A group of county citizens and county solid waste authorities are seeking to intervene in a federal court appeal involving a dispute over the citizens’ right to vote in a countywide referendum on limiting new or expanded landfills in the state to no more than 9,999 tons of waste per month. The representative citizens live in Wetzel, Berkeley, and Mercer counties. The petitioning local authorities are from Berkeley, Calhoun, Jackson, Monongalia, Monroe, Morgan, Summers, Tyler, and Wetzel counties. The request to take part in the appeal, as made to the U.S. Court of Appeals in Richmond, Virginia, was filed October 28 by the group's lawyer, Larry Harless.

Their motion to intervene and written argument ask the three-judge federal panel to uphold a law passed in 1998 by the Legislature prohibiting more than 9,999 tons of waste per month to be dumped into new or expanded solid waste facilities if the county citizens vote against it in a county referendum in the next election.

The appeal, originally filed by the state Division of Environmental Protection (DEP) and Attorney General, stems from a decision in the federal district court in Wheeling generally upholding a solid waste law passed by the legislature in 1998, but striking down the included county referendum provision as discriminating against out-of-state waste. The original suit, brought by Valero Terrestrial Corporation, named the state DEP and the Attorney General as defendants along with other state officials.

Valero operates a 22,000 ton per month facility in Brooke County which accepts large amounts of sewage sludge from Long Island, New York. From February, 1993 to June, 1996, Valero took in 332,000 tons of New York sewage sludge at $90 per ton.

The district court decision was issued in March by federal Judge Frederick Stamp, a former lawyer for the Valero corporation and the former Valero family corporate owners, who still collect royalties on sewage sludge entering the facility.

The county citizens and authorities argue that the Valero lawyer turned Valero judge created a conflict of interest which barred him from making a valid decision in the case. They also claim that the state DEP, an existing party in the appeal, does not adequately represent their legal interests in limiting waste disposal at landfills in their communities. Their motion details numerous alleged instances of such DEP "default" in the past.

The court request further asserts that in any event the county referendum is valid as the constitutionally guaranteed voice of the "democratic community will" under federal and state law.

"The negative effects of garbage and sewage sludge megadumps are endured daily by the community residents," said Tom Degen, spokesperson for the group and a member of the Calhoun County solid waste authority. "The local referendum right to limit the size of megadumps is too critical to leave up to the remote state Division of Environmental Protection," he said.