COMMISSION In the Matter of the Petition of ) RECYCLING AND DISPOSAL )DOCKET NO. TG-971167 SERVICES, INC., ) for a Declaratory Order. )VOLUME 1 )Pages 1-13 ---------------------------------) A pre-hearing conference in the above matter was held on September 18, 1997 at 2:00 p.m., at 1300 South Evergreen Park Drive Southwest, Olympia, Washington, before Administrative Law Judge C. ROBERT WALLIS. The parties were present as follows: THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION STAFF, by MARY TENNYSON, Senior Assistant Attorney General, 1400 South Evergreen Park Drive Southwest, Olympia, Washington 98502. THE CITY OF BELLINGHAM, by RICHARD N. LITTLE, JR., Assistant City Attorney, 210 Lottie Street, Bellingham, Washington 98225. RECOMP OF WASHINGTON, by JAMES L. AUSTIN, JR., Attorney at Law, 1201 Third Avenue, Suite 2900, Seattle, Washington 98101-3028. WASHINGTON REFUSE AND RECYCLING ASSOCIATION, by JAMES SELLS, Attorney at Law, 9657 Levin Road Northwest, Suite 240, Silverdale, Washington 98383. SANITARY SERVICE COMPANY, by POLLY L. MCNEILL, Attorney at Law, 1505 Westlake Avenue North, Suite 300, Seattle, Washington 98109. Kathryn T. Wilson, CSR Court Reporter APPEARANCES (Cont'd.) RECYCLING AND DISPOSAL SERVICES, INC., by ROBERT ROWLAND, Attorney at Law, 2602 Westridge Avenue West, M-301, Tacoma, Washington 98466. P R O C E E D I N G S JUDGE WALLIS: Let's be on the record, please. This is a conference in the matter of docket No. TG-971167 that is a petition of Recycling and Disposal Services, Inc. for a declaratory order. This conference is being held at Olympia, Washington on September 18, 1997 before Administrative Law Judge C. Robert Wallis. We are in conference to examine the potential facts and issues involved in this petition and have engaged in discussions that address those matters. I'd like to start by calling for appearances at this time and ask folks to state, as appropriate, their telephone and fax numbers as well as their business address, beginning with the petitioner. MR. ROWLAND: I'm appearing for petitioner RDS Recycling and Disposal Services. My name is Robert Rowland, R-O-W-L-A-N-D, 2602 Westridge Avenue West, M-301, Tacoma, Washington, 98466. Voice phone, (253) 566-8761. Fax, (253) 566-4633. My client's address is RDS Inc., 4916 LaBounty Place, Ferndale, Washington, 98248. Voice phone, (360) 384-8011, fax, (360) 384-0873. MS. MCNEILL: Appearing on behalf of Sanitary Service Company, my name is Polly McNeill, Summit Law Group, 1505 Westlake Avenue North, Seattle, Washington, 98109. My voice mail phone number is (206) 676-7040. My fax number is (206) 676-7041. JUDGE WALLIS: Could you repeat your voice number, please? MS. MCNEILL: 676-7040. I'm hesitating. Those are my direct dial phone numbers and fax numbers. I also have firm phone and fax, which I can also give in case there's any breakdown with my computer. The firm general number is (206) 281-9881, and the fax number is (206) 281-9882. JUDGE WALLIS: Thank you. MR. SELLS: Thank you, Judge. James Sells, attorney, 9657 Levin Road Northwest, Suite 240, Silverdale, Washington, 98383, appearing on behalf of intervenor Washington Refuse and Recycling Association; telephone, (360) 307-8860, fax, (360) 307-8865, and let me also give another telephone number, (360) 981-0168 which is also a voice mail number in my car, where I spend a vast majority of my time. JUDGE WALLIS: Mr. Austin? MR. AUSTIN: I'm Jim Austin, and I represent intervenor Recomp of Washington, Inc. I'm a lawyer with Karr, Tuttle, Campbell, PS. Our address is Suite 2900, Washington Mutual Tower, 1201 Third Avenue, Seattle, Washington, 98101-3028. Switchboard telephone number, (206) 223-1313. My direct dial number is (206) 224-8137. Our fax number is (206) 682-7100. MR. LITTLE: I'm Richard Little. I'm an assistant city attorney for the City of Bellingham, 210 Lottie Street, Bellingham, 98225. Phone number, (360) 676-6903. Fax number (360) 738-7418. MS. TENNYSON: I'm Mary Tennyson, senior assistant attorney general, representing Commission staff in this proceeding. My address is 1400 South Evergreen Park Drive Southwest, P.O. Box 40128, Olympia, Washington, 98504-0128. My telephone number is (360) 664-1220. My fax telephone is (360) 586-5522. JUDGE WALLIS: Thank you, very much. I would like to state for the record at this time the results of the earlier discussions. The parties are agreed that the Respondents -- that is, the City, Recomp, and Sanitary Service -- will consult this afternoon and prepare a consolidated statement of facts and statement of issues. They will circulate this to Ms. Tennyson and Mr. Rowland no later than the close of business tomorrow. Mr. Rowland and Ms. Tennyson will respond to the Respondents regarding any agreements or disagreements in the consolidated statement no later than close of business on Tuesday, September 23rd. A conference call will be held on Wednesday, September 24th. It will be at either 11:30 a.m. or 1:30 p.m. Ms. Tennyson will coordinate and advise the parties of the time of the call. The Commission's bridge line will be used for that, if the bridge line is available. I have access to another bridge line if the Commission's line is out of service. The parties then on the 26th will file with the Commission -- and filing by telefax is permitted provided the hard copy is mailed on the same day -- the resulting statement of facts, any disagreement with the resulting statement of facts, any objection to that statement and counter-proposed statement of facts, brief discussion of any argument of estoppel that may be made, and any objection based on the relevancy of historical data that may be made. Recognizing that time may be short, if parties are absolutely unable to do that on the 26th, it will be accepted on the 29th. Parties are encouraged to consolidate their presentation and to make one, if possible, or to minimize differences and adopt as much of a common filing as possible. If a hearing is necessary, that is, if the facts are not resolved to this discussion process, it will be held at 10:00 a.m. at the offices of Summit Law Group at 1505 Westlake Avenue North, Suite 300 in Seattle, Washington, 98109, and it will be held at 10:00 a.m. on Tuesday, September 30th, 1997. Simultaneous initial briefs will be filed by the parties, whether or not a hearing is held, on October 7, 1997, and responding or answering briefs will be filed no later than the close of business on Friday the 10th of October. The Commission will aspire to enter an order on the petition no later than the close of business on Friday, October 17th. Parties have agreed among themselves that service by telefax will be sufficient. Now, the first question I'm going to ask is if I have misstated anything or left anything out? MR. LITTLE: Satisfactory. JUDGE WALLIS: Next question I would ask is does anyone have anything else they want to state for the record at this time? MR. AUSTIN: I have a couple of questions. JUDGE WALLIS: Mr. Austin? MR. AUSTIN: In terms of what we serve on the Commission itself when we file in this case, in some cases, I've seen people filing 19 copies, and in some cases it's been three copies. Could we get that squared away so that -- assuming it's three, which, I think, reading the rules is what it ought to be -- we're not submitting more copies than we should? JUDGE WALLIS: Let me first ask the expected volume of the material to be filed. MR. AUSTIN: Assuming we agree on what items would be submitted in evidence -- and those ought to be pretty straightforward, and the statement of facts itself shouldn't be all that lengthy -- I don't see that it's a tremendous amount of material, but as you can see if you look at my materials that I submitted, my statement of facts is about this big. (Indicating.) But the exhibits, the various contracts, are fairly thick, and if you added up everything that everybody might want to submit, especially if it's a stipulated saying, could be voluminous enough that it makes sense to know whether it's three or 19 copies. JUDGE WALLIS: Yes -- MR. SELLS: Excuse me. I just made myself a note here, three or 19. JUDGE WALLIS: The rule provides that in transportation matters, the original and three copies must be filed. That predates the current organization of the Commission in which a number of additional staff persons have stated an interest in seeing copies of things that go through. I can guarantee that 19 copies would be too many. However, I will talk with our records center and with affected persons, and I will ascertain the number, and when I send the written memorialization of our conference to you tomorrow, I will include a requested number of copies. And again, for the convenience of the Commission, it would be helpful -- as you point out, the rule requires three. It would be helpful to receive that number. MS. MCNEILL: When I called the records department, they told me that the original and six copies was the convenient number, neither of which is in the regulations, but we'll abide by whatever agreement you reach. MR. SELLS: I notice everyone did 19 except me, who did three and the assistant insisted that was the proper amount, so she's really wrong. JUDGE WALLIS: That is a matter of ongoing discussion internally, and we appreciate your patience with us and your willingness to provide copies. MR. AUSTIN: Now that I've created that controversy, may I ask another question? JUDGE WALLIS: Certainly. MR. AUSTIN: I know we're happy to submit whatever number of copies would be convenient, even if it's more than what may be required. May I assume that the petition to intervene of Recomp and of the WRRA is being granted or are being granted? When the initial notice of this proceeding went out, there was an indication that noticed that those who wished to intervene should do so by, and then it gave the date. We filed a petition for intervention on that date. I'm not sure whether it was even necessary to do it, but we did it in abundance of caution, and it may be a formality, but I assume we are to be treated as parties to the case and the petition is being granted. JUDGE WALLIS: A petition for declaratory order is not an adjudication. It kind of is a conundrum. Most of us are used to the adjudicative process and the labels that get put on things during the adjudicative process. As long as we understand that this isn't technically an adjudication, I don't mind using the term "intervention" at all. I heard no objection to either of the petitions for intervention or request to participate that were received. Consequently, let me ask right now if there is any objection? It appears that there is not. If you look at the APA provisions on participation, it talks about requiring participation by those whose participation is necessary, and I think the argument could be made that Recomp may be a necessary party. I'm not so sure that would be as strong in the case of Mr. Sells' client, but certainly he's stated an interest in it, and if nobody is objecting to participation of those entities, if it makes folks more comfortable, then we'll say their petition to intervene is granted, and they may continue to participate. MR. AUSTIN: My last question, which is the result of my own lack of knowledge concerning these proceedings, is the decision that will be rendered in this case a decision that will be made by your Honor, or is it a decision that is going to be made by the full Commission, or do we know? JUDGE WALLIS: I anticipate that the Commissioners will take the record and will discuss it with me and reach a decision and that the decision on the declaratory order will be the Commission's. Looking at the time frame, you can understand that it is going to be a challenge for us, but we'll sure do the best we can. MS. MCNEILL: I guess I have one more question. I noticed on Ms. Tennyson's certificate of service that Jack Davis is on her list. Mr. Davis is not a party or representing a party -- MS. TENNYSON: Mr. Davis filed a notice requesting notice of pleadings, et cetera. JUDGE WALLIS: He asked to be on what I would term an, "interested person's list" so that he could be advised of what's going on in the proceeding, and I take that as -- from our standpoint, from the Commission's standpoint -- he would be served a copy of any communications that the Commission sends out and a copy of any order that results. MS. MCNEILL: So we don't have any obligation to serve on Mr. Davis? MS. TENNYSON: I don't think so. I think my secretary asked and I said, Why not, sort of just make sure, but I don't think -- I agree with Mr. Wallis he's an interested person, and specifically, I think he asked that he be sent copies of orders and that sort of thing. JUDGE WALLIS: He did not ask to participate as a party. He is not a party, and consequently, I believe that others may serve him if you desire, but I believe that it's not mandatory that he be served. MS. MCNEILL: Thank you. JUDGE WALLIS: Anything else to come before us? It appears not. I thank you all for taking the trek to Olympia, and I'm looking forward to dealing with the issues. I'm very optimistic you can come up with an agreed statement or an almost entirely agreed statement. This is an interesting matter, and I know that the briefs are going to be well done, and we will all have an interesting time reaching a decision. Thank you all. (Conference concluded at 3:30 p.m.)