PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON HEARING EXAMINER'S DECISION I. PROCEDURE.

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1 OF WEST VIRGINIA CHARLESTON FINAL DON'S DISPOSAL SERVICE, INC., V. WANDA LEE HAMMONDS, Administratrix of the Estate of CHARLES R. WONDS, doing business as HAMMONDS GARBAGE DISPOSAL SERVICE HEARING EXAMINER'S DECISION I. PROCEDURE. On April 11, 1984, Don's Disposal Service, Inc., a corporation (Don's), the Complainant, Charleston, West Virginia, filed a Formal Complaint, duly verified, against Wanda Lee Hamonds (Ms. Hammonds), the Administratrix of the Estate of Charles R. Hammonds, doing business as Hammonds Garbage Disposal Service, the Defendant, St. Albans, Kanawha County. On April 26, 1984, Ms. Hammonds filed her Answer to the allegations contained in the complaint. Comments on the Complaint and Answer were received from the Commission's Finance and Special Studies Division, in a memorandum dated April 27, 1984, and from the Commission's Motor Carrier Division, in a memorandum dated May 7, PUBLIC SLRVICC COYMISSION

2 ~~~ ~~ ~ ~~ By order entered on May 10, 1984, the matters involved herein were set for hearing to be held in the Commission's Hearing Room at the Capitol in the City of Charleston on June 13, 1984, at 9:30 a.m. The hearing was held as scheduled on June 13, 1984, at 9:30 a.m. The Complainant appeared by its proper officers and by Arden J. Curry, Esq. Appearing on behalf of Ms. Hammonds were Alexander Ross, Esq., and Carl M. Duttine, Esq. Appearing on behalf of the Staff was Thornton Cooper, Esq., Staff Attorney for the Motor Carrier Division. Don's called four (4) witnesses and Ms. Hammonds called one (1) witness. The Staff called no witnesses. A 196-page transcript of the proceedings on June 13, 1984, was prepared. At the hearing, one (1) exhibit was submitted on behalf of Ms. Hamonds and received into evidence; and five (5) exhibits were submitted by the Staff and received into evidence. No exhibits were submitted on behalf of Don's. The essence of the Formal Complaint is that commercial trash collection by Ms. Hammonds has become nonexistent in certain areas of Kanawha County and that she has recently attempted to reactivate operations in areas of dormancy. Ms. Hammonds denied these allegations in her Answer. 11. GENERAL DISCUSSION OF DORMANCY. Before discussing the evidence which was submitted on the dormancy issue, this Examiner will briefly discuss the concept of dormancy and what elements must be proved to establish dormancy. Dormancy in West Virginia motor carrier cases has been discussed in a number of decisions by this Commission. One set of definitions was

3 given on page 4 of an order entered on June 22, 1982, reversing a Hearing Examiner's Recommended in M.C. Case No , Elk Valley Sanitation, Inc., v. Charles Edward Snodgrass, doing business as All Clean Disposal Service. In that decision the Commission stated as follows: Generally the issue of dormancy presents itself in a proceeding involving the transfer of a certificate of convenience and necessity. It can be either geographical or operational in nature. Geographical dormancy is a failure to provide service to a representative number of points within the authorized area of service. Operational dormancy is the failure to provide all or a portion of the type of service which a certificate holder is authorized to render. In either case to determine whether or not a certificate is dormant, a determination must be made as to "whether substantial lawful operations have been Derformed under the Certificate". William T. -Hopson, M.C. Case NoL (1978). Messenger v. Interstate Commerce Commission, 300 Fed. Supp (1969)... Earlier in 1976, the Commission, in Carroll Trucking Company, M.C. Cases Nos. 132, 1902, and 3821, had summarized the rationale for concern with dormancy in a transfer proceeding as follows: The underlying premise of the dormancy rule is that where a selling carrier's activity has become minimal or nonexistent, the area's shippers are presumed to be receiving adequate service from other carriers who have adiusted their operations to meet these needs. Wright Trucking, hc., v. Uniteh States, 403 F. supp. 119 ( D. Mass. 1975). This necessitates the commitment of capital, equipment, and manpower by the other carriers. Thus, to allow the reactivation of the dormant operating rights would create a new, competitive service, NOT required by the public convenience and necessity, and would result in damages to carriers who conducted operations during the interruption of such services. Arrow Transportation Company v. United States, supra, Houff Transker, Inc. v. United States, 291 F. Supp. 831 (W.D. Virginia, 1968). On April 5, 1984, in M.C. Case No TC, 1 business as River Cities Service, the Commission, on page 4, again stated as follows:... The underlying premise of dormancy is that if a seller's activity has become minimal or non-existent, it is presumed that adequate service is being provided by other carriers who have PUBLIC SLRVICL COMMISSION

4 adjusted their own operations to meet these needs. Wright Trucking Company, Inc., v. United States, 463 F. Supp. 229 (D. Mass., 1975). Dormancy is not an infallible concept but rather it is one which must be evaluated in light of all surrounding; circumstances, Arrow Transportation Company v. United States, 306 F. Supp. 813 (R.I., 1969). Th e standard amlied bv this Commission on the issue of dormancy is: Whether L&bstan<ial operations have been performed under the certificate". Messenger v. Interstate Commerce Commission, 300 F. Supp (1969). - Re: William P. Hopson, M.C. Case No (1978). To analyze whether and to what extent Ms. Hammonds' operations have become dormant, this Hearing Examiner will first examine the law and evidence on the following issues: (I) where the certificates of Don's and Ms. Hammonds overlap; (2) what type of dormancy is alleged in the Complaint; (3) where, if anywhere, Ms. Hammonds' operations have become substantial; ( 4) whether Don's has adjusted or modified its operations as a result of Ms. Hamonds' failure to provide substantial services; and (5) whether a reactivation of Ms. Hammonds' service would damage Don's OVERLAP BETWEEN CERTIFICATED TERRITORY OF MS. HAMMONDS AND THAT OF DON'S. To determine the area of overlap of the operating authorities of the two carriers, it is necessary first to examine their respective certifi- cates. A. SCOPE OF DON'S DISPOSAL'S AUTHORITY. Don's is a corporation which holds one certificate and several perm ts, The corporation acquired that certificate and some of those permits in M.C. Case No

5 In M.C. Case No , P.S.C. M.C. Certificate No. F-4820 was issued on June 23, 1960, to Arthur Williams, Charleston, Kanawha County. This certificate authorizes its holder to operate as a common carrier by motor vehicle in tee transportation of trash, rubbish, and garbage from residences and business establishments in Charleston, Kanawha County. By that certificate, the holder is permitted to transport the items named herein to a disposal point outside of the City of Charleston. That certificate was transferred to U. G. Harrison, Charleston, Kanawha County, on November 22, On May 19, 1964, P.S.C. M.C. Certificate No. F-4820 was transferred to Donald G. Snodgrass. The following year, it was amended to authorize its holder to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, and garbage from commercial, business and industrial establishments under the container system outside of the city limits of Charleston in Kanawha County. The certificate authorizes its holder to use only those containers which have a capacity of not less than one cubic yard. By an order entered on March 21, 1967, Donald G. Snodgrass was authorized to adopt the trade name of Donald G.Snodgrass, doing business as Don's Disposal Service, under P.S.C. M.C. Certificate No. F On March 8, 1968, P.S.C. M.C. Certificate No. F-4820 was further amended to authorize its holder to transport trash, rubbish, and garbage from commercial, business, and industrial establishments in Putnam County, under the container system and from said area to a point of disposal, in addition to the operating authority previously granted under the certificate. The following year, P.S.C. M.C. Certificate No. F-4820 OF WEST VIRGINIA -EN

6 was further amended to include some other areas outside of Kanawha County. On November 2, 1972, the Commission authorized Donald G. Snodgrass to transfer P.S.C. M.C. Certificate No. F-4820 and other authority to Don's Disposal Service, Inc. In summary, from the orders in M.C. Case No , it would appear that Don's possesses authority to transport trash, rubbish, and garbage from residences and business establishments located within the corporate limits of the city of Charleston, Kanawha County (as those corporate limits existed on June 23, 1960) and to transport trash, rubbish, and garbage from commercial, business, and industrial establishments under the container system in Kanawha County outside of said corporate limits, provided that the containers so used have a capacity of not less than one cubic yard; as well as to transport garbage in certain places outside of Kanawha County. B. SCOPE OF MS. HAMMONDS' AUTHORITY. As Administratrix of the Estate of Charles Hammonds, his widow, Wanda Hammonds, operates under two different certificates: P.S.C. M.C. Certificate No. F-4794 and P.S.C. M.C. Certificate No. F In M.C. Case No , the Commission, on May 27, 1960, issued to James Hart, doing business as Hart's Hauling Service, Spring Hill, Kanawha County, P.S.C. M.C. Certificate No. F-4794, authorizing him to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, garbage and junk within Charleston, South Charleston, and a radius of fifteen (15) miles thereof, all within Kanawha County,

7 provided that the holder of the certificate would not be permitted to transport the above-named items within any incorporated community other than Charleston and South Charleston; and provided further, that the holder would not be permitted to transport trash, rubbish, and garbage between the Charleston city limits and Clendenin along U.S. Route 119. By an order entered on July 7, 1969, P.S.C. M.C. Certificate No. F-4794 was transferred to Charles R. Hammonds, doing business as Hammonds Garbage Disposal Service, provided that the holder of the certificate would not be permitted to transport trash, rubbish, and garbage between the Charleston city limits and the city limits of Clendenin along U.S. Route 4 and West Virginia Route 14. After a show-cause proceeding, the Commission, on April 18, 1978, entered an order in M.C. Cases Nos and permitting the certificate holder to retain her authority to operate under P.S.C. M.C. Certificates Nos. F-4794 and F The holder of the certificate was further ordered properly and adequately to serve all of her customers in Riverbend and Sun Valley Subdivisions. The Motor Carrier Division was directed to scrutinize the certificate holder's operations for six months from the date of order and to record all complaints. The carrier was further ordered to report to the Commission on a monthly basis for six months from the date of that order as to the status of the operation including any complaint filed with the carrier as it pertains to service. In 1980 the certificate holder applied to transfer the certificate to Hammonds, Inc., a corporation, St. Albans, Kanawha County. Later that year the application was dismissed. Again, in December of 1983, the certificate holder applied to transfer its authority unto Hammonds, Inc. Again, on March 30, 1984, that case was dismissed. I' OF WEST VIRGINIA

8 On March 23, 1973, the Commission, in M.C. Case No , issued to Charles R. Hammonds, doing business as Hammonds Garbage Disposal Service, Sissonville, Kanawha County, P.S.C. M.C. Certificate No. F-5703, authorizing its holder to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, and garbage along the left side of U.S. Route 60, in a westerly direction, between the city limits of South Charleston and the city limits of St. Albans, Kanawha County; in the general territory along old U.S. Route 60, between the easterly city limits of St. Albans and the point of intersection of old U.S. Route 60 to the westerly limits of the city of St. Albans; and Smith Creek Road from the westerly city limits of St. Albans, Kanawha Turnpike, and South Charleston, all in Kanawha County. As discussed above, in M.C. Case No , this certificate was also subject to a revocation proceeding initiated by the Commission and to two unsuccessful transfer proceedings. In summary, through P.S.C. M.C. Certificates Nos. F-4794 and F-5703, Wanda Hammonds, as Administratrix of the Estate of Charles R. Hammonds, deceased, has authority to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, garbage, and junk within Charleston, and South Charleston (as their corporate limits existed on May 27, 1960) and a radius of fifteen (15) miles thereof with the following exclusions: That the holder of the certificate may not transport trash, rubbish, and garbage between the City of Charleston and the City of Clendenin either along U.S. Route 119, U.S. Route 4, or West Virginia Route 14; or in any of the municipalities (as their corporate limits existed on May 27, 1960) located in Kanawha County other than Charleston, South Charleston, and Saint Albans. In Saint Albans the certificate

9 holder is authorized to operate only in the general territory along old U.S. Route C. AREA OF OVERLAP. From the foregoing descriptions of Don's' and Ms. Hammonds' respective operating authorities, it is clear, since Don's has operating authority throughout Kanawha County that, geographically, within Kanawha County, the area of overlap is coextensive with Ms. Harumonds' lawful operating territory under P.S.C. M.C. Certificates Nos. F-4794 and F Operationally, within the City of Charleston, Kanawha County, as its corporate limits existed on June 23, 1960, the overlap extends to all transportation of trash, rubbish, and garbage from residences and business establishments. With respect to that part of Ms. Hammonds' lawful territory outside the City of Charleston as its corporate limits were drawn on June 23, 1960, the area of overlap is restricted to the transportation of trash, rubbish, and garbage from commercial, business, and industrial establishments under the container system where such containers have a capacity of not less than one cubic yard each. IV. TYPE OF DORMANCY ALLEGED. On pages 1 and 2 of its Complaint, Don's alleged that Ms. Hammonds recently commenced serving a customer in Charleston, West Virginia, in the transportation of trash, rubbish, and garbage even though she had not served customers in Charleston for several years. According to the OF WEST VIRGINIA

10 Complaint, Ms. Hamonds has operated in a very small area covered by P.S.C. M.C. Certificates Nos. F-4794 and F-5703 including St. Albans, an on the left side Route 60 from the city limits of South Charleston to St Albans. The Complaint further alleges that, with the exception of that smal area, the certificates are "dormant and invalid because the defendant ha failed for years to provide substantial service or to hold itself out to the general public to provide the service." In addition, Don's alleges that Ms. Hammonds "is now attempting to rehabilitate the certificates fo the purpose of selling same to another party. This places the defendant in the position of engaging in predatory competition with the complainan by undercutting complainant's rates.... The complainant holds a certifi cate for commercial and industrial waste for the entire County of Kanawha. In her Answer, Ms. Hammonds admitted that her chief base of op- erations "has been and still is in St. Albans." Although Ms. Hammonds agrees that many of her customers are located in St. Albans, she states that in no way does she limit the scope of her operations "to the immedi ate St. Albans locale and defendant is now and has been ready, willing and able to handle the needs of its customers wherever situate. In fact defendant has done so." From the foregoing discussion of the Complaint and Answer, it is clear that Don's is generally alleging geographical dormancy on the part of Ms. Hammonds. It is implied by that Complaint that the dormancy alleged pertains only to commercial (including industrial) customers.

11 V. EVIDENCE, INCLUDING FINDINGS OF FACT. A. AREAS WHERE MS. HAMMONDS WAS NOT PROVIDING SERVICE PRIOR TO At the hearing on June 13, 1984, Donald G. Snodgrass, then President of Don's Disposal, testified that Don's was strictly a commercial hauler. (Transcript of the June 13, 1984, hearing, p. 46.) At the hearing Counsel for Don's agreed that dormancy in residential transportation of trash, rubbish, and garbage was not the subject of the Complaint. (Tr., pp ) Furthermore, the only service area involved in the proceed- ing is Kanawha County. (Tr., pp ) With reference to commercial and industrial customers, the Complainant seeks to have all of Ms. Hammonds' authority declared dormant except where she can prove she has been operating. (Tr., p. 61.) (The Hearing Examiner intends to include the word "industrial" wherever he uses the word "commercial" throughout the rest of this Decision.) Because of the size of Kanawha County, the Staff submitted five (5) exhibits, which are all 1982 West Virginia Department of Highways maps of different portions of that county, to assist in the determination of which areas have or have not been served by Don's and by Ms. Hammonds. This Examiner will refer to these exhibits in his discussions of the areas wherein Don's presently provides substantial service and wherein Ms. Hammonds does not provide substantial service. Mr. Snodgrass tes- tified that he operates in every corner of Kanawha County or close to it. (Tr., pp ) According to Don Snodgrass, however, Ms. Hammonds' operations (residential and commercial) are much more limited. Mr. Snodgrass testified that her authority consists of service to about 2,100 residential customers and to about 80 commercial customers. (Tr., pp.

12 27-28.) He testified that her customers are located on the hill side of U.S. Route 60 between St. Albans and South Charleston, on Coal River toward Big Bend, and in the Cross Lanes area. (Tr., p. 27.) Mr. Snodgrass further testified that she did not operate in any other portion of Kanawha County prior to February (Tr., p. 35.) According to Mr. Snodgrass, Ms. Hamonds began picking up in Charleston at the One Valley Square Building and the old Kanawha Valley Bank Building in February (Tr., pp ) While Mr. Snodgrass described where Don's operated, the description of Ms. Hammonds' operations was given by Mr. Herman Cavender, the General Manager of Hammonds. (Tr., pp , ) From the respective testimony of Mr. Snodgrass and Mr. Cavender, it was clear that, with respect to commercial service, Don's is presently transporting trash, rubbish, and garbage from representative points nearly everywhere in Kanawha County, whereas Ms. Hammonds is, in fact, collecting such matter from only a few locations. Before discussing the respective operating territories of the two parties, the Hearing Examiner will take judicial notice of the fact that as of 1982, a total of fifteen municipalities existed in Kanawha County, to-wit: Belle, Cedar Grove, Charleston, Chesapeake, Clendenin, Dunbar, East Bank, Glasgow, Handley, Marmet, Montgomery, Nitro, Pratt, South Charleston, and St. Albans. (Nitro and Montgomery are partially located in adjacent counties.) Of these fifteen municipalities, only Handley was incorporated after the May 27, 1960, order in M.C. Case No Handley was incorporated in November See West Virginia Blue Book (1982).

13 ~ ~~~ As previously stated, Ms. Hammonds is not authorized to transport trash, rubbish, and garbage within any corporate limits (as they existed on June 23, 1960) of any of the following municipalities in Kanawha County: Belle, Ceilar Grove, Chesapeake, Clendenin, Dunbar, East Bank, Glasgow, Marmet, Montgomery, Nitro, and Pratt. Furthermore, she is only authorized to pick up trash in that portion of St. Albans located along old U.S. Route 60. The Hearing Examiner will now examine the operations of the two carriers as shown on exhibits submitted by the Staff at the hearing. Staff's Exhibit No. 1 is a 1982 highway map of the northwestern portion of Kanawha County, including part of Nitro, that segment of Interstate 77 running from Jackson County to the northern corporate limits of Charleston, and the unincorporated communities of Sissonville, Pocatalico, Wallace, Rocky Fork, Tyler Heights, and Cross Lanes. At the hearing, Mr. Snodgrass testified that Don's provides service to the west of 1-77 at Pocatalico, Sissonville, Nitro, and also to the east of Interstate 77. (Tr., pp ) Mr. Cavender testified that Ms. Hammonds provides no service at Pocatalico, Sissonville, or Nitro, or east of Interstate 77 on that map. (Tr., pp , 183.) Furthermore, all service provided by Ms. Hammonds at the localities shown on the map is to the west of 1-77 and to the south of Sissonville. (Tr., p. 181.) Mr. Cavender further testified that it would be correct to state that most of the service provided by Hammonds is within five or six miles of the City of Nitro. (Tr., p. 180.) Specifically, that includes the Cross Lanes area and the Tyler Heights area, both of which are located to the east of Nitro. (Tr., p. 179; Staff's Exhibit No. 1.) OF WEST VIRGINIA -DN

14 Staff's Exhibit No. 2 is a 1982 highway map of Kanawha County reflecting the northeastern portion of that county showing communities along the Elk River up river from Charleston as well as 1-79 to the northeast of Charleston. Specifically, Don Snodgrass testified that he served Queen Shoals, Falling Rock, Walgrove, Blue Creek, Elkview, Big Sandy, Big Chimney, Bream, Pinch, Frame, and areas to the east of Clendenin and at the edge of Clendenin. (Tr., p ) Mr. Cavender testified that Ms. Hamonds serves no customers in areas reflected on that map. (Tr., p. 181.) Staff's Exhibit No. 3 covers the heart of Ms. Hammonds' territory. Mr. Snodgrass testified that Don's presently serves Arborland Acres, Lower Falls, Tornado, Forks-of-Coal, Olcott, Ruth, Ruthdale, Loudendale, Hernshaw, Marmet, DuPont City, Rand, Malden, Port Amherst, Snow Hill, Knollwood, Mink Shoals, Elk Hills, Crede, and Institute. (Tr., pp ) Mr. Cavender stated Ms. Hammonds doesn't provide service to commercial customers in any of those locations. (Tr., pp ) While Mr. Snodgrass testified that Don's Disposal served eight commercial customers in St. Albans (Tr., p. 78), Ms. Hammonds has only one, very recent commercial customer in St. Albans and none to the south of that city. (Tr., p. 185.) While Don's serves many customers in the City of Charleston (Tr., p. 80), Ms. Hammonds serves very few customers in that city. Furthermore, while Don's serves several commercial customers in South Charleston, Ms. Hammonds has only one commercial customer in or near that city. Staff's Exhibits Nos. 4 and 5 show sections of central eastern and southern Kanawha County. Don's Disposal serves dozens of communities in

15 those areas. (Tr., pp ) However, Hammonds serves no one in those areas. (Tr., p. 186.) B. -SPECIFIC AREAS WHERE MS. HAMMONDS S COMMERC IAL CUSTOME RS. 1. CHARLESTON Mr. Snodgrass testified that Charles Hammonds sold his list of commercial customers in Charleston to Mr. Snodgrass and that Ms. Hammonds did not begin serving commercial customers in Charleston until recently. (Tr., pp ) Specifically, Mr. Snodgrass stated that, in the early 1970's, Mr. Hammonds sold Mr. Snodgrass (or Don's) a list of all of Mr. Hammonds' 60 to 65 commercial accounts in Charleston. At that time, Mr. Hammonds was doing approximately $2,200 to $2,300 worth of business each month in Charleston. (Tr., pp ) After he sold the list, Mr. Hammonds took Mr. Snodgrass to each of these commercial customers, introduced Mr. Snodgrass to the customer, and told the customer that Mr. Snodgrass would "be their trash man from now on". (Tr., p. 90.) These businesses were all located in the City of Charleston, including Kanawha City. (Tr., p. 90.) Most of the businesses were located near the Patrick Street Bridge to the west of the Elk River. (Tr., p. 91.) Mr. Hanrmonds was killed about a year and a half after this transaction was consummated. (Tr., p. 91.) Mr. Snodgrass further stated that, between the consummation of that transaction and Mr. Hammonds' death, the latter ceased serving his commercial customers in Charleston and referred all inquiries about trash service in Charleston to Mr. Snodgrass. (Tr., p. 91.) m OF WEST VlROlNlA -mn

16 Mr. Cavender's testimony basically corroborated that of Mr. Snodgrass. According to Mr. Cavender, as of the date of the June 13, 1984, hearing, Ms. Hamonds had only seven (7) commercial customers in Charleston. (Tr., p. 137) All seven of these customers were on the north side of the Kanawha River. Of those seven customers, two were on the east side of the Elk River and five were on the west side of the Elk River. The two that were on the east side of the Kanawha River, One Valley Square and the old Kanawha Valley Bank Building, have been served by Ms. Hammonds only since about March 1, (Tr., pp , ) Of che five commercial customers on the "West Side", only three were served prior to 1984 by Ms. Hammonds. One of these commercial customers, J & J Cleaning Systems, Inc., is located on Seventh Avenue. Ms. Hammonds has been serving that customer since 1979 or 1980 by hand pickup. (Tr., pp. 164, 178.) Another customer, Barker's Barber Shop, located at or near 1106 West Washington Street, has been served since the late 1970's, by hand pickup. (Tr., pp. 176, 177.) A third company, King's Printing located on Central Avenue on the West Side, has been served up by hand pickup since 1976 or (Tr., pp , 177.) King's Printing is across the street from Barker's Barber Shop. (Tr., p. 177.) Ms. Hammonds' other two commercial customers on the West Side, both of which are located on West Washington Street, are the Country Kitchen, which Ms. Hammonds began serving on May 1, 1984 and the P & P Lounge, which Ms. Hammonds began serving on June 1, (Tr., pp. 137, 149, , ) Containers are being used at both of these locations. (Tr., pp. 137, 167.)

17 ~ Mr. Cavender also testified that until mid-february 1984 all commercial trash collection was done by hand pickup. In mid-february 1984, Ms. Hammonds began using containers at several sites. At the time of the hearing the total number of containers used by the company came to thirteen, all between one and three cubic yards in capacity. (Tr., pp. 136, 168.) 2. SOUTH CHARLESTON-SAINT ALBANS AREA. Mr. Cavender testified that Ms. Hammonds has only one commercial customer in South Charleston, Williams Cabinet Shop. (Tr., p. 182.) Upon further cross-examination, Mr. Cavender conceded that Williams Cabinet Shop, located at 4619 Spring Hill Avenue in or near the Spring Hill section of South Charleston, three or four city blocks south of Kanawha Turnpike, toward the hill, might be outside the corporate limits of South Charleston. (Tr., p. 192.) In St. Albans, Ms. Hammonds has only one commercial customer, a Gulf service station which she began serving on June 1, (Tr., pp ) Mr. Cavender also testified that he recently placed some containers near the Lincoln County-Kanawha County line at a campsite known as Cliffside located near Alum Creek. (Tr., pp ) In summary, Mr. Cavender's testified that, prior to 1984, the only commercial customers in the South Charleston-Saint Albans area which were served by Ms. Hammonds were Williams Cabinet Shop, in or near the Spring Hill section of South Charleston, and several commercial customers located on either side of U.S. Route 60 between South Charleston and Saint Albans. (Tr., pp. 145, 185.)

18 3. TYLER HEIGHTS-CROSS LANES- TnER MOUNTAIN AREA. The only other area where Ms. Hammonds has been serving commercial customers is in the Tyler Heights, Cross Lanes, and Tyler Mountain Subdivisions located between Nitro and Charleston on the north side of the Kanawha River. (Tr., pp. 179, 183.) Ms. Hamonds has not been serving the nearby areas of Institute and Pinewood Park. (Tr., pp , 183.) C. EFFORTS BY MS. HAMMONDS TO EXPAND HER OPERATIONS. Mr. Cavender testified that he personally solicits business on behalf of Ms. Hammonds. (Tr., pp ) Furthermore, Ms. Hammonds has an advertisement in the Charleston area telephone directory which indicates that her business serves customers within a fifteen-mile radius of Charleston and South Charleston. (Tr., pp ; Defendant's Exhibit No. 1.) D. SPECIFIC FINDINGS OF FACT ABOUT MS. HAMMONDS' OP ERATIONS. The Hearing Examiner finds that, while Don's has served commercial customers throughout Kanawha County up to the present, Ms. Hammonds' service to commercial customers until 1984 has been restricted to four small areas of that county: (1) that part of the City of Charleston which is north of the Kanawha River and west of the Elk River, comonly known as the "West Side", where Ms. Hammonds served only three commercial

19 I 1 customers prior to 1984; (2) the western (Spring Hill) section of the City of South Charleston and the adjacent unincorporated areas, where Ms. Hammonds served only one commercial customer prior to 1984; (3) both sides of U.S. Rod= 60 between the corporate limits of South Charleston and the corporate limits of Saint Albans; and (4) the Tyler Heights, Cross Lanes, and Tyler Mountain Subdivisions located between Nitro and Charleston. The Hearing Examiner further finds that while Don's has been serving commercial customers through the use of containers for some time, Ms. Hammonds never used containers to serve commercial customers prior to The Hearing Examiner further finds that over ten years ago Charles Hammonds-discontinued all service to his commercial customers in Charleston and induced them to use the services of Donald Snodgrass (or Don's). The Hearing Examiner further finds that the directory advertising and recent solicitations on behalf of Ms. Hammonds have been minimal efforts, at best. The Hearing Examiner further finds that Ms. Hammonds has through several years of service to three businesses on Charleston's West Side, renewed service to commercial customers in that area. E. SCOPE. ADJUSTMENT. AND MODIFICATION Ms. Hammonds (and her husband) obtained the two certificates in question in 1969 and LL OF WEST VIRGINIA

20 Donald Snodgrass testified that Don's operates seventeen (17) vehicles each day. (Tr., pp ) Don's owns $1,800,000 of equipment, including containers worth $750,000. (Tr., pp ) These containers consist of 2,200 front-end-loading containers, 80 rear-end loading containers and 93 dinosaur beds. (Tr., p. 21.) Mr. Snodgrass further indicated that Don's presently employs 23 employees and maintains a landfill worth about $1,500,000. (Tr., p. 23.) Of these employees, seven are full-time employees. (Tr., p. 23) Mr. Snodgrass further testified that he has spent 21 years serving his, and Don's, customers. (Tr., p. 26) He stated that he has possessed certificates for all of Kanawha County for 21 years and that he has run in all segments of Kanawha County during the last 15 years. (Tr., p. 27.) Mr. Snodgrass also testified that Don's is able to service other areas without interfering with the service that it presently renders its customers. (Tr., pp ) Mr. Snodgrass further stated he has about 1,500 or 1,600 commercial customers in Kanawha County and three other counties. (Tr., p. 48.) Of these commercial customers about 40% are roll-off or hand-pick-up customers and about 60% are container customers. (Tr., pp ) Until 1984, Don's Disposal's revenues were increasing. (Tr., 63.) The Hearing Examiner finds that Don's has established a presumption that it has expanded its operations and has relied upon the lack of Ms. Hammonds' operations in so doing in terms of its capital and other investments. The Hearing Examiner further finds that the evidence that Ms. Hammonds is holding herself open to the public does not rebut the

21 presumption that Don's has expanded its operations in reliance upon her lack of operations. F; -IMPACT ON DON'S IF MS. HAMMONDS SI P U RTHER TO REACTIVATE OPERATIONS UNDER HER CERTIFICATES. Mr. Snodgrass stated that if Ms. Hammonds increases her number of commercial customers, Don's will lose customers. (Tr., p. 64.) He also testified that his number of customers had already decreased between 1979 and (Tr.? 64.) Furthermore, Mr. Snodgrass testified that he has competitors in every area of Kanawha County. (Tr., pp ) Finally, Mr. Snodgrass testified that only 10% of the commercial businesses in Kanawha County didn't use either Don's or one of his competitors. (Tr., pp ) Of the remaining lo%, Mr. Snodgrass estimated that nearly all of them "burn their stuff and get rid of it on the outskirts." (Tr.? p. 92.) The Hearing Examiner finds that further reactivation of Ms. Hammonds' service to commercial customers would be detrimental to Don's. VI. DISCUSSION OF LAW, INCLUDING CONCLUSIONS OF LAW. As discussed in Part I1 of this Decision, the concept of dormancy is a flexible one. To this Examiner, it is clear, by any definition of dormancy, that Don's has proved by a preponderance of the evidence, that in most places in Kanawha County wherein Ms. Hammonds has held certificated rights to provide service to commercial customers, she has not done so. During the last several months, however, Ms. Hanrmonds has

22 attempted to reactivate her operations at several points in Kanawha County. The Hearing Examiner has further found that Don's has expanded its operations and made substantial investments in detrimental reliance upon the fact that Ms. Hammonds has failed to serve many commercial customers in Kanawha County. The Examiner has further found that if Ms. Hammonds is allowed to reactivate her commercial operations, Don's will suffer as a result. The Hearing Examiner, therefore, concludes, as a matter of law, that Ms. Hammonds' commercial operations are dormant in certain areas of Kanawha County. The exact areas of geographical dormancy have been discussed in more detail hereinabove. VII. SANCTIONS TO BE IMPOSED. On page 2 of its Complaint, Don's requested that Ms. Hammonds be required to cease operations in any area covered by her certificates unless she has actively been engaged in the business while holding the certificates; that the areas of dormancy be established by the Commission; that the areas where she will be permitted to operate be set forth by the Commission; and that, after due investigation, an order may be made commanding her to cease and desist from violation of the law. Based on the evidence adduced at the hearing, the Hearing Examiner will grant the relief sought by Don's, as follows:

23 A. SANCTIONS TO BE IMPOSED ON MS. HAMMONDS' OPERATIONS IN CHARLESTON. Within the-city of Charleston, as its corporate limits existed on June 23, 1960, Don's is authorized to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, and garbage, from residences and business establishments. (Residential service is not an issue in this case.) Because Don's has rendered trash, rubbish, and garbage service to commercial customers throughout Charleston, it has standing to challenge the legality of any and all such service provided by Ms. Hammonds. Since Ms. Hammonds did not, prior to 1984, provide any trash, rubbish, and garbage service to commercial customers within said corporate limits except hand-pickup service to three commercial customers on the West Side, she will be ordered (1) to cease and desist all garbage service to commercial customers in Charleston which are located either to the south of the Kanawha River or to the east of the Elk River; and (2) to cease and desist all garbage service, other than hand-pickup service, to commercial customers on the west side of the Elk River. B. SANCTIONS TO BE IMPOSED ON MS. :E INDER OF KANAWJU COUNTY. Within Kanawha County, but outside of the corporate limits of Charleston as they existed on June 23, 1960, Don's is authorized to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, and garbage from commercial, business, and industrial and PUDLIC SLRVICE COMMISSION

24 establishments under the container system, provided that Don's may use only containers which have a capacity of not less than one yard. Therefore, outside of Charleston, Don's may only challenge the legality of Ms. Hamonds' garbage service to commercial customers where such service is by containers of a capacity of not less than one cubic yard. Since Ms. Hammonds did not, prior to 1984, use containers for any garbage service to commercial customers in Kanawha County, she will, outside of Charleston, be ordered to cease and desist from providing garbage service to commercial customers by use of containers which have a capacity of one cubic yard or more. In most of Kanawha County, Ms. Hammonds renders no garbage service whatsoever to commercial customers. However, because Don's, the Complainant, is authorized only to render container service to commercial customers which are located outside of Charleston, Don's lacks standing to request this Commission to order Ms. Hammonds to cease and desist other types of garbage service which Don's itself cannot lawfully render. Moreover, Ms. Hammonds' operations have also been operationally dormant throughout Kanawha County because she did not utilize containers for commercial service in Kanawha County until On the other hand, because Ms. Hammonds has been providing hand-pickup service to three commercial customers OR Charleston's West Side since the late 1970's, this Examiner concludes, as a matter of law, that Ms. Hammonds has reactivated service by hand pickup under her certificates to commercial customers on the West Side. Because these operations were not challenged until more than five years after they were initiated, under the color of authority, it would be improper to declare them dormant at this time. PUDLIC SERVICE COMMISSION

25 VIII. ORDER IT IS, THEREFORE, ORDERED that that portion of the authority contained in P.S.C. M.C. Certificates Nos. F-4794 and F-5703 which authorizes their holder to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, and garbage from commercial customers located within the corporate limits of the City of Charleston, Kanawha County, as said corporate limits existed on June 23, 1960, is hereby declared to be dormant -- excepting the authority to provide hand-pickup garbage service to commercial customers which are located in that part of Charleston which is to the west of the Elk River -- and thus, such dormant authority is hereby deleted, revoked, and cancelled from said certificates. IT IS FURTHER ORDERED that that portion of the authority contained in P.S.C. M.C. Certificates Nos. F-4794 and F-5703 which authorizes their holder to operate as a common carrier by motor vehicle in the transportation of trash, rubbish, and garbage from commercial, business, and industrial establishments by the use of containers which have a capacity of one cubic yard or more within Kanawha County (but outside the corporate limits of the City of Charleston, as said corporate limits existed on June 23, 1960) is hereby declared to be dormant, and thus, such dormant authority is hereby deleted, revoked, and cancelled from said certificates. IT IS FURTHER ORDERED that Wanda Hammonds, Administratrix of the Estate of Charles R. Hammonds, doing business as Hammonds Garbage Service, and all transferees of said certificates, shall cease and desist

26 from providing commercial garbage service to the extent that it has been declared dormant in the foregoing paragraphs. IT IS FURTHER ORDERED that, in all other respects, P.S.C. M.C. Certificates Nos and F-5703 shall remain in full force and effect. IT IS FURTHER ORDERED that the Formal Complaint be, and the same hereby is, dismissed from the open docket of the Commission. IT IS FURTHER ORDERED that the Executive Secretary serve a copy of this Decision upon the Commission by hand delivery and upon all parties of record by United States Certified mail, Return Receipt Requested. 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 after the date this Decision is mailed. If exceptions are filed, the party filing the exception shall certify to the Executive Secretary that all parties of record have been served with said exceptions. If no exceptions are filed, this Decision shall become the order of the Commission without further action or order five (5) days following the expiration of the aforesaid fifteen (15) day time period unless the Decision is ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to this Decision by filing an appropriate petition in writing with the Secretary. No such waiver will be effective unless approved by order of the OF WEST VIRGINIA

27 Commission. Nor shall any such waiver operate to make this Decision the order of the Commission sooner than five (5) days after the approval of such waiver by the Commission. MMDMcD : mr s May%ard D. McDonnell Hearing Examiner