PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON * * * * * * * * * * * * * * * * * * HEARING TRANSCRIPT * * * * * * * * *

Transcription

1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON * * * * * * * * * TLC PROPERTY MAINTENANCE, INC. * --MC-CC * * * * * * * * * * HEARING TRANSCRIPT * * * * * * * * * BEFORE: KEITH GEORGE, Administrative Law Judge HEARING: Tuesday, January, 0 : a.m. LOCATION: PSC Hearing Room No. 0 Brooks Street Charleston WV Reporter: Jennifer Wilson Any reproduction of this transcript is prohibited without authorization by the certifying agency.

2 A P P E A R A N C E S LINDA BOUVETTE, ESQUIRE Public Service Commission of West Virginia 0 Brooks Street P.O. Box Charleston, WV Counsel for the Public Service Commission RONALD J. FLORA, ESQUIRE Smith Street Milton, WV Counsel for TLC Property Maintenance, Inc. 0 SAMUEL F. HANNA, ESQUIRE Hanna Law Office 0 Noyes Avenue P.O. Box Charleston, WV - Counsel for Tire & Rubber, Inc. ALSO PRESENT: JASON WANDLING, ESQUIRE

3 INDEX TO WITNESSES 0 DISCUSSION AMONG PARTIES - WITNESS: SANDRA ROGERS DIRECT EXAMINATION By Attorney Flora - CROSS EXAMINATION By Attorney Hanna - CROSS EXAMINATION By Attorney Bouvette - REDIRECT EXAMINATION By Attorney Flora - DISCUSSION AMONG PARTIES - WITNESS: SHANNON SIMMONS DIRECT EXAMINATION By Attorney Flora - CROSS EXAMINATION By Attorney Hanna - 0 CROSS EXAMINATION By Attorney Bouvette 0 - REDIRECT EXAMINATION By Attorney Flora RECROSS EXAMINATION By Attorney Hanna - 0

4 INDEX TO WITNESSES (cont.) WITNESS: SHANNON SIMMONS (cont.) RECROSS EXAMINATION By Attorney Bouvette 0 - WITNESS: RANDY ZORTMAN DIRECT EXAMINATION By Attorney Hanna - CROSS EXAMINATION By Attorney Flora - CROSS EXAMINATION By Attorney Bouvette - DISCUSSION AMONG PARTIES - 0

5 E X H I B I T S Page Number Description Offered Applicant: Exhibit P.S.C. W. VA M.C. Form No. TRI: Exhibit // Letter Exhibit Corrective Order Exhibit Certificate Details 0 Exhibit Sunrise Sanitation, Statement of Authority

6 P R O C E E D I N G S Good morning. My name is Keith A. George. I'm an Administrative Law Judge with the Public Service Commission of West Virginia. hearing in Case Number --MC-CC. take appearances for the record. ATTORNEY FLORA: We're here for a At this point I'll Your Honor, my name is Ronald Flora, Smith Street, Milton, West Virginia,. I'm here on behalf of the Applicant, TLC Property Maintenance, LLC. Thank you, Mr. Flora. May it please, Your Honor, I've already given the court reporter my card. My name is Sam Hanna. I'm here today as counsel on behalf of the Intervener, 0 Tire & Rubber, Inc. And I'd also like the record to reflect that Tire & Rubber, Inc. appears by its proper corporate official, this man seated to my left, Randy Zortman. For the court reporter, last name spelled Z-O-R-T-M-A-N.

7 Thank you, Mr. Hanna. ATTORNEY BOUVETTE: Linda Bouvette, Staff Attorney. Thank you, Ms. Bouvette. Mr. Flora, you may proceed. ATTORNEY FLORA: Your Honor, as my first witness I'd like to call Ms. Sandra Rogers. Okay. I'm going to put the witnesses up here. clarification. And Your Honor, just a point of I talked with Mr. Flora before, but this 0 application has been amended not only just for the waste tire program for the DEP to brief, but also just for the --- instead of statewide authority, he's also admitted in his application, Judge, for the counties of --- just give me a second. ATTORNEY FLORA: Braxton, Clay, Calhoun, Cabell, Kanawha, Lincoln, Jackson, Mason, Putnam, Roane, Wirt, Wayne and Wood.

8 So it's no longer a statewide application. It's only for those counties that --- For those counties? --- were just delineated. Did you do that by writing to the Commission, Mr. Flora? ATTORNEY FLORA: The application Form was amended. Okay. I'm sure I read that at some point. 0 ATTORNEY FLORA: I intend to introduce it as an exhibit. And I just want to make sure we were all on the same page, Your Honor. Okay. That's fine, Mr. Hanna. Thank you. Thank you. Okay. You may ---.

9 0 ATTORNEY FLORA: Where are you going to want the witness, Your Honor? I'm going to put the witnesses here and the court reporter will place them under oath SANDRA ROGERS, HAVING FIRST BEEN DULY SWORN, TESTIFIED AS FOLLOWS: DIRECT EXAMINATION BY ATTORNEY FLORA: Q. Would you state your full name for the record, please? A. It's Sandra Dawn Rogers. Q. Ms. Rogers, by whom are you employed? A. The West Virginia Department of Environmental Protection. Q. More particularly, what do you do in your role with the West Virginia Department of Environmental Protection? A. I am over the REAP, Rehabilitation and Environmental Action Plan Program. Q. And as a component of that program, is there a program which sets out contracts for waste haulers to

10 0 remove waste tires? It's the Tire Remediation Program. Q. And is that under your purview? Q. And as part of that, the --- my understanding, you correct me where I'm wrong, that the DEP solicits contractors to submit competitive bids for that? We go through DEP procurement to --- and then the DEP procurement will go to the West Virginia Purchasing Division. Q. And if you know, was TLC Pro Maintenance, LLC one of the contractors that submitted a bid for this program? A. Yes, sir. Q. And as a component of that program, my understanding is that now they have to be in compliance with the Public Service Commission of the State of West Virginia, as far as a Contract Carrier Permit? A. That is correct. Q. To that end, did you fill out a Public Service Commission WV --- or West Virginia Motor Carrier Form? ATTORNEY FLORA: And if I may approach the witness, Your Honor, I'll show her what I've got.

11 0 You may approach. BY ATTORNEY FLORA: Q. Do you recognize the document that I'm showing you? A. Yes, sir. Q. And is that a document that was executed by you? A. Yes, sir. Q. And verified by a notary? A. Yes, sir. ATTORNEY FLORA: Your Honor, I'd like to have this marked as Applicant's Exhibit Number. Your Honor, can I take a look at it to make sure it's the same thing I have? ATTORNEY FLORA: Now, I did another one yesterday. We'll mark this as Applicant's Exhibit. (Applicant Exhibit marked for identification.) I want to make sure we're on the same boat. Thank you. Applicant's Exhibit, Your Honor?

12 Yeah, for the purpose of 0 identification. BY ATTORNEY FLORA: Q. Now, the Waste Tire Program that we've been talking about has been in effect for a while; is that correct? A. Yes, since 00. Q. And are you familiar with TLC Pro Maintenance as a contractor who had been a part of that program, a successful bidder? Q. And prior to that, there was no requirement, to your knowledge, that the contractor had a Contract Carrier Permit; is that correct? Q. So this is of recent vintage, as far as WV DEP is concerned; is that correct? We had a rule that exempted us from having to get a contractor that would have a permit. Q. But now it's the position of the WV DEP and the Public Service Commission --- Q. --- that a Contract Carrier Permit has to be issued by the Commission in order to successfully award a

13 contract; is that correct? Q. Now, the form that I just showed you says pending award. Q. Can you explain what that means to the Administrative Law Judge, please? At the time that I filled out this paperwork, I had already sent to DEP Procurement the recommendations for the award. But there was still some 0 pending issues, I would say, from the DEP Purchasing that had to be --- not DEP, I'm sorry, West Virginia Division of Purchasing that had to be rectified or confirmed that TLC would be the lowest bidder that would be eligible to receive the contract. Q. Pending award --- or pending a Certificate of Contractor Contract with the Carrier Permit from the West Virginia Public Service Commission? A. That is true. Q. As part of your duties with the REAP Program, do you believe that that program is in the public interest? A. Absolutely. Yes. Q. Do you believe that awarding the contract to --- if this were to go through, that the awarding of this contract would impair or harm the roadways or highways in

14 0 the State of West Virginia? A. No, sir. Q. Do you believe that it would unduly burden the highways of West Virginia? A. No, sir. Q. Do you believe that it would endanger the safety of the public of West Virginia? A. No, sir. Q. Do you believe that it will unduly increase any maintenance costs to the State of West Virginia for using this program? A. No, sir. Q. Now, I want to make sure. If the Public Service Commission grants the Contractor Permit, then TLC Pro Maintenance would be awarded the contract that's set forth in the form that I showed you and for the counties that I showed you? I have confirmation of that. Q. All right. And are there any other requirements that TLC Pro Maintenance would need in meet in order to fulfill its obligations to WV DEP, other than this Contract Carrier Permit of which you are aware? A. Not that I'm aware of. Q. All contractors for this program are by bid,

15 competitive bid; is that correct? Q. And if you know, does TRI --- did they submit any bids? Q. And will they be awarded any bids, to the best of your knowledge? A. Pending further information, yes. Q. That there is --- there is no single entity that provides this service for the state. It's all done by 0 competitive bid individually; is that correct? ATTORNEY FLORA: That's all I have of this witness, Your Honor. Mr. Hanna? Yes. CROSS EXAMINATION BY Q. Ms. Rogers, as you heard me say, my name is Sam Hanna. I'm counsel on behalf of Tire & Rubber, Inc. You understand Tire & Rubber, Inc. has common carrier authority to pick up waste tires within most of the

16 state? Are you aware of that? 0 A. Yes, sir. Q. And has the DEP used Tire & Rubber, Inc. on the past for this REAP Program? A. Yes, sir. Q. And was --- the service that they provided to the DEP, do you think it was satisfactory? A. Yes, sir. Q. Now, if I understand this bid process, the DEP had used uncertificated and unpermitted common carriers in the past to provide for the transportation and disposal of waste tires under the REAP Program; correct? Based on our CSR Ruling under the West Virginia DEP for --- that we had an exemption. Q. Let me ask you this. You thought you had an exemption; correct? Q. And when it was brought to the attention of me, Counsel for TRI, I objected to that and wrote an opinion letter to you, are you aware of this, stating that DEP had to use certificated haulers or permitted haulers to transport and dispose of waste tires under the REAP Program? Are you aware of that? A. I do not recall that letter, sir. Q. But anyway, the position of DEP has changed. In

17 0 that in talking with the PSC, it's now DEP's position that a certificated or permitted waste hauler must be used under this program; correct? A. Correct. Q. Now, if I understand your testimony correctly, and let me know if I'm wrong, TLC Property Management, Inc. was the successful bidder in a contract under the REAP Program for the western district of the state? Q. And they got that bid primarily based on price? Q. That meaning that they undercut every other entity that submitted bids? A. I think they gave the lowest bid. Q. Okay. So Tire & Rubber, Inc. put a bid in for that project; correct? Q. And the bid that you received from Tire & Rubber, Inc. was less than the rate that was quoted to the DEP by TLC Property Management, Inc.? A. No, I don't think so. Q. Let me repeat that again. The price that --- and maybe I was incorrect when I stated that, and let me rephrase it. The bid that TLC Property Maintenance, Inc. gave

18 to DEP, the rate was lower than the rate that was bid by Tire & Rubber, Inc.? A. TLC's rate is lower than TRI's rate. Q. Yeah. And I'm sorry, maybe I was confused or incorrect on my prior, but I think we're all on the same page. And you would agree with me with what you just said; correct? Q. Okay. Thank you. Now, in looking at your Form, question eight asks --- and do you have that form in front of you? A. Uh-huh (yes). Q. Question eight asks, has company made an effort to obtain the service of a common carrier for this purpose? And you wrote in no. And then it goes on to ask, if so, please describe. You said this support is for a tire collection events contract for collection, labor and transport that a common carrier cannot perform. Is that your opinion? 0 A. Yes, that is my opinion, because this is not a Common Carrier Permit as far as a waste hauler permit. This includes labor and trucking and trailer rental that would be above and beyond what a common carrier waste hauler would perform picking up normal, you know, waste like a trash hauler.

19 Q. Do you believe that the West Virginia Department of Environmental Protection could just agree with Tire & Rubber, Inc. that they had authority to pick up and dispose of waste tires, that they could make an agreement with them right now to perform this service? ATTORNEY FLORA: I'm going to object to that question. I believe it calls for a legal conclusion from the witness, Your Honor. I understand she's not a lawyer. assume she's not a lawyer, --- A. No, sir. --- but I'll allow her to give her opinion. BY Q. Ma'am, do you understand the question? A. No. Can you repeat it, please? I 0 Q. Yes, ma'am. Do you believe that if the West Virginia Department of Environmental Protection wanted to have the pick-up and disposal of the tires, and Tire & Rubber, Inc. had that authority to do that, do you think that DEP could enter into an agreement with them right now for that?

20 0 A. I'm afraid I can't answer that. I think that you would have to speak to their general counsel. Q. But the reason you stated that you think that a Contract Carrier Permit is necessary is that there was other costs associated with pick-up and disposal of waste tires? Q. But you don't think that's embedded in the service of a common carrier that has authority to pick up and dispose of waste tires? A. To my knowledge, a common carrier would be a waste hauler or a tire hauler. But with this contract, it also includes labor of the --- at the actual event, trailer rentals and also renting trailers at a permanent facility, placing them at a permanent facility. Which I'm not a PSC employee, so I don't know exactly what a Common Carrier Permit would encompass. But this is not 0 just --- to my understanding, it's not just going around picking up normal waste. Q. Do you know if Tire & Rubber, Inc. has the manpower and the equipment to provide the very service you just testified that was needed under this REAP Program? A. I do not know if they have the manpower or the trailer --- trailers or the manpower to do this, because

21 0 when --- previously when we did hire TRI, they subleased a towing company or a trucking company to do a lot of their services for us. Q. So if it will be Randy Zortman's testimony that Tire & Rubber, Inc. has both the manpower and equipment to provide the service that DEP requires under this program, you wouldn't have any reason to dispute that, though; correct? A. I would not have any reason to dispute what he says here, other than I know from previous invoices that he did subcontract the hauling of those tires and hauling of his trailers. Q. Now, if this contract is awarded to the Applicant, there will be a signed contract that will be entered into between the Applicant and DEP; correct? A. That's correct. Q. Do you have a copy of the contract that they will enter into in front of you? A. I do not. Q. Do you believe that the Public Service Commission would need to approve that contract to approve this permit application? A. Not if the bidder that's being awarded has provided all documentation that we request through the West Virginia Purchasing Division.

22 0 Q. Now, the duration of the contract, according to Applicant's Exhibit, is an initial term of one year and then an option to renew for two years, starting in December of 0; correct? A. That's what I was informed. Q. Okay. And in the past you said that Tire & Rubber, Inc. had been awarded this bid or this contract; correct? A. We did not have contracts with Tire & Rubber --- or tire --- our tire collection events prior to this. This is a --- the contracts that are being awarded or being put out to bid and being awarded now had started in 0, in June. That's when we started soliciting for contracts for this. That's when we found out that we --- through the State Auditor's, that we needed to have a contract for the tire collection events. Q. Who's been picking up the tires since June of 0 under this program for the ---? A. For the tire collection events? Q. Yes. A. That was ended in August. We have no one to pick up any of the tires now. All --- the whole state is in basically a deadlock until we can award some contracts. So we have not been able to perform any tire collection events since then.

23 Q. And let me ask you this. I don't have the contract in front of me, but is part of the condition of the contract that the winning entity have authority from the Public Service Commission to pick up and dispose of tires? We have asked for in the specifications --- I do have specifications. If you'll allow me to look for those. Certainly, ma'am. A. Under our request for quotes,.., it says the bidder must be in compliance with West Virginia Code A--, which addresses the Certificate of Means and Necessity. It gives the code chapter. And a proof of compliance must be provided prior to award of the contract. Upon request from the West Virginia State 0 Purchasing, proof of compliance must be provided within three days of the award of the contract. BY Q. And is it your understanding that the only entity that has authority to provide this service under a Certificate of Convenience and Necessity issued from the Public Service Commission is Tire & Rubber, Inc.? A. To provide a service of --- at this time? Q. Yes.

24 0 A. At this time that is all that I know of. Q. So when Tire & Rubber, Inc. put in its bid to the DEP, it was the only entity that satisfied that requirement that you just read; correct? A. Satisfied this requirement. Q. And so that could have been awarded --- those tires could have been picked up all year long, including --- you said it ended in August of 0. This REAP Program could have been satisfied or taken care of by Tire & Rubber, Inc. if the DEP had so chosen; correct? A. If we had chose to, but the process of putting it out to bid is that we're trying to save the state financial --- or, you know, finances, trying to save the state money by soliciting a competitive bid, so that we can get the lowest bid for the service. Q. Are you aware --- I'm just asking if you're aware of any requirement that if a Contract Carrier Permit is issued from this Commission that the rates to be charged cannot be lower than the common carrier rate charged by the common carrier serving the same territory? Are you aware of that requirement? A. I am not aware of that requirement. Q. And you said that the sole reason that the Applicant was granted --- or was the successful bidder was solely based on rates; correct?

25 A. Solely based on competitive bid. Q. The rate that they gave the DEP in the bid process? A. In the bid process. Q. Would you agree with me? A. Would you repeat that? Q. Sure. You stated that the sole reason that TLC was the successful bidder in this was because it submitted the lowest bid to the DEP for this service? A. He did not submit --- he just --- he did not submit the lowest bid. West Virginia Tire, Incorporated submitted the lowest bid. But they're ineligible because we have a Cease and Desist Order with the tire facility, so no tires can be taken to that facility. And it's been 0 ruled by the West Virginia Purchasing that they're in noncompliance also. Is the reason for the Cease and Desist Order because that entity improperly disposed of tires or ---? A. Yeah. It's a DEP environmental issue. Okay. A. And we have a Judge ruling that dates back to 0. And they have not come into compliance since then.

26 And it was determined that they are still in noncompliance. So therefore, in their Common Carrier Permit it states that the trucking company that works with them has to take their tires solely to a West Virginia tire facility. So if the West Virginia tire facility is, you know, not in compliance, then that would throw out the TE company which works with them. therefore, TLC was the next --- or lowest bidder. So I'm sorry. Next to lowest bidder. Thank you very much. A. And I have a copy of that Court Order, if you would like. Okay. I think I understand it now. A. Okay. 0 Judge, I have no further questions. Ms. Bouvette? CROSS EXAMINATION BY ATTORNEY BOUVETTE: Q. Ms. Rogers, when was the last time that Tire & Rubber performed the REAP services for West Virginia DEP? A. I believe it was in May. We did have some

27 trailers that they had set that we had to get pulled, because that was after we were told you needed a contract. And that may have happened in July, those 0 couple trailers that was set at different solid waste authorities or municipalities. Q. So you're saying May of ', 0? A. May of '. That's when a lot of changes went through with the West Virginia State Auditor's Department, and we realized that we would need contracts now for all of this. Q. So you didn't actually have a contract with Tire & Rubber? A. No, sir --- no, ma'am. I'm sorry. Q. And do you know where TLC is proposing to dispose of the tires? According to their Common Carrier Permit, it would be that they would take their tires to their facility. Q. To TLC's ---? A. Oh, I'm sorry. TLC? No, TLC will be taking those tires to whatever areas that DEP would ask them to take it to. And that would be either --- TRI. As of right now we have two places that are active and that's TRI and also Preston Tire & Recycling. Q. Did you have a number of companies bid on this

28 contract? A. A few. Maybe --- I feel like maybe three or four. so ---. I don't have the bid spreadsheet in front of me, 0 Q. But no more than five? A. I can't tell you. I'm not sure. It's been a long process and we've had to put it up for bid a couple times, so ---. Q. So the only thing that you're waiting on is for TLC to obtain either a Certificate of Convenience and Necessity or a Contract Carrier Permit? A. That's correct. ATTORNEY BOUVETTE: I have no other questions. Mr. Flora? REDIRECT EXAMINATION BY ATTORNEY FLORA: Q. I just want to be clear. It's the --- there's a policy in place regarding the REAP Program for the removal of waste tires that it be competitively bid? A. That has been recommended. That was what I was informed from our DEP Procurement. And also --- and they were informed by West Virginia State Purchasing. Q. Other than prior to the reason why we're here

29 now, the REAP Programs did not require a contract; is that correct? A. That's correct. Q. And prior to why we're here today, was TRI the only provider of that service to DEP? A. Oh, no, sir. We had quite a list of vendors that --- because we were --- we didn't have contractors. We were not aware of the carrier ---. Q. So you awarded it to whomever DEP deemed fit? A. It's my understanding we awarded it from an old contract that we had in 0 that became null and void. But we had a list of vendors that we had used for open dump and tire collection events. And in 0, we began 0 doing contracts for the open dump cleanups, but we were --- I was informed that the tire --- we did not need the tire contracts because they were considered a separate --- a separate event. And it was less than $,000 per event, so that we did not actually put them out to bid. Q. To the best of your knowledge, at any time was Tire & Rubber, Inc. the sole provider of that particular service? A. No, sir. ATTORNEY FLORA: That's all I have, ma'am.

30 0 Mr. Hanna? No further questions. Ms. Bouvette? ATTORNEY BOUVETTE: No further questions. You may step aside. Thank you very much. A. Thank you. Mr. Flora, you may call your next witness. ATTORNEY FLORA: I would call Shannon Simmons. ATTORNEY WANDLING: And I'm sorry, I'm Jason Wandling. I'm General Counsel for the DEP. May we be excused if 0 there's no further need for the witness? Any objection to excusing the witness? ATTORNEY FLORA: No. ATTORNEY BOUVETTE:

31 No objection. You may be excused. Thank you very much. 0 ATTORNEY FLORA: Thank you all SHANNON SIMMONS, HAVING FIRST BEEN DULY SWORN, TESTIFIED AS FOLLOWS: DIRECT EXAMINATION BY ATTORNEY FLORA: Q. Would you state your full name for the record? A. Shannon P. Simmons. Q. And Mr. Simmons, what is your address? A. Sovine Road in Hurricane, West Virginia,. Q. What is your relationship with TLC Pro Maintenance, LLC? A. Owner. Q. And are you in good standing with what --- is TLC Pro Maintenance, LLC in good standing with the State of West Virginia, as far as the Secretary of State's office is concerned?

32 Q. Now, you've been present when Ms. Rogers testified on behalf of the West Virginia Division --- Department of Environmental Protection; is that correct? Q. And you heard her recitation as to the REAP Program? A. Right. Q. Prior to filing your application to become a contract carrier for the --- were you involved in the REAP Program? Q. And were you involved in the hauling of tires, waste tires, under that? Q. And how were you contacted? What duties did you --- what jobs did you perform for the Division of Environmental Protection? A. Well, we had a tire dump that we would go over the hill, fetch the tires and bring them up, load them 0 up. And they'd tell us that we could take the tires. Q. Who would tell you? A. The DEP. Q. And is it your understanding that DEP will likewise tell you where to take the tires that you may be awarded under the contract if this Commission gives you a

33 permit? A. Yes, sir. Q. Now, when you performed these services for DEP prior, did you have equipment that you used? Q. Do you have equipment sufficient to fulfill your obligations under the contract in the event it should be awarded to you? A. Yes, sir. Q. Can you just briefly describe the equipment that you owned? A. Skid steer with gravel bucket, mini excavator with a hydraulic pump, load tractor, -foot trailer, dump truck --- two dump trucks. Can you go through the list one more time and have him talk a little slower and louder? I was having trouble. I can't imagine that she got it. 0 A. The equipment? BY ATTORNEY FLORA: Q. Yeah. Speak up just a little bit and a little slower. I know you ---. A. Skid steer with a gravel bucket, excavator --- mini excavator with a hydraulic pump, load tractor, -foot trailer

34 0 Q. Excuse me. I'm sorry. Go ahead. A. And two dump trucks. Q. Do you have any specialized tire equipment? I have two tire pressures, one for automotive and one for semis. Q. Do you use that in the hauling of waste tires? Is that part of your job? A. Well, it's part of my job, yes. Q. Are you familiar with Tire & Rubber, Inc.? Q. Have you ever had any work for Tire & Rubber, Inc.? Q. Hauling waste tires? Q. Did there come a point in time where you became aware that you needed to get permission from this Commission to haul the waste tires? A. Yes, last summer. Q. Summer of 0? But I was awarded a contract July st of 0 and got canceled August st, 0. Q. And the hauling of waste tires, do you believe it's in the public interest that these be removed?

35 0 Q. And you believe it's also in the public interest that it be done as economically as possible? A. Yes, sir. Q. Do you believe that your provision of the service will impair the use of the highways of the State of West Virginia? A. Rephrase. Q. Are you going to hurt the highways of the State of West Virginia if you haul these tires? A. No, no. Q. Will your hauling of these tires increase the maintenance of the highways? A. No. Q. Will it endanger the public safety? A. No. Q. Do you have sufficient labor on hand, if you need it, to be able to perform the terms and obligations of any contract that may be awarded if you get the Contract Carrier Permit? Q. How many years experience do you have hauling these waste tires? A. About years. ATTORNEY FLORA: That's all I have of this witness.

36 Mr. Hanna? Yes, sir. CROSS EXAMINATION BY Q. Mr. Simmons, I'm looking from the Motor Carrier Form Number, the amended form. It appears to have your 0 signature. Mr. Flora. Are you familiar at all with that form? It might be helpful if you had a copy, I've already made copies. Actually, if we had a copy, Mr. Hanna. May I approach, Your Honor? Yes, sir. Your Honor, I have one for you. Thank you, sir.

37 You're welcome. I believe I have one for you. BY Q. If you'd turn to the second page of that document. I haven't had it marked yet. I want to ask you, is that your signature at the bottom? Q. Question five --- or I'm sorry, question nine asks, will the proposed service compete with any other common or contract carrier? And you answered yes. Do you see that? Q. Was that statement true when you made it on this form? Q. And on the back of this application, the last page you give a greater answer to question nine. Do you see where it's typed, will the proposed service compete with any other common or contract carriers? And you 0 listed one, two, there, four, five, six, seven, eight nine --- nine common carriers. Do those carriers have authority from the PSC to haul waste tires? A. That I do not know. I know that some of these right here are disposal services, like A & M Disposal, and landfills, sanitation services. But like I say, it's

38 a --- and Lusk Disposal. Q. When you filled out this form, was it your opinion that the granting of this authority to you would compete with the authority of those nine solid waste haulers that you've listed? A. No, just --- well, maybe two of them. Q. What are the two? A. TE and Tire & Rubber. Q. So the granting of this application, you would agree, would compete --- you would be able to compete or take business away from Tire & Rubber, Inc.? A. Well, they're all in a bid process. So yes, if I'm awarded, yes, it would take it away. Q. Okay. And do you know how much this contract is worth to you financially? you, do you have any idea? How much the DEP would pay A. I'd have to go back and look through them numbers to see what I did. Like I say, it was --- then 0 we placed our bids back in October. Q. Okay. So can you ballpark it? A. Based on labor, not --- we're not pricing tires. In my case, it's not hauling parts of --- labor and trucking, I'm thinking --- if I'm not mistaken, I'm thinking like $,000. Q. Per year?

39 Q. So if the contract has an initial term of one year, with an option for two more years, that's three, --- Q. --- you multiply that times $,000, which would roughly be around $0,000, $0,000; correct? A. Right. Q. That's a pretty substantial sum of money, isn't it? You'll have to answer yes or no if you have an opinion. Q. And that contract for this Western District, that service in the past, you know, has been provided for periods of time by Tire & Rubber, Inc.; correct? A. I mean, it's all a bid process. That's what we used to do in the past. It's just --- like Sandy said before, anything over $,000, you know, you do these tire collections and they tell you where to take the tires to, 0 for a licensed facility. It's either going to be TRI, it will be West Virginia Tire or it will be Charlie's place up there in Preston Tire. Q. But my question to you is, are you aware that this service was provided by Tire & Rubber, Inc. in the past?

40 0 A. No. Q. You weren't aware they provided this type of service, removal of waste tires under the REAP Program with DEP in the past? A. No. ATTORNEY FLORA: I'm going to object. I'll move on. ATTORNEY FLORA: I'll move on. 0 That was a --- in these counties, the Western Region, is that your question? Yes. I think the guy answered it twice no, so ---. Okay. Judge, I'm going to go ahead at this time and ask --- may I approach? Certainly. And Judge, how do you want this

41 labeled? 0 Can we just do it TRI Exhibit? Sure. TRI Exhibit. (TRI Exhibit marked for identification.) BY Q. And Mr. Simmons, just so we're on the same page, I want to give you the actual exhibit and ask you to review that. What did we mark, sir? We marked --- do you want me to tell you, Your Honor? Yes. We marked a cover letter from Mr. Flora dated December th, 0 on the first page. It stated that he's attaching Motor Carrier Form Amended. Okay. So the document we were just looking at?

42 Yes, but I thought you wanted me to put it on the record. Yes, yes, yes. I'm sorry. The second page of that, TRI Exhibit, is West Virginia MC Form Number. The third page is part of a notary. And the fourth page is answer to question number nine. (TRI Exhibit marked for identification.) BY Okay. Thank you. Q. And Mr. Simmons, have you finished looking at that document? It's the same one you gave me. Q. Right. And is that document --- is that the 0 Form Number that you signed and filled out? This one, sir, is this Form Number, the one that you signed and filled out? Judge, I'll move into evidence what has

43 been marked as TRI Exhibit. Objections to the admission into evidence of Tri Exhibit? ATTORNEY FLORA: No, Your Honor. It's admitted into evidence. BY Q. Now, Mr. Simmons, I was looking back on the history of your company. And there was a formal complaint brought against TLC Property Maintenance by a company known as West Virginia Tire Disposal, Inc. you aware of that? A. Yes, sir. Are Q. And it was Case Number --- for the record, it's Case Number 0--MC-FC. As a matter of fact, this Judge right here, the Chief Administrative Law Judge is 0 the same Judge that was assigned to that case. remember that? A. Yes, sir. Do you Q. Okay. And that was a formal complaint brought against TLC Property Maintenance, Inc. by West Virginia Tire Disposal, Inc., claiming that you were operating without Public Service Commission authority. Do you

44 remember that? A. Yes, sir. Q. And that case was resolved; correct? A. Right. Q. Did you --- did TLC Property Maintenance, Inc. agree to stop providing service until it obtained proper PSC authority? A. No, because you don't need a hauling permit to take them out of state. So therefore, Carl Graybill, the 0 person who owned it at the time --- or actually helped build West Virginia Tire, we pretty much resolved it together to have, you know, me bring the tires to him ---. Q. It was resolved by you agreeing to take the waste tires out of state? A. I was taking them out of state. Q. I understand. I didn't mean ---. A. Right. Q. I appreciate that. I'll move on. Thank you for that, Mr. Simmons. Now, if the DEP awards this bid to your company, would you have to sign a new contract with them? A. No. If I'm awarded the contract, then I don't need to sign a new contract. lowest bidder. I mean, just --- I'm the

45 Q. Well, do you have to sign a contract is my question? A. No. We pretty much did everything once we sent the bid in. Q. You signed the contract at the same time that you put in your bid on this program? A. I'm pretty sure, yeah. I don't think that there's anything afterwards. Q. Well, how did you know --- if you signed the contract, how did you know you'd be the successful bidder? A. Well, because I mean, I guess the --- I mean, whatever the lowest bidder is --- I mean, it's already signed. I mean, everything is signed, this, this and that, owner of TLC signed, this is my bid, the West Virginia license program. He sent it in electronically and there you go. I think that's all you do. 0 Q. So as part of the bid process, you were required to submit a signed contract that the DEP had forwarded to you? A. I guess it's what it's called. I mean, it's signed. I mean, I signed my name and everything. I got awarded the contract here on July st. The --- like I said, I pretty much didn't have to do anything. I got it and on August st, 0, it got canceled. They told me

46 I needed a Contract Carrier Permit. Q. So as we sit here today, it's your impression that you have an existing legally-enforceable contract with the DEP signed by both you and the proper person from the state to operate and to pick up and disposal of waste tires under this REAP Program? ATTORNEY FLORA: I'm going to object to that question, Your Honor. It's asking legally enforceable. Once again ---. I do think it probably is more than what would be reasonably expected of this witness to know. And with the preface that I understand this man's not a lawyer, you can ask him his impression. Judge, for purposes --- I understand what you're saying. I'm just going to move on. I'm not going to belabor that point. I understand. 0 Let me see, Judge. BY Q. When is the last time you picked up waste tires for the DEP? A. August st. Q. Of 0?

47 A. 0. Q. Okay. Judge, just let me look over this for a minute. COUNSEL REVIEWS DOCUMENT BY Q. Now, if --- under this contract, how many employees are you going to have providing this service to the state? A. Well, what it is, on these tire events you're required to have four laborers, including me. So then 0 I'll need three. I've got five boys, and --- ages, 0,, and. I'll take my three oldest ones and they'll help me out. Q. And what type of equipment were you required to have? A. Load tractors, trailers. Q. How many trailers? A. Whatever they require. You know, whatever they request. Q. You don't know how many? A. I mean, it could be two, it could be three, it could be one. Q. How many do you have? How many does your

48 company have? A. Oh, I can get trailers anywhere. I've got one trailer, a -footer. Q. What about trucks, how many trucks are you required to have? A. Well, if you got a load tractor, just need one. Q. For all these counties you just need one truck? A. There's also a rental. I mean, when we bid the contract out, it's also got rental trucks. You bid as rental. This is only if I need to buy a truck. When you place your bid, you place it on rental of a box truck per day. Q. And let me ask you this, about the rate that --- what rate did you put into the DEP? A. That's for labor and the trucking part of it. It's not --- it's not for the tires. I'm not charging 0 for the tires, because the licensed facility charges for that. Q. Let me interrupt you. When you say licensed facility charges for that, you mean your bid did not include the disposal fee for the disposal of the waste tires? A. Right. Q. In preparation for today's hearing, when I reviewed that, you just merely submit that invoice for

49 that disposal site to the DEP; correct? A. Now, reword that again. Q. Sure. When you were awarded the contract, it's your understanding that the solid waste disposal facility that you will use to actually take the tires to for disposal, that you will get an invoice from that facility and you'll merely send that to the DEP and they'll pay that directly? A. No. The disposal site sends that to the West Virginia DEP. Q. That's what I just said. A. Right. Q. Okay. So your bid did not include the cost of the actual disposal of those tires, is that what you're saying? A. Right. Q. I'm with you. Now, go ahead and go on. Then I asked you what the rate was that you bid? A. If I'm not mistaken, I believe the box truck I'm thinking it was $0 a day. On a trailer, I think maybe it was either $,000 or $,00 for a trailer. Like I said, it's --- I placed this bid back in October. It would have been opened up on November th. I really --- that's about all I know for right now. Q. That's all you can remember?

50 0 0 Q. You think there were other charges associated with this service that you just don't remember? A. Right. Q. Mr. Simmons, when you last picked up tires for the DEP in August 0, where did you take those tires for disposal? A. Charlie Pace. Q. I'm sorry? A. Charlie Pace. And I took a load to TRI. Q. One to the Pace facility. And for the court reporter, is that P-A-S-E? A. P-A-C-E. Q. P-A-C-E. I'm sorry. And then another --- some of that --- those loads you took to the Tire & Rubber, Inc. facility? I don't have any further questions, Judge. Ms. Bouvette? ATTORNEY BOUVETTE: Yes. CROSS EXAMINATION

51 BY ATTORNEY BOUVETTE: Q. You stated you had how many employees? A. I mean, I've got five boys, yep. I'm pretty much family-oriented. I use my family. My dad sometimes helps me out. Q. Okay. How many of the five boys will be driving a truck or a piece of equipment? A. Well, I've got three boys. Q. Three that will ---? Q. And what are their ages? A. Twenty-six (), 0 and. Q. Has any of the boys or you have any citations, traffic citations, in the last two years? A. I had one, but it got resolved because the DMV didn't do what they was supposed to do. I will tell you 0 that. I got pulled by DOT by --- back in June of 0. And like I say, any time I got, you know, pulled by DOT, I pay my fine either that day or the next day. And somehow the courthouse, they faxed it on to the DMV, because I paid it that day, $0 fine, and never got --- you know, they never did push the button. shut down for the Commonwealth of Pennsylvania. I got And so we had to go back up there to show them, hey, took the court papers, you know, the fine was paid and I had them

52 restate my license back on my way up there. Q. And what was the violation for? A. What was that? I believe it was for a dirty license plate. Q. A dirty license plate? Q. I was going to ask you if you did a background check of your employees. A. I know the background check. Q. I won't even ask you that one. So what equipment do you have on the actual highways? A. I got a road tractor and a few dump trucks. Q. Okay. And how do you prevent those from damaging the highway? I mean, a road tractor, does that have like a mouth or something on it? a tractor like a tractor-trailer? Or are you talking 0 A. Yeah. I'm talking about a rig, semi. Q. Okay. Q. So this is like a truck? Q. Okay. And these REAP events, can you describe exactly what happens in a REAP event? A. When the public brings in their tires and basically disposes of them.

53 Q. You said that there is some labor involved with that. Is that just getting the tire out of the trunk and throwing it in the back of the truck? A. Right. Yes. Q. So you're not scrambling down hills and finding tires in a creek bed or something like that, as part of the REAP event? A. No. The REAP event is basically just a tire collection. Q. Okay. A. It's basically, you know, just unloading the truck or vehicles and throwing them back in the trailer. Q. Right. And for --- on your application you said you had some competitors, Tire & Rubber and TE. Do they do they send a vehicle out or a truck --- a box trailer out for the company to bring tires to? A. If they --- if they win the bid. Q. But normally, as part of their daily practice, are they leaving box trailers sitting around for people to bring tires to throw in? A. Not that I recall, no. Q. So a REAP event that you're involved in is different from what the service at Tire & Rubber provides on a daily basis or that TE Trucking is providing on a daily basis? You're collecting tires that the public

54 brings to you to throw in the back of your truck? A. I'm not collecting tires. The REAP Program is collecting tires. It's like a special event that the public drops off for free. And at the same time they actually have trash collection the same day. You can bring in like, you know, if they got flooded out, extra debris in, and throw them in the back of the garbage trucks or the front of the yard dumpsters, what have you. Q. Right. But what I'm trying to ask you, is the service that you're providing to the REAP event similar to what Tire & Rubber does on a daily basis? Just note my objection. There hasn't 0 been any basis as to even if he knows what Tire & Rubber does on a daily basis. ATTORNEY BOUVETTE: Okay. I'll ask that question. Thank you, Sam. BY ATTORNEY BOUVETTE: Q. Do you know what Tire & Rubber does on a daily basis? Q. And can you describe what that is? A. They collect tires from service stations and

55 dealerships and --- for a charge. Q. Okay. So is the service that you believe that Tire & Rubber is providing similar to what happens at a REAP event? A. Not necessarily, because I'm not charging for the tire. I'm just charging for my time. 0 Q. And it's not --- and you're not charging for the tire? A. No. The only --- only way that tires gets charged is when I take it to a licensed facility. Whatever licensed facility they tell you to take it to is where I take it. Q. And the service station isn't bringing their tires and ---? A. We try to keep those out. I mean, sometimes they sneak --- they sneak in there, but we try --- you know, we try to keep an eye on them. Q. But basically it's the public bringing their waste tires to your --- to the REAP event? A. Right. Q. Did you state earlier in your testimony that you worked for Tire & Rubber at one point? Q. And how long did you work for Tire & Rubber? A. At the time he first opened there, about '0,

56 '0, we went up there and done some tire crushing. Q. So you're familiar with their operation? Q. So the tires that are collected at a REAP event aren't normally tires that a company like Tire & Rubber would be collecting on a daily basis? Just note my objection again, Judge. His knowledge about the operations of what kind of tires were brought in and what kind of tires Tire & Rubber, Inc. picks up, there's no foundation. I'll let him --- I'll let him answer. All right. A. See, I don't charge for the tire. I say when I run at these REAP events, I'm charging for my time and the labor and transportation. All right. I'm not charging for the tire. The only time you're charging for 0 the tire is when I take it to a licensed facility, they send the bill to the REAP. ATTORNEY BOUVETTE: I have no other questions. Mr. Flora.

57 REDIRECT EXAMINATION BY ATTORNEY FLORA: Q. Mr. Simmons, Mr. Hanna went through Form Number with you, which was marked as, I believe, Tire & Rubber Number, and asked you to refer to the last page of that document that had response to question number nine. you recall that? Q. Did I prepare that document on your behalf? A. Yes, sir. Q. Did we include anyone who at that point had either intervened or objected to the award of the contract to you? A. Repeat that again. Do 0 Q. We included anybody who had, at that time, filed a protest or moved to intervene in your case before the Public Service Commission; is that correct? A. Right. ATTORNEY FLORA: I believe that's all I have. Mr. Hanna? RECROSS EXAMINATION BY Q. Mr. Simmons, I'm just a little confused. What

58 service will your company provide the DEP under these REAP Programs? provide. Tell me what service your company will 0 A. Well, we provide the labor and the transportation. Q. Of what? A. Tires. Q. For what purpose? A. Well, I mean, you got the open tire dumps. You got these tire collections. The REAP Program, though, does not do the open tire dump; right? A. Yes, they do. The REAP Program also does the open tire ---? A. Yes, sir. And under the contract you'd be cleaning up these open tire dumps? A. If there's a --- if there's a small amount of an open tire dump, we'll go out there and do those. So in those situations, you would be

59 0 going over the hill and pulling a tire out of a creek? A. Yes, sir. Okay. BY Q. So would it be fair to say that the service that your company provides to DEP is the pick-up and disposal of waste tires? A. I don't dispose of tires. Q. I'm sorry? A. I do not dispose of tires. He takes them to ---. A. I take them to a licensed facility, which is Charlie Pace or TRI or Preston Tire. BY Q. So let me rephrase my question. The service that your company provides, is it the pick-up of tires and the taking of the same to a solid waste disposal? A. Repeat. Q. Sure. Is the service that your company will provide to DEP is the picking up of the waste tires and taking those waste tires to a solid waste disposal facility, wherever that may be? Under the REAP contract?

60 0 0 Q. Under the REAP contract. A. Right. Which is awarded when the lowest --- you know, by lowest bidder. So it's the hauling of waste. I don't have further questions. Ms. Bouvette? RECROSS EXAMINATION BY ATTORNEY BOUVETTE: Q. But you're not actually picking up the tires. You're not going to different locations, picking up tires, you've got a box trailer or something sitting at a particular location and people are bringing tires to you? A. No. Q. I thought a REAP event, you had to park someplace and people bring tires to you? A. During tire collection. That's for one day. That trailer only sits for one day, then you got to move it. But if you let it sit there more than one day, you'll have tires surrounding that trailer. Q. Right. A. Right. It's like --- but I don't like that. I don't stage a trailer at --- you know, for a certain

61 amount of time. event. Q. Right. I mean, it's just --- it's a one-day ATTORNEY BOUVETTE: I have no other questions. Anything else, Mr. Flora? ATTORNEY FLORA: No further questions, Your Honor. You may step aside. Thank you very much. Do you have additional witnesses, Mr. Flora? ATTORNEY FLORA: I do not, Your Honor, but I would move 0 the --- into evidence Applicant's Exhibit Number. No objection. It's admitted. ATTORNEY BOUVETTE: No objection. I'm sorry. It's admitted --- it's admitted into evidence. Mr. Hanna, do you have

62 witnesses? I have one. I call Raymond Zortman RAYMOND ZORTMAN, HAVING FIRST BEEN DULY SWORN, TESTIFIED AS FOLLOWS: DIRECT EXAMINATION BY Q. Mr. Zortman, will you state your name for the record? A. It's Randall E. Zortman, Z-O-R-T-M-A-N. Q. Randy, what association do you have with Tire & Rubber, Inc., the entity that holds motor carrier authority from the Public Service Commission? A. I'm the president and CEO of Tire & Rubber, Inc. Q. How long have you been in that position? A. Fifteen () years, years. Q. Are you authorized by Tire & Rubber, Inc. to appear at this hearing today and define that entity by your testimony? A. I am. Q. Now, so that there's no confusion, Tire & Rubber, Inc. also has a solid waste facility; correct? A. It does.