At a session. of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA at the Capitol in the City of Charleston on the 12th day of October, 1978 M.C. CASE NO. 1.6959 SANITARY CONTAINER SERVICE, INC., a corporation, (Huntington, Gabell Coun.ty). Application for a permit to operate as a contract carrier. On June 30, 1978, SANITARY CONTAINER SERVICE, INC., a corpora- tion, filed an application, duly verified, for a permit to operate six (6) motor vehicles as a contract carrier in the transportation of trash, rubbish and garbage from Monterey Coal Company, East Lynn, Wayne County, to the City of Huntington Landfill in Cabell County, under contract with Monterey Coal Company. Notice of the filing of said application mas given by publica- tion and protest vias received. Consequently, by order entered August 1, 1.978, this matter was set for hearing to be held September 5, 1978, and leave was granted to anyone interested to file objection to said application at any time on or before said date. The hearing was held as scheduled. The applicant appeared. through its general manager, Charles Mclaurin, and by counsel, Homer W. Hanna, Yr. Sanford Williamson, doing business as Sanford and Son, appeared in intervention represented by Thomas N. Hanna, Attorney at Lab At the close of the hearing the case was submitted for a decision. EVIDENCE - _ ~ Monterey Coal Company is in the process of developing a large coal operation located three (3) miles southeast of East Lynn, Eayne County, West Virginia, Lo be used in developing a Coal Gassification Process with production scheduled to begin in February, 1979. David Xogers, Materials Xxpeditor for %onterey Coal Company, testified as to the process used by said Coal Company in securing garbag service. Various haulers in the vicinity of East Lynn were contacted and asked to submit bids on the services that they could provide. Sanford Williamson, doing business as Sanford and Son, submitted the lowest bid. As a result!don-terey Coal Company drafted a blanket order describing the trash service desired and mailed it to %r. Williamson.
After the passing of some t ime without a reply from Mr. Williamson Monterey Coal Company personnel telephoned Mr e Williamson who replied that he could not provide the service requested by the blanket job order because he did not have a truck suitable for the containerized service requested. Mr. Williamson did, however, propose two (2) alternatives to the blanket order. One alternative was for Mr. Williamson to use a truck and an end-loader which would be used to emptj the containers into the truck. The other alternative was to use 55-gallon drums as containers which is the existing situation at the mine site and which has been found to be unacceptable by Monterey Coal Company. The truck and end-loader alternative was considered by the Coal Company and rejected because it involved an extra vehicle and was felt to be inefficient when compared to the service offered by the applicant. After rejecting Mr. Williamsons' alternatives, Monterey Coal. Company drafted a new blanket job order and made arrangements to receive service from the applicant. The applicant, SANITARY CONTAINEB SERVICE, INC., a corporation a wholly-owned subsidiary of Browning Ferris Industries of South Atlantic Inc.,possesses common carrier authority in the removal of trash, rubbisk and garbage within a fifteen (15) mile radius of the City of Huntington in Ca.bel1 and Wayne Counties in containerized service only, except for the Town of Barboursville. The service which the applicant has arranged to provide for blonterey Coal Company is a "roll-offl' service in which a 40-cubic yard container is rolled-off a hydraulicly equipped truck and placed at the job site to be rolled-on the truck when filled with refuse to be taken to the landfill. As a full container is removed, an empty one is left in its place. Such a service req.uires specialized equipment costing upwards of $50,000.00 and the applicant has five roll-off eqniped trucks. The applicant proposes to rent said 40-cubic yard containers for $50.00 per month and charge $195.00 per haul for once a month pickups. The length of the haul from the mine site -to the landfill is thirty two (32) mile:;. Sanford Williamson, doing business as Sanford and Son, holds P.S.C. M.C. Certificate No. F-5943 authorizing operation as a common carrier in the transportation of trash, rubbish and garbage in Wayne -2- PUBLIC SERVICE COMMISSION OF WEST VlRGlNlA
County, South of the Town of Wayne, with the exception of the Town OP Fort Gay, and along State Route 37 to U.S. Route 52. IXr. Williamson is authorized to provide residential, commercial, and industrial service and is operating two (2) trucks serving,700 residential and 30 to 40 commercial customers. Mr. Williamson testified that he was contacted by Ed Hanson of Monterey Coal Company about garbage service and that, after some discussion, Mr. Hanson indicated that a four-yard container service was desired and that a contract to that effect would be sent to Mr. Williamson Mr. Williamson received said contract but did not sign it because at that time the truck which he anticipated using for said container service was not ready for operation. When contacted by Monterey Coal Company, lllr. Williamson explained his situation and offered the alternatives previous ly mentioned. Mr. Williamson further testified that he does not have the equipment necessary to provide roll-off service and, although he has the financial ability to procure such equipment he would not be willing to make such an investment. Mr. Williamson further testified that granting the permit requested would have a detrimental effect on his business. COBMENTS A motion was made on behalf of the applicant that the protest and intervention of Sanford Williamson, doing business as Sanford and Son, be denied beaause of' alp amendment to P.S.C. M.C. Certificate No. F-5827 held by M i l l s Garbage Service, Inc., part of which was transferre to Mr. Williamson in M.C. Case No. 19899, containing a restriction con- cerning containerized service. By a subsequent motion, duly granted, the records in M.C. Case No. 19899, which is the case transferring a port,ion 01 P.S.C. M.C. Certificate No. F-5827 to Sanford Williamson, doing business as Sanford and Son, and M.C. Case No. 17881, which is the case amending said P.S.C. M.C. CertiEicate No. F-5827, were made a part of the record in this case by reference. The argument in support of the motion to deny intervention was that the restriction contained in the amended certificate wou1.d automatically carry over to any portion of the amended certificatelater transferred. While the argument may have merit as a general statement, the facts as disclosed by the records in M.C. Case No. 17881 and M.C.
I_ I---- ~. Case No. 19899 do not support the conclusion reached, i.e., that Sanford Williamson is precluded from offering containerized service. P.S.C. M.C. Certificate No. F-5827, as issued to Mills Garbage Service by order entered September 17, 1975, authorized operation as a common carrier by motor vehicle in the transportation of trash, rub'bish and garbage as follows: "...for commercial establishments located in Wayne County, with the exception of that portion of Wayne County which consists of Spring Valley Drive, and all side roads leading thereto, and further exception from said operation that territory generally along State Route 75, from the City of Kenova to the intersection of U.S. Route 52, and along U.S. Route 52 to Dickinson and all roads leading therefrom for a distance 01 two (2) miles, all of said territory being in Wayne Cou~ity, and to a point of disposal, and also providing for the transportation of trash, rubbish and garbage for residential and commercial service in the areas of Lynn Creek, Buffalo Creek ~ Whites Creek, Prichard and IIubbards Town, all in Wayne County and to a point of disposal 11 On July 5, 1977, Mills Garbage Service, Inc., filed an applica tion for approval of the transfer and assignment unto Sanford Will.iamson doing buisness as Sanford and Son, of that portion of P.S.C. M.C. Certi3 icate N-. F-5827, authorizing operation as a common carrier by motor vehicle in the transportation of trash, rubbish and garbage as follows: "...in commercial and residential service in that portion of Wayne County south of the City of Wayne, excepting the Town of Fort Gay and the territory along State Route 37 from the Town of Fort Gay to U.S. Route 52, all. of said territory being in Wayne County. 1' A hearing on the transfer application was held on August 11, 1977, and said,transfer was approved by order entered on October 20, 1977 On July 20, 1977, M i l l s Garbage Service, Inc., filed an appli- cation to amend P.S.C. M.C. Certificate No. F-5827. A hearing on the application for amendment was held on October 18, 1977. By order entere' November 10, 1977, amendment to P.S.C. Me@. Certificate No. F-5827 was approved as follows: ' I...to include that portion of Yayne County which consists of Spring Valley Drive and all side roads leading thereto, and further including that territory generally along State Route 75 from the City of Kenova to the intersection of U.S. Route 52 and along U.S. Route 52 to Dickinson, and all side roads leading therefrom for a distance of two (2) miles, and also to include operation in the Town of Fort Gag and along Route 37 therefrom to U.S. Boute 52, to a point of disposal. The _ applicant, ~ - - _ - Mills Garbage Service, Inc., is excluded from providing containerized service in the - areas ~ included - - in this I amendment. I ' From all of the above it can be seen that the motion rna,de on -.- _ - ~ ~ ~ r _ ^ - _ -4- PUBLIC SERVICE COMMISSION OF WEST VIRGINIA
I_. behalf of the applicant must fail for the following reasons: 1.) None,)of the areas included in the amendment to P.S.C. M.C. Certificate No. F-5827 approved by order entered November 10, 1977, have ever been transferred to Sanford Williamson, doing business as Sanford and Son. 2.) The above underlined portion of the amendment to P.S.C. M.C. Certificate No. F-5827 clearly indicates that the restriction on containerized service applies only to Mills Garbage Service, Inc. ; and no such restriction could apply to Sanford Williamson, doing business as Sanford and Son, consistent with due process provisions of the West Virginia and United States Constitutions because Mr. Williamson was not a party to the amendment proceedings. 3.) The transfer proceeding was filed prior to the amendment proceeding, heard prior to.bearing in the amendment proceeding, and authorized by order entered prior to the final order entered in the amendment proceeding. Section 3, Article 3, Chapter 24A of the Code of West Virginia provides, inter alia, that no contract carrier permit shall be granted unless the applicant has established to the satisfaction of the Commi.ssion that the privilege sought will not impair the efficient public service o any authorized common carrier or common carriers adequately serving the same territory. This burden of proof rests upon the applicant and not upon the protesting carrier. See, Xountain Trucking Company vs. Daniels. - - West Virginia, 197 S.E. 2d. 819 (1973) and I Mountain Trucking Company vs Public Service Commission -- 7 West Virginia, 216 S.E. 2d 566 (1975). The issue in this case is whether the issuance of a permit authorizing.the applicant to operate as a contract carrier will impair the efficient public service of Sanford Williamson, doing business as Sanford and Son. The Commission is of the opinion that the applicant ha: satisfactorily met the burden of proof required. Mr. Williamson has never served Monterey Coal Company; he testified that he was offered a contract to provide four (4) cubic yard container service but had to refuse said offer because he was at that time unable to provide said service; and he further testified that he di.d not have the equipment needed to provide roll-off service and that, although he was financially capa.ble of obtaining such equipment, he would not make such an investmen- Representatives of Monterey Coal Company have testified that -5- PUBLIC SERVICE: COMMISSION OF WEST VIRGINIA
~_. I_- I - c -~-~. I i I the alternatives suggested by Llr, Williamson were considered and rejected as inefficient and undesirable. The applicant has shown that it has the equipment needed to provide the roll-off service desired by Monterey Coal Company and is prepared.to provide said service immediately should this permit be granted, The need for service to be considered in an application for a contract carrier permit is that of the contracting shipper and not that of the general public. See, - Interstate 1 Commerce Cornmission vs. - J-D Transport ~ _ Company, _ ( ~ Inc., et. al., 368 US 81, 41 B.U.3. 3rd 417 (1961); Erskine & Sons, ---.---L_ Inc. vs. _.I_ United States A- et. al., 235 F. Supp. 907 (1964) State ex rel. Utilities ----- Commission vs. J.D. McCotter, Inc., N.C., 192 S.E. 2d 628 (1972). The applicant has shown to the satisfaction of the Commission that Monterey Coal Company needs the containerized service provided by the applicant. There was no evidence presented in this proceeding that would show that the issuance of the permit applied for would impair the efficient public service of the protesting carrier. The only evidence presented by Mr. Williamson was testimony concerning his desire, ability and willingness to render general garbage service to Monterey Coal Company and not the specific service desired by said coal company. FINDINGS -11 UPON CONSIDERATION WHEREOF the Commission is of opinion and finds that the issuance of a contract carrier permit unto Sanitary Container Service, Inc., will not impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory, and a proper permit should be issued to it. ORDER IT IS, THEREFORE, ORDERED that there be, and there hereby is, issued unto the appl-icant, SANITARY COUTAINER SERVICE, INC., a corpora- tion, a permit designated P.S.C. M.C. Permit No. H-10130, to operate six (6) motor vehicles as a contract carrier in the transportation of trash, rubbish and garbage from Monterey Coal Company, East Lynn, Wayne County, to the City of Huntington Landfill in Cabell County, under contract with Monterey Coal Company; provided that said permit shall be effective until but not after June 30, 1979, unless otherwise ordered by the Commissic,n. _. ~ ~ -~ ~ - PUBLIC SERVICE COMMISSION -6- OF WEST VIRGINIA SNC/mc