SFHh-nj w ASTE SERVICES OF NO VICES OF WE ~LA~GO, LLC. Dear Ms. Ferrell:

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1 HOMER W. HANNA, JR ( ) 3508 NOYES AVENUE POST OFFICE BOX CHARLESTON, WEST VIRGINIA TELEPHONE: FAX: shanna@hannalawvwv.com SAMUEL F. HANNA, Managing Attorney WV State Bar Number: 1580 March 1,2019 MARGARET J. WILLIAMS, PARALEGAL Ms. Ingrid Ferrell, Director Executive Secretary's Office West Virginia Public Service Commission Post Office Box 812 Charleston, West Virginia * be- *ua' Pi4!q&&L 631 zoqq v. ~LA~GO, LLC ASTE SERVICES OF NO VICES OF WE Dear Ms. Ferrell: This firm represents Allied Waste Services of North America, LLC, d/b/a Republic Services of West Virginia. As such, enclosed for riling please find the original and twelve (12) copies of RESPONSE CA, LLC, d/b/a REPUBLIC OF DEFENDANT TRULARGO, LLC in the above referenced matter. Should you have any questions, please do not hesitate to contact me. SFHh-nj w Enclosure Samuel F. E-Ianna cc: Allied Waste Services of North America, LLC d/b/a Republic Services of West Virginia John F. Gianola, Esquire

2 P T A CAS c a limited liability corporation, V. Complainant, RULARGO, LLC, efendant. RESPONSE OF A ICA, LLC, Now comes Allied Waste Services of North America, LLC d/b/a Republic Services of West Virginia, (Republic) and for its response to the Exceptions Of Defendant Trulargo, LLC states as follows: First, counsel for Trulargo in its exceptions states that The Recommended Decision Assumes Facts Not In Evidence. Specifically, counsel for Trulargo argues in its exceptions that the Recommended Decision states that Trulargo s customers want solid waste transported away from their location. The Decision further states that [Trulargo customers] rent the dumpsters in order to get the solid waste transported away. There is no evidence in record of the motivations of Trulargo s customers. In response, Rule 19.1 of the Rules of Practice and Procedure (150 CSR 1) state, The exceptions must state the findings of fact

3 and/or conclusion of law claimed to have been erroneously decided, and may be accompanied by a brief in support thereof. In this case, the aforementioned statements set forth in the exceptions are not contained in any findings of fact or conclusions of law7 of the Recoininended Decision. That being said, Larry Coff, owner/member of Trulargo, testified that Trulargo does lease roll-off containers. (Tr. pg. 3 1). Mr. Goff also stated that at the end of the lease period if there is trash in the roll-off containers then Trulargo will take the roll- off container with the trash to a solid waste facility for disposal. (Tr. Pg. 32). The following examination then took place between Mr. Goff and counsel for Republic: Q. Okay. So, at least as picking up that roll-off container or that container, you re picking up the waste that s in the container. and then you re taking it to a facility. You re disposing of it; correct? A. Correct. Q. You re charging for that; correct? A. For the dumpster, yes. Q. Well, for the trash that s contained therein. Do you tell the customer if that s a service that you provide at the end of the term, the lease term, that you would dispose of their trash? A. Could you repeat that? Q. Sure. Do you tell a customer who leases a container, do you tell then, look, at the end of the lease term when we come to pick up the container, we u7ill take that trash and dispose of it for you? A. Yes. Q. You tell them that? And is the cost of doing that embedded in the rates you charge the customer? 2

4 A. Yes. (Tr. Pgs. 32, 33). Mr. Goff stated that only Trulargo was allowed to pick up the roll-off containers that it leases. (Tr. Pg. 34). The following examination then took place between Mr. Goff and counsel for Republic: Q. So you don t allow other entities that may have a Certificate of Convenience and Necessity to pick up trash in Mon County? You don t allow them to pick up that container for disposal? A. No. Q. So every customer that you lease a container to -and you know that they re going to put waste in that container; correct? That s why they re asking for the container; correct? A. Yes. Q. Every one of those customers, Trulargo picks it up and disposes of the waste? A. Yes. (Tr. Pgs. 34, 35). Mr. Goff stated that if another entity such as Republic wanted to pick up the roll-off containers that it leases, that Trulargo would not allo~ that to happen. It had to be solely done by Trulargo. (Tr. Pg. 37). Even upon examination by his own attorney, the following examination took place with Mr. Goff Q. So if a customer were to rent a dumpster from you, fill it, have another company empty it, and return it to that spot within the week, does Trulargo have any issue with that? 3

5 A. Yes. (Tr. Pg. 40). As such, there was ample evidence to corroborate the fact that Trulargo s customers want solid waste transported away from their location and that Trulargo customers rent the dumpsters in order to have solid waste transported away. Next, counsel for Trulargo argues that The decision is based on the ambiguous term embedded. Specifically, counsel for Trulargo states that The Decision includes in it Findings Of Facts that The cost of disposing of the waste contained in the Defendant s containers at the end of the leased term is embedded in the leased rate. However, as previously stated, Larry Goff, owner of Trulargo, admitted that the cost of picking up the containers full of trash and disposing of the same is embedded in the rates that he charges his customers. (Tr. pgs. 32, 33). Mr. Goff did not say that he did not understand the question or that it was ambiguous. Therefore, the Administrative Law Judge was merely reiterating what Mi-. Goff had already admitted. Next, counsel for Trulargo argues that the Recoininended Decision improperly expands the jurisdiction of the PSC. Specifically, counsel for Trulargo states that, In Conclusion Of Law Number 1, the Recoininended Decision states, in part, that by leasing roll-off containers to members of the public... the Defendant is engaged in common carrier activity which makes its operations sub-ject to Commission jurisdiction. Such a finding impermissibly expands the jurisdiction of the West Virginia Public Service Commission. In response, the Administrative Law Judge in the Recoininended Decision sets forth the following: 4

6 Notwithstanding Mr. Goff s own words, Trulargo attempts to argue it is in the dumpster rental business, not the waste hauling business. That is clearly not the complete truth. The fact that a disposal fee is imbedded in the lease agreement regardless of whether it is a poundage fee or mileage fee, is quite telling that the Defendant is engaged in inore than just the dumpster rental business. Trulargo s customers want solid waste transported away from their location. They rent the dumpsters in order to get the solid waste transported away. The Defendant also argues that there is no evidence Trulargo transports passengers or property for the general public therefore, Trulargo is a private carrier and not a common carrier. Nothing could be further from the truth. Indeed, while Mr. Goff indicated that, If somebody called Trulargo and said, I have a dumpster that I did not rent from you and I would like it emptied, Trulargo would not do so, that does not mean Trulargo is a private carrier. The evidence shows Trulargo leases roll-off containers to inembers of the public, transports such containers to the customers, does not permit others to haul the waste deposited in its containers, hauls the waste to a local transfer station, and charges a fee for hauling and disposing of the waste deposited in its containers. Based on such evidence, Trulargo is engaged in common carrier activity as that term is defined in West Virginia $24A-1-2(2). (Marshall Cox v. Public Service Commission, 188 W.Va. 736, 426 S.E.2d 528, 1992 WV LEXIS 268 (1992)). The Defendant s argument is merit less. In summary. the Recomner?ded Decision entered by the Administrative Law Judge in this matter was well reasoned and contained the following FINDINGS OF FACT and CONCLUSIONS OF LAW which support the decision in this matter: FINDINGS OF FACT 3. The Defendant has been picking up waste in Monongalia County and disposing of that waste in Monongalia County. (Tr. 9, 13, 37, Complainant s Exhibit No. 2). 4. (Tr. 22). The Defendant was advertising that it leases roll-off containers. 5

7 affirmed. 5. The Defendant does not have a certificate of convenience and necessity. (Tr. 32). 6. The Defendant has filed for a certificate of convenience and necessity with the Commission in Case No MC-C. (Tr. 19). 7. The Defendant picks up, transports and disposes of waste contained in its containers. (Tr. 33). 8. The Defendant does not permit other haulers with certificates to pick up and dispose of trash in its containers. (Tr ). 9. The cost of disposing of the waste contained in the Defendant s containers at the end of the leased term is embedded in the leased rate. (Tr. 33). 10. Staff recommended the Defendant be ordered to cease and desist illegal coimnon carrier operations in West Virginia until certification is obtained from the Cormnission. (Tr. 45). CONCLUSIONS OF LAW 1. By leasing roll-off containers to members of the public, transporting such containers to the customers, prohibiting others froin hauling the waste deposited in its containers, hauling the waste to a local transfer - stdion, and charging a fee for hauling and disposing of the waste deposikd itl its containers, the Defendant is engaged in common carrier activity which makes its operation subject to Commission jurisdiction. 2. W. Va. Code 24A-2-5 requires the Defendant to obtain Commission authority in the form of a certificate of convenience and necessity to transport trash, rubbish and garbage on an intrastate basis in West Virginia. 3. The Defendant should be ordered to cease and desist transporting solid waste within the State of West Virginia until it obtains proper certification froin the Coininission as required b y W. Va. Code 524A-2-5. Therefore, the Recoimnended Decision entered on February 4, 2019, should be 6

8 Respectfully submitted; Allied Waste Services of North America, LLC d/b/a Republic Services of West Virginia By Counsel State Bar No Post Office Box Charleston, West Virginia (304)

9 WASTE SERVI~~S LIC SERVIC~S a limited liability corporation, A, LLC, Complainant, V. ULARGO, LLC, efendant. ICATE OF SE I, SAMUEL F. ANNA, counsel for Allied Waste Services ofnorth America, LLC, d/b/a Republic Services of West Virginia do hereby certifj that service of the foregoing RESPONSE OF ALLIED WASTE SERVICES OF NORTH AM A, LLC, d/b/a REPUBLIC SERVICES OF WEST VIRG NIA TO EXCEPTIO DEFENDANT TRULARGO, LLC has been made upon the following party this 1 st day of March, 2019, by depositing the same in the United States Mail, postage prepaid, in an envelope addressed as follows: John F. Gianola, Esquire Gianola, Bamum, Bechtel & Jecklin, LC Mileground Morgantown, VJV 26505