County prevails in biosolids suit

A Cowlitz County Superior Court judge last Friday ruled that Wahkiakum County's ordinance regulating the application of biosolids doesn't conflict with state law.

Wahkiakum commissioners adopted the ordinance last year in response to a Seaview company's plan to spread Class B biosolids on a Grays River Valley ranch. Class B is the second of three grades of biosolids, or treated sewage. Valley residents opposed the project, saying it could lead to health problems.

Under state law, the state Department of Ecology handles permitting of biosolids application, and the department had issued a declaration of non-significance in evaluating the permit application.

In April, 2011, commissioners voted 2-1 to adopt an ordinance allowing application of Class A biosolids, the highest treated form of biosolid, but prohibiting application of the two lesser treated forms Class B and septage.

The Department of Ecology sued, saying the county's ordinance interfered with the Department's statutory mandate to encourage and regulate the application of biosolids.

County Prosecuting Attorney Dan Bigelow and an attorney from the state Attorney General's office argued the case in Cowlitz County Superior Court a year ago. Judge Stephen Warning heard the arguments and asked the attorneys to supply more information. The case came back to a hearing last Friday. The parties expected the judge to take the case under advisement and issue a written ruling later. But after hearing oral arguments, Judge Warning surprised the parties by ruling from the bench in the county's favor.

Bigelow said the attorney representing Ecology said the ordinance should be struck down because it would create a result different from what the department wanted to happen.

"He said it was a conflict that destroyed the statutory scheme," Bigelow said. Thus, he added, the legal argument became whether or not the prohibition of Class B biosolids actually crippled the statutory scheme.

In arguing in support of the ordinance, Bigelow cited two cases where courts in Virginia and California upheld similar ordinances that limited the application of biosolids but didn't ban the application outright.

In a second point, Bigelow noted that 12 percent of the biosolids produced in Washington are Class A biosolids and that Wahkiakum County has 1 percent or less of the land in the state.

"One percent of the land would accept 12 percent of the biosolids produced in the state," he said. "We're too small to cripple statutory stream by ourselves."

The judge agreed.

Bigelow feels the decision will be appealed, and the question will ultimately go back to the legislature for modification.