/.ames V. Kelsh P& /(WV State BarNo. 6617)

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1 101 South Queen Street Martinsburg, West Virginia Harnpton Center Morgantown, West Virginia th Street Moundsville, West Virginia Avery Street Parkersburg, West Virginia James V. Kelsh Telephone-(304) Facsimile - (303) Bowles $ce,.,, ATTORNEYS AT LAW 600 Quarrier Street Charleston, West Virginia Post Office Box 1386 Charleston, West Virginia (304) w.bowlesrice.com April 15,2015 Southpointe Town Center 1800 Main Street, Suite 200 Canonsburg, Pennsylvania West Vine Street, Suite 1700 Lexington, Kentucky West Jubal Early Drive, Suite 130 Winchester, Virginia Address: jkelsh@bowlesrice.com Ingrid Ferrell, Director, Executive Secretary Division Public Service Commission of West Virginia 201 Brooks St. Post Office Box 8 12 Charleston, West Virginia HAND DELIVERY Re: Case Nos MC-FC, MC-FC, MC-FC and MC-CC S & K Sanitation, Inc. Y. Preston Sanitation, Inc. Dear Ms. Ferrell: Enclosed for filing on behalf of S & K Sanitation, Inc. ("S & K ) please find the original and twelve (12) copies of the "Proposed Reconzmended Decision of S & K Sanitation, Inc. ", which it files in lieu of an initial brief. S & K reserves the right to file a reply brief. Very truly yours, /.ames V. Kelsh P& /(WV State BarNo. 6617) JVWdlm Enclosures cc: Linda Bouvette, Esquire William G. Brown, IV, Esquire Richard Hovatter

2 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON CASE NO MC-FC PRESTON SANITATION, INC. V. S & K SANITATION, INC. CASE NO MC-FC PRESTON SANITATION, INC. a corporation, V. TOWN OF TERRA ALTA, a municipal it^ CASE NO MC-FC RICHARD L. RHODES, PRESIDENT, PRESTON SANITATION, INC. V. S & K SANITATION, INC., CASE NO MC-CC S & K SANITATION, INC. Application for a contract carrier permit PROPOSED RECOMMENDED DECISION OF S & K SANITATION, INC. This Order grants S & K Sanitation, Iiic.'s ("S & K') application for a contract carrier permit to serve the Town of Terra Alta ("Terra Alta" or "Town"), and dismisses the complaints filed by Preston Sanitation, Inc. ("Preston Sanitation") against S & K and the Town.

3 PROCEDURE CaseNo MC-FC On July 24, 2014 Preston Sanitation filed a verified formal complaint against S & K. S & K filed its answer to the complaint on August 7,2014. On August 27, 2014, the Staff of the Commission ( Stafr ) filed a motion to consolidate this proceeding with Case Nos MC-FC and MC-FC. On August 28, 2014, Staff filed its first set of data requests upon S & K and its Initial Joint Staff Memorandum. On September 9, 2014, this matter was referred to the Division of Administrative Law Judges ( ALJ ) for a decision to be issued on or before February 19,2015. S & K filed its response to Staffs first data requests on September 11,2014. On October 22,2014 Staff filed its Final Joint Staff Memorandum. Case No MC-FC On July 24, 2014 Preston Sanitation filed a verified fornial complaint against Terra Aka. Terra Aka filed its answer to the complaint on August 8,2014. On August 27,2014, Staff filed a motion to consolidate this proceeding with Case Nos MC-FC and MC-FC. On August 28,2014, Staff filed its Initial Joint Staff Memorandum. On September 9, 2014, this matter was referred to the Division of Admiistrative Law Judges ( ALJ) for a decision to be issued on or before February 19,2015. On October 22,2014 Staff filed its Final Joint Staff Memorandum. CaseNo MC-FC On August 22, 2014 Preston Sanitation filed a verified fomial complaint against S & K. On August 27,2014, Staff filed a motion to consolidate this proceeding with Case Nos MC-FC and MC-FC. S & K filed its verified answer to the complaint on September 3,2014. On September 25,2014, Staff filed its Initial Joint Staff Memorandum. 2

4 By Order dated October 7, 2014 this matter was referred to the Division of ALJ with a decision due date of on or before March 20,2015. On November 5, 2014 a Procedural Order was issued requiring Staff to file its substantive recommendation on or before November 20,2014 Staff filed its Final Joint Staff Memorandum on November 19,2014. Case No MC-CC On September 11, 2014 S & K applied for a contract carrier permit. Staff filed its Initial Joint Staff Memorandum on September 16,2014. On September 22,2014 Preston Sanitation filed a petition to intervene. On September 25, 2014 S & K submitted P.S.C. W.Va. M.C. Form No. 33. By Order dated September 30, 2014, this proceeding was referred to the Division of ALJ with a decision due date of on or before April 9, By Procedural Order dated November 3, 2014 Staff was required to file its final substantive recommendation on or before December 10,2014. On November 6, 2014 Staff filed its first set of data requrests to S & K and its Fursther initial Joint Staff Memorandum. By Procedural Order dated November 13, 2014, S & K was required to give notice of its application. S & K filed its responses to Staffs first data requests on November 25,2014. On December 11,2014 Staff filed its Final Staff Memorandum. S & K filed a faxed version of an Affidaivat of Publication on December 12, On December 19,2014 S & K filed its response to the Final Staff Memorandum. S & K filed the original affidavit of publication on January 7,2015. Consolidated Cases By Procedural Order dated December 9, 2014, all four of these matters were consolidated and scheduled for hearing on December 17,2014. S & K filed a motion for continuance and extension of the decision due date on December 11,2014. On December 12, 2014 S & K filed a supplemental motion for continuance. 3

5 By Order dated December 12, 2014 the ALJ decision due date for these matters was extended until May 8,2015. By Procedural Order dated December 15, 2014, the hearing scheduled for December 17,2014 was cancelled. On December 16, 2014 an Order was issued rescheduling the matters for hearing on March 12, On January 29,2015, James Kelsh filed a Notice of Appearance 011 behalf of S & K. S & K filed its Combined First Set of Interrogatories and Requests for Production to Preston Sanitation on February 5, On February 25, 2015 Preston Sanitation filed by fax its Responses to S & K s Combined First Set of Interrogatories and Request for Production and the hard copy on March 2, On March 10, 2015 S & K filed its First Supplemental Response to Staffs First Set of Data Reqeusts. The hearing was held as scheduled on March 12, 2015 in Kingwood, and the hearing transcript was submitted on March 27,2015. EVIDENCE S & K, Preston Sanitation, Terra Aka and Staff appeared by counsel at the March 12, 2015, hearing. S & K called three witnesses, Preston Sanitation, Terra Alta and Staff each produced one witness. Teresa Dixon, Mayor of Terra Aka, was called as the first witness on behalf of S & K (Tr. pp ), According to the records that Mayor Dixon has reviewed, Terra Alta has provided its own waste services since at least 2001 (Tr. p. 12). During the summer of 2014, Terra Aka began having problems with its trash truck. The repair costs were beyond Terra Alta s resources and the repairs were not sure to fix the truck. Preston Sanitation provided solid waste services for the Town during the first week of July The Town and its council realized that it needed to make other arrangements for its solid waste services on a longer term basis. Terra Alta solicited proposals and received bids I All references to the transcript ofthe hearing ofthese matters held on March 12,2015, will be made as follows: (Tr. p. J. 4

6 from S & K and Preston Sanitation. The proposals were reviewed and each carrier was interviewed by the Town council. (Tr. pp ,20-21). Mayor Dixon testified that some of the qualitative differences between the two proposals were the number of allowed bulky items per month, the amount of trash collected for the rates charged, and quality of service. Terra Alta entered into a written agreement with S & K. S & K began providing service prior to the commencement date of the agreement due to Preston Sanitation s refusal to provide service upon leaning that S & K has been awarded the bid. Mayor Dixon estimates that Terra Alta paid Preston Sanitation between $15,000 and $20,000 for the service Preston Sanitation provided for the Town in 2013 and Preston Sanitation would only provide pick up services to Terra Alta when the Town s truck was broken down, not for lengthy spans of time. Mayor Dixon testified that she would not recommend Preston Sanitation s services to the council and would use S & K s services through different methods if S & K were denied a contract carrier permit. (Tr. pp ,52). Mayor Dixon testified that the Town desires to continue to contract with S & K. Mayor Dixon further testified that there have not been any complaints regarding S & K s service, that S & K is providing efficient and adequate service, is not endangering the safety of the public or unduly burdening the highway system around Terra Alta (Tr. pp ). During cross examination by William Brown, Preston Sanitation s counsel, Mayor Dixon testified that Town council voted four to one for S & K s proposal (Tr. p. 30). Mayor Dixon testified that the Town s citizens and businesses are the Town s customers. Terra Alta bills and collects the fees, and takes whatever administrative action is needed for payment of bills and any complaints. Mayor Dixon testified that both the Town council and legal counsel for the Town approved the agreement and she signed it on behalf of Terra Alta. Mayor Dixon testified that both the Town Council and legal counsel also reviewed the proposal. (Tr. pp ). During Staffs cross examination, Mayor Dixon testified that Preston Sanitation is not currently serving any customers in Terra Alta and is unsure if Preston Sanitation has customers within the one mile radius of Town. (Tr. pp ). Mayor Dixon testified that the Town was doing some research and working with the accountant to possibly raise the Town s rates when the truck broke down. It is the Town s intent to eventually increase the rates sufficient to no longer be in a deficit position and purchase a truck. Terra Alta still has its 5

7 sanitary department and has temporarily placed that department s employee in another department until the Town is able to put him back in a waste collection truck (Tr. pp ). S & K called Jay Sowers as its next witness. Mr. Sowers is employed by the Preston County Sheriffs office as a litter control officer. Mr. Sowers duties include enforcing litter laws in the county and investigating solid waste related complaints. Mr. Sowers investigates infonnal complaints and advises people to contact the PSC. Mr. Sowers communicates with PSC Staff and with Preston Sanitation in resolving the complaints. Mr. Sowers has found that since the Fall of 2014 it has been tough to get Preston Sanitation to return his calls (Tr. pp , 58, 62). Mr. Sowers testified he is receiving complaints regarding Preston Sanitation and its service seem to be a continuing problem. Mr. Sowers has not received any complaints regarding S & K. Mr. Sowers believes that S & K provides efficient and adequate service throughout its territory and in Terra Alta (Tr. pp ). S & K s last witness was Richard Hovatter, part owner of S & K. S & K has been providing waste collection services since it acquired its certificate in Mr. Hovatter testified that S & K s authority is within a ten mile air radius from Masontown. Terra Aka is not within S & K s certificated territory (Tr. pp , 96). Mr. Hovatter testified that S & K submitted a written proposal for services to Terra Alta and later entered into a contract with Terra Alta. Mr. Hovatter testified that, if granted, the contract carrier permit will have no effect on customers served under S & K s motor carrier certificate. S & K will be able to continue providing adequate and efficient service throughout its territory. S & Ks proposed contracted service to Terra Alta will not adversely affect the public safety, will not impose undue burdens or maintenance expenses on the highway. S & K has the required insurance and is compliant with all contract carrier requirements (Tr. pp ). During cross-examination, Mr. Hovatter testified that S & K is only contracted to provide hauling and landfilling services for Terra Alta. S & K does not have any direct relationship with the individual residents and businesses in Terra Alta. S & K disposes of the waste it collects from Terra Alta at the Kingwood Transfer Station or at the Tucker County 6

8 Landfill (Tr. pp ). S & K disposes of approximately tons of waste per month it collects from Terra Alta (Tr. p. 87). Mr. Hovatter testified that S & K s picks up in Terra Aka one day a week with the same equipment used for its certificated customers. S & K sends five drivers to Terra Alta. (Tr. pp ). During cross-examination by Staff, Mr. Hovatter testified that he did not consult with an attorney prior to entering into the contract with Terra Aka. Mr. Hovatter further testified that he became aware he needed a contract carrier permit after a complaint was filed. Mr. Hovatter testified that he prepared the contract (Tr. pp ). Mr. Hovatter testified that in the event S & K s contract carrier permit is denied he would plan to continue to serve Terra Alta by hauling the waste out of state. S & K has not done any cost calculations to transport the waste out of state. S & K does not currently haul waste out of the state (Tr. pp ). Mr. Hovatter testified that it contracts with the Town and renders one bill to Terra Aka for the service it provides (Tr. pp ). S & K receives one check from the Town for its contract hauling and does not bill Terra Alta or individual customers in Terra Aka. Terra Alta sends a statement and a check to S & K each month based on the amount Terra Alta has collected (Tr. pp ). Terra Aka called Fred Isenhock from the Alpine Lake Resort area as its witness (Tr. pp ). Since the witness was testifying about Preston Sanitation s service outside the corporate boundaries of Terra Aka, the witness was dismissed (Tr. pp ). Preston Sanitation called Richard Rhodes, stockholder of Preston Sanitation, as its witness (Tr. pp ). Mr. Rhodes testified that Preston Sanitation was asked to make a proposal to the Town. Mr. Rhodes testified that Preston Sanitation s proposal was mostly based on its tariff. Mi-. Rhodes testified that he did not know he was making a low bid contract and believed that a mediation with the Commission should have been scheduled (Tr. pp ). Mi-. Rhodes testified that Preston Sanitation had served Terra Alta prior to Preston Sanitation has provided service to Terra Alta when Terra Aka would call and need the service in emergency situations (Tr. pp ). 7

9 Mr. Rhodes testified that he has seen the contract between Terra Alta and S & K. Mr. Rhodes stated that the only difference between Preston Sanitation s bid and S & K s was the number of bulky goods and the starting price which he believes could have been settled by the PSC. Mr. Rhodes testified that Preston Sanitation s tariff is limited to only one bulky goods per month so Preston Sanitation had to go by its tariff. Mr. Rhodes hrther stated that there is no trash related job in Terra Alta that Preston Sanitation could not handle (Tr. pp ). Under cross-examination, Mr. Rhodes agreed that Preston Sanitation s tariff allows two bulky goods per month and that Preston Sanitation s proposal contained a mistake. Mr. Rhodes stated that he negotiated a 15% discount to Terra Aka because Preston Sanitation s commercial rates are negotiable. Mr. Rhodes agreed that Preston Sanitation was unable to negotiate a contract with Terra Alta (Tr. pp ). Mr. Rhodes testified that Preston Sanitation did not purchase additional equipment or hire any employees to provide the emergency situation services to Terra Aka (Tr ). Preston Sanitation did not enter into any type of contract with Terra Alta, just helped them when asked (Tr. p. 148). Mr. Rhodes testified that Preston Sanitation was not dependent upon the revenue from the emergency services it sporadically provided to Terra Alta (Tr. p. 150). Mr. Rhodes stated that he attended Terra Alta s July 2014 council meeting to present Preston Sanitation s proposal (Tr. p. 147). Mr. Rhodes testified that he purchased a hundred percent of Preston Sanitation s shares from his parents. Mr. Rhodes is not sure if the transfer of the shares has been submitted to the Commission for approval (Tr. pp. 151). Mr. Rhodes stated that not contracting with Terra Alta has not affected Preston Sanitation s ability to serve its existing customers. (Tr. p. 152). Mr. Rhodes testified that Preston Sanitation s certificated area includes Terra Aka. Mr. Rhodes agreed under re-cross that S & K is not a public safety hazard, does not unduly interfere with the public highways, or increases the public highway costs of repair or maintenance (Tr. pp ). Staff called James William Flenner, utility analyst with the Staff of the Public Service Commission, as its witness. Mr. Flenner was assigned the formal complaint cases in 8

10 these consolidated matters, but not the contract carrier application case. Mr. Flenner believes that the issues involved in the formal complaint cases will be resolved once the contract carrier permit application is decided (Tr. pp ). Since S & K is already providing service to Terra Alta, S & K has applied for a contract carrier permit, and Preston Sanitation will suffer no financial harm, Mr. Flenner did not recommend that a cease and desist order be issued to S & K (Tr. pp ). Mr. Flenner believed it was in the customers' best interest to wait until the contract carrier application was decided before deciding whether a cease and desist order should be issued against S & K for its operations in Terra Alta (Tr. p. 170). Mr. Flenner testified that Preston Sanitation will not suffer any financial harm if S & K is granted the contract carrier permit. (Tr. p. 171). DISCUSSION These consolidated cases concern numerous competing claims regarding the provision of contract motor carrier service by S & K to Terra Alta. easiest to resolve. To untie this tangled knot, the Commission will first resolve the issues which are As Staff noted in the October 22, 2014 Final Joint Staff Memorandum in Case No MC-FC, the Town of Terra Alta, as a municipal corporation is exempt under W.Va. Code $24-A-1-3(2) from the Commission's motor carrier rules. Accordingly, this order will dismiss Preston Sanitation's complaint against the Town for failing to state a claim upon which the Commission can grant relief. Preston Sanitation filed two complaints against S & K, Case No MC-FC and Case No MC-FC in which Preston Sanitation's owner, Richard Rhodes, is also identified as a complainant. While the complaint initiating Case No MC-FC is more detailed than that initiating Case No MC-FC, the matters complained of and the relief sought are not materially different. Preston Sanitation believes S & K's service to the Town of Terra Alta is unlawful. Preston Sanitation requested in both complaints against S & K that the Commission should grant Preston Sanitation interim relief by immediately issuing a cease and desist order enjoining S & K froin continuing to provide waste collection service for the Town. 9

11 The Commission has not granted Preston Sanitation's request for interim relief because Preston Sanitation did not allege with sufficient supporting detail nor did the record at hearing support a finding that in the absence of such interim relief Preston Sanitation would suffer "immediate and irreparable injury," as required by Rule 6.4.a of the Rules of Practice and Procedure, 150 WV CSR Series 1 ("Procedural Rules"). Preston Sanitation has not been actually harmed by S & K providing service to the Town, as Preston Sanitation has not provided regular service in Terra Alta since Tr Preston Sanitation has made no investments to serve the Town which has been or would be stranded by S & Ks service to the Town; Preston Sanitation does not rely upon income from the Town. Tr. 133, 150. Preston Sanitation's service to its other customers has not and will not be adversely affected by S & K serving the Town. The absence of any harm suffered by Preston Sanitation also satisfies the requirement that S & K demonstrate in its contract carrier pennit application that its service will not "impair the efficient service of any authorized common carrier adequately serving the same territory." W.Va. Code 24A-3-3(a). Preston Sanitation will not be impaired by S & K serving Terra Aka. Proving that contract carrier service will not impair the service of a common carrier is ordinarily the most difficult element for a contract carrier applicant to satisfy. There was no dispute among the parties regarding the remaining elements -- that the service "will not endanger the safety of the public or unduly interfere with the use of the highways or impair unduly the condition or unduly increase the maintenance cost of such highways." W.Va. Code S24A-3-3. S & K introduced evidence demonstrating that it had met these requirements. Tr , 75, 162. S & K did commence providing service to the Town before it had applied for or obtained contract carrier authority from the Commission. In light of the Town's need to provide its citizens and businesses with continuous, regular waste collection, Preston Sanitation walking off the job after S & K was selected by the Town to be its contract waste collection provider, and the lack of any harm to Preston Sanitation, the Commission finds S & Ks actions to be excusable in the circumstances. Tr

12 In serving the Town, S & K will collect waste from both residential and commercial customers. Tr. 12, 17, 74. Under Rule 1.8.e of the Rules Governing Motor Carriers, Private Commercial Carriers, and the filing of Evidence of Insurance and Financial Responsibility By Motor Carriers 150 WV CSR Series 9 ("Motor Carrier Rules"), the definition of a commercial customer "generally includes any commercial, industrial, governmental, or institutional entity that enters into an agreement with a carrier." Both Preston Sanitation and S & K view service to the Town as commercial service Tr , , , 143. The service which Preston Sanitation provides to commercial customers under its tariff is not at a fixed rate but rather is "negotiable." Tr. 143; S & K Cross Examination Ex. 1, Sheet No. 3. Since the Town is a governmental entity, service to it is commercial service. Because Preston Sanitation 's commercial rates are negotiable, and it never successhlly negotiated a commercial rate with the Town, there is no factual support for an assertion that S & Ks rate to the Town is lower than the rates approved by the Commission for Preston Sanitation. Because the Commission finds that Preston Sanitation was not entitled to interim relief, and that S & K has satisfied the requirements for granting a contract carrier permit, Preston Sanitation's request for a cease and desist order will be denied. With the contract carrier permit, S & K is authorized to provide service to Terra Aka. While the foregoing conclusion is justified based on the record, granting Preston Sanitation's requested relief would likely be of no benefit to Preston Sanitation. The Town has indicated that if the Commission enjoins S & K from serving it, the Town would seek to continue to receive service from S & K via interstate transportation outside of the Commission's jurisdiction. Tr. 26. The likely effect of granting Preston Sanitation's requested relief would be to deprive West Virginia landfills of revenue. FINDINGS OF FACT 1. In the summer of 2014, the truck that Terra Alta used to provide solid waste services broke down and the costs to repair or replace were beyond the Town's resources (Tr. pp ). 2. Terra Alta realized it had to make longer term arrangements for solid waste services and requested proposals from Preston Sanitation and S & K in July 2014 (Tr. pp ). 11

13 3. In the interim, Terra Alta arranged for Preston Sanitation to pick up the solid waste through the end of July 2014 (Tr. p. 20). 4. Terra Alta chose S & K s proposal and the parties entered into a contractual agreement ( Agreement ) for S & K to provide solid waste services to the Town (Tr. pp. 19, 102; S & K Ex. 3). 5. When Preston Sanitation was advised that it had not been awarded the proposal, Preston Sanitation refused to provide services for Terra Alta tlxough the end of July 2014 as previously agreed (Tr. pp ). 6. Terra Alta still needed solid waste services and contacted S & K to request that it begin providing solid waste service to Terra Alta prior to the commencement date in the Agreement (Tr. p. 21). S & K provided the service due to Terra Alta s inability to provide the service itself. 7. S & K provides service to commercial customers in Terra Alta with no contact or direct relationships with the commercial customers (Tr. p. 74). S & K s customer is the municipality, a government entity, not individual residences or businesses. S & K Ex Under the Agreement, Terra Alta is S & K s only customer (Tr. p. 83; S & K Ex. 3). 9. S & K applied for a contract carrier permit on September 11, S & K s proposed contract service will not endanger the safety of the public (Tr. pp. 27,15, 162). 11. S & K s proposed contract service will not unduly burden the highway or increase public highway cost of repair or maintenance (Tr. pp. 28, 75, 162). 12. Preston Sanitation s tariff applies for service provided to residential and commercial customers and does not contain a fixed commercial rate schedule (Tr. p. 143). 13. Preston Sanitation has not provided regular solid waste services to Terra Alta since 1994 (Tr. pp. 22, ). 12

14 14. Preston Sanitation is not providing adequate service in its certificated territory, is non-responsive to communications, and is not offering complete services pursuant to its tariff (Tr. pp , 131, 142). 15. S & K is providing adequate and efficient service in its certificated area and in Terra Alta (Tr. pp. 57, 62-63). 16. Approval of S & K's contract carrier permit with Terra Alta will not impair Preston Sanitation's service because Preston Sanitation does not depend upon any revenue from Terra Alta (Tr. p. 150). 17. S & K provides commercial solid waste services to the Town of Terra Aka pursuant to a negotiated agreement (Tr. p. 150). 18. S & K has the required insurance to provide lawful contract carrier service to the Town of Terra Alta (Tr. p. 75). 19. S & K's proposed service to Terra Alta, as a custom, commercial service, is not substantially the same service as any service authorized by Preston Sanitation's tariff. S & K Cross Ex. 1. CONCLUSIONS OF LAW 1. The Commission lacks jurisdiction over municipalities which provide waste collection services. W.Va. Code 24A-1-3(2). 2. In light of the Commission's lack of jurisdiction over Terra Alta, Preston Sanitation's complaint against Terra Alta must be dismissed for failure to state a claim upon which the Commission can grant relief. 3. Preston Sanitation failed to present evidence that it would suffer "immediate and irreparable injury", as required under Procedural Rule for the granting of interim relief. 4. Granting a contract carrier permit to S & K will not (i) endanger the safety of the public; (ii) unduly interfere with the use of the highways; (iii) impair unduly the condition or unduly increase the maintenance cost of such highways, directly or indirectly; or (v) impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory. 13

15 5. S & K's provision of service to Terra Alta without first having obtained a contract carrier permit is excusable in light of the public health threat which would have been created, the need for prompt, reliable and complete garbage collection service, and the absence of any harm to Preston Sanitation's operations. 6. S & K's service to the Town is commercial service. Motor Carrier Rule The rates which S & K charges the Town are not "less than the lowest rates, fares, or charges approved or permitted by the Commission" for Preston Sanitation. Motor Carrier 3.22.b. 8. Because S & K has met the requirements for the issuance of a contract carrier pennit, Preston Sanitation's complaints against S & K should be dismissed. ORDER IT IS THEREFORE ORDERED that formal complaint Case No MC-FC is dismissed for failure to state a claim upon which the Coinmission can grant relief; IT IS FURTHER ORDERED that S&Ks application for a contract carrier permit to serve the Town of Terra Alta is granted; IT IS FURTHER ORDERED that fonnal complaint Case No MC-FC, and MC-FC are hereby dismissed with prejudice; IT IF FURTHER ORDERED that these cases are closed and removed from the Commission's docket of open cases. The Executive Secretary is hereby ordered to serve a copy of this order upon the Coinmission by hand delivery, and by electronic service upon all parties of record who have filed an e-service agreement with the Commission and by United States Certified Mail, return receipt requested, upon all parties of record who 'have not filed an e-service agreement with the Commission. 14

16 Leave is hereby granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission within fifteen (15) days of the date this order is mailed. If exceptions are filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (5) day time period, unless it is ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to an Administrative Law Judge's order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission. 15

17 CASE NO MC-FC PRESTON SANITATION, INC. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON V. S & K SANITATION, INC. CASE NO MC-FC PRESTON SANITATION, INC. a corporation, V. TOWN OF TERRA ALTA, a municipality CASE NO MC-FC RICHARD L. RHODES, PRESIDENT, PRESTON SANITATION, INC. V. S & K SANITATION, INC., CASE NO MC-CC S & K SANITATION, INC. APPLICATION FOR A CONTRACT CARRIER PERMIT CERTIFICATE OF SERVICE The undersigned, counsel for S & K Sanitation, Inc., hereby certifies that he has served the foregoing Proposed Reconmended Decision of S & K Sanitation, Inc. by placing a true and exact copy thereof in a properly addressed envelope, by U.S. mail, postage prepaid this 15th day of April, 2015, upon the following: William G. Brown, IV, Esquire Ashburn Shopping Center Suite 214 Ashbum, Virginia 20147

18 And by hand delivery to: William Turner, Esquire McNeer, Highland, McMunn and Varner, L.C. 107 West Court Street Kingwood, West Virginia Linda S. Bouvette, Esquire Public Service Commission of West Virginia 201 Brooks Street Charleston, West Virginia