Harper v. Public Service Com'n of West Virginia, No. 2:03-CV-00516.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtStanley
Citation416 F.Supp.2d 456
PartiesJames Allen HARPER, a resident and citizen of Ohio previously doing business as Southern Ohio Disposal, and Southern Ohio Disposal LLC, an Ohio limited liability company, Plaintiffs, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Jon W. McKinney,<SMALL><SUP>1</SUP></SMALL> in his official capacity as Chairman of the Public Service Commission of West Virginia; Edward H. Staats, in his official capacity as Commissioner of the Public Service Commission of West Virginia; and R. Michael Shaw, in his official capacity as Commissioner of the Public Service Commission of West Virginia, Defendants. WV Association of Solid Waste Haulers and Recyclers, BFI Waste Systems of North America, Inc., Stewart's Sanitation, Sunrise Sanitation Services, Inc., Tygarts Valley Sanitation, Inc., and United Disposal Services, Inc., Intervenors-defendants.
Decision Date27 February 2006
Docket NumberNo. 2:03-CV-00516.
416 F.Supp.2d 456
James Allen HARPER, a resident and citizen of Ohio previously doing business as Southern Ohio Disposal, and Southern Ohio Disposal LLC, an Ohio limited liability company, Plaintiffs,
v.
PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Jon W. McKinney,1 in his official capacity as Chairman of the Public Service Commission of West Virginia; Edward H. Staats, in his official capacity as Commissioner of the Public Service Commission of West Virginia; and R. Michael Shaw, in his official capacity as Commissioner of the Public Service Commission of West Virginia, Defendants.
WV Association of Solid Waste Haulers and Recyclers, BFI Waste Systems of North America, Inc., Stewart's Sanitation, Sunrise Sanitation Services, Inc., Tygarts Valley Sanitation, Inc., and United Disposal Services, Inc., Intervenors-defendants.
No. 2:03-CV-00516.
United States District Court, S.D. West Virginia, Charleston.
February 27, 2006.

Page 457

Brian C. Helmick, John Philip Melick, Jackson Kelly, Charleston, WV, for Plaintiffs.

Cassius H. Toon, Franklin G. Crabtree, Richard E. Hitt, Public Service Commission of West Virginia, Charleston, WV, for Defendants.

Samuel F. Hanna, Hanna & Hanna, Martin J. Glasser, Richard L. Gottlieb, Webster J. Arceneaux, III, Lewis Glasser Casey & Rollins, Eric L. Calvert, Leonard B. Knee, Bowles Rice McDavid Graff &

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Love, Charleston, WV, for Intervenors-defendants.

MEMORANDUM OPINION AND ORDER2

STANLEY, United States Magistrate Judge.


Currently pending before the court is Plaintiffs' Renewed3 Motion for Summary Judgment, filed January 6, 2006 (Docket Sheet Document # 121). All Defendants have responded to Plaintiffs' Motion (## 125, 127, 128, 132), and Plaintiffs have replied (# 129). On February 14, 2006, the court heard oral argument.

A. Statement of Jurisdiction and Authority

The parties have consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

B. Proceedings before PSC & Procedural History before this Court

The underlying proceedings before the Public Service Commission of West Virginia ("PSC") are set forth in detail in the court's Memorandum Opinion and Order entered November 19, 2003, and, as such, the court will not repeat them herein. (# 39, pp. 2-6.) In short, following protracted proceedings, the PSC ultimately ordered plaintiff James Allen Harper, doing business as Southern Ohio Disposal LLC ("SOD") to cease and desist collecting solid waste in West Virginia until he obtains a certificate of convenience and necessity, pursuant to. West Virginia Code § 24A-2-5. (# 1, Exhibit 2, p. 40.)

Plaintiffs, Harper and SOD, filed this action on June 6, 2003, alleging that the certification requirement violates the Commerce Clause, that State statutes were misapplied and that the PSC and its Commissioners (collectively referred to as the "PSC"), acting under color and pretense of State statute, regulation and customs and usages, engaged in illegal conduct as alleged in the Complaint to injure Plaintiffs and deprive them of their rights, privileges and immunities secured by the Commerce Clause of the United States Constitution and 42 U.S.C. § 1983. (# 1, ¶¶ 18, 19, 20-24.) Plaintiffs seek a temporary restraining order and, thereafter, preliminary and permanent injunctions against the PSC, prohibiting the enforcement of PSC orders or otherwise interfering with SOD's interstate transportation of solid waste from West Virginia and other states. Plaintiffs further request that the court declare the rights, duties and obligations of the parties with respect to such transportation and other aspects of SOD's business, resolve, to the extent necessary, Plaintiffs' challenges to the PSC orders, and award Plaintiffs their fees and costs pursuant to 42 U.S.C. § 1988. (# 1, Prayer for Relief.)

On Defendants' motions to dismiss, this court originally abstained pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and was reversed on appeal before the United States Court of Appeals for the Fourth Circuit. Harper v. Public Service Comm'n, 291 F.Supp.2d 443 (S.D.W.Va.2003), rev'd, 396 F.3d 348 (4th

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Cir.2005). Upon remand from the Fourth Circuit, the court has permitted discovery in the case and has fully and carefully considered the Motion currently pending before it.

C. Undisputed Facts

SOD, an Ohio limited liability company owned by plaintiff James Allen Harper, also a resident of Ohio, operates a solid waste disposal service. From a base in Pomeroy, Ohio, SOD employees drive garbage trucks to residences and businesses of customers in Mason County, West Virginia and Ohio, empty refuse containers into the trucks, and then drive the trucks to a transfer station in Pomeroy, Ohio or a landfill near Nelsonville, Ohio, for disposal of the waste. SOD does not dispose of waste in West Virginia.

West Virginia Code § 24A-2-5 (2004), originally enacted in 1937, provides that "[i]t shall be unlawful for any common carrier by motor vehicle to operate within this state without first having obtained from the commission a certificate of convenience and necessity." At the hearing on Plaintiffs' Motion, all parties agreed that the stated purpose of requiring a solid waste collector/hauler to obtain a certificate is to further the goal under the West Virginia Solid Waste Management Act of providing universal trash service to the citizens of West Virginia at reasonable rates.4

West Virginia is one of only two states in the country that requires certification for solid waste haulers. The court in Medigen of Kentucky, Inc. v. Public Service Comm'n, 787 F.Supp. 590, 592-93 (S.D.W.Va.1991), aptly explained the certification process before the PSC:

[u]pon application for the certificate, a legal notice of the application is published in the proposed area of operation and existing transporters are given the opportunity to oppose the application. If no protest is made, the certificate may be granted without hearing. If protest is received, the applicant must appear at a hearing and demonstrate that the public convenience and necessity require the proposed service. Existing transporters may present contradictory evidence.

In considering the application, the PSC must consider the existing transportation services in the area to be served and if the existing services are reasonably efficient and adequate, the certificate will not be granted. In addition to the required showing of convenience and necessity, applicants must show financial ability, experience and fitness. All contested applications are judged by the same legal standards. Once issued, certificates of convenience and necessity have no expiration date. The PSC has authority to require a certificate holder to provide service to all members of the public within its certificate area. In addition, the PSC regulates other aspects of the transporter's operations, including rates charged to customers.

(citations omitted).

Plaintiffs never applied for a certificate of convenience and necessity from the PSC pursuant to West Virginia Code § 24A-2-5. At the hearing on Plaintiffs' Motion, the PSC indicated there were no significant complaints against BFI, the current hauler in the area where Plaintiffs wish to serve.

Some out-of-state companies, such as Waste Management and defendant BFI, both Delaware corporations, hold certificates

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pursuant to West Virginia Code § 24A-2-5. Waste Management and BFI are the two largest certificate holders in the State. Many of these out-of-state companies obtained their certificates by transfer when they acquired smaller West Virginia companies that already held certificates for certain areas; others obtained them by their own application.

D. Regulatory Scheme

In the West Virginia Solid Waste Management Act, enacted in 1994, the West Virginia legislature professed its purpose of "establish[ing] a comprehensive program of controlling all phases of solid waste management." W. Va.Code § 22-15-1(a) (2002). The legislature found that

solid waste disposal has inherent risks and negative impact on local communities and specifically finds the following: (1) Uncontrolled, inadequately controlled and improper collection, transportation, processing and disposal of solid waste is a public nuisance and a clear and present danger to people; (2) provides harborages and breeding places for disease-carrying, injurious insects, rodents and other pests harmful to the public health, safety and welfare; (3) constitutes a danger to livestock and domestic animals; (4) decreases the value of private and public property, causes pollution, blight and deterioration of the natural beauty and resources of the state and has adverse economic and social effects on the state and its citizens; (5) results in the squandering of valuable nonrenewable and nonreplenishable resources contained in solid waste; (6) that resource recovery and recycling reduces the need for landfills and extends their life; and that (7) proper disposal, resource recovery or recycling of solid waste is for the general welfare of the citizens of this state.

W. Va.Code § 22-15-1(c).

To accomplish these goals, the legislature enacted an extensive statutory scheme that addresses many aspects of solid waste management, including mandatory disposal and proof thereof by each person in West Virginia occupying a residence or business, management of solid waste facilities and sewage sludge and waste tire management, among others. W. Va.Code §§ 22C-4-10(a)(1)-(2) (2005), 22-15-20 (2002) and 22-15-21 (2002). Rules were promulgated and adopted as well. See 33 CSR 1 (Solid Waste Management), 33 CSR 2 (Sewage Sludge Management), 33 CSR 5 (Waste Tire Management), 33 CSR 7 (Proof of Proper Solid Waste Disposal).

West Virginia Code § 22C-3-23, related to the creation...

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1 practice notes
  • Harper v. Public Service Com'n of Wv, No. 2:03 CV 00516.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • April 11, 2006
    ...discovery. 25. On February 27, 2006, the court denied Plaintiffs' Renewed Motion for Summary Judgment. Harper v. Public Service Comm'n, 416 F.Supp.2d 456 (S.D.W.Va.2006). The court rejected Plaintiffs' argument that West Virginia Code § 24A-2-5 is per se invalid and not subject to further i......
1 cases
  • Harper v. Public Service Com'n of Wv, No. 2:03 CV 00516.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • April 11, 2006
    ...discovery. 25. On February 27, 2006, the court denied Plaintiffs' Renewed Motion for Summary Judgment. Harper v. Public Service Comm'n, 416 F.Supp.2d 456 (S.D.W.Va.2006). The court rejected Plaintiffs' argument that West Virginia Code § 24A-2-5 is per se invalid and not subject to further i......

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