                                                                                        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.


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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 at




3 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.


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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


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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




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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.




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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


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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).



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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.



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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.

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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




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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




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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.




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