Allied Waste Services v. Public Service Commission of W. Va. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
March 11, 2015
released at 3:00 p.m.
ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, RORY L. PERRY II, CLERK
DOING BUSINESS AS REPUBLIC SERVICES OF SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WEST VIRGINIA,
Petitioner
vs.) No. 14-1136
(Public Service Commission Nos. 13-1662-MC-30E through 13-1666-MC-30E
and Nos. 13-1668-MC-30E through 13-1672-MC-30E)
THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA,
Respondent
MEMORANDUM DECISION
The petitioner herein, Allied Waste Services of North America, LLC, doing business
as Republic Services of West Virginia (“Allied”), by counsel Samuel F. Hanna, appeals from
an order entered October 3, 2014, by the respondent herein, the Public Service Commission
of West Virginia (“PSC”), by counsel Richard E. Hitt, Caryn Watson Short, and Linda S.
Bouvette. By that order, the PSC denied Allied’s petition for reconsideration and upheld its
November 14, 2013, order wherein the PSC (1) granted Allied’s request for two Rule 30E
surcharges, (2) required Allied to refund its customers the amounts it had over-collected
under the two certificates receiving the Rule 30E surcharges, and (3) denied Allied’s request
for eight additional Rule 30E surcharges. On appeal to this Court, Allied assigns error to (1)
the PSC’s decision to uphold its November 14, 2013, order and deny Allied’s petition for
reconsideration; (2) the PSC’s ruling requiring Allied to refund monies to its customers; and
(3) the PSC’s decision to deny eight of Allied’s Rule 30E surcharge requests.
Upon our review of the parties’ arguments, the appendix record, and the pertinent
authorities, we find no error in the PSC’s rulings. We therefore find that a memorandum
decision affirming the PSC’s October 3, 2014, order is appropriate under Rule 21 of the West
Virginia Rules of Appellate Procedure.
1
Allied is a regulated public utility in West Virginia that collects and disposes of solid
waste. In 2011, Allied purchased two solid waste collection certificates and the Suburban
Sanitation Transfer Station (“STS”) from its predecessor, Suburban Sanitation, Inc.
(“Suburban”). Waste collected under these certificates was transported to STS and ultimately
disposed of at Meadowfill Landfill (“Meadowfill”), which was owned by Allied’s
competitor, Waste Management of West Virginia, Inc. The PSC approved the transfer of
these certificates from Suburban to Allied and also approved Allied’s request to construct a
new waste transfer station,1 Mountaineer Transfer Station (“MTS”), to replace the outdated
STS facility. As part of the PSC’s approval of the construction of MTS, Allied agreed to
maintain the same tariff rates as the former transfer station for a period of eighteen months.
Upon the completion of MTS, Allied’s collection vehicles transported waste that they
collected to Allied’s MTS facility, and Allied ultimately disposed of this waste at Short
Creek Landfill (“Short Creek”), which also was owned by Allied.
Upon the expiration of the eighteen-month tariff maintenance period, Allied applied
for a rate increase for MTS. The PSC approved the rate increase on October 3, 2013.
Thereafter, Allied filed the instant ten applications requesting a Rule 30E surcharge based
upon this rate increase. Pursuant to W. Va. Code § 24A-2-4a (1989) (Repl. Vol. 2013),
[a]ny common carrier transporting solid waste in this State pursuant to
authority granted under section five [§ 24A-2-5], article two, chapter
twenty-four-a of the Code of West Virginia, one thousand nine hundred
thirty-one, as amended, may make application to the commission for approval
of a rate surcharge to pass through any increase in the disposal rate charged by
the landfill at which solid waste is disposed by the motor carrier, commonly
known as the tip fee, to commercial and residential customers, including
increases which are the direct result of fees, charges, taxes, or any other
assessment imposed upon the landfill by a governmental body. The
commission shall within fourteen days of receipt of said application notify the
motor carrier of approval of the requested rate surcharge, or approval of a rate
1
The PSC explains the purpose of a “transfer station” in its brief as follows:
A transfer station is a solid waste facility where solid waste is unloaded
from collection vehicles and briefly held while it is reloaded onto larger long-
distance transport vehicles for shipment to landfills or other treatment or
disposal facilities. By combining the loads of several individual waste
collection trucks into a single shipment, communities can save money on the
labor and operating costs of transporting the waste to a distant disposal site.
2
surcharge other than in the amount requested and the reason therefor. The
effective date of the approved rate surcharge shall be the same date as the
effective date of the increase in the tip fee to which the surcharge relates;
except that in the event the application for approval of the rate surcharge is
received by the commission more than sixty days after the effective date of the
tip fee increase, then the effective date of the approved rate surcharge shall be
the date said application was received by the commission.
The commission shall immediately promulgate emergency rules which
set forth the procedures for the filing of the tip fee rate surcharge application.
It is the purpose of this statute to provide an expedited process which will
allow the subject motor carriers to pass through tip fee increases to all
customers. Only that data necessary to review in accordance with this statute
may be required by the commission to be submitted by the motor carrier.
In accordance with W. Va. Code § 24A-2-4a, the PSC promulgated W. Va. C.S.R. § 150-2­
33.7 (2002) (“M.C. Tariff Rule 33.7”),2 which describes the Rule 30E tariff process. In
pertinent part, this rule provides:
The following accelerated procedure may be used by common carriers
of solid waste applying for a rate surcharge because of an increase or decrease
in the disposal rates, commonly known as tipping fees, charged by commercial
solid waste facilities.
If any motor carrier of solid waste is required to pay higher tip fees as
a result of increased commercial solid waste facility costs, or as a result of a
rate filing pending before this Commission, or of any increases imposed by
commercial solid waste facilities, such motor carrier may file an application
. . . and amended tariffs with this Commission stating rates and charges
designed to produce additional revenues sufficient, but no more than sufficient
to offset such increased costs for tip fees and request an effective date for such
amended rates not prior to the date it incurs said higher costs.
W. Va. C.S.R. §§ 150-2-33.7 to 33.7.a (emphasis added).
2
Amendments to W. Va. C.S.R. § 150-2-33.7 became effective in January 2015.
Because the events at issue in the case sub judice occurred before these amendments became
effective, we will apply the version of the rule in effect at the relevant time to our
determination of this matter.
3
By order entered November 14, 2013, the PSC granted two of Allied’s requests for
Rule 30E surcharges and denied eight of Allied’s requests therefor. The PSC granted
Allied’s request for two Rule 30E surcharges for certificates that Allied had acquired from
its predecessor, Suburban. When Suburban owned the referenced certificates, it had received
Rule 30E surcharges thereon based upon an increase in the tip fee at STS. While the PSC
determined that Allied was entitled to additional Rule 30E surcharges on said certificates, the
PSC also determined that Allied was overcharging its customers because the rate it claimed
to be paying MTS, i.e., $58.35 per ton, was actually the rate charged by STS. Invoices
submitted by Allied demonstrated that Allied actually was paying MTS, its own facility, only
$49.50. Accordingly, the PSC determined that, pursuant to Rule 33.7.f,3 Allied had failed
to report its reduced costs as required by the Rule 30E surcharges applied to the certificates
it had acquired from Suburban and that Allied had been overcharging its customers.
Therefore, the PSC ordered Allied to refund the overcharge to its customers.
The PSC further denied Allied’s request for eight additional Rule 30E surcharges
because it determined that such request did not constitute the type of emergent rate increase
request that is governed by Rule 30E. Rather, the PSC determined that because the cost
increase was attributable not to a rate increase at the landfill Allied had been using, i.e.,
Meadowfill, but a cost increase resulting from Allied’s decision to use its own landfill, i.e.,
Short Creek, the expedited procedure provided by W. Va. Code § 24A-2-4a did not apply.
Instead, the PSC directed Allied to apply for a general rate increase to correspond with this
increased cost through a general Rule 42 rate filing. See generally W. Va. C.S.R. § 150-2-19
(2002).
Allied then filed a petition for reconsideration. By order entered October 3, 2014, the
PSC denied Allied’s reconsideration petition and upheld its earlier rulings. From this adverse
decision, Allied appeals to this Court.
On appeal to this Court, Allied requests us to review an order rendered by the PSC.
We previously have held that
“‘“an order of the public service commission based upon its finding of
facts will not be disturbed unless such finding is contrary to the evidence, or
is without evidence to support it, or is arbitrary, or results from a
misapplication of legal principles.” United Fuel Gas Company v. The Public
Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957).’ Syllabus Point 5,
in part, Boggs v. Public Service Comm’n, 154 W. Va. 146, 174 S.E.2d 331
3
See infra for the text of W. Va. C.S.R. § 150-2-33.7.f.
4
(1970).” Syllabus Point 1, Broadmoor/Timberline Apartments v. Public
Service Commission, 180 W. Va. 387, 376 S.E.2d 593 (1988).
Syl. pt. 1, Sexton v. Public Serv. Comm’n, 188 W. Va. 305, 423 S.E.2d 914 (1992). More
specifically, we have held that,
[i]n reviewing a Public Service Commission order, we will first
determine whether the Commission’s order, viewed in light of the relevant
facts and of the Commission’s broad regulatory duties, abused or exceeded its
authority. We will examine the manner in which the Commission has
employed the methods of regulation which it has itself selected, and must
decide whether each of the order’s essential elements is supported by
substantial evidence. Finally, we will determine whether the order may
reasonably be expected to maintain financial integrity, attract necessary capital,
and fairly compensate investors for the risks they have assumed, and yet
provide appropriate protection to the relevant public interests, both existing
and foreseeable. The court’s responsibility is not to supplant the
Commission’s balance of these interests with one more nearly to its liking, but
instead to assure itself that the Commission has given reasoned consideration
to each of the pertinent factors.
Syl. pt. 2, Monongahela Power Co. v. Public Serv. Comm’n of West Virginia, 166 W. Va.
423, 276 S.E.2d 179 (1981). Finally, we have summarized the Monongahela Power standard
as follows:
The detailed standard for our review of an order of the Public Service
Commission contained in Syllabus Point 2 of Monongahela Power Co. v.
Public Service Commission, 166 W. Va. 423, 276 S.E.2d 179 (1981), may be
summarized as follows: (1) whether the Commission exceeded its statutory
jurisdiction and powers; (2) whether there is adequate evidence to support the
Commission’s findings; and, (3) whether the substantive result of the
Commission’s order is proper.
Syl. pt. 1, Central West Virginia Refuse, Inc. v. Public Serv. Comm’n of West Virginia, 190
W. Va. 416, 438 S.E.2d 596 (1993). We will apply these tenets to our consideration of the
assigned errors.
Allied first contends that the PSC erred by denying Allied’s petition for
reconsideration and upholding the PSC’s November 14, 2013, order. Because we conclude
in our ensuing discussion that the PSC’s rulings were correct, we affirm the PSC’s October
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3, 2014, order denying Allied’s reconsideration petition.
Allied next argues, with respect to the two approved Rule 30E surcharges, that the
PSC erred by concluding that Allied failed to report a reduction in the rate it paid to MTS and
by ordering Allied to refund the alleged overcharge to its customers. Whether Allied was
required to report a reduction in the rates it paid to dispose of solid waste is governed by the
legislative rules that address Rule 30E surcharge applications. We previously have held that,
[o]nce a . . . regulation is legislatively approved, it has the force of a
statute itself. Being an act of the West Virginia Legislature, it is entitled to
more than mere deference; it is entitled to controlling weight. As authorized
by legislation, a legislative rule should be ignored only if the agency has
exceeded its constitutional or statutory authority or is arbitrary or capricious.
Syl. pt. 2, West Virginia Health Care Cost Review Auth. v. Boone Mem’l Hosp., 196 W. Va.
326, 472 S.E.2d 411 (1996). We agree with Allied’s contention that W. Va. Code § 24A-2­
4a is silent as to a certificate holder’s responsibility to report a reduction in the rates it pays
to dispose of solid waste. However, we also agree with the PSC’s position that, while the
statute may remain silent on this point, the rules that the Legislature has directed the PSC to
adopt to carry out the requirements of this statute make it abundantly clear that a certificate
holder who has received Rule 30E relief is required to report a reduction in its costs that
previously had supported its request for a Rule 30E surcharge.
Pursuant to W. Va. C.S.R. § 150-2-33.7.f,
[w]hen any motor carrier which has increased its rates pursuant to
proceedings under this rule receives a reduction, or a refund, on the tip fees
of any commercial solid waste facility whose rates and charges were the basis
for the rate increase proceedings under this rule, it shall report promptly to
this Commission the new reduced rates and charges so ordered and the annual
savings in costs resulting to the motor carrier from such reduction from the
date said commercial solid waste facility increased its rates under this rule, or
the amount of refund and the period to which it relates. Whereupon, this
Commission may conduct an investigation to determine:
1. The amount of the reduction;
2. The effective date of the reduction;
3. The manner in which, and the extent to which, the motor
6
carrier shall make refunds to its customers as a result of any
refund or reduction received from a commercial solid waste
facility to which it transports solid waste; and
4. The manner in which, and the extent to which, the motor
carrier shall amend or adjust its rates to give effect to such
reduction.
(Emphasis added). The rules further state that “[a]ny motor carrier which invokes the
proceedings provided under 13.4.a.,[4] hereof shall be deemed to have consented in advance
to the proceedings under Rule 13.4.f.[5]” W. Va. C.S.R. § 150-2-33.7.g (footnotes added).
Therefore, it is clear that a motor carrier receiving approval for a Rule 30E surcharge has a
corresponding duty to notify the PSC if the rates upon which it based its request are
subsequently reduced and that, by applying for Rule 30E relief in the first instance, the motor
carrier has agreed to comply with the reporting requirements of W. Va. C.S.R. § 150-2­
33.7.f.
Moreover, the PSC has not required Allied to submit any documentary evidence above
that required by statute. W. Va. Code § 24A-2-4a requires that “[o]nly that data necessary
to review in accordance with this statute may be required by the commission to be submitted
by the motor carrier.” The corresponding rule clarifies this requirement by providing that an
applicant for a Rule 30E surcharge is required to submit copies of its recent invoices to
support its request for the rate increase: “The motor carrier shall file evidence of past solid
waste disposal tip fees in the form of copies of bills rendered by the solid waste disposal
facility. The minimum data requirement in support of this filing shall be copies of the most
recent six (6) months’ disposal bills.” W. Va. C.S.R. § 150-2-33.7.d. The PSC considered
this evidence and determined that the rate Allied claimed to have been paying for MTS
services was not the same as the rate reflected by Allied’s invoices from MTS. Thus, the
PSC properly based its decision upon the necessary data required to accompany Allied’s Rule
30E surcharge applications and did not require Allied to submit any additional documentary
evidence.
Finally, the PSC correctly required Allied to refund its customers the overcharges it
4
It is apparent that this reference is erroneous and should refer to W. Va. C.S.R. § 150­
2-33.7.a. See W. Va. C.S.R. § 150-2-34.7.g (2015) (“Any motor carrier which invokes the
proceedings provided under Tariff Rule 34.7.a., hereof shall be deemed to have consented
in advance to the proceedings under Tariff Rule 34.7.f.”).
5
See supra note 4.
7
had collected in conjunction with its approval of Allied’s two Rule 30E surcharges. W. Va.
C.S.R. § 150-2-33.7.e specifically directs that,
[b]efore placing rates into effect pursuant to this procedure, the motor
carrier shall enter into an agreement that, if it shall receive a refund or
reduction of all or part of the higher tip fees upon which its higher rates and
charges are based, placed into effect as authorized by this procedure, it will
comply with such order as the commission shall thereafter make in reference
to such refund or tip fee reduction so received.
Thus, as with the applicant’s initial consent to be bound by the reduced fee reporting
requirement, see W. Va. C.S.R. § 150-2-33.7.g, this provision imposes a similar obligation
upon applicants to be bound by the PSC’s determination of whether a refund is due and the
procedure for implementing the same. Therefore, we find that, by virtue of Allied’s
application for Rule 30E surcharges, Allied has consented to the PSC’s determination that
Allied has received a reduction in the rates to which the Rule 30E surcharges apply, and,
thus, Allied owes a refund to its customers to offset the resultant overcharge. Accordingly,
we affirm the PSC’s rulings ordering Allied to refund the subject overcharges to its
customers.
Allied lastly contends that the PSC erred by denying its remaining eight applications
for Rule 30E surcharges. Whether Allied is entitled to the Rule 30E surcharges it has
requested is governed by the applicable statutory law and the legislative rules implementing
these statutes. Therefore, our determination of the correctness of the PSC’s decision in
denying eight of Allied’s Rule 30E surcharge applications necessarily must also consider the
governing legislative language and the Legislature’s intent in enacting and approving thereof.
See Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361
(1975) (“The primary object in construing a statute is to ascertain and give effect to the intent
of the Legislature.”); Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968)
(“Where the language of a statute is clear and without ambiguity the plain meaning is to be
accepted without resorting to the rules of interpretation.”); Syl. pt. 5, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959)
(“When a statute is clear and unambiguous and the legislative intent is plain, the statute
should not be interpreted by the courts, and in such case it is the duty of the courts not to
construe but to apply the statute.”). See also Syl. pt. 4, Security Nat’l Bank & Trust Co. v.
First West Virginia Bancorp., Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981) (“Interpretations
of statutes by bodies charged with their administration are given great weight unless clearly
erroneous.”).
W. Va. Code § 24A-2-4a specifically states that “[i]t is the purpose of this statute to
8
provide an expedited process which will allow the subject motor carriers to pass through tip
fee increases to all customers.” Such expedited process is available when there is “any
increase in the disposal rate charged by the landfill at which solid waste is disposed by the
motor carrier.” Id. The PSC correctly noted in its order that the increase sought to be
recouped by Allied was not attributable to an increase at the landfill it customarily used, i.e.,
Short Creek, but was due to Allied’s decision to stop using the landfill it previously had used
when it acquired its certificates, i.e., Meadowfill, and to start using its own landfill, i.e., Short
Creek, once it had completed construction of its MTS facility. While Allied may be entitled
to a rate increase to account for its additional expenses in using the Short Creek Landfill,
Allied has not demonstrated that its additional costs are due to increased rates at Short Creek.
Rather, Allied’s increased costs appear to be the result of its decision to change from its
competitor’s landfill to its own landfill. Again, this additional expense may very well justify
a rate increase, but it is not the type of cost incursion contemplated or governed by W. Va.
Code § 24A-2-4a. Accordingly, we find that the PSC correctly denied Allied’s eight
additional requests for Rule 30E surcharges.
For the foregoing reasons, we affirm the PSC’s October 3, 2014, order.
Affirmed.
ISSUED: March 11, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
9