PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON
At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA
in the City of Charleston on the 14th day of March 2024.
CASE NO. 23-081 3-SWF-PW-CN (Reopened)
Apple Valley Waste Services, Inc.
Petition for a Determination that No Certificate of Need is
Required, and in the Alternative Application for a Certificate of
Need for an Emergency Interim Transfer Station, Petition for
Waiver, and for Expedited Processing.
COMMISSION ORDER
The Commission reopens this matter on its own motion and provides an
opportunity for the parties to file position statements regarding whether the
Commission should declare that its November 8, 2023, Order is moot on and
after the effective date of Senate Bill 603 enacted into law by the West Virginia
Legislature on March 1, 2024.
BACKGROUND
On October 16, 2023, Apple Valley Waste Services, Inc. (Apple Valley)’
filed a Petition requesting that the Commission find that the contractual use of a
portion of a facility formerly operated by Entsorga West Virginia, LLC (Entsorga)
in Berkeley County, WV did not require a certificate of need.
The former Entsorga facility was permitted as a solid waste facility by the
West Virginia Division of Environmental Protection (WVDEP) as a mixed waste
processing and resource recovery facility.2
Apple Valley is an affiliate of the certificated intrastate motor carrier, AVW of West Virginia,
Inc., which has authority to provide solid waste collection services in Berkeley, Hampshire,
Jefferson, and Mineral Counties, WV (Petition at fi 2).
* “Mixed Waste Processing Facility” means any solid waste facility at which materials are
recovered from mixed solid waste through manual or mechanical means for purposes of reuse,
recycling or composting. “Resource Recovery Facility” means any solid waste facility at which
solid wastes are physically, mechanically, biologically, chemically, or thermally transformed for
the purpose of separating, removing or creating any material or energy for reuse or sale and at
which land disposal of solid waste does not occur. Resource recovery facilities include
incinerators equipped with integral or separate heat recovery systems, and other such solid
By Order issued November 8, 2023, the Commission concluded, among
other things, that because AVW of West Virginia, Inc., a certificated motor carrier
and affiliate of Apple Valley, would be using the former Enstorga facility to
consolidate loads within its authority to operate as a motor carrier in West
Virginia, no certificate of need was required.
Intervenors to this proceeding, Waste Management of West Virginia, Inc.,
LCS Services, Inc., Allied Waste Services of North America, LLC dba Republic
Services of West Virginia, and Jefferson County Solid Waste Authority (jointly
Petitioners for Appeal) filed a timely appeal of the Commission Order to the West
Virginia Supreme Court of Appeals.
While the appeal was pending at the Court, during the 2024 Regular
Session of the West Virginia Legislature, the Legislature enacted Senate Bill 603
amending the definition of “Commercial solid waste facility” set forth in W. Va.
Code 922-1 5-2 to exclude,
any solid waste facility that accepts solid waste collected pursuant to
and under a common carrier certificate of convenience and
necessity issued by the Public Service Commission by the owner or
operator (or its affiliate(s)) of the solid waste facility for consolidation
and subsequent transport to a disposal or recycling facility: Provided,
That the owner or operator of the solid waste facility shall comply
with §22-15-12 and $22-1 5-1 3 of this code: Provided however, That
any such solid waste facility be located on a site that contains a
mixed waste processing and resource recovery facility that
possesses a solid waste facility permit from the Department of
Environmental Pr~tection.~
On March 6, 2024, the Petitioners for Appeal and the Respondents, Apple
Valley and this Commission, filed a Joint Motion for Voluntary Dismissal with the
West Virginia Supreme Court of Appeals. The Court granted the Motion on
March 7, 2024.
DISCUSSION
Upon review of the Senate Bill 603 amendment to W. Va. Code §22-15-2,
the Commission is considering whether it should declare its November 8, 2023,
Order moot after the March 1, 2024 effective date of the bill. To provide the
waste facilities not herein specified, but does not include sewage sludge processing facilities.
W. Va. CSR § 33-1-2.
Senate Bill 603 was effective upon passage on March 1, 2024.
2
parties with the opportunity to be heard on this question, the Commission will
reopen this case on its own motion and provide an opportunity for the parties to
file position statements as to whether the Commission should declare that its
November 8, 2023, Order is moot as of the March I, 2024 effective date of
Senate Bill 603.
FINDING OF FACT
After issuance of the November 8, 2023, Commission Order, the West
Virginia Legislature enacted Senate Bill 603 effective on and after March 1, 2024.
CONCLUSION OF LAW
The parties should have the opportunity to file position statements
regarding whether, in light of enactment of Senate Bill 603, the Commission
should declare its November 8, 2023 Order moot as of March 1, 2024.
ORDER
IT IS THEREFORE ORDERED that this case is reopened for consideration
as to whether the Commission should declare its November 8, 2023 Order in this
matter to be moot as of the effective date of newly enacted Senate Bill 603.
IT IS FURTHER ORDERED that on or before March 24, 2024, the parties
may file position statements as to whether the Commission should declare its
November 8, 2023 Order moot.
IT IS FURTHER ORDERED that the Executive Secretary of the
Commission serve a copy of this Order by electronic service on all parties of
record who have filed an e-service agreement, and by United States First Class
Mail on all parties of record who have not filed an e-service agreement and on
Commission Staff by hand delivery
