First Class Mail and Facsimile (304) Allied Waste Service of North America, LLC, et al vs Trularcro. LLC Case No.

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1 GTANOLA~ BAEZNTJM, IBEGITTEIT, cjec; AIIORNLY\ A I LAW James A. Gianola Kingwood Office: Christopher A. Barnum Gary S. Wigal' Michelle L. Bechtel 1714 Mileground 202 Tunnelton St., Ste. 108 Kingwood, WV Phone David M. Jecklin" Morgantown, WV Fax Trudy H. Goff Phone Jason E. Wingfield* Fax John F. Gianola'" 'Also Admitted in PA "Also Admitted in D C +Of Counsel January 4,2019 Public Service Commission Executive Secretary's Office 201 Brooks Street, PO Box 812 Charleston, WV Via: Re: First Class Mail and Facsimile (304) Allied Waste Service of North America, LLC, et al vs Trularcro. LLC Case No MC-FC Dear Sir/Madam: I have enclosed the "Defendant's Initial Brief" for filling in the above referenced matter. If you have any questions, please feel free to call me at the number above.

2 CASE NO MC-FC PUBLIC SERVICE COMMlSSlO OF WEST VIRGINIA CHARLESTON ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, DBA REPUBLIC SERVICES OF WEST VIRGINIA, a limited liability company, Complainant, i V. TRULARGO, LLC, a limited liability company, Defendant. DEFENDANT S INITIAL BRIEF Defendant Trulargo LLC ( Trulargo or Defendant ), by counsel, hereby provides this Initial Brief following the hearing on December 7, Procedural History On August 3, 2018, Complainant Allied Waste Services of North America, LLC d/b/a Republic Services of West Virginia ( Allied ) filed a complaint with the Executive Secretary of the West Virginia Public Service Commission (the PSC) requesting that the PSC investigate Trulargo s activities and order Trulargo to cease and desist from all illegal activities. That day the PSC entered a procedural order requiring Defendant Trulargo to answer the complaint.

3 On August 16, 2018, Defendant Trulargo answered the complaint. On September 7, 2018, Mr. Clark filed the Initial Staff Memo in this case. On September 19, 2018, this matter was referred to an administrative law judge, On November 1,2018, Mr. Clark filed the Final Staff Memo in this case. On December 7,2018, a hearing was held in this matter before the Hon. Administrative Law Judge Pancho Morris, during which time testimony and written evidence were taken. II. Summary of the Issues This case largely turns on whether Trulargo s weekly rentals of dumpsters implicates the need for a Certificate of Convenience Summary of Evidence Discovery requests were issued and answered in this matter. Within those answers, Trulargo admitted that it rents dumpsters on a weekly basis to customers who call in and request the rental of a dumpster. Def. s Resp. to Complainant s Disc. Req. In addition to discovery requests issued during this matter, a hearing was held at with documents and testimony were put on the record. The evidence present during the hearing was that Defendant Trulargo is a contractorkonstruction company in the Morgantown area. Tr. 20:25-21 :I; 31 :8-9. In the course of its construction business, Trulargo uses dumpsters to hold construction waste. Tr Over time, people began contacting Trulargo to rent their dumpsters for their own purposes. Id.; :3. Trulargo rents these dumpsters to customers 2

4 on a weekly basis. Tr. 31:lO-12. If waste remains in the dumpsters at the end of the rental period, Trulargo will dispose of that waste on behalf of the client. Tr :3. The rental rate set by Trulargo is based upon a dumpster for a week. Tr. 39:24-40:12. Trulargo does not charge customers specific poundage fees: the rate is generally the same whether the dumpster is empty at the end of the week or full of waste. Id, Similarly, Trulargo does not charge customers any mileage or haulage fee. Id. Moreover, Trulargo does not haul waste on demand nor enter into long-term contracts for dumpster rental. Id. IV. Argument a. If anything, Trulargo is a Private Carrier not subject to PSC rules. Rather than a common or contract carrier, Defendant s operation is more akin to what is called a private carrier. See, e.g., Gambino v. Jackson, 150 W. Va. 305 (1965). Such a private carrier is not saddled with the restrictions and burdens of a common or contract carrier. As the West Virginia Supreme Court once put it,... a carrier devoted to private use cannot be made a common or contract carrier by a legislative fiat. Schroath v. Condry, 139 W. Va. 827, 837 (1954). In order to qualify as a common carrier, West Virginia statute requires that the entity transport passengers or property...for the general public over the highways of this state by motor vehicles for hire, whether over regular or irregular routes.... W. Va. Code 5 24A-1-2(2). There is no evidence that Defendant Trulargo transports passengers or property for the general public. Testimony by Defendant expressly denied any such arrangement. See, e.g., Tr. 40:

5 But if Defendant is not a common carrier, is it as contract carrier? Under state law, a contract carrier is one who is not a common carrier, but who under special and individual contracts or agreements, and whether directly or by lease or any other arrangement, transports passengers or property over the highways in this state by motor vehicles for hire. W. Va. Code 24A-1-2(3). There is no evidence that Trulargo transports...p roperty over the highways in this state by motor vehicles for hire. As noted above, Trulargo does not offer motor vehicles for hire. See, e.g., Tr. 40: It does not haul waste for hire. Id. There are no poundage or mileage fees. They will not pick up waste under any arrangement save what is left in their own dumpsters. There is no evidence before the Commission that Defendant operates motor vehicles for hire for the general public over the highways of this state. Nor is there any evidence that Defendant hauls waste or any other property for any party (outside of leftover attendant waste following a dumpster rental). In Gambino, the West Virginia Supreme Court notes that even though an entity may transport goods or people, it still may fall outside the definition of common carrier or contract carrier. In Gambino, an entity provided lime to its customers at a location of their choosing. Such an operation was not considered as a Common Carrier or even a Contract Carrier because, the Court noted, for example, he received the same [price for lime] regardless of the distance the lime was to be hauled; he never held himself out to the general public as a hauler of lime for hire, etc. Gambino, 150 W. Va. at 310. Similar to Gambino, Defendant does not provide regular waste hauling services. Defendant does not provide long-term rental of containers to customers. Defendant does not provide dumpsters along with other contracted waste removal services. 4

6 Defendant will not empty, haul, or otherwise deal with containers owned by another company. Defendant charges customers the same rate for dumpster rental regardless of where the dumpster is to be put and regardless of whether the amount of refuse left in the dumpster following a week-long rental is zero pounds. There are no mileage fees. This is because, as all the evidence in front of the PSC shows, Defendant is in the dumpster rental business, not the waste hauling business. As such, Defendant is not subject to the restrictions placed on common carriers. 6. The service in connection argument is inapplicable to this case. Because the evidence that Defendant is not a common carrier is so obvious, Claimant has argued that the dumpsters are roll-off containers which would qualify as a service in connection with trash hauling under W. Va. Code 3 24A-2-4. As such, they would qualify Defendant as a common carrier. Perhaps for this reason, Mr. Flenner, a Utilities Analyst who testified on behalf of the PSC, made similar statements. Tr. 54:25-55:3. But this reliance on a service in connect argument is badly misplaced. W. Va. Code 24A-2-4 deals with rates, fares and charges made by any common carrier. So the provision applies only to rates, fares, and charges by entities that already qualify as common carriers; it does not turn a private carrier (or even a contract carrier) into a common carrier. This is illustrated in Cox v. Public Svc. Comm., 188 W. Va. 736, 741 (1992) (hereinafter Cox ). Cox centered on whether two waste hauling operations (which were already common carriers) could divide a single waste removal contract, with one providing the hauling services and the other providing the 5

7 roll-off containers in order to circumvent PSC territorial restrictions. The roll-off containers in Cox were not leased separately from a regular waste hauling contract (indeed, that was the finding of the Court), but were instead part-and-parcel of a regular waste collection contract. The language in Cox opinion makes it clear that the containers were not stand-alone leases, but rather an integral part of the waste hauling operation being considered by the Court: the lease of roll-off containers to the Kroger Company would constitute a service in connection with fhe trash hauling operation under W.Va.Code, 24A-2-4 [I Cox, 188 W. Va. at 741 (emphasis added). The May 8, 1991, Administrative Law Judge s Recommended Decision in Cox provides useful context: The contract between the Kroger Company and BFI provides that BFI is to furnish compactor waste removal for the Kroger Company Store at West Pike and Smith Streets, Clarksburg, West Virginia. This agreement further provides that, in addition to providing the container, BFI is to provide maintenance of the container and pick up and disposal services and to pay related landfill charges. Bridgeport Disposal, Inc. v. Cox et al., M.C. Case Nos & (W. Va. Publ. Svc. Comm) (Recommended Decision, p. 16). As noted in the Recommended Decision, the containers in Cox were kept on the customer s premises long-term, were emptied (for which the customer was charged) pursuant to a waste removal contract, the waste was hauled away (for which the customer was charged), and the customer charged for landfill fees. Indeed the contract signed between Kroger and BFI provide[d] for both lease of a container and for the emptying thereof. Id., p. 20. As these restrictions on rates and charges for services in connection only apply to common carriers, they do not apply to Defendant unless Trulargo is transport[ing] 6

8 passengers or property...for the general public, which it is not. Moreover, this provision does not define or establish who is a common carrier, but rather what are a common carrier s obligations. V. Conclusion For the above-mentioned reasons, the Defendant believes this complaint should be dismissed in its entirety. ted, Morgantown, WV (304) John.Gianola@g b bjlaw.com James A. Gianola (W.Va. Bar #1378) Gianola, Barnum, Bechtel, & Jecklin, L.C Mileground Morgantown, WV (304) JGianola@gbbjlaw.com Counsel for Defendant 7

9 CE~TIFI~ATE OF SE~VIC~ I, John F. Gianola certify that on January 4, 2019, I mailed the original of this document and twelve (1 2) copies to the Executive Secretary of the West Virginia Public Service Commission. I also certify that served a copy of the Applicant s Defendant s lnifial Brief by facsimile to the following at or about the same time that this document was sent via facsimile to the Executive Secretary of the West Virginia Public Service Commission: Samuel Hanna Hanna Law Office P.O. Box Charleston, WV ianola &V.Va. Bar #I 0879) Barnum, Bechtel, & Jecklin, L.C. Morgantown, WV (304) John.Gianola@g bbjlaw.com 8