PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

CHARLESTON

PETITIONER APPENDIX 001

At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in the City of Charleston on the 5th day of April 2019.

CASE NO. 18-1130-MC-FC

ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, dba REPUBLIC SERVICES OF WEST VIRGINIA, a limited liability company, Complainant,

v.

TRULARGO, LLC, a limited liability company, Defendant.

COMMISSION ORDER

The Commission requires Trulargo, LLC, to cease and desist from operating as a common carrier providing solid waste service within West Virginia until it obtains proper authority from the Commission.

BACKGROUND

On August 3,2018, Allied Waste Services of North America, LLC, doing business as Republic Services of West Virginia (Republic) complained that Trulargo was collecting solid waste without having authority from the Commission to do so. Republic alleged that Trulargo picked up construction and demolition waste, deposited it in a Monongalia County transfer station and advertised this service to the public. Republic Formal Complaint at 1-2 & attachments (Aug. 3, 2018).

On August 16, 2018, Trulargo filed its Answer, generally denying Republic's assertions. Trulargo Answer at 1-3 (Aug. 16, 2018).

On September 9, 2018, the Commission referred this case to the Division of Administrative Law Judges (ALJ) for further processing. Comm'n Referral Order at 1 (Sept. 9, 2018).

On November 1,2018, Commission Staff filed its Final Joint Staff Memorandum, recommending that Trulargo be ordered to cease and desist operating as a common carrier in the transportation of solid waste in West Virginia until Trulargo obtains

PETITIONER APPENDIX 002

authority' from the Commission to do so. Final Joint Staff Memorandum at 1-2 (Nov. 1, 2018).

On December 7, 20 I 8, the ALJ conducted the evidentiary hearing. Staff, Trulargo and Republic filed Initial and Reply Briefs after the hearing. Trulargo argued that its business was renting roll-off containers, not hauling solid waste. Republic and Staff continued to assert that Trulargo was collecting and disposing of solid waste in West Virginia without a certificate.

On February 4, 2019, the ALJ issued a Recommended Decision and ordered Trulargo to cease and desist transporting solid waste in West Virginia until Trulargo obtains proper certification to do so from the Commission. Rec. Dec. at 6 (Feb. 4, 2019) (1 st Ordering Paragraph). The ALJ cited testimony by Larry Goff, Trulargo's owner, that Trulargo leased containers to customers in West Virginia, picked up the containers and disposed of the waste in the containers at a transfer station in Morgantown and concluded that Mr. Goff s testimony established that Trulargo was operating as a common carrier by motor vehicle. The ALJ also rejected Trulargo's arguments that it was (i) only renting Dumpsters, not hauling waste, and (ii) a private carrier, not a common carrier. Id. at 4.

On February 19, 2019, Trulargo filed Exceptions to the Recommended Decision.

On March 1, 2019, Republic filed a Response to the Trulargo Exceptions.

DISCUSSION

In the Exceptions, Trulargo asserted there was no evidence to show that Trulargo's customers want solid waste transported away. Trulargo Exceptions at 3. This position is without merit. Mr. Goff testified multiple times that customers pay money to Trulargo in exchange for Trulargo (i) delivering a container that will be used to store solid waste and (ii) then removing the container and taking any trash in the container to a solid waste facility for disposal. E.g., Tr. at 32-33, 34. The description of "Weekly Dumpster Rentals" on Trulargo's website reads, in pertinent part, "Weekly dumpster rentals for residential and commercial customers. Our dumpsters are delivered to your location when you need it and promptly picked up when you're finished. Fast, simple, easy." Tr. Republic Ex. 1 (Ex. 1 to Formal Complaint).

At the hearing, Mr. Goff testified that the cost to dispose of any trash in the container was embedded in, or part of, the rental price. Tr. at 34. Trulargo argued in the Exceptions that term "embedded" is ambiguous. Trulargo Exceptions at 3-5. This position also is without merit. Mr. Goff did not ask for clarification when he testified:

Trulargo applied on September 10, 2018, for a motor carrier certificate to provide container services in West Virginia. Trulargo's certificate application is being processed under Case Number 18-1257-MC-C. Final Joint Staff Memorandum at 1-2 (Nov. 1,2018).

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PETITIONER APPENDIX 003

Q. (Mr. Hanna) Do you tell a customer who leases a container, do you tell them, look, at the end of the lease term when we come to pick up the container, we will take that trash and dispose of it for you?

A. (Mr. Goff) Yes.

Q. You tell them that? And is the cost of doing that embedded in the rates you charge the customer?

A. Yes.

Tr. at 34.

Trulargo acknowledged that embedded generally means "within" or "set finn into," but argued there are countless costs embedded in a price in a market economy and a judicial decision should not be based on an ambiguous word. Trulargo Exceptions at 5. There is no ambiguity here. Mr. Goff testified repeatedly and without qualification that when a customer rents a container, Trulargo disposes of any trash that is inside the container. Tr. at 32-33, 34.

Trulargo also argued that the Commission did not have jurisdiction over this matter because Trulargo leases containers independent of any waste hauling or disposal services and the Commission regulates the transportation of property for hire by motor vehicles upon public highways. Trulargo Exceptions at 5-10. The Exceptions mischaracterize the services that Trulargo provides. The testimony of Mr. Goff and advertising of Trulargo are clear. Customers pay money for Trulargo to deliver a container for solid waste and then remove the container and dispose of any trash that is in it.

FINDING OF FACT

Customers pay money for Trulargo to deliver a container that is used to store solid waste and then remove the container and dispose of any trash that is in it. Tr. at 32-33, 34 (Mr. Goff) and Republic Ex. 1 (Ex. 1 to Fonnal Complaint) (Dec. 7, 2018).

CONCLUSIONS OF LAW

1. The testimony of Mr. Goff and the advertising of Trulargo are clear and unambiguous.

2. The Exceptions mischaracterize the services that Trulargo provides.

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PETITIONER APPENDIX 004

ORDER

IT IS THEREFORE ORDERED that the Exceptions filed on February 19, 2019, by Trulargo, LLC are denied. The Recommended Decision issued on February 4, 2019, is adopted by the Commission.

IT IS FURTHER ORDERED that Trulargo, LLC cease and desist from operating as a common carrier providing solid waste service by motor vehicle in West Virginia until it obtains proper authority from the Commission.

IT IS FURTHER ORDERED that upon entry of this Order this case shall be removed from the Commission's docket of open cases.

IT IS FURTHER ORDERED that the Executive Secretary of the Commission serve a copy of this Order by electronic service on all parties of record who have filed an e-service agreement, and by United States First Class Mail on all parties of record who have not filed an e-service agreement, and on Commission Staff by hand delivery.

A True Copy, Teste,

CLW/sm 181130ca

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Ingrid Ferrell Executive Secretary