PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

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1 EN-T EL' - ' O.B. $&- Page Entered: VICE C OF WEST VIRGINIA povember alj112403,wpd - - CASE NO MC-C SOLID WASTE SERVICES OF WEST VIRGINIA, IMC., a corporation, Colliers, Brooke County. Application for a certificate to operate as a common carrier transporting garbage in Hancock County. RECOMMENDED DECISION On March 13, 2003, Solid Waste Services of West Virginia, Inc. (Solid Waste Services or Applicant), Colliers, Brooke County, filed an application for a certificate - to operate as a common carrier by motor vehicle in the transportation of solid waste from points and places in Hancock County to places of disposal. Rates : Residential: $13.05 per month (including bulky goods service to subscribing customers) Bulky goods service to nonsubscribing households: $15.00 per pickup, with a limit of two (2) items per pickup Commercial: Negotiable By Order dated March 25, 2003, the Commission directed the Applicant to give notice of the filing of the application by publishing a copy of the Order, once, in a newgpaper duly qualified by the Secretary of State, published and of general circulation in Hancock County. On March 26, 2003, a protest was filed by American Disposal Services of West Virginia, Inc. (American Disposal). On April 4, 2003, Waste Management of West Virginia, Inc. (Waste Management), filed a Motion to Protest and Intervene. By Order dated April 7, 2003, the Commission referred this matter to the Division of Administrative Law Judges for a decision to be rendered on or before October 9, 2003.

2 On April 9, 2003, the Applicant submitted a proper affidavit reflecting that publication was made in accordance with the Commission's requirements in The Daily Times, on April 3, By Order dated June 11, 2003, this matter was set for a hearing to be held in Weirton, West Virginia, on June 27, On June 12, 2003, Waste Management and American Disposal filed a joint motion for a continuance of the hearing and for an extension of the Administrative Law Judge's decision due date, citing that, under the current scheduled hearing date, Waste Management and American Disposal would have inadequate time to conduct discovery for this case. On June 13, 2003, American Disposal filed its First Set of Interrogatories and Request for Production of Documents upon Solid Waste Services. On June 16, 2003, Waste Management filed its First Set of Interrogatories upon Solid Waste Services of West Virginia, Inc. By Commission Order dated June 19, 2003, the Administrative Law Judge's decision due date of October 9, 2003, was extended until November 24, By Order dated June 23, 2003, this matter was set for a hearing to be held in the City Building, Council Chambers, Weirton, West Virginia, on August 4, The hearing was held as scheduled. The Applicant appeared by its Counsel, Logan Hassig, Esq. Intervenor, Waste Management of West Virginia, was represented by its Counsel, Edward J. George, Esq., and Intervenor, American Disposal Services (American Disposal), was represented by its Counsel, Samuel F. Hanna, Esq. A brief was filed by the Protestant, Waste Management of West Virginia, as well as a reply brief. American Disposal Services provided Post Hearing Exhibit No. 1, a copy of a Recommended Decision dated August 10, 1998, containing the authority held by American Disposal, as requested at the hearing. EVIDENCE PRESENTED Mr. William F. Fox, Jr., is General Counsel and Director of Governmental Affairs for Solid Waste Services, a West Virginia corporation, founded in the late 1980s or early 1990s. The sole stockholder and president is Mr. Pat Mascaro. Solid Waste Services engages in residential, commercial and industrial waste collection under Public Service Commission authority for Wetzel, Tyler, Pleasants, Marshall and Brooke Counties providing residential curbside service five days a week. Commercial and industrial collection is by front-end loading vehicles, rear-end collections and roll-off vehicles. Residential customers have bulky goods service available. (See, Tr., p. 10). PUBLIC SE 2

3 Solid Waste Services has two operating Divisions, Wetzel County, located in Proctor, West Virginia, and Brooke County, located in Colliers, West Virginia. The Wetzel County Division disposes of its trash at the Wetzel County Landfill, in New Martinsville. The Brooke County Division disposes of its trash in the Brooke County Landfill, in Colliers, West Virginia. Both Divisions are managed by Mr. Jerry Amos. Most of his time is spent in Wetzel County. Mr. Judd Recht oversees the operations in Brooke County. (See, Tr., pp ). Solid Waste Services owns a number of vehicles, including rear-end packer collection vehicles and roll-off collection containers and vehicles. The Wetzel Division has in excess of 300 containers consisting of two, four and six yard sizes, and roll-off containers of 10, 20 and 30 cubic yard capacities. The Brooke County Division has 150 containers of similar size. (See, Tr., p. 15). The Applicant has an inventory of 8 to 10 containers of both frontend loading and roll-off containers that it can use in Hancock County. These are the popular types of containers and it has the required insurance. (See, Tr., p. 16). The Applicant is seeking this authority for Hancock County because it believes there is a need for its services and Hancock County is immediately adjacent to the Brooke County Division. Solid Waste Services would provide Hancock County residents with residential pick up five days a week, Monday through Friday, and bulky goods service. In addition, it would provide commercial service in Hancock County. (See, Tr., p. 17). The residential rates would be $13.05 per household, per month. A list of active employees was marked as Applicant's Exhibit No. 1. (See, Tr., p. 19; Applicant's Exhibit No. 1; and Applicant's Exhibit No. 2). The bulky goods charge is a part of the $13.05 per month residential rate. The nonsubscribing household charge for bulky goods is $15.00 with a limit of two (2) items to be collected. Residential rates are billed quarterly in arrears. Commercial rates are negotiable and billed monthly. There are currently several trash haulers in Hancock County: Waste Management of West Virginia, Inc., provides commercial services; N.C. Sanitation, Inc., provides both residential and commercial services; the City of Weirton provides residential trash collection within the municipal limits; and American Disposal Service provides commercial and residential service. The City of Weirton no longer provides any commercial service. American Waste Disposal has its own landfill in Ohio County, West Virginia, which is approximately 20 to 23 miles from the southern border of Hancock County. (See, Tr., p. 22). Waste Management uses the Brooke County Landfill, about 30 to 40 miles distant, and also has a landfill at Imperial, Pennsylvania, which is approximately 20 to 22 miles from Hancock County. (See, Tr., p. 23). Solid Waste Services will use the Brooke County Landfill approximately two miles from the Hancock County line. The West Virginia Solid Waste Management Plan of 2003 provides that, for all waste deposited in a West Virginia Landfill, the hauler pays a solid waste tipping assessment fee. This money is used to fund West Virginia's environmental programs. (See, Tr., p. 24 and Applicant's Exhibit No. 3). If the State did not have these fees, there would not be adequate funding. These fees are generated by the trash being deposited in the landfills in West Virginia and not by its collection. (See, Tr., p. 28). The Hancock County Litter Control and Solid Waste Management Plan was created in 1991 by the Hancock County Solid Waste Authority. This 3

4 plan concluded that 20% of all Hancock County residents and 40% of all rural Hancock County residents do not currently subscribe to a licensed solid waste collection service. (See, Tr., p. 28 and Applicant's Exhibit Nos. 4, p. 2). Approximately 100 tons of solid waste generated in Hancock County is being illegally disposed of each week. The percentages are the same today as they were in The 1991 plan used the 1980 population figure of 40,000. Today, the population is approximately 35,000. There are approximately 14,200 households in Hancock County. When the plan was formulated, the waste generated in Hancock County was 566 tons per week. The plan designated the Valero Terrestrial Landfill, which is the Brooke County Landfill, as the County's primary landfill. The Brooke County Landfill was chosen because of its proximity to Hancock County and it has a useful minimum life of 30 years and exceeded West Virginia's environmental standards. (See, Tr., p. 33). The 1991 State law required mandatory disposal of residential trash, either by a residential waste trash provider or furnishing proof that the resident is otherwise lawfully disposing of the residential waste. (See, Tr., pp. 34; Applicant's Exhibit No. 4). If authority were granted to Solid Waste Services, it would initially make an attempt to target those residents that do not have residential service. (See, Tr., p. 34). There is a need for a certificated hauler to provide residential trash hauling because the residents for some reason are not using the presently available haulers. (See, Tr., p. 36). When solid waste is being taken out of the State for disposal, it undermines the funding of the statewide trash program. Mr. Fox opined that the most efficient and adequate way to dispose of trash is in West Virginia where the $8.25 per ton tipping fee can be collected for West Virginia trash programs. (See, Tr., p. 38). If granted this authority, Solid Waste Services would not have to take its trash to the Brooke County Landfill. However, since the Brooke County Landfill is owned by Valero Terrestrial, a related company to the Applicant, it will dispose of its trash there. (See, Tr., p. 41). Besides a need for residential service, there is also a need for commercial services. (See, Tr., p. 44). Mr. Fox explained that the Applicant will not be presenting evidence that the service provided by the Intervenors, American Disposal or Waste Management of West Virginia Service, to their existing customers, is either inefficient or inadequate. (See, Tr., p. 45). However since American Disposal does not provide residential service in Hancock County, its service would be inadequate from that regard. (See, Tr., p. 46). Any resident in Hancock County can find American Disposal in the phone book's yellow pages under "disposal services'' and call for service. (See, Tr., p. 47). If granted this authority, Solid Waste Services would work with the Solid Waste Authority to find out who isn't receiving trash service. Currently, Solid Waste Services does trash hauling in Hancock County in that part of the Weirton Steel facility located in Hancock County under a 1998 contract. No other services were being provided in Hancock County. (See, Tr., p. 53). Mr. Fox has not talked to any of the residential customers in Hancock County that might not be properly disposing of their trash and has not found any who have tried to obtain trash service and not been able to do so. (See, Tr., p. 54). The authorized trade name for Solid Waste Services is J. P. Mascaro and Sons. (See, Tr., p. 54). Waste Management of West Virginia is providing adequate service to the customers that it serves. (See, Tr., p. 60). 4

5 The landfill disposal fees in Ohio and Pennsylvania may be lower than those fees in West Virginia. Presently, Solid Waste Services of Pennsylvania, Incorporated, has a contract to provide solid waste transportation and collection to Weirton Steel at its plant in West Virginia. It is a comprehensive environmental management contract for transportation, on-site services and landfilling. Disposal of the trash is provided at the Brooke County Landfill by Solid Waste Services of West Virginia, Inc. The contract was signed by Solid Waste Services of West Virginia, Inc., and Valero Terrestrial Corporation, which owns the landfill, in Brooke County. This was all sent to the Public Service Commission in (See, Tr., p. 70). Solid Waste Services did not get permit authority and has not obtained Public Service Commission approval for hauling under its contract with Weirton Steel nor has it filed the contracts between Solid Waste Services of West Virginia and Solid Waste Services of Pennsylvania with the Public Service Commission for approval, but it took the action believed to be appropriate. If further action needs to be taken, it will be taken. (See, Tr., p. 73). If granted this authority, Solid Waste Services anticipates its business would be largely commercial, as well as residential. (See, Tr., pp. 74, 75). Solid Waste Services does have authority for that part of Weirton Steel that is in Brooke County. It also has a written contract with Weirton Steel to provide trash service. The granting of this authority would legitimize the Weirton Steel Hancock County operations. (See, Tr., pp ). Mr. Mark Vignovic has been the Chairman of the Hancock County Solid Waste Authority since its formation in 1989 and Hancock County developed a Litter Control and Solid Waste Management Plan. The present plan of 1991 is being revised. From the period 1980 to 1990, there was a decrease in population of approximately 5,000 residences. (See, Tr., p. 80). He explained that the conclusion that 20% of all households and 40% of the rural households had not subscribed to a solid waste service used 1980 data. The Authority compared the total number of households, approximately 14,000, to the subscription lists for NC Sanitation and the City of Weirton, which contained about 1,000 households. (See, Tr., pp ). There is still a significant number of residents in Hancock County that have not subscribed to a registered trash service. The Solid Waste Authority has not been collecting any proof of alternative disposal from the residents of Hancock County. The Brooke County Landfill was designated as the primary disposal site for Hancock County to address the siting of new landfills in Hancock County, which is geographically the smallest county in West Virginia. (See, Tr., p. 82). Mr. Vignovic was not testifying that American Disposal was providing inadequate or insufficient service. (See, Tr., p. 85). Mr. Vignovic lives in Weirton where the City picks up his trash. The number of employees at Weirton Steel has decreased from 6,700 employees in 1985 to approximately 3,600 employees today. Of Hancock County's population of approximately 35,000, about one-half live within the City of Weirton which provides its own residential trash service. (See, Tr., p. 91). The Hancock County Solid Waste Authority does not have a list of those persons who do not subscribe to a trash service. (See, Tr., p. 92). Non-users of trash service can continue not to use anyone and take the trash themselves to the landfill. American Disposal 5

6 Service has a landfill in Ohio County, West Virginia, and for any trash that it takes there, it would have to pay the tipping fees. (See, Tr., p. 94). Mr. Vignovic was not aware of any law that would require a trash hauler to dispose of its waste in a West Virginia landfill. (See, p. 95). The Solid Waste Authority has considered trying to determine who the nonsubscribers are and advise them of their obligation, but this was never implemented due to cost. (See, Tr., p. 96). Although the Hancock County Litter Control Plan designates the Brooke County Landfill as the primary landfill for the county, this is not to the exclusion of any other landfills in the area. (See, Tr., p. 99). Because this landfill is so close, there is no need for a Class A landfill to be cited in Hancock County. (See, Tr.,, p. 99). A majority of the Hancock County Solid Waste Authority funding comes from the Hancock County Commission. The main concern of the Hancock County Solid Waste Authority is to see that the solid waste generated in the County is properly collected and disposed of. (See, Tr., p. 102). The trash services presently operating in Hancock County are providing safe, effective and healthy collection and disposal of the solid waste generated in Hancock County. (See, Tr., p. 104). If people are not receiving good service, they will file a complaint and he has only had two such complaints in the past year. The Solid Waste Authority has a draft of its revised Litter Control Plan, which will update the figures, but this has not been finally approved. The Solid Waste Authority has not had any complaints against American Disposal for not picking up trash. (See, p. 107). With the testimony of Mr. Vignovic, the Applicant rested its case. (See, Tr., p. 111). Mr. Jeff Brown, General Manager of American Disposal since January of 2003, had previously worked for BFI Waste Systems. BFI Waste Systems and American Disposal are owned by Allied Waste. (See, Tr., p. 112). Currently, American Disposal has Public Service Commission authority under P.S.C. M.C. Certificate No. F-7356, which authorizes operations as a common carrier of solid waste and infectious waste from points and places in Brooke, Hancock, Marshall and Ohio Counties, to places of disposal. American Disposal's base of operation is in Wheeling, where it has an office building, 30 commercial and residential trash trucks and 55 employees. (See, Tr., p. 113). American Disposal provides commercial and residential service, rolloff service and dumpster service. If needed, it could purchase additional equipment. Presently, American Disposal advertises its residential and commercial trash pick up services in the Hancock County phone book's yellow pages. (See, Tr., p. 114, American Disposal Exhibit No. 1). Under its authority, American Disposal provides commercial service and has never turned down any requests for service. (See, Tr., pp ). If a customer requests service, the customer is given a description of the types of service American Disposal provides in its certificated areas. American Disposal protested this application to protect its business in its certificated area as it believes that it has adequate equipment and manpower to cover the needs of its certificated area, particularly Hancock County, and is interested in increasing its business. The trash collected in Hancock County is taken to the Short 6

7 Creek Landfill, located just outside of Wheeling, in Ohio County. (See, Tr., p. 120). Mr. Brown opined that there is not a need for this additional service in Hancock County and, if the authority were granted, American Disposal could possibly lose customers, which would have an adverse economic impact upon it. (See, Tr., p. 122). American Disposal also competes with NC Sanitation and Waste Management of West Virginia. Because the Company figures concerning customers are bulked together and not singled out by county, he could not say if American Disposal actually provides any service to residential customers in Hancock County but it does advertise in the phone books and if someone requests service, the customer is served. (See, Tr., p. 135) The trucks to service Hancock come from Wheeling. (See, Tr., p. 131). American Disposal is protesting this residential authority application because it has authority and will provide it if someone requests that service. Mr. Brown did not know if there had been any requests from Hancock County but, if there were, American Disposal would provide that service. (See, Tr., p. 135). Mr. Jerry Amos, General Manager of Solid Waste Services of West Virginia, oversees the operations of the Wetzel and Brooke Divisions, which are the only hauling Divisions for Solid Waste Services. He only oversees its motor carrier operations. Currently, Solid Waste Services has authority in Wetzel, Taylor, Pleasants, Marshall and Brooke Counties. (See, Tr., p. 139). It has no authority in Hancock County and its only present activity in Hancock County is its trash hauling operations at Weirton Steel Plant. (See, Tr., p. 139). Mr. William Fox was recalled to explain that there is a public need for granting the authority to Solid Waste Services, Inc., in Hancock County, in order for it to generate fees for the Solid Waste Authority. Solid Waste Services will do everything in its power to see that the taxes and disposal fees are collected and remitted to the State since the fees are collected by the landfill. (See, Tr., p. 142). Weirton Steel has a Class F dedicated disposal cell in the Brooke County Landfill, owned by Valero Terrestrial, an affiliated company of Solid Waste Services. Solid Waste Services transports some of Weirton Steel's waste and Weirton Steel transports some of its own waste. (See, Tr., p. 144). Trash haulers depositing trash at a Class F industrial facility, particularly ones that are leased and dedicated, don't have to pay the $8.25 per ton tipping fee. Weirton Steel, however, does pay a voluntary fee of $1.50 per ton. (See, Tr., p. 146). Mr. David Dille is Site Manager for Waste Management of West Virginia. Waste Management has Public Service Commission authority to collect residential, commercial and industrial waste. (See, Tr., p. 148). At its Chester, West Virginia, location, it has approximately 48 employees and 39 vehicles, including support vehicles. Waste Management has numerous roll-off, rear end loading and front loading containers, plus residential curb carts. (See, Tr., p. 149). In Hancock County, a significant part of Waste Management's operations is providing residential and commercial customer pick up. (See, Tr., p. 150). Mr. Dille had heard that Solid Waste Services was serving Weirton Steel. On PUBLIC SE 7

8 July 10, 2003, Mr. Dille observed, next to his shop, at 236 Johnsonville Road, a J. P. Mascaro container. A picture of this container was marked and presented as Waste Management Exhibit No. 1. He took this picture. (See, Tr., p. 152 and Waste Management Exhibit No. 1). Waste Management takes some trash collected in Hancock County to the Brooke County Landfill, but most goes to the Mahoning Landfill, in Ohio, or to Waste Management's Landfill in Washington, Pennsylvania. In a month's time, Waste Management will take approximately 300 tons of trash to the Brooke County Landfill. It collects residential trash from a substantial number of households and provides services in the Towns of Newell and Chester and all of Hancock County. (See, Tr., p. 155; Waste Management Exhibit No. 1). Mr. Dille was not aware of the exact number of residential or commercial accounts that Waste Management has in Hancock County. The waste that it disposes of in the Brooke County Landfill is generated in West Virginia, Ohio and Pennsylvania. Waste Management currently picks up a majority of the residential trash in Hancock County, minus the City of Weirton. NC Sanitation is probably the second largest residential hauler of trash, with Waste Management being the first. To his knowledge, NC Sanitation is not permitted to pick up in all of Hancock County but only in the Clay Magisterial District. American Disposal would be the third largest hauler. At the present time, American Disposal doesn't have a great presence in Hancock County, although he has seen its trucks there. It is not a competitor of Waste Management. (See, Tr., p. 164). From its Chester office, Waste Management operates in Pennsylvania and Ohio. (See, Tr., p. 164). The J. P. Mascaro container pictured in Waste Management Exhibit No. 1 would weigh approximately 575 pounds empty and would not be easily moved. It was at the Johnsville Road location about two weeks. (See, Tr., p. 171). Waste Management advertises its commercial, industrial and residential services in the yellow pages. (See, Tr., p. 172; American Disposal Exhibit No. 1). According to Mr. Amos, Solid Waste Services does not service any accounts on Johnsville Road, in Hancock County. The sticker on the dumpster pictured in Waste Management No. 1 has the wrong phone number listed. This was one of their old boxes that was scrapped in Weirton. The present stickers bear the name "Solid Waste Services.'' Solid Waste Services and J. P. Mascaro and Sons are one and the same company. Solid Waste Services still uses the elephant as an emblem for its business. (See, Tr., p. 175; Waste Management No. 1). With the rebuttal testimony of Mr. Amos, no further evidence was presented in this matter and it was submitted for a decision. BURDEN OF PROOF DISCUSSION OF APPLICABLE LAW It is well-established in this State that one applying for a common carrier certificate over a defined territory must establish, to the satisfaction of the Commission, that public convenience and necessity require the proposed service. Weirton Ice and Coal Supply Companv v. 8

9 Public Service Commission, 161 W.Va., 240 S.E.2d 686 (1977), and West Virsinia Code S24A-2-5. The Commission has interpreted this requirement to mean that the applicant must demonstrate that he or she has the financial ability, experience and fitness to provide a needed, useful, and responsive public service, as well as that the public convenience and necessity require the proposed service. Ford Brothers, Inc., M.C. Case No , April 9, The applicant must produce public witnesses who are able to testify that the proposed service is needed in the area of application. Harless Excavatinq Company, Inc., M.C. Case No , April 23, The pertinent statutory language regarding the granting of applications for certificates of convenience and necessity is set forth in West Virqinia Code 824A-2-5(a), which provides, in part, as follows: [I]f the Commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment, the public convenience and necessity may require.... Before granting a certificate to a common carrier by motor vehicle, the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought and, in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate. On December 20, 1989, the Supreme Court of Appeals of West Virginia issued a decision in which the Court stated that the quality of existing services was a controlling factor in reaching a decision on whether or not a competing certificate of convenience and necessity should be granted under West Virqinia Code S24A-2-5(a). Stowers and Sons Truckins Company, Inc. v. Public Service Commission of West Virqinia, 387 S.E.2d 841 (1989). If those services are adequate, the certificate shall not be granted. The Court determined that the Public Service Commission has a mandatory duty, established by West Virqinia Code S24A-2-5, to consider evidence as to the sufficiency of existing service and, if the services are adequate, the certificate shall not be granted. DISCUSSION The Applicant, Solid Waste Services, currently has Public Service Commission authority to provide residential, commercial and industrial waste collection in several counties of West Virginia. Solid Waste Service seeks to add Hancock County to that area of authority. In support of its case, the Applicant presented the testimony of its General Counsel and Director of Governmental Affairs, Mr. William F. Fox, Jr. Mr. Fox, due to his direct employment by the Applicant, cannot be considered as a public witness in this case for the purposes of meeting the Applicant's burden of proof. The 9

10 Applicant did not present the testimony of any resident in the area of application that had sought to obtain service and was unable to get service from any of the certificated trash haulers in Hancock County. Mr. Mark Vignovic, Chairman of the Hancock County Solid Waste Authority, testified that the present certificated trash carriers providing service in Hancock County are providing adequate and efficient service. He based this opinion upon the fact that he has not been receiving any complaints about the trash service in Hancock County. The population of Hancock County decreased between 1980 and 1990 by 5,000 residents. Currently, trash hauling in the County is being provided by American Disposal; NC Sanitation, Inc.; the City of Weirton, within its municipal boundaries; and Waste Management of West Virginia. The Applicant, in the presentation of its case, presented no public witnesses to prove that there currently exists in Hancock a need for additional trash service. Instead, it argued that, because one of the current haulers disposes of its collected trash at an out of state landfill, this is depriving West Virginia of the $8.25 per ton tipping fee. However, it was pointed out and admitted that the current haulers could not be forced to use West Virginia landfills. Further, apparently the Applicant is doing some hauling for Weirton Steel under its Brooke County authority. Since a portion of the Weirton Steel plant is also located in Hancock County, the seeking of this authority is to legitimize the Applicant's trash hauling for Weirton Steel that has not been certificated. Each of the Intervenors, American Disposal and Waste Management of West Virginia, presented evidence of having authority for residential and commercial trash hauling in Hancock County, and advertising their authority in the phone book's Yellow Pages. The evidence presented by the Applicant is deficient in that, in accordance with the burden of proof requirements for a certificate case, it did not present the testimony of public witnesses to show that there currently exists a need in Hancock County for an additional trash service that was not being provided by the present certificated haulers and there was no evidence presented to show that the existing certificated trash haulers are not providing adequate and efficient service. The issue raised by the Applicant in its briefs that the use of out-of-state landfills by some of the certificated haulers created inefficient and inadequate service by depriving the State of the tipping fee is novel, but does not meet the specific statutory requirements of the burden of proof in West Virginia. Since the one public witness, Mr. Vignovic, indicated that the presently certificated trash haulers in Hancock County are providing an adequate and efficient service, the undersigned Administrative Law Judge is of the opinion and finds that the Applicant has failed to meet its burden of proof; therefore, the application must be denied. 10

11 FINDINGS OF FACT 1. Solid Waste Services of West Virginia, Inc., filed an application for a certificate of convenience and necessity to transport trash from points and places in Hancock County to places of disposal. ( See, Application filed March 13, 2003). 2. A hearing was held on this case on August 4, (See, Transcript). 3. Waste Management of West Virginia; American Disposal; and NC Sanitation also provide trash service in Hancock County. (See, Tr., pp ). 4. The City of Weirton provides residential trash service for those living within its municipal limits. (See, Tr., p. 22). 5. The Chairman of the County Solid waste Authority testified that the present trash hauling services operating in Hancock County are providing safe, effective and healthy collection and disposal of trash in Hancock County. (See, Tr., p. 104). 6. American Disposal has adequate equipment to cover any needs arising in Hancock County if requested to provide service. (See, Tr., p. 118, 119). 7. A significant part of the business of Waste Management of West Virginia is its Hancock County operations as a residential and commercial trash hauler. (See, Tr., p. 150). 8. Solid Waste Services presented no public witnesses to testify that the area had inadequate garbage collection services or that any of the currently certificated haulers in Hancock County were not providing a reasonably adequate and efficient service. (Tr. generally). CONCLUSIONS OF LAW 1. Mr. William F. Fox, Jr., is an employee of the Applicant and does not qualify as a public witness needed to satisfy the Applicant's burden of proof. 2. Since the Applicant did not meet its burden of proof, by showing, through the testimony of public witnesses, that there currently exists in Hancock County a need for additional trash service that is not being adequately and efficiently provided by the present trash haulers having authority in Hancock County, the application must be denied. ORDER IT IS, THEREFORE, ORDERED that the application of Solid Waste Services of West Virginia, Inc., filed on March 13, 2003, be, and the same hereby is, denied and this case be, and hereby is, removed from the Commission's docket of open cases. PUBLIC SE C 11

12 -- * The Executive Secretary is hereby ordered to serve a copy of this order upon the Coinmission 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 of the date this order is mailed. If exceptions are filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order 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 it is ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to an Administrative Law Judge's Order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate to make any Administrative Law Judge's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. RWG: jas ad.wpd Administrative Law Judge 12