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Trulargo, LLC v. Public Service Commission of West Virginia

Supreme Court of Appeals of West Virginia

November 20, 2019

TRULARGO, LLC, Petitioner
v.
PUBLIC SERVICE COMMISSION OF WEST VIRGINIA; AND ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, DOING BUSINESS AS REPUBLIC SERVICES OF WEST VIRGINIA, Respondents

          Submitted: November 5, 2019

          Appeal from Public Service Commission of West Virginia Case No. 18-1130-MC-FC

          John F. Gianola James A. Gianola Gianola, Barnum, Bechtel & Jecklin L.C. Morgantown, West Virginia Attorneys for the Petitioner

          Jessica M. Lane General Counsel J. Joseph Watkins Public Service Commission of West Virginia Charleston, West Virginia Attorneys for the Respondent,

         SYLLABUS BY THE COURT

         1. "'"The principle is well established by the decisions of this Court 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. Public Service Commission, 143 W.Va. 33[, 99 S.E.2d 1 (1957)].' Syl. Pt. 5, Boggs v. Pub. Serv. Comm'n, 154 W.Va. 146, 174 S.E.2d 331 (1970)." Syllabus point 1, Sierra Club v. Public Service Commission of West Virginia, 241 W.Va. 600, 827 S.E.2d 224 (2019).

         2. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

         3. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syllabus point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).

          JENKINS, JUSTICE

         The petitioner herein, Trulargo, LLC ("Trulargo"), appeals from the April 5, 2019 order of the Public Service Commission of West Virginia ("PSC"). By that order, the PSC found that Trulargo had been unlawfully operating as a common carrier by motor vehicle and required it to cease such activities. On appeal to this Court, Trulargo argues that the PSC erred by determining it to be a common carrier and further improperly regulated its roll-off container rental business and the costs it charges for such service. Both the PSC and the additional respondent herein, Allied Waste Services of North America, LLC, doing business as Republic Services of West Virginia ("Republic"), respond that the PSC order was correctly decided and should be affirmed. Upon a review of the parties' arguments and briefs, the appendix record, and the pertinent authorities, we conclude that the PSC did not err by ruling that Trulargo was operating as a common carrier by motor vehicle and requiring it to cease such operations until it obtains a permit therefore. Accordingly, we affirm the PSC's April 5, 2019 order.

         I.

         FACTS AND PROCEDURAL HISTORY

         This case originated when Republic filed a complaint with the PSC alleging that Trulargo was collecting and hauling waste as a common carrier by motor vehicle without possessing a certificate of convenience and necessity from the PSC allowing it to do so. Trulargo is primarily in the business of residential real estate construction and represents that, when it was unable to procure a roll-off container to use for waste generated at its construction jobsites, it purchased its own container. Thereafter, Trulargo indicates that it received inquiries from members of the public regarding the rental of its container, and, as a result, Trulargo purchased several additional roll-off containers to rent to customers. Trulargo further advertised the availability of these containers for rent on the side of the containers, themselves, and on its website.

         As part of its standard rental agreement, Trulargo delivered an empty roll-off container to the customer renting it and left the container at the customer's site during the rental period, which was generally one week. At the end of the rental period, Trulargo picked up the container and hauled the customer's contents left therein to a waste disposal site. The rental fee that Trulargo charged its customers was the same price regardless of whether the container was empty or full when Trulargo picked it up. Moreover, the set rental price did not change regardless of the distance Trulargo was required to travel to deliver the rented roll-off container to and retrieve it from a customer.

         Following an investigation and a hearing, the PSC adopted the recommended decision of the ALJ, entered February 4, 2019, and issued a Commission Order on April 5, 2019. By that order, the PSC determined that Trulargo is operating as a common carrier by motor vehicle when it rents its containers to customers and hauls away the contents thereof at the end of the rental period when it picks up its roll-off containers. As such, the PSC required "Trulargo, LLC, to cease and desist from operating as a common carrier providing solid waste ...


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