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Dep't of Ecology v. Wahkiakum County

Court of Appeals of Washington, Division 2

November 4, 2014

The Department of Ecology, Appellant,
v.
Wahkiakum County, Respondent

Oral Argument July 1, 2014

Appeal from Cowlitz Superior Court. Docket No: 11-2-00554-3. Judge signing: Honorable Stephen M Warning. Judgment or order under review. Date filed: 02/22/2013.

Robert W. Ferguson, Attorney General, and Harold L. Overton, Assistant, for appellant.

Daniel H. Bigelow, Prosecuting Attorney, for respondent.

Glenn J. Carter on behalf of Lewis County, amicus curiae.

Kenneth W. Harper on behalf of Natural Selection Farms Inc. and Boulder Park Inc., amici curiae.

Konrad J. Liegel and James B. Slaughter on behalf of Northwest Biosolids Management Association, National Association of Clean Water Agencies, Washington Association of Sewer and Water Districts, and Town of Cathlamet, amici curiae.

Concurring: J. Robin Hunt, Thomas R Bjorgen.

OPINION

Page 365

[184 Wn.App. 374] Linda CJ Lee, J.

¶ 1 The Washington State Legislature has charged the Department of Ecology with executing the state's biosolids program to facilitate and encourage recycling, rather than disposal, of sewage waste. In 2011, Wahkiakum County (County) passed an ordinance banning the use of the most common class of biosolids within the County. Ecology filed an action for an injunction and declaratory judgment arguing that the County's ordinance conflicts with state law, and, thus, is unconstitutional under article XI, § 11 of the Washington Constitution, which prohibits local government from enacting ordinances that are " in conflict with general laws." The superior court granted the County's cross motion for summary judgment declaring the ordinance constitutional. Ecology appeals.

[¶2] We hold that the County's ordinance is unconstitutional because it irreconcilably conflicts with state law. Accordingly, we reverse the superior court's order granting summary judgment in favor of the County and remand for entry of summary judgment in favor of Ecology.

FACTS

[¶3] In 1992, the Washington State Legislature enacted chapter 70.95J RCW establishing the state's biosolids program. The legislature designated Ecology as the body responsible for implementing and managing the biosolids program. RCW 70.95J.020. The purpose of the biosolids program is to recycle sewage waste by re-treating it and using it as a " beneficial commodity" in land applications " in agriculture, silviculture, and in landscapes as a soil conditioner." RCW 70.95J.005(1)(d) and (2); .010(1) and (4).

[¶4] There are four classes of biosolids: exceptional quality (EQ), class A, class B, and septage. Because of the time spent in a

Page 366

septic tank before collection, septage is essentially the equivalent of class B biosolids. Class B biosolids are treated with processes that eliminate at least 99 percent of pathogens. Class A biosolids are treated with processes [184 Wn.App. 375] that reduce pathogens to below detectable levels. EQ biosolids are class A biosolids that are additionally treated to reduce other contaminants.[1] Class A biosolids comprise approximately 12 percent of biosolids produced in Washington; class B biosolids comprise approximately 88 percent of biosolids.

[¶5] Because pathogens have not been completely eliminated from class B biosolids, their use is restricted. WAC 173-308-210(5). Public access to and crop harvesting from land treated with class B biosolids are restricted for at least 30 days while natural environmental processes remove remaining pathogens from the biosolids. WAC 173-308-210(5)(a). Class B biosolids are used in farming, land reclamation, and other applications where public access restrictions are practical. In contrast, class A biosolids are limited to land applications where public access restrictions are impractical--primarily home, lawn, and garden use. Biosolids can also be disposed of using two other methods: incineration and landfill disposal. However, landfill disposal is prohibited except in cases where it is economically infeasible to use or dispose of the material other than in a landfill. RCW 70.95.255; WAC 173-308-300(9).

[¶6] In 2011, the County passed Ordinance No. 151-11, which states, in relevant part, " No Class B biosolids, septage, or sewage sludge may be applied to any land within the County of Wahkiakum." Clerk's Papers (CP) at 49. Ecology filed a complaint against the County alleging that the ordinance violated article XI, § 11 of the Washington Constitution, and seeking a declaratory judgment and an injunction against the County's implementation of the ordinance. Ecology filed a motion for summary judgment, and the County filed a cross motion for summary judgment. [184 Wn.App. 376] The superior court granted the County's cross motion for summary judgment. Ecology appeals.[2]

ANALYSIS

[¶7] The issue before us is whether the County's ordinance banning the land application of all class B biosolids violates article XI, § 11 of the Washington ...


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