Ecology prevails in biosolids suit

Wahkiakum County Prosecuting Attorney Dan Bigelow learned April 29 that the state supreme court has declined to hear his appeal of a court of appeals decision that would invalidate the county's biosolids ordinance.

This means the state Department of Ecology prevails, and the county doesn't have the authority to prohibit the application of two of three classes of biosolids on land in the county.

Responding to concerns from Westend residents about the application of Class B biosolids at a Grays River Valley farm, commissioners adopted an ordinance that permitted only the application of Class A biosolids in the county. Class A biosolids are more highly treated than other biosolids.

The state Department of Ecology sued, claiming the legislature had given the agency the authority to regulate biosolids. The county maintained that it had authority under state law to add additional regulation.

The county prevailed in superior court, but Ecology appealed, and the court of appeals ruled for the agency, saying it had authority to regulate the application of biosolids.

Bigelow said the decision came as "kind of a surprise."

"This has been a harder fight for the state than the attorney general expected," he said. "We won for a longer time than they anticipated."

In addition, Bigelow said the decision to strike down a county ordinance doesn't give counties and cities much hope for restrictions they might want to impose in other arenas, such as controlling the sale and cultivation of marijuana.

"There's a looming preference in the court for state control over counties and cities," he said.

On Tuesday, Bigelow and Commissioner Blair Brady said the fight now heads to other venues.

"The fixes are very limited," Brady said. He outlined three.

First, the county could appeal to Governor Jay Inslee to intercede with Ecology to work with the county on mutually agreeable rules.

"I've done that and had no response," Brady said.

Second, Wahkiakum and other counties could work with legislators to change law to give counties more authority.

Legislators have introduced two bills that bear on the issue. One would require food that is fertilized with biosolids to state that on labels. The other would provide state funding to find

other ways of disposing biosolids.

Commissioners signed letters to sponsoring legislators to show their support of the bills.

Brady said he has raised the issues in meetings of the state association of counties, and members there said they would support legislation that enhances authority of cities and counties.

Third, and with doubtful chance of success, Brady said the county could work with Ecology "to come up with a fix that is acceptable to our community."

Bigelow commented that with the supreme court's action upholding the appeals court, the county's bargaining position with Ecology is now much diminished from what it might have been just a few months ago.

Once the formal mandate reaches superior court in Cowlitz County, which originally tried the case, individuals and organizations may start the permitting process to apply biosolids in the county.

This will interest the Town of Cathlamet, which would like to dispose of Class B biosolids from its waste water treatment plant on its Bradley Mountain forest land. This would lower operating expenses, for the town must pay to have the biosolids hauled to a disposal site in Lewis County.