Dept. Of Ecology, State Of Wa v. Wahkiakum County ( 2014 )

FILED
COURT. OF APPEALS
DIVISION II
2014 NOV - 4 AM 10: 02
STATE OF WASHINGTON
BY
IN THE COURT OF APPEALS OF THE STATE OF WJ A-GTON
DIVISION II
STATE OF WASHINGTON, DEPARTMENT No. 44700 -2 -II
OF ECOLOGY,
Appellant,
v.
WAHKIAKUM COUNTY, a political PUBLISHED OPINION
subdivision of Washington State,
Respondent.
LEE, J. — The Washington State Legislature has charged the. Department of Ecology
Ecology) with executing the state' s biosolids program to facilitate and encourage recycling, rather
than disposal, of sewage waste. In 2011, Wahkiakum 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 is " in conflict with general laws." The superior court
granted the County' s cross -motion for summary judgment declaring the ordinance constitutional.
Ecology appeals.
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.
No. 44700 -2 -II
FACTS
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 retreating 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), ( 2); . 010( 1) and ( 4).
There are four classes of biosolids: exceptional quality ( EQ), class A, class B, and septage.
Because of the time spent in a 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 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.
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
1
EQ biosolids are used in the same manner as class A biosolids, and septage is used in the same
manner as class B biosolids. For the purpose of clarity, our references. to class A refers to both
class A and EQ and our references to class B refers to both class B and septage.
2
No. 44700 -2 -II
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).
In 2011, the County passed Ordinance No. 151 - 11 ( the ordinance), 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. The superior court granted the County' s cross -motion for summary judgment. Ecology
appeals. 2
ANALYSIS
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 Constitution. We hold that it does.
2 On appeal, several parties have been granted permission to file amicus briefs in this case. Lewis
County filed an amicus curiae brief in support of the County. Natural Selection Farms, Inc. and
Boulder Park, Inc. ( collectively the " farm amici "), and Northwest Biosolids Management
Association, National Association of Clean Water Agencies, Washington Association of Sewer
and Water Districts, and the town of Cathlamet ( collectively the " public amici ") have filed amicus
briefs in support of Ecology.
3
No. 44700 -2 -II
I. STANDARD OF REVIEW
We review an order granting summary judgment de novo. Weden v. San Juan County, 135
Wn.2d 678, 689, 958 P. 2d 273 ( 1998) ( citing Greaves v. Med. Imaging Sys., Inc., 124 Wn.2d 389,
392, 879 P. 2d 276 ( 1994)). The superior court properly grants a motion for summary judgment
when " there is no genuine issue as to any material fac t and ... the moving party is entitled to a
judgment as a matter of law." CR 56( c). Here, there are no disputed facts; the issue before us is
whether the County' s ordinance violates article XI, §11 of the Washington Constitution.
We presume that enacted ordinances are constitutional. Weden, 13 5 Wn.2d at 690 ( quoting
Holmes Unlimited, Inc. v. City of Seattle, 90 Wn.2d 154, 158, 579 P. 2d 1331 ( 1978)). 3 Whether
an ordinance is constitutional is a question of law that we review de novo. Weden, 135 Wn.2d at3 The County asserts that because ordinances are presumed constitutional, Ecology bears the
burden of proving that the ordinance is unconstitutional beyond a reasonable doubt. According to
the County this standard imposes a higher burden on Ecology. The County asserts that under this
burden, " it is not enough even for [Ecology] to prove it is right. It must prove it cannot possibly
be wrong. " Br. of Resp' t at 9.
The County not only misstates the " beyond a reasonable doubt" standard, but it provides
no citation any authority supporting its contentions that " beyond a reasonable doubt" means that
the party bearing the burden must prove that it cannot be wrong. " Where no authorities are cited
in support of a proposition, the court is not required to search out authorities, but may assume that
counsel, after diligent search, has found none." DeHeer v. Seattle Post -Intelligencer, 60 Wn.2d
122, 126, 372 P. 2d 193 ( 1962). In this case, such an assumption is particularly appropriate because
Washington courts do not define beyond a reasonable doubt by requiring the party bearing the
burden to prove that it is not wrong. Therefore, although the County is correct that we presume
the constitutionality of an ordinance, the County presents no valid reason for ( 1) departing from
the standards of review articulated in cases addressing whether an ordinance conflicts with state
laws, or ( 2) imposing the unrealistically high burden on the Department to prove that it cannot
possibly be wrong in order to prevail on its claim.
No. 44700 -2 -II
693 ( citing City of Seattle v. Williams, 128 Wn.2d 341, 346 -47, 908 P. 2d 359 ( 1995); Washam v.
Sonntag, 74 Wn. App. 504, 507, 874 P. 2d 188 ( 1994)).
II. THE COUNTY' S ORDINANCE CONFLICTS WITH STATE LAW
Article XI, § 11 of the Washington Constitution states, " Any county, city, town or township
may make and enforce within its limits all such local police, sanitary and other regulations as are
not in conflict with general laws." An ordinance is constitutional unless "( 1) the Ordinance
conflicts with some general law; ( 2) the Ordinance is not a reasonable exercise of the County' s
police power; or ( 3) the subject matter of the Ordinance is not local." Weden, 135 Wn.2d at 692.
Ecology argues that the County' s ordinance violates article XI, § 11 because it conflicts
with the general laws governing the disposal and land application of biosolids. We agree.
An ordinance conflicts with a state law if the state law "`` preempts the field, leaving no
room for concurrent jurisdiction,' or ``if a conflict exists such that the two cannot be harmonized. "'
Weden, 135 Wn.2d at 693 ( quoting Brown v. City of Yakima, 116 Wn.2d 556, 559, 561, 807 P.2d
353 ( 1991)). In Weden v. San Juan County, our Supreme Court stated:
In determining whether an ordinance is in ``conflict' with general laws, the
test is whether the ordinance permits or licenses that which the statute forbids and
prohibits, and vice versa.' Village ofStruthers v. Sokol, 108 Ohio St. 263, 140 N.E.
519 [( 1923)]. Judged by such a test, an ordinance is in conflict if it forbids that
which the statute permits, "' State v. Carran, 133 Ohio St. 50, 11 N.E. 2d 245, 246
1937)]."
135 Wn.2d at 693 ( quoting City ofBellingham v. Schampera, 57 Wn.2d 106, 111, 356 P.2d 292,
1960)). An ordinance also irreconcilably conflicts with state law if it thwarts the legislature' s
purpose. Diamond Parking, Inc. v. City of Seattle, 78 Wn.2d 778, 781, 479 P. 2d 47 ( 1971) ( " We
are of the opinion that the conflict here is irreconcilable. If the ordinance is given the effect for
No. 44700 -2 -II
which the appellant contends, the legislative purpose is necessarily thwarted. "). Finally, an
ordinance conflicts with state law if a county exercises power that the relevant state law did not
confer to the counties. Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 699, 169 P: 3d 14
2007).
Reading the case law regarding conflict between a county ordinance and state law as a
whole, the County' s ordinance conflicts with the state law and is unconstitutional if it (1) prohibits
what the state law permits, ( 2) thwarts the legislative purpose of the statutory scheme, or ( 3)
exercises power that the statutory scheme did not confer on local governments. Here, Ecology has
demonstrated that all three of these scenarios render the County' s ordinance unconstitutional.
Accordingly, the superior court erred by granting summary judgment in the County' s favor. •
A. THE COUNTY' S ORDINANCE PROHIBITS WHAT STATE LAW PERMITS
As stated above, a county ordinance that prohibits what state law permits is in conflict with
general laws and in violation of article XI, § 11. Weden, 135 Wn.2d at 693. Ecology argues that
the County' s ordinance prohibits what the state law permits because state law, and the
corresponding Department regulations, create a comprehensive permitting scheme for the land
application of class B biosolids. Ecology is correct.
In Biggers, the City of Bainbridge Island passed a moratorium on shoreline development.
162 Wn.2d at 688 -90. Our Supreme Court held that the moratorium irreconcilably conflicted with
the state' s Shoreline Management Act ( SMA)4 because the SMA created a comprehensive
regulatory scheme for permitting shoreline development. Biggers, 162 Wn.2d at 697 -98.
4 Ch. 90. 58 RCW.
6
No. 44700 -2 -II
Similarly, in Diamond Parking, our Supreme Court held that the City of Seattle' s ordinance
prohibiting the transfer of licenses irreconcilably conflicted with state law allowing the rights and
privileges of one corporation to transfer to another corporation upon merger. 78 Wn.2d at 786.
The court reasoned that the state had created a comprehensive statutory scheme governing
corporations and the City could not prohibit what state corporate law allowed. Diamond Parking,
78 Wn.2d at 781 -82.
Here, the legislature directed Ecology to create a comprehensive regulatory scheme to
manage biosolids, including land application of class B biosolids. See ch. 70. 95J RCW. Under
the regulatory scheme, Ecology may issue permits for land application of class B biosolids,
provided the application for the permit meets certain standards. RCW 70. 95J. 025, . 020. Thus,
Ecology had the authority to regulate and permit the use and disposal of class B biosolids. And,
Ecology' s regulations have the force of state law. See Gen. Tel. Co. ofNW, Inc. v. City ofBothell,
105 Wn.2d 579, 583, 716 P. 2d 879 ( 1986). Because the County' s ordinance conflicts with state
law by banning what has been permitted, it impermissibly prohibits what state law explicitly
permits.
The County' s arguments to the contrary are unpersuasive. First, the County argues that it
has not prohibited all land application of biosolids, but rather it has simply imposed further, more
stringent regulations, pursuant to its own police power. However, although the County' s
regulation allows for land application of class A biosolids, the County does not address the fact
that the ordinance prohibits any land application of class B biosolids even though the state scheme
explicitly sets criteria for permitting land application of class B biosolids. Even if the County had
authority to more strictly regulate land application of biosolids, it does not have the authority to
7
No. 44700 -2 -II
entirely prohibit the land application of class B biosolids when such application is allowed under
a comprehensive regulatory scheme that has been enacted in accordance with legislative directive.
Gen. Tel., 105 Wn.2d at 586 -87.
The County relies on Weden to argue that a county can prohibit an activity even if state law
allows a person to obtain a permit for that activity. But the County' s reliance on Weden is
misplaced. In Weden, San Juan County passed an ordinance prohibiting the use of personal
watercraft in San Juan County waters. 135 Wn.2d at 684. Users of personal watercraft argued
that the ordinance was invalid because it conflicted with chapter 88. 02 RCW governing
registration of water vessels. Weden, 135 Wn.2d at 694 -95. Our Supreme Court rejected this
contention stating:
The Legislature did not enact chapter 88. 02 RCW to grant [ personal
watercraft] owners the right to operate their [ personal watercraft] anywhere in the
state. The statute was enacted to raise tax revenues and to create a title system for
boats.
Weden, 135 Wn.2d at 694.
Here, the statutes and regulations managing biosolids are far more complex than simply
generating revenue or creating a title system. The legislature specifically directed Ecology to adopt
rules to implement a biosolids management program that " to the maximum extent possible"
ensures that biosolids are " reused as a beneficial commodity." RCW 70. 95J.005( 2), . 020. Under
that directive, Ecology adopted a regulatory scheme that specifically grants permits for land
application of class B biosolids and, thus, created a right to land application of class B biosolids
when a permit is acquired. As the farm amici explain, the permitting process for land application
of biosolids is in -depth and time consuming. In order to obtain a permit for land application of
8
No. 44700 -2 -II
biosolids the farm must submit a Site -Specific Land Application Plan that takes into account " site
boundaries, proposed staging areas, location of all water bodies and wells, and buffer zones to
protect sensitive areas." Br. of Farm Amici at 6. The Site -Specific Land Application Plan is also
subject to public comments and public meetings. Permit applicants must work closely with
Ecology when attempting to obtain a permit for land application of biosolids. Farmers have come
to rely on the well -established and uniform state regulation of land application of biosolids for
planning and investment.
As the current scope of the state' s permitting scheme demonstrates, the permitting of land
application of biosolids does significantly more than generate revenue or create a title system.
Weden does not support the County' s argument.
B. THE COUNTY' S ORDINANCE THWARTS THE LEGISLATURE' S PURPOSE
Ecology also argues that the County' s ordinance irreconcilably conflicts with state law
because enactment of the County' s ordinance thwarts the legislature' s purpose in enacting state
law. Specifically, Ecology argues that the legislature intends that sewage waste be recycled and
used for land application rather than be disposed of in a landfill or incinerated. Because the
County' s ordinance bans land application of all class B biosolids, which is the overwhelming
majority ofbiosolids produced in Washington, it effectively prohibits land application of biosolids,
especially land application of biosolids in farming and land reclamation. Moreover, as Ecology
points out, if local governments have the power to ban land application of biosolids, land
application of biosolids could be banned throughout the state, clearly thwarting the legislature' s
purpose of recycling biosolids through land application rather than landfill disposal or incineration.
9
No. 44700 -2 -II
The County' s ordinance thwarts the express purpose of the legislature and, thus, is irreconcilable
with state law and unconstitutional under article XI, § 11.
Ecology states that the statutory scheme for the disposal of biosolids demonstrates a clear
legislative preference for the land application of biosolids rather than incineration or disposal in a
landfill. Ecology is correct. When enacting the statutory scheme for the disposal of biosolids, the
legislature directed Ecology to ensure that biosolids are " reused as a beneficial commodity" to the
maximum extent possible. RCW 70. 95J. 005( 2). The legislature' s stated intent was to increase the
recycling and reuse of biosolids, and it tasked Ecology with carrying out that mission.
Based on the undisputed facts in the record, class B biosolids comprise approximately 88
percent of the biosolids produced in the state. Ecology argues that by banning class B biosolids,
the County has essentially banned the land application of biosolids within the County. The County
disputes this argument by stating that 12 percent of biosolids produced in the state ( class A) can
still be used within the County. However, as the record shows, class A biosolids have a specific
purpose: home lawn and garden, and application where public restriction is not plausible. Because
class A biosolids have a specific purpose, they are not meant to be used in the same manner as
class B biosolids. Therefore, preventing the land application of an entire class of biosolids
specifically intended for land application thwarts the legislature' s stated purpose of reusing
biosolids to the maximum extent possible.
Further, Ecology argues that upholding the County' s ordinance thwarts the legislature' s
purpose by allowing any county in the state to prohibit land application of class B biosolids. The
County responds that Ecology' s argument must fail because Ecology cannot show that all counties
would ban the land application. But, the County fails to recognize the salient point in Ecology' s
10
No. 44700 -2 -II
argument — if all counties had the power to determine whether to ban land application of class B
biosolids, then the entire statutory and regulatory scheme enacted to maximize the safe land
application of biosolids would be rendered meaningless. See City of Los Angeles v. County of
Kern, 214 Cal. App. 4th 394, 154 Cal. Rptr. 3d 122 ( 2013), rev' d on other grounds, 59 Cal. 4th
618, 328 P. 3d 56 ( 2014). 5 The County' s ordinance thwarts the legislature' s purpose by usurping
state law and replacing it with local law. Therefore, we hold that the County' s ordinance is
unconstitutional under article XI, § 11.
Ecology also has the authority to prohibit the disposal of biosolids in landfills unless other
uses or disposal methods are economically infeasible. RCW 70. 95. 255. Ecology has exercised
this authority to prohibit the disposal of biosolids in landfills through WAC 173 -308 -300. Under
WAC 173 - 308 -300( 9) a permit must be acquired in order to dispose of biosolids in a landfill. A
permit may not be acquired unless the applicant can demonstrate " to the satisfaction of the
5
Specifically the court stated:
Land application ofbiosolids is a widely used, widely accepted, comprehensively regulated
method by which municipalities fulfill their obligation to reduce the flow of waste to
landfills.... One jurisdiction' s action to ban it, and to interfere with other jurisdictions'
efforts to comply with their CIWMA obligations, is not consistent with a statutory scheme
that presumes all jurisdictions will have access to crucial waste -stream- reduction methods.
If we held that Kern County is empowered to ban land application of biosolids, we would
necessarily be implying that all counties and cities are empowered to do the same.... Kern
County asks us to adopt a position that would authorize all local governments to say " not
here." That principle would not be consistent with a statute that requires all local
governments to adhere to waste management plans in which recycling is maximized.
City of Los Angeles, 154 Cal. Rptr. 3d at 139. The court also rejected Kern County' s
characterization ofthe City' s argument as a " slippery slope" argument and as based on speculation.
City ofLos Angeles, 154 Cal. Rptr. 3d at 139 n. 12. The California Supreme Court later reversed
the Court of Appeals based exclusively on a procedural issue regarding tolling of the statute of
limitations while a claim is pending in federal court. City ofLos Angeles v. County of Kern, 59
Cal. 4th 618, 328 P. 3d 56 ( 2014).
11
No. 44700 -2 -II
6
department that options for beneficial use are economically infeasible." WAC 173 -308- 300( 9)( a).
A ban on land application of biosolids causes a direct conflict with the mandate that biosolids be
disposed of as a beneficial commodity rather than disposal in a landfill Thus, the County' s ban
on land application of class B biosolids does not just thwart the legislature' s purpose to use
biosolids to the maximum extent possible, it also thwarts the legislature' s purpose to prevent
disposal of biosolids in landfills absent economic infeasibility.
C. THE COUNTY HAS EXERCISED POWER NOT CONFERRED TO LOCAL GOVERNMENTS UNDER
THE STATUTORY SCHEME
The County' s ordinance also clearly exercises power the legislature did not confer on local
governments under the statutory scheme for management or disposal of biosolids. The County
argues that it has the authority to further regulate land application of biosolids under WAC 173-
308- 030( 6), including banning land application of class B biosolids. Although we agree that the
County may have the authority to further regulate land application of biosolids to comply with
other laws, we do not agree that the County has the authority to completely ban the land application
of class B biosolids when such a ban conflicts with state law.
WAC 173 -308 -030( 6) requires facilities and sites where biosolids are applied to land to
comply with other applicable federal, state and local laws, regulations and ordinances, such as
zoning and land use requirements. This regulation recognizes that land application of biosolids
does not exist in a vacuum, but rather, that there are other laws that may also apply to facilities and
sites engaging in land application of biosolids. This is reflected in the other sections of WAC 173-
6 Although incineration is another method of disposing of biosolids, the County has not presented
any argument or authority suggesting that disposal of biosolids by incineration is considered an
alternative beneficial use that would further the legislature' s purpose.
12
No. 44700 -2 -II
308 -030 which, for example, recognize that fertilizers also have to comply with Department of
Agriculture requirements and transportation of biosolids also have to comply with regulations of
the Washington State Utilities and Transportation Commission. Read in context, WAC 173 -308-
030( 6) provides for additional local regulation required under other applicable laws. Thus, the
County may regulate biosolids if necessary to comply with other applicable laws. However, the
County does not have the authority to completely ban the land application of all class B biosolids
when that ban conflicts with state law.
The County further argues that the legislature intended for the counties to be the ultimate
decision maker regarding the use of biosolids because RCW 70. 95J.0078 references the regulatory
requirements under the federal Clean Water Act, which includes a savings clause that states, in
relevant part, " The determination of the manner of disposal or use of sludge is a local
determination." 33 U. S. C. § 1345( e). We disagree.
Even if we assume, without .deciding, that this savings clause applies after a state has
received delegation from the EPA to administer a State permitting program for sewage sludge
disposal, a local determination still must comply with our state Constitution. When a local
7 For example, the Growth Management Act (GMA) requires all counties to protect critical areas,
surface water, and groundwater resources. RCW 36. 70A. 060( 2), . 070( 5)( c)( iv). If necessary to
protect critical areas, it is conceivable that the county could regulate the application of biosolids
in relation to the mandates of the GMA. And, WAC 173 -308 -030( 6) would require facilities and •
sites to comply with these regulations.
8 RCW 70. 95J. 007 states:
The purpose of this chapter is to provide the department of ecology and local
governments with the authority and direction to meet federal regulatory
requirements for municipal sewage sludge. The department of ecology may seek
delegation and administer the sludge permit program required by the federal clean
water act as it existed February 4, 1987.
13
No. 44700 -2 -II
ordinance prohibits what the state law explicitly permits or thwarts the state' s legislative purpose,
as the County' s ordinance does here, it violates our State' s constitution. As shown above, counties
have the authority to adopt " all such local police, sanitary and other regulations as are not in
conflict with general laws." WASH. CONST. art. XI, § 11. However, as previously discussed, the
County lacked the authority under our state Constitution to adopt this ordinance. Thus, even if
we assume that the savings clause of the federal Clean Water Act applies to these issues, the " local
determination" referenced in the savings clause must be one that Wahkiakum County has the
authority to make. As shown the County lacked authority to adopt the ordinance in question.
The County also argues that the legislature' s decision to strike a provision related to a
county' s authority under the biosolids statute demonstrates its intent to have the counties be the
ultimate authority on the management of biosolids. The County relies on a statement in a House
Bill Report on H. B. 2640., 52d Leg., Reg. Sess. ( Wash. 1992). In the section comparing the original
bill to the substitute bill, the report states, " The substitute bill also deletes a provision restricting
local government' s ability to ban the use or disposal of sludge." H.B. REP ON H.B. 2640, at 3.
But, read as a whole, the legislative history undermines the County' s argument. The provision
that was struck read:
A city, county, or local health department may prohibit, on a permit -by-
permit basis only, the use or disposal of municipal sewage sludge that meets
standards established by this chapter.
H.B. 2640, § 5, 52d Leg., Reg. Sess. ( Wash. 1992). However, the legislature also struck another
provision that stated:
The department shall adopt rules authorizing local permits for the use and
disposal of sludge. The rules shall allow a city, county, or local health department
14
No. 44700 -2 -II
to have primary regulatory authority. Department rules shall provide for state
review of the issuance or denial of local permits and enforcement actions.
H. B. 2640, § 4( 4). Therefore, although the language of the bill report appears to state that the
legislature struck a provision that limited local authority, it is .clear from a comparison of the
original bill and the substitute bill that the changes to the bill reduced the authority of local
governments to manage the biosolids program. This conclusion is consistent with the legislature' s
intent to create a comprehensive state program for the management of biosolids. Accordingly, the
legislative history of the biosolids statute provides no support for the County' s position that the
legislature intended for local governments to retain the authority to ban the land application of
biosolids.
Further, the statutory scheme gives the Department the authority to review and grant permit
applications for the use and disposal of biosolids. RCW 70. 95J. 025, . 020. Although the legislature
has provided a mechanism for Ecology to delegate this responsibility to local health departments
if it chooses to do so, Ecology retains the authority to revoke the delegation of authority if the local
health department is not effectively administering the biosolids program. RCW 70. 95J. 080.
Ecology also retains the power to review the decisions of the local health departments. RCW
70. 95J. 090. If the legislature did not grant the County the power to review, grant, or deny permits
under the state biosolids program without an express delegation of authority by Ecology, then the
legislature could not have intended to grant the County authority to unilaterally ban land
application of an entire class of biosolids that comprise the .majority of the biosolids produced in
Washington. Further, by expressly giving Ecology the authority to reverse the decision of a local
15
No. 44700 -2 -II
health department, the legislature intended for the final decision regarding land application of
biosolids to rest with Ecology, not the local government.
We hold that the County' s ordinance is unconstitutional under all three theories of conflict
preemption. Therefore, the superior court erred by granting summary judgment in favor of the
County. We reverse the superior court' s order granting summary judgment in favor of the County
and remand to the superior court for entry of summary judgment in favor of Ecology.
Lee, J.
16