Mr. Josh Barker 250 Ellii Fork Road Chapmanvine, WV 25508

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

IN RE: BOONE COUNTY TRANSFER STATION, Madison, Boone County, Request to cease operations and withdraw tariff.

MOTION BY THE CITY OF MADISON, THE TOWN OF DANVILLE, AND CONCERNED CITIZENS OF BOONE COUNTY FOR THE ISSUANCE OF AN ORDER REOUIRING THE BOONE COUNTY COMMISSION TO SHOW CAUSE WHY IT SHOULD NOT BE HELD IN CONTEMPT FOR ITS KEFL'SAL TO COMPLY WITH THE ORDER OF THE PUBLIC SERVICE COMMISION ENTERED ON JANUARY 28,2016

Come the Petitioners, The City of Madison, The Town of Danville, and the Concerned Citizens of Boone County (hereinafter jointly referred to as "Concerned Citizens"), and file this motion to issue an order requiring the

Boone County Commission to show cause why it should not be held in contempt for its failure to charge fees at the rate of the current tariff on file with the Public Service Commission, as required by that order dated January

28, 2016, That order, which has not been appealed and which is now a final order, contains the following findings of fact:

"BCC, however, has a current tariff on file with the Commission that specifies rates for receiving municipal solid waste, residential waste and used tires. All solid waste facilities should collect fees consistent with their approved tariffs without discrimination until the Commission authorizes revised rates or the abandonment of service. (W.Va. Code 24-2- If, 24-3-2.)

In this case, BCC should collect its prevailing tariff rates pending the authorization of revised rates or termination of service."

The following conclusion of law ordering the BCC to charge a fee at the tariff rate was thereafter entered:

"3. A solid waste facility holding a Certificate of Need from the

Commission must charge its prevailing rates approved by the

Commission.(W.Va. Code 24-2-1f. 24-3-2i"

Concerned Citizens submit that the failure of the Boone County

Commission (hereinafter BCC) to charge a fee at the rate set by the tariff on

file with the Public Service Commission clearly represents contempt for the

order of this court, and, could result in sanctions being imposed against the

individual commissioners and managers who decided not to obey that order, pursuant to the provisions of W.Va. Code Regulation 22-15-15, and 24-4-

lthrough 6.

Additionally, the BCC has failed to file as evidence a detailed report

showing the breakdown of the annual revenue required to operate the two transfer stations, as requested by the Staff of the Utilities Division of the

Public Service Commission,. That Staff report, dated January 11, 2016,

stated that the information requested from the BCC was not received in time to verify the costs of operating the two transfer stations (Utilities Staff

Report of January 11, 2016, Pg. 1, Para. 3). That Staff report gave an

unaudited estimate of the cost per ton required to break even. The

information provided by the BCC and referred to in that Staff report has not

been admitted as evidence into this record. That portion of the requested

information referred to in the Staff report of the Utilities Division is not broken down to show detailed costs. Concerned Citizens submit that an

audit of the actual costs required to operate the two transfer stations is required so that available options can be addressed with a degree of accuracy.

The legal position of the BCC is that it is not subject to the control of the Public Service Commission. Counsel for the BCC argued the following

in support of the closure request, "the PSC has no statutory authority to require the CCBC to continue to pay for such a service."(Motion to Permit

Scheduled Closure of Transfer Station Effective January 30, 2016, Pg. 4,

Para. 3) Concerned Citizens disagree and submit that the provisions of the

West Virginia Solid Waste Management Act (W.Va. Code 22-15-1), grants unto the Public Service Commission the authority to regulate the disposal of solid waste by the BCC.

West Virginia Code 24-3-7 provides that no public utility shall abandon all or any portion of its service to the public or the operation of its lines which would affect the service it is rendering to the public unless and until there shall first have been filed with the public service commission of this state an application for a permit to abandon service and obtained from the commission an order stating that the present and fbture public convenience and necessity permits such abandonment.

The notification procedures required by West Virginia Code State

Regulation 33-1-6 at 6.1.b.l were not followed by the BCC. That regulation requires that all users of a solid waste transfer facility be provided with notice by an operator or permittee of an intent to close any solid waste transfer facility before that facility may be closed. The purpose of that regulation is to allow the people time to evaluate alternative waste disposal plans. That state regulation provides as follows:

6.1 .b. Notification Procedures. 6.1 .b. 1. At least one hundred twenty (1 20) days prior to closing the facility, the permittee us^ notify the Secretary in writing of the intent to close the facility and the expected date of closure. Prior to this date. the permittee must notifv all users of the facility of the intent to close the facility so that alternative disposal options may be evaluated.

That regulation requires that all users be notified of the closure before the 120 day notice is provided to the Secretary. There exists no evidence in the record that any notice of the closure was provided to all users at any time, and certainly not before the 120 day notice was provided by the BCC to the Secretary.

The purpose of this regulation is clear. The operator or permittee of any solid waste facility has a duty to provide notice to users so that alternative waste disposal options may be evaluated. A solid waste transfer station is within the definition of a solid waste facility as provided in West

Virginia State Regulation 33-1-2 at 2.123.

Concerned Citizens is a non-partisan group that is presently withholding its request to impose sanctions on the individual commissioners and managers for their contemptuous acts and failures to act. Rather,

Concerned Citizens invites the BCC to join them in their request that the matter of the closure of the transfer stations be referred to the PSC engineering department for a review that addresses all aspects of the operation of the transfer stations; that the assets of the two transfer stations be appraised and assessed; that the costs required to operate each transfer station be broken down, detailed, and accurately audited; that the assets and costs of operating the recycling center be assessed separately from the transfer stations, as the plan of the BCC is to keep the recycling center; that the funds budgeted to operate the two transfer stations be separated, general revenue versus coal severance revenue; that the potential side effects of closing the transfer stations be reviewed and that the impact of those side effects be assessed and considered in the decision of whether to keep the transfer stations open; and that all revenue options that could keep the transfer stations operational and self supporting be considered.

A review of the transfer stations closure and the potential side effects that could result is supported by the following elected officials:

1. Delegate Jeff Eldridge, 22nd Delegate District. (Exhibit 1)

2. Delegate Rupie Phillips Jr., 24th Delegate District. (Exhibit 2)

3. Senator Ron Stollings, 7th Senatorial District. (Exhibit 3)

4. Senator Art Kirkendoll, 7th Senatorial District. (Exhibit 3)

PRAYER

Concerned Citizens state that there is in the record evidence that a closure of the two transfer stations would have a substantial negative impact on the environment, property, businesses, and people of Boone County. Absent a joint agreement by the BCC to the proposed review and audit by the PSC engineering department, Concerned Citizens do pray that this court enter an order granting the BCC a period of time to show cause why it should not be held in contempt; that a hearing on that motion be set for a future date, that depositions of the Boone County Commissioners and managers who have not testified at the evidentiary hearing be authorized, that frndings of fact and conclusions of law be made with regard to the issues of whether the BCC or any commissioner or manager should be held in contempt, sanctioned, fined, or imprisoned for failure to obey the orders entered by the Public Service Commission and by this court; that the BCC once again be ordered to keep the transfer stations open and to charge the rates set by the tariff on record with the PSC; that the efficiency of Waste

Management Corporation, its policies and assets be reviewed; and that the

BCC be ordered to consider and develop a transitional plan that evaluates all alternative waste disposal funding options and aggressively pursues those options.

The City of Madison; The Town of Danville; and Concerned Citizens of Boone County, By Counsel,

P. 0. Box 190 Madison, WV 25 130 (304) 369-01 10

HOUSE OF DELEGATES WEST VIRGINIA LEGISLATURE BUILDING1, ROOM 1514 1900 KAwwnA BLM., EA~T CHARLESTON,W 2530!30470 PHONE (304)34G3113 EMAIL. JEFF ELDRIbGE@WVHOUSE GOV sEFpEtDRxM;E QdWW 4754 COAL WER RD brergy ALUAICRmLWVZSOM Govcrament (304)928-m Park6

February 23,2016

Mr. Josh barker 250 Ellii Fork Road Chapmanvine, WV 25508

Dear Mr. Barker:

I am ooncerned about the potentwd dosure of the waste transfer statiin in Boone County. The Down turn in our coal-based economy has had a drastic amount of revenue loss to BmeCounty. I am in support of a review of the closure and the potential side effeds of closing the station. I will try to help come up with a means of funding, such as a garbage levy or any other revenue passibiliis. Please keep ma informed of your findings in the situation.

Jsff Eldridge 2286Delegate District

HOUSE OF DELEGATES WEST VIRGINIA LEGISLATURE BUILDING 1, ROOM 150R 1900 KANAWHA BLVD.. EAST CHARLESTON.WV 253050470 PHONE(304) 340-3174 EMAIL: RVPIE PWS,YR. RUPERT.PHILUPS~~HOWS~.~OV P.O. nox 1% LORALQ, W 25630 304-681-97930 304-6879793 (B)

February 23,2016

Mr. Josh Barker 250 Ellis Fork Road Chapmanville, WV 25508

Dear Mr. Barker:

I am concerned about the potential closure of the waste transfer station In Boone County. The down turn in our coal-based economy has had a drastic amount of revenue loss to Boone County. I am in support of a review of the closure and the potential side effects of closing the station. Iwill try lo help come up with a means of funding, such as a garbage levy or any other revenue possibilities.

Please keep me Informed of your findlngs in this situation.

24thDelegate District XHIBIT SENATORRON STOLLINGS STATECAPITOL, RooM~OY-W 7&SENATORIAL DISTRICT 304-357-7939

February 12,2016

Mr. Josh Barker 250 Ellis Fork Road Chapmanville, WV 25508

Dear Mr. Barker:

Senator Kirkendoll and I are concerned about the potential closure of the waste transfer station in Boone County. We are certainly aware of the drastic amount of revenue loss to Boone County from the down turn in our coal-based economy.

We are in support of a review of the closure and the potential side effects of closing the station; such as severe littering. We will try in any way we can to help come up with a means of funding, such as a garbage levy or any other revenue possibilities.

Please keep us informed of your findings in this situation.

Sincerely,

7'hSenatorial District

RDS/AWhc

HOUSE OF DELEGATES WEST VlRGliNIA LEGISLAWRE

BUILDING 1, ROOM 151-R 1900 KnNAWHA RLVD.,EAST CHARLESTON,w 253050470 PHONE BO41 34G3113 EMAIL.JEFF ELDRIDGE@WHOUSE GOV JEFP EtDRlDGE Committees. 4154 COAL EWER 8D Energy ALUhIcWmGWVrn3 GOV-MC ~mzau~ (304)928-9728 PSk6

February 23,2016

Mr. Josh Barker 250 Ellis Fork Road Chapmanvilk, WV 25508

Dear Mr. Barker: I am concerned about the potential closure of the waste transfer station in BOOM County. The Dawn turn in our ml-based economy has had a drastic amount of revenue loss to Boone County. I am in support of a review of the clwure and the potential side effects of dosing the station. I will try to help ~omeup with a meaftS of funding, such as a garbage levy or any other revenue possibilities. Please keep me informed of your findings in the situation. wwSincerely, teff Eldrildge 22"d Delegate Dstilcl

HOUSE OF DELEGATES WEST VIRGINIA LEGISLATURE BUILDING 1, ROOM 150R 1900 KANAWHA BLVD.. EAST CHARLESTON, WV 253050470 PHONE(304) 340-3174 EMAIL; RUPERT.PHILUP5~~OU5E.GOV RUPIE PHILUPS, IR. P.O. nox 194 LORAW,WV 25630 304-687-9793(rr) 3Q%68797$3 (E)

February 23,2016

Mr. Josh Barker 250 Ellis Fork Road Chapmanville, WV 25508

Dear Mr. Barker:

I am concerned about the potential closure of the waste transfer station In Boone County. The down turn in out coal-based economy has had a drastic amount of revenue loss to Boone County. I am in suppon of a review of the closure and the potential side effects of closing the station. I will try to help come up with a means of funding, such as a garbage levy or any other revenue possibilities.

Please keep me informed of your findlngs in this siruafion.

Sincerely,

Rupie Phillips, Jr. 241h Delegate DiStrlct / HOUSE OF DELEGATES YVESTVIRGlNlA LEGISLAWRE BUILDING 1, ROOM 15OR 1900 KANAWHA BLVD.. EAST CHARLESON, WV 253050470 PHONE (304)340-3174 EMAIL: RUPERT.PHiUIPS~~OUSE.COV RUPE PHfUlPS, YR. P.0. BOX 194 LOI(Aw,Wv25630 3w681-9193 @Kj 3wa79l93 (0)

February 23,2016

Mr. Josh Barker 250 Ellis Fork Road Chapmanville, WV25508

Dear Mr. Barker:

I am concerned about the potential closure of the waste transfer station In Boone County. The down turn in our coal-based economy has had a drastic amount of revenue loss to Boone County. I am in support of a review of the closure and rho potential side effects of closing ‘the station. I will try to help come up with a means of funding, such as a garbage levy or any other revenue possibilities.

Please keep me Informed of your findings In this situation.

24Ih Delegate Distrkt

SENATORRON STOLLINGS STATECAPITOL, ROOM 209-W 7'hSENATORIAL DISTRICT 304-357-7939

February 12,2016

Mr. Josh Barker 250 Ellis Fork Road Chapmanville, WV 25508

Dear Mr. Barker

Please keep us informed of your findings in this situation.

7Ih Senatorial District

RDS/AK/hc