Sludge, Whose Jurisdiction? (Part 1)
by: Simon Davis-Cohen Posted on: July 30, 2012
Photo: Sustainable Sanitation, Flickr
Editor’s Note: Last year Wahkiakum County passed an ordinance to regulate the spreading of sludge/biosolids on agricultural land. Stating health concerns, the County holds that it has the right to enforce regulations on sludge/biosolids that are more stringent than those of Washington State. The ordinance bans the use of “Class B” sludge/biosolids—which are legal in Washington State—but still allows the use of “Class A”. “Class A” undergoes more stringent treatment than “Class B”. The Washington Department of Ecology thinks the ordinance violates the Washington State constitution.
We thought we’d ask Blair Brady, a Wahkiakum County Commissioner and Dan Bigelow, the Wahkiakum County Prosecuting Attorney, what they think.
See below to read Part 1, our discussion with Dan Bigelow, Wahkiakum County Prosecuting Attorney:
Why does the Washington Department of Ecology (DoE) believe Wahkiakum County does not have the constitutional rights to regulate sludge/biosolids?
DoE takes that position because of what we lawyers call the doctrine of supremacy. Translated from legalese, supremacy means that the U.S. Constitution is the highest law in the land, laws passed by the federal government come next, state laws come under federal laws, and local ordinances (like the county code) come last of all. The higher up you are on that list, the more power your laws have. Federal laws control over conflicting state laws, and state laws control over conflicting county ordinances. DoE’s position is that it was authorized by state law to regulate everything having to do with sludge disposal so any rule Wahkiakum County makes is in conflict with its regulations, and therefore unauthorized under supremacy analysis.
Why does Wahkiakum County believe it has the right to regulate the use of sludge/biosolids on its land? What supports the rights of localities to regulate sludge/biosolids?
Wahkiakum County can’t argue supremacy law is any different than DoE says it is. This principle is too well entrenched in the legal system to be effectively challenged. The County simply argues that DoE is reading it wrong. At the top comes federal law, and federal law states in so many words that “[t]he determination of the manner of disposal or use of sludge is a local determination….” 33 U.S.C. § 1345(e). DoE itself passed a rule acknowledging this by providing that, in addition to the rules DoE made, sludge disposal must also follow “applicable federal, state and local laws, regulations, and ordinances, including zoning and land use requirements” WAC 173-308-030(6). Wahkiakum County is making a local ordinance about sludge disposal, and all the laws that are higher up the supremacy ladder allow us to do that.
What are the broader implications of this case?
Wahkiakum County is not the only county in Washington that is concerned about sludge disposal, just the first to go to court over it. Both sides of this case know that if Wahkiakum County succeeds in making further regulations about sludge disposal, other counties in the state will follow. But because this case has to do with supremacy of laws, if either side fails in the courts, there will always be the legislative option: change the law. Eventually, if the issue remains as contentious as it has been, there will be a battle in the state legislature to change the laws that both sides in this case are interpreting – and then in the federal legislature, since federal laws control over state laws.
Does Wahkiakum County possess positive rights, such as the right to ensure public health and safety?
That’s called “police power,” and every governmental entity has it. The county’s comes from the Washington State Constitution: “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.” It’s the “conflict with general laws” part that we’re arguing about.
If the county views sludge/biosolids (any classification) as harmful to public health and safety why don’t they just ban it outright?
If the county says “no way” to a thing when state and federal law says “go for it”, it’s hard to argue the county’s not in conflict with state and federal law. So the county has to be content with increasing safety as much as it can by adapting the sludge disposal schemes that are imposed on us from above to our local concerns. In rainy, stream-covered Wahkiakum County, uncontaminated groundwater is a major concern. In an area like Wahkiakum County that has a culture of small, organic farms that rely on boutique reputations rather than the vast fields of the East where quantity is king, septic waste can affect business for our farmers. Wahkiakum County is focusing on adapting the state and federal sludge disposal scheme to its own unique needs, and that requires striking a balance.
A total ban of sludge is going to have to come from someone higher on the supremacy ladder than Wahkiakum County – preferably the federal government.
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