Counsel for Waste Management of West Virginia, Inc.

Transcription

1 r ROBINSON &McELWEE EDWARD J. GEORGE ATTORNEY AT LAW P.O. BOX 1791 CHARLESTON, WV DIRECT DIAL: (304) corn attorneys at law BY HAND DELIVERY Mrs. Sandra Squire Executive Secretary West Virginia Public Service Commission 201 Brooks Street Charleston, WV Re: Dear Mrs. Squire: E & L, Inc. v. Waste Management of West Virginia, Inc. Case No MC-FC Enclosed herewith for filing are the original and twelve (12) copies of WASTE MANAGEMENT OF WEST VIRGINIA, INC. S RESPONSE TO EXCEPTIONS OF E&L, INC. in the above-referenced proceeding. Very truly yours, Counsel for Waste Management of West Virginia, Inc. EJG:dlm Enclosures cc: Mark E. Kauffelt, Esquire (w/enc.) John D. Little, Esquire (w/enc.) (R ) 400 FIFTH THIRD CENTER 700 VIRGINIA STREET, EAST CHARLESTON, WV WEST MAIN STREET SUITE 300 CLARKSBURG, WV LUMBER AVENUE SUITE 4 WHEELING, WV

2 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, CHARLESTON CASE NO MC-FC E&L, INC., V. WASTE MANAGEMENT OF WEST VIRGINIA, INC., Complainant, Defendant. WASTE MANAGEMENT OF WEST VIRGINIA, INC S RESPONSE TO EXCEPTIONS OF E&L, INC. COMES NOW Waste Management of West Virginia, Inc. ( Waste Management ), by and through counsel, and does hereby file its Response to Exceptions filed by E&L, Inc. ( E&L ), In addition to the arguments below, Waste Management incorporates by reference all of the arguments contained in its Initial Brief and Reply Brief. I. ARGUMENT A. The Administrative Law Judge correctly concluded that E&L failed to meet its burden with respect to its claims of illegal operations and/or dormancy. The Administrative Law Judge correctly limited testimony and evidence to on or after the date of the transfer of authority fkom Cummings Collection Service, Inc., to Waste Management. The transfer in that proceeding occurred in late October 2008 and was not objected to by E&L. The Administrative Law Judge also correctly concluded that E&L failed to meet its burden with respect to its claims of illegal operations andor dormancy. The Complainant provided no {R }

3 evidence in support of these claims. The Complainant did not provide any evidence that Waste Management is operationally dormant as the Complainant admitted that Waste Management has been providing both residential and commercial service in the disputed areas. Further, E&L did not produce any evidence of geographical dormancy. The Administrative Law Judge correctly found that Waste Management has actively sought and acquired commercial and residential customers since acquiring the authority held by Cummings Collection. Waste Management has advertised in phone books, maintained a website and solicited business in the disputed territory. Although E&L continues to argue that an alleged gentleman s agreement existed with respect to the disputed territory, the alleged agreement was reduced to writing and filed for and/or approved by the Commission. Therefore, this alleged agreement cannot be considered as limiting the authority of Waste Management. Further, the doctrine of unclean hands prohibits E&L from benefitting from an illegal contract that it knew had no force as it had not been approved by the Commission. Waste Management has not cherry picked customers in Putnam County, West Virginia. Waste Management Senior District Manager, Timothy W. Andorn, testified that Waste Management does not service only those customers that are easily accessible. See Transcript (December 11, 2012) at p Further, there is absolutely no support for E&L s claim that customers up the one lane roads will be without garbage service. (Initial Brief on Behalf of E&L, Inc. at p.6). Mr. Andorn testified that Waste Management s fleet of vehicles that supports its waste hauling, collection and transportation operations includes very large vehicles - i.e., commercial frontload and rollup trucks - and very small vehicles - Le., residential pick up trucks. {R I} 2

4 See Transcript (December 11, 2012) at p. 101, Waste Management's fleet allows it to service customers on or near open roads, on or off of smaller and narrow roads, and virtually all areas in between. Id. In addition, Waste Management provided evidence in the form of testimony from its Senior District Manager that Waste Management services over one hundred (100) customers in the overlapping territory. See Transcript (December 1 1, 2012) at p The only entity that has shown contempt for Commission rules and regulations is the Complainant. The Complainant has pursued this claim against Waste Management while openly admitting to its own illegal operations. See Transcript (December 11, 2012) at p. 43. B. The Administrative Law Judge correctly concluded that E&L failed to meet its burden with respect to its claims of predatory pricing. The Administrative Law Judge correctly concluded that none of the witnesses called by E&L in support of its claims of predatory pricing provided testimony or evidence of predatory pricing. Although counsel for the Complainant was able to elicit testimony fiom two current Waste Management commercial customers (Mr. Mayes and Mr. Burk) that they are charged different rates for their containers, it became clear that those two commercial accounts receive different levels of service which reflects the difference in rates. See Transcript (November 5, 2012) at p. 87 and p The prices quoted to other customers were in line with E&L's charges for similar service. Further, the Administrative Law Judge correctly noted that Waste Management may negotiate its commercial rates. Staff Attorney Little stated that "... Staff would note that there have been no formal complaints by any customers of Waste Management in the service areas or even outside the service {R } 3

5 areas in Putnam or Mason Counties relating to the pricing. See Transcript (November 5,2012) at p. 42,lines CONCLUSION Waste Management respectfully requests the Commission deny E&L s exceptions and adopt the January 3 1,20 13 Recommended Decision. Respectfully Submitted: WASTE MANAGEMENT OF WEST VIRGINIA, INC. By Counsel ROBINSON & McELWEE PLLC Edward J. George (#state Bar No.: g410) B Marsha W. Kauffman (WV State Bar No.: 6979) Post Office Box 1791 Charleston, West Virginia (304) Fax: (304) Counsel for Waste Management of West Virginia, Inc. (R ) 4

6 ~ PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON CASE NO MC-FC E&L, INC.,- V. WASTE MANAGEMENT OF WEST VIRGINIA, INC., Complainant, Defendant. CERTIFICATE OF SERVICE I, Edward J. George, do hereby certify that on the 25* of February, 2013, I served a true and exact copy of the foregoing WASTE MANAGEMENT OF WEST VIRGINIA, INC. S RESPONSE TO EXCEPTIONS OF E&L, INC. on the following address by regular and United States Mail, postage prepaid, as follows: John D. Little, Esquire Public Service Commission of WV 201 Brooks Street Charleston, WV Mark E. Kauffelt, Esquire Kauffelt & Kauffelt 300 Capitol Street, Ste 803 Charleston, WV L XGWL Edward J. George (&tate Bar Nod46 {R }