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Judge may decide Berkeley landfill question

March 14, 1998

By AMY WALLAUER

Staff Writer

MARTINSBURG, W.Va. - The Berkeley County Solid Waste Authority is the only one of six defendants named in a lawsuit by LCS Services Inc. that has not agreed to a proposed settlement.

Now it is up to a federal judge to decide whether the authority has any legally protectable interests in the case.

If the authority doesn't, U.S. District Court Judge W. Craig Broadwater could sign the settlement agreement and end the litigation. If Broadwater determines the authority does have interests in the suit, he could sign an agreement between LCS and the other defendants and litigation between the landfill and the authority could continue.

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In a telephone conference Friday with Broadwater, Larry Harliss - the authority's Charleston attorney - balked at part of the agreement, which says the Department of Environmental Protection has no power to oppose lifting the daily 500-ton dumping limit at the North Mountain landfill near Hedgesville, W.Va.

"In the proposed (settlement) order, the West Virginia Department of Environmental Protection states that the DEP, by request of LCS, will remove the 500-ton daily dumping limitation," Harliss said.

The governor's office, the state tax department, the office of Waste Management and the Public Service Commission also are named in the suit.

The proposed settlement is not public record until Broadwater signs the order.

The current permit for the landfill sets a daily cap of 500 tons and a monthly cap of 9,999 tons.

U.S. District Judge Frederick Stamp Jr. in September issued an order declaring tonnage limits unconstitutional, but new state legislation signed March 3 retains monthly limits on landfills.

Bruce Thall, the Philadelphia attorney for LCS, sided with Stamp on Friday.

"It is my view that because the court has declared (restrictions) unconstitutional ... they are unenforceable," Thall said.

Harliss argues the caps are valid.

Another settlement order has been drafted, changing the wording in the original statement. Harliss has until Wednesday to notify Broadwater of his position on that order.

After that, Broadwater will decide if the authority has any protectable interests.

"The judge could rule the Berkeley County Solid Waste Authority is a local county authority and doesn't have enough of an interest to hold up settlement," Harliss said.

It's unclear whether the merger announced this week between USA Waste Services Inc., parent company of LCS, and Waste Management Inc. will have any effect on the lawsuit or settlement.

Lew Nevins, a vice president with USA Waste, did not return phone calls Friday.

The merger between the two companies was announced Wednesday. It means $800 million annual savings through more efficient operations for the two companies, which will have a combined total of 319 landfills, 650 collections operations and 339 transfer stations in North America.

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