dispose of septage on a Grays River Valley ranch. Citizens raised concerns about contamination of the environment, and this year, the county passed an ordinance permitting only the application of the highest class of biosolids and prohibiting the application of septage on lands within the county.

Ecology challenged the ordinance, saying state law gives the department, not counties, the authority to regulate the application of biosolids.

In his brief, Bigelow commented that county officials have learned that biosolids can contain toxic metals and deadly microorganisms. The ordinance is designed to protect citizens from the risks, he wrote.

Bigelow argues that the county has authority to pass ordinances under the state constitution. Further, the ordinance doesn't preempt or conflict with department regulations, which must comply with applicable state and federal law. State statutes don't allow unconditional application of biosolids; "further regulation by counties is both expected and provided for," Bigelow writes.

Bigelow also referred to federal law, which drives state law on biosolids, and he argues that federal law gives preference to local control.

"Despite the fact that counties have the power to further regulate state-regulated activities, that the Department's own administrative code allows for such regulation in the particular case, and that federal law controlling under the Supremacy Clause encourages local control of septage and biosolids issues, the Department claims Wahkiakum County's biosolids ordinance is unconstitutional," Bigelow wrote in his conclusion. "But the precedent it cites for the purpose does not address the issue, and even if this were the case (which the county argues it is not), every presumption and inference is against the Department's position and in favor of the county's police power."

In a response for Ecology, Assistant Attorney General Lee Overton affirms the argument that the ordinance conflicts with state law.

"...although local ordinance did not itself expressly forbid what the statute permitted, it thwarted state policy by giving the county the power to do so," he wrote.

Also, he counters, a county may not further regulate in conflict with state law. "The county's ordinance prohibits precisely what the law and regulation authorize and opposes state policy," Overton wrote.

Overton also argues that the state is correctly using its authority to implement state law and the application of biosolids.

"Federal law and regulations relating to sludge management establish minimum standards and leave it to the states to adopt their own policies and programs, so long as the federal minimum standards are met," he writes. "Here, the legislature has established a biosolids permitting program that meets the federal minimum requirements and has further declared its policy that the program shall, to the maximum extent possible, reuse municipal sewage sludge as a beneficial commodity."