April 30, Ms. Ingrid Ferrell, Director Executive Secretary's Office West Virginia Public Service Commission P.8. Box bi2 Charleston, WV 25323

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1 il Attorney at Law Admitted to practice: North Carolina (304) West Virginia April 30,20 18 Ms. Ingrid Ferrell, Director Executive Secretary's Office West Virginia Public Service Commission P.8. Box bi2 Charleston, WV Ms. Ferrell: Re: Case No MC-TC Case No MC-TC Case No MC-TC I have enclosed the Response of Jochum Refuse Service, LLC, Transferee to the Commission Order of April 1 sth, 2018 and ask that the same be filed and considered in these matters. Thank you for your consideration in this regard. v Thomas R. an cc: James V. Kelsh, Esquire Samuel F. Hanna, Esquire Jochum Refuse Service, LLC 3461 University Avenue, Ste. 108 PO Box 4599 Morgantown, WV 26504

2 BEFORE THE WEST VIRGINIA PUBLIC SERVICE COMMISSION CHARLESTON, WEST VIRGINIA CASE NO MC-TC and MC-TC JACOB F. JOCHUM, JR., an individual Application for the transfer and assignment of P.S.C. M.C Certificate No. F-4604 and F-4605 to David B. Shriver and, CASE NO MC-TC. JACOB FREDERICK JOCHUM, dba JACH JOCHUM TRUCK SERV *- - Application for the transfer and assignment of P.S.C.M.C. Certificate No. F-6417 to David B. Shriver. RESPONSE OF JOCHUM REFUSE SERVICE, LLC TFUNSFEREE TO COMMISSION ORDER OF APRIL lsfh, Jochum Refuse Service, LLC, Transferee with its reply combines discussion and argument into a single document as the issues in all three proposed transfer are similar. The West Virginia Public Service Commission seeks additional information prior to approval of the transfer of Certificates in the above styled cases: Whether a certificated motor carrier, as a reasonable way to conduct its business and manage the costs to provide all the solid waste collection services that a motor carrier is authorized to provide, may contract or otherwise arrange to have certain services provided through a third party, in lieu of purchasing and maintaining equipmeni ihst would be used infrequently to provide those certain authorized services. BACKGROUND Unfolding in the hearing on the transfer of these certificates is an American small business success story. The patriarch of the Jochum Refuse Service began in post war Wheeling in 1948 with the purchase of his first truck. (Tr. Fg. 18). The business was built and with the passage of time Jacob Frederick Jochum, Sr. passed away on October 28, During that time Jacob Jochum, Sr. was assisted by Jacob Jochum, Jr. from and after about 1974 (Tr. Pg. 19) Unfortunately, Jack Jochum, Jr. became very ill, undergoing chemotherapy, bone marrow transplant, and loss of 95% of his lung capacity

3 resulting in a bilateral lung transplant in January of (Tr. Pg. 20). Operations were continued by Jacob F. Jochum, Sr. s widow who is 86 years old (Tr. 23) and Jacob F. Jochum, Jr. s sister who also holds a full time position as Laboratory Director at Wheeling Hospital. (Tr. Pg.21). Jacob F. Jochum, Jr. during his disability and from his hospital bed was the brains of the operation. (Tr. Pg. 22). Through all of this the Public Service Commission has no formal customer complaints. (emphasis added) (Recommended Order Pg. 8). Furthermore, throughout all of the difficulties, no commercial or residential customer was ever denied service. (Tr. Pg. 25) The Administrative Law Judge also found, as a matter of fact: No customer would be left without the requested service. All Jochum customers are served through use of a variety of other containers. Elizabeth Jochum does not consider the roll-off authority to be dormant. (Tr. Pg. 43). It appears there was little demand for rolloff service, but no evidence was adduced that any person recpested roll-off service from Jochurn did not receive it, being provided by another vendor. In addition, other vendors in the covered territory provide roll-off service, including the intervener, American Disposal Service of West Virginia, Inc. There is no challenge to the fitness and financial ability of the proposed transferee, who was a longtime friend of Jacob F. Jochum, Sr. and likewise well acquainted with the operations and with Jacob F. Jochum, Jr. The agreement with David Shriver, now Jochum Refuse Service, LLC, as Purchaser, recites sale and purchase of the Certificates as issued and outstanding. No certificate, subject of this hearing upon transfer contains any limitation as to means to collect or store or provide for trash collection services: STATEMENT OF AUTHORITY P.S.C. M.C. CERTIFICATE NO. F authorizing operation as a common carrier by motor vehicle in the transportation of solid waste from those points and places in Ohio County that are located within the corporate limits of the City of Wheeling as said corporate limits existed as of April 6, 1987, to places of di sp o s a1. P.S.C. M.C. CERTIFICATE NO. F-4605 authorizing operation as a common carrier by motor vehicle in the transportation of solid waste from those points and places in Marshall and Ohio Counties that are located within a radius of ten (10) miles of the point at which West Virginia Route 2 crosses the Marshall-Ohio County line to places of disposal. P.S.C. M.C. CERTIFICATE NO. F-6417

4 authorizing operation as a common carrier by motor vehicle in the transportation of solid waste from points and places in Ohio County to places of disposal. ARGUMENT Jochum Refuse Service, LLC is entitled to the benefit of its bargain which includes providing collection services without limitation as to the size or shape of the container provided. Jochum Refuse Service is entitled to its enterprise opportunity reflected in the plain text of the authority provided by the certificates. Nothing in the purchase agreement provides for such limitation. It is only at the suggestion of American Disposal Service of West Virginia, Inc. which raises the claim that Jochuni has some how abandoned the provision of one type of container or provision of one type of container service. The certificates are not dormant, nor is a specific size container service dormant, serving residential and commercial customers in the designated area. In fact, the one customer discussed in the evidence requesting roll-off collection was accommodated. Such is not inappropriate to provide some service by a third party as seen in Case No MC-42A, et. als. Fly-By-Nite Disposal Service, Inc. where subcontracts of consumer waste collection and hauling were subcontracted to Blue Sky Trucking. Although a rate case, the Commission ordered: IT IS THEREFORE ORDERED that the Hauling Services Contract between Blue Sky and Fly-By-Nite in this proceeding on July 27, 2009, is hereby approved, without specifically approving the individual terms and conditions of the agreement Fly-By-Nite, supra, page 8 It is reasonable to order the transfer of the three subject certificates without artificial restriction. The transferee, Jochum Refuse Service, LLC, is not under disability, or restriction in organization, means to provide service or ability to provide service through all collection means. It should be allowed to do so. These proceedings and the recommendation by the Hearing Examiner for transfer is not to consider rates or the reasonableness thereof. The Transferee should and must make an independent evaluation as to the efficacy of equipment purchase in light of the current rates, and the needs of its customers. American Disposal Service of West Virgina, Inc., as intervener, should not be permitted to preempt the means of provision of services by Jochum Refuse Service, LLC. Such is an unvarnished attempt to gain market advantage to the detriment of the consuming public and to dominate one form of collection where the rates negotiable for commercial customers. To confirm the recommendation of the Hearing Officer by the Commission promotes efficient management and provide for adequate, economical and reliable service. See WVRC (2)(4).

5 As a motor carrier, it is reasonable to subcontract or otherwise arrange to have certain service provided through a third party, in lieu of purchasing and maintaining equipment because doing so may constitute a cost efficient means of providing adequate, economical and reliable services while maintaining reasonable costs to the consuming public. Such arrangement was specifically approved by the Public Service Commission in MC Case No P In Re. Don s Disposal Service, Inc., holding as a conclusion of law: 2. The proposed arrangement between Don s Disposal, Inc., Hancock Garbage Service and the Kanawha County Board of Education for trash service to Pratt Elementary should be submitted to the Commission for its consent and approval under West Virginia Code $ , if this is the arrangement that the petitioner seeks to pursue. Don s, supra, page 5. The arrangement sought to be approved in Don s Disposal, Inc. was by a common carrier with authority to transport trash in Kanawha County (Don s) to have Hancock Garbage Service transport solid waste from a school in the community of Pratt, where Hancock also held common carrier authority. Should Jochum Refuse Service, LLC, in the instant case elect to subcontract, approval of the Commission is required under WVRC , However, should the commission strip one type of container service from the certificates, purchaser would be precluded firom providing such service even though not otherwise dormant in the hands of the Jochum family. Issues of reasonableness of rates would be necessarily addressed in any petition for rate adjustment and fully vetted within the appropriate forum. Wherefore, Transferee respectfully urges the Commission to ratify, confirm and adopt the findings of the Administrative Law Judge and issue an order permitting transfer of the three Certificates without adding limitation as to means of collecting. Zimmerman Law Office Counsel for Jack Jochum Refuse Service, LLC 3461 University Avenue, Ste. 108 P.O. Box 4599 Morgantown, WV

6 BEFORE THE WEST VIRGINIA PUBLIC SERVICE COM~ISSION CHARLESTON, WEST VIRGINIA CASE NO MC-TC and MC-TC JACOB F. JOCHUM, JR., an individual Application for the transfer and assignment of P.S.C. M.C Certificate No. F-4604 and F-4605 to David B. Shriver and, CASE NO MC-TC JACOB FREDERICK JOCHUM, dba JACH JOCHUM TRUCK SERVICE, Application for the transfer and assignment of P.S.C.M.C. Certificate No. F-6417 to David B. Shriver. CERTIFICATE OF SERVICE I, Thomas R. Zirnmennan, counsel for Transferee, Jochum Refuse Service, LLC, do hereby certify that I on the 30th day of April, 2018 served the RESPONSE OF JOCHUM REFUSE SERVICE, LLC TRANSFEREE TO COMMISSION ORDER OF APRIL 1flTH, upon the following parties, by depositing the same, postage prepaid as follows: James V. Kelsh, Esquire Bowles Rice, LLP P.O. Box 1386 Charleston, WV Samuel F. Hanna, Esquire Hanna Law Office P.O. Box Charleston, WV Thomas R. Zim