Appeal from SUPERIOR COURT YAKIMA COUNTY. Superior Court No: 92-2-00327-8. Date filed in Superior Court: 11/9/93. Superior Court Judge signing: HEATHER VAN NUYS.
Phillip J. Thompson, Dennis J. Sweeney & John A. Schultheis, concur
THOMPSON, J.-- Superior Refuse Removal, Inc., (Superior) appeals the superior court order affirming the Washington Utilities and Transportation Commission's (Commission) denial of its application for a certificate of public convenience and necessity. The certificate would have allowed it to provide garbage collection services to commercial businesses in the city of Yakima (City), in competition with Yakima Valley Disposal, Inc., (YVD) the current carrier.*fn1 Superior contends the Commission's findings and conclusions on the issue of its satisfaction with YVD's service are clearly erroneous. Superior also questions whether the Commission (1) impermissibly relied upon evidence of YVD's service after the date of Superior's application, and (2) incorrectly assumed the Legislature approved the creation of monopolies in the solid waste disposal industry. We affirm.
The instant appeal is the second in this case. Superior applied for a certificate in March 1987. Under former RCW 81.77.040, a garbage collection company must obtain a certificate of "public convenience and necessity" from the Commission before beginning service. If a certificated company already serves the territory in question, the Commission has the authority to grant the application "only if the existing . . . collection company . . . serving the territory
will not provide service to the satisfaction of the commission." RCW 81.77.040.*fn2
An administrative law judge, on behalf of the Commission, conducted a hearing on Superior's application. At the hearing, Superior called YVD customers who testified about various complaints they had with YVD's service. Some of these customers reported problems with dirty, unsightly refuse containers, and with spillage from those containers. While the customers hypothesized the spillage occurred during YVD's refuse pickup, they admitted part of it was caused by factors such as wind. Several customers also testified they needed more frequent pickup service. Some called YVD's office with these complaints; others did not. The customers who called YVD were not always satisfied with YVD's response. YVD presented customers' testimony at the hearing, as well. These witnesses were satisfied with YVD's service.
Corey Weedman is the manager and president of YVD. He testified that overfilling of containers causes spillage in the pickup area. In such situations, YVD suggests the customer use larger containers or more frequent pickup; both are available for an increased fee. YVD replaces 20 to 30 containers and boxes each month. Mr. Weedman contacted the witnesses who testified on Superior's behalf, and replaced the boxes of those who complained about their appearance. YVD also cleans containers for a fee. Rick Cortez, the Commission's Region 3 Manager, stated YVD customers had filed only two service complaints since 1984.
Witnesses for Superior also testified about tariff and administrative regulation violations by YVD. The alleged violations included:
(1) YVD overcharged its customers by passing through dump fee increases for 1981, and 1983-86 without filing for a rate
change, in violation of RCW 80.28.050 and .080, and WAC 480-70-240.
(2) YVD charged commercial accounts extra for use of a tandem axle truck required for weight in excess of 27,000 pounds, non-compacted waste, even when the waste in question was compacted.
(3) The company used 13 yd., 20 yd., and 36 yd. containers without a tariff rate for those sizes.
(4) It did not comply with WAC 480-70-240, which requires disposal companies to itemize on customer billings, tonnage collected and disposed of in drop box service.
(5) YVD charged late fees for bills after 15 days, in violation of its tariff, which prohibited such charges unless the account was delinquent at the time of the next billing period.
In response, Mr. Weedman stated the increased assessments for drop boxes were attributable to fee increases by the landfill and did not result in a profit to YVD. Mr. Weedman said he did not know the Commission required the carrier to amend its tariff to reflect fee increases when the carrier did not benefit financially from the pass-through charges. After Mr. Weedman became aware of the need for a tariff change, he sought and received an increased tariff effective July 31, 1987. He offered refunds to the witnesses who complained of the overcharges. Mr. Weedman also testified that YVD recently made a computer change to prevent automatic assessment of late charges on billings sent to one of the witnesses. The vast majority of the other alleged tariff violations involved clerical and/or computer input errors, or did not result in a financial detriment to the customer.
Following the hearing, the administrative law judge issued a proposed order granting Superior's application. The Commission rejected the proposed decision. It held that YVD's service and tariff related problems were not egregious and did not justify the grant of a certificate to Superior. In so holding, the Commission interpreted "service to [its] ...