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Monday, October 22, 2012

SLUDGE WARS: Small Washington County Wins a Battle, But We Could All Still Lose

A peaceful Wahkiakum County scene           Photo by Marti Kintigh
 "Small towns. Big hearts" said an email from the Wahkiakum Chamber of Commerce, and those four words represent the amount of heart it took for a county comprising only about 1% of the land in the State of Washington to fight big government and win. At least it was a partial victory in an ongoing war. On Oct. 12, Cowlitz County Superior Court Judge Stephen Warning ruled in favor of a tiny Wahkiakum County, instead of the state, on an important court case involving not only issues of public health and safety but also the right to local determination.

Very few people heard about this decision, even though it has widespread ramifications. If King or Pierce counties—with their populations of 1,942,600 or 802,150, respectively—had been the ones to stand up to our state government in a case of bullying, the news media might have given this story the attention it deserves. But only 4,000 people live in Wahkiakum County where the it all began.

Over a year has passed since State Attorney General Rob McKenna's office brought a lawsuit against Wahkiakum County, on behalf of the Department of Ecology. Why? Because the Wahkiakum County commissioners passed an ordinance banning the use of minimally treated Class B biosolids—considered by many scientists to be dangerous. You can read all about bio-solids, the EPA’s inadequate and unenforceable rules and equally inadequate testing methods in a previous blog post: From Toilet to Table.

The Department of Ecology, did not take kindly to an upstart little county having the audacity to go against this powerful branch of state government. How dare they confront Ecology's mandate to increase the use of treated sewage sludge on Washington’s farmlands, a widespread practice made possible through the department’s control over the permitting process?

The county did not even attempt to ban biosolids outright, still accepting the slightly less dangerous Class A type, because to attempt an outright ban would have meant certain defeat in court. Few Washingtonians realize that, so far, they basically have had no choice in this matter. The use of biosolids is legal, aggressively promoted, and imposed on us whether we like it or not. The Wahkiakum County ordinance came about because of negative public reaction to the Department of Ecology having permitted the spreading of Class B biosolids on a piece of property that borders the Grays River, in a flood plain, near a dairy, and in a county trying to encourage and promote organic farming.

Photo by Marti Kintigh

Ironically, this court battle was not even about the safety of biosolids. It was a David and Goliath story, one about power and control. Because the state allows the use of Class B biosolids, Ecology wanted the court to overturn the local ordinance, claiming it was unconstitutional. However, there are federal laws protecting the right to local determination. After a year of hearings and delays, and fine work on the part of Wahkiakum County Prosecuting Attorney Dan Bigelow, the case was settled when the judge ruled in favor of the county. It was settled for now, that is. The decision will likely be appealed. Ecology is not happy.

Bigelow told me:

"For my part, I can say I believe the court made a just decision based entirely on the law. It's particularly gratifying to see that in a case like this one, where emotions run high on both sides. But there is too much at stake to make it likely this case will end here.

"One of two things can still happen. First, the Department of Ecology can appeal this decision to a higher court. It's my job to watch out for that and to keep fighting for the county and the ordinance as I have been doing.

"Second, the Department can go to the state legislature and try to get the law changed. This case was decided based on an interpretation of state law, so the result can change if the state law changes."

An article written by Natalie St. John for The Daily News, quotes Peter Lyon, a spokesman for Ecology. In my opinion, his words reveal an attitude that hardly expresses concern for the kinds of things the average citizen might assume the department’s name implies. “We’re a little disappointed in the judge’s decision,” he said. “The purpose of the law was to level the playing field for businesses and users of biosolids, and this ruling thwarts that law.” 

Level the field for businesses and users? What about the environment? It seems Wahkiakum County might be considered a pesky troublemaker, whose success in court represents a threat to the big business of sludge disposal in this state and now other counties might be brave enough to follow suit. Lyon added “We’re concerned about a domino effect.”  I can only hope. Agricultural counties in California have more strictly regulated or entirely banned bio-solids.

I share the opinion of Wahkiakum County Council member Blair Brady, who offered a quote in an e-mail this morning:

“I was always disappointed that the lawsuit was framed around the constitutionality of our ordinance rather than what I believe are real issue is, and that is, and was, one of public and environmental safely. The idea that a state organization would sue Wahkiakum County to force a lower standard is beyond belief. State organizations that I believe were created with the intention of assisting our counties appear to have run amuck, and now try to dictate and bully their way along with their own agendas. ~ Blair H. Brady
Photo by Marti Kintigh

 One day last spring, I drove the winding highway through the Grays River valley stunned by the beauty of its deep green forests and fields and its feeling of peacefulness. I saw with my own eyes why many of its citizens feel such passion about preserving this land in its natural state. And no matter what propaganda you have heard from government agencies or waste water treatment facilities, sludge is not natural.

This nation has a smelly, and daunting problem—how to dispose of all the sewage and waste water we produce. Ever since 1972, when Congress passed the Clean Water Act, sewage must be treated, not simply dumped. But so far, treatment is far from perfect, leading to real dangers to public health and the environment.

The term “biosolids” was invented because it sounds much more appealing than “sewage,” or other less polite names for what this stuff actually is. The public continues to be duped by propaganda that promotes what amounts to toxic waste as something natural, beneficial, and desirable, its use even being green, recycling, and the right thing to do. Here in Tacoma and Pierce County we have TAGRO and SoundGRO and both are used widely by unsuspecting, well-meaning homeowners. If they knew what some scientists and concerned citizens know, they would cringe. Some have learned the hard way.


Today’s sludge is not simply poop. It includes, in addition to pathogens, waste from hospitals, packing houses, and industrial plants, everything that goes down a toilet or drain. Think about that. Diseased tissue, pharmaceuticals, hormones, flame retardants, industrial and household chemicals, personal care products, heavy metals, etc. Prions, related to Mad Cow Disease and Alzheimer’s are NOT destroyed when sewage is “treated.” (See

It has even been proven that earthworms living in such soil are taking up the toxins. Look at this article from the website of the U.S. Geological Survey:

This situation can produce an outcome that effects all of us. As Prosecuting Attorney Bigelow continues his vigilance, he asks for the help of all who care about the environment. "Stay active," he said. "Keep an eye out for proposed legislation to neutralize this decision, and let your legislators know where you stand!"

UPDATE: On Oct. 24 I learned of this news story about the dangers of sludge:


If the Washington Dept. of Ecology again sues Wahkiakum County to overturn Judge Stephen Warning's decision, and seeks to bully the County into allowing the spreading of toxic, pathogenic Class B sewage sludge,they will be flying in the face of both federal law and the US Constitution:

Federal law clearly and unambiguously authorizes communities to adopt sludge rules MORE STRINGENT than federal sludge rules:

The preemption clause of the US Constitution unequivocally provides that FEDERAL LAW TRUMPS STATE LAW:

I. Background On The Doctrine Of Federal Preemption.
The principle by which federal laws trump state laws is known as the doctrine of federal preemption. The roots of federal preemption can be traced back to the United States Constitution.In drafting the Constitution, the Framers envisioned a potential conflict between the two separate and distinct yet competing bodies of government: federal and state. The Framers resolved this conflict
by incorporating the Supremacy Clause into the Constitution.

The Supremacy Clause dictates thatfederal law will supersede any state law that interferes with or runs contrary to that federal law:
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Law of any State to the
Contrary notwithstanding.”

U.S. Const. Art. VI, Cl. 2.
This clause establishes the framework for the balance of powers between the federal
government and the state governments. Since the United States Supreme Court’s landmark decision
in McCulloch v. Maryland (1819), 17 U.S. (4 Wheat) 316, it has been well-established that any state
law which conflicts with federal law is “without effect.” See Maryland v. Louisiana (1981), 451
U.S. 725, 746.

There are two main categories of federal preemption: express and implied. “Express preemption” occurs when “Congress has made its intent known through explicit statutory language” to preempt an area of state law. English v. General Elec. Co. (1990), 496 U.S. 72, 79. “Congress can define explicitly the extent to which its enactments pre-empt state law." Id. at 78.

In the absence of explicit statutory language, implied preemption may exist. There are two types of implied preemption: field preemption and conflict preemption. “Field preemption” occurs when federal law exclusively regulates or occupies an area such that Congress left no room for state regulation in that area. Id. at 79. “Conflict preemption” occurs when state law “actually conflicts with federal law.” Id.
Courts have found conflict preemption “where it is impossible for a private party to comply with both state and federal requirements *** or where state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.’” Id.

Helane Shields, Alton, NH sludge researcher since 1996

Federal law provides for local sludge control
Sludge victims have suffered illness, death and surface and groundwater pollution

Washington sludge victims
Here are other links about the dangers of biosolids, courtesy of Helane Shields. PLEASE take a look. Be aware, don't fall for the propaganda, and buy organic.

Copyright 2012 Candace J. Brown

1 comment:

Khuram said...

Its like you read my mind! You appear to know a lot about this, like you wrote the book in it or something.
I think that you could do with some pics to drive the message home a bit, but instead of that, this is great blog.
An excellent read. I’ll certainly be back.
Heirloom seeds