BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION

n the Matter of the Petition
of Commission Staff for a
Declaratory Ruling [Regarding Biomedical Waste Carriers]
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		DOCKET NO. TG-970532
		
		DECLARATORY ORDER

  PROCEEDING: This is proceeding on a petition for declaratory ruling.  On 
March 21, 1997, the Staff of the Washington Utilities and Transportation 
Commission (“Commission Staff”) filed a petition seeking a declaratory ruling.  
The petition alleges that certain competitive practices of biohazardous or 
biomedical waste carriers operating in this state are anticompetitive, and 
detrimental to the customers and the carriers.  The practices that concern 
Commission Staff include the presence of terms in service agreements requiring 
a minimum period of service, extended notice requirements for cancellation, 
liquidated damages for early cancellation, and offering reduced (below-tariff) 
rates to nonprofit hospitals and clinics in order to attract their business. 
The petition asks the Commission to declare the application of Commission rules 
and statutes to the identified practices.

  On April 2, 1997, the Commission gave notice of receipt of the petition and 
notice of opportunity to participate to all certificated solid waste companies 
and other persons.  The Commission received comments and requests for party 
status.

  Two prehearing conferences were held before Administrative Law Judge John 
Prusia.  The parties subsequently agreed to submit the matter to the Commission 
on stipulated facts and an agreed schedule.  The parties asked the presiding 
officer to enter an initial order, and to make the initial order subject to 
review and entry of a final order as in adjudicative proceedings.  This was 
allowed.    The parties filed stipulated facts and briefs.  In their briefs, 
several parties requested  relief that was not sought in the Commission Staff 
petition.

  INITIAL ORDER: The Initial Order was entered on October 29, 1997.  The 
Initial Order would declare that minimum period of service and notice of 
discontinuance of service provisions in service agreements for the collection 
and transportation of biomedical waste must comply with WAC 480-70-710(1); that 
liquidated damages provisions are subject to the tariff filing requirements of 
RCW 81.28.080; and that the current practice in the solid waste industry of 
biomedical waste carriers charging reduced rates for service to nonprofit 
hospitals and clinics, for competitive rather than charitable purposes, is 
illegal.  The Initial Order would deny requests that the Commission grandfather 
existing below-tariff agreements.  It would deny a request to consider the 
legality or appropriateness of a marketing agreement between Stericycle of 
Washington, Inc. (“Stericycle”) and the marketing arm of the Washington State 
Hospital Association (“WSHA”).

  PETITIONS FOR ADMINISTRATIVE REVIEW:   All parties except the Commission 
Staff petition for review and modification of the Initial Order.  Two 
petitioners (BFI Medical Waste Systems of Washington, Inc. [BFI] and 
Stericycle) request modification of the conclusion and declaration with respect 
to the practice of charging reduced rates.  All petitioners except Stericycle 
request that the Commission either grandfather existing below-tariff rates in 
service agreements, or provide an adjustment interval during which the 
below-tariff rates may remain in effect.  BFI and the Washington Refuse & 
Recycling Association (“WRRA”) ask the Commission to scrutinize the marketing 
agreement between Stericycle and the WSHA.  All parties except WSHA filed 
responsive briefs.  The Commission Staff supports the petitioners’ requests for 
an adjustment period.

  COMMISSION: The Commission declares 1) that a service agreement for the 
collection and transportation of biomedical waste must meet the requirements 
of  WAC 480-70-710(1) regarding minimum length of service and notice of 
discontinuance of service.  2) Provisions in such an agreement that require a 
customer to give more than three business days’ notice to the carrier to 
discontinue service, or that require a minimum-length term of service of more 
than three business days, or that provide liquidated damages for violating such 
provisions, violate WAC 480-70-710(1).  3) Any liquidated damages provision in 
such a service agreement is subject to the tariff filing requirements of RCW 
81.28.080.

  The Commission also declares 4) that biomedical waste collection companies’ 
provision of regular biomedical waste collection service to nonprofit hospitals 
and clinics at below-tariff rates does not fall within the exception in RCW 
81.28.080.  Biomedical waste collection companies are not hauling property free 
or at reduced rates for charitable purposes, but rather as a means to compete 
for business.  Finally, 5) the Commission declares that any provision of 
services at free and reduced rates must be provided subject to a “free or 
reduced” rate tariff approved by the Commission.  Any provision of biomedical 
collection that is not at a tariff rate should cease.

  The Commission will not take any action to enforce the instant Order for a 
period of sixty days following its entry to allow carriers that presently 
provide biomedical waste collection service at reduced rates an opportunity to 
file tariffs for the services.

  The Commission declines to review the service agreement between Stericycle 
and the WSHA in this proceeding because this is a declaratory judgment action, 
not an action to examine whether particular contract reimbursements are in fact 
for services rendered.

  APPEARANCES:  Mary M. Tennyson, Senior Assistant Attorney General, Olympia, 
represents the Commission Staff.  James K. Sells, attorney, Bremerton, 
represents the WRRA, Murrey’s Disposal, American Disposal, Rubatino Refuse, 
Inc., LeMay Enterprises, Inc., Empire Disposal, Inc., Consolidated Disposal, 
Inc., and Disposal Services.  David W. Wiley, attorney, Seattle, represents 
BFI. Stephen B. Johnson, attorney, Seattle, represents Stericycle.  Barbara 
Allen Shickich, attorney, Seattle, represents the WSHA.

MEMORANDUM

  This is a proceeding on a petition for declaratory ruling filed by the 
Commission Staff relating to biohazardous or biomedical waste.  The petition 
alleges that certain practices of carriers of biomedical waste are 
anticompetitive and detrimental to both customers and the carriers.  The 
practices that the petition identifies as of concern include terms in service 
agreements requiring a minimum period of service, long notice requirements for 
cancellation; liquidated damages for early cancellation; the offering of 
reduced (below-tariff) rates to nonprofit hospitals and clinics in order to 
attract their business, resulting in bidding “wars” between carriers; and the 
failure of carriers with biomedical waste authority to hold themselves out as 
available to provide service in less profitable areas in their authorized 
service territories.  The petition asks the Commission to declare the 
application of Commission rules and statutes to the identified practices.

I.   PROCEDURAL HISTORY

  The Commission Staff filed its petition on March 21, 1997.  The Commission 
gave notice of receipt of the petition and notice of opportunity to participate 
to all certificated solid waste companies, and to other persons that the 
Commission identified as having a possible interest in the rates and practices 
of biomedical waste carriers.  

  The Commission received requests for party status; all were granted. The 
following parties participated: the Commission Staff; BFI, Stericycle, the 
WRRA, several small solid waste collection companies that participated jointly 
with the WRRA (Murrey’s and American Disposal; Rubatino Refuse, Inc.; LeMay 
Enterprises, Inc.; Empire Disposal, Inc; Consolidated Disposal, Inc.; Disposal 
Services); and the WSHA.

  Two prehearing conferences were held.  The prehearing conferences took the 
form of round table discussions of current practices in the industry, issues 
raised by the petition, and possible amendments to the petition.  

  On June 27, 1997, the parties submitted an agreement on process, and a 
schedule.  The agreement on process provided that the matter would be submitted 
on stipulated facts, that the the presiding officer should enter an initial 
order, and that the initial order would be subject to review and entry of a 
final order as in adjudicative proceedings.  The parties filed memoranda or 
briefs.  

  The presiding officer accepted this proposal, and entered the Initial Order 
on October 29, 1997.

II.   THE PETITION FOR DECLARATORY RULING

  The Commission Staff petition for a declaratory ruling expressed concern that 
certain practices exist in the biomedical waste industry which are 
anticompetitive and detrimental to customers and the carriers.  The practices 
causing concern include: 1) the presence of terms in service agreements 
requiring a minimum period of service, extended notice requirements for 
cancellation, and liquidated damages; 2) bidding “wars” between carriers to 
provide service to charitable or nonprofit hospitals and clinics; and 3) the 
failure of carriers with biomedical waste authority to hold themselves out as 
available to provide service in less profitable areas in their authorized 
service territories.

  The petition seeks a Commission declaration that:

  1. Any requirement for a minimum length term of service or notice of 
cancellation in a service agreement is subject to the terms of WAC 
480-70-710(1), which allows a customer to discontinue service by notifying the 
company at least three full business days before the next scheduled pickup to 
stop service, and a longer minimum service period therefore is prohibited.

  2.  Liquidated damages provisions in service agreements are a violation of 
RCW 81.28.080, which requires that a carrier only charge tariffed rates, and 
therefore are prohibited.

  3.  Carriers may not charge free or reduced rates to charitable or non-profit 
hospitals or clinics under RCW 81.28.080 without demonstrating a “charitable 
purpose.”

  4.  Any carrier’s obligation to serve all customers in a service territory 
requires the carrier to hold itself out to provide service to all customers by 
advertising throughout their service territory.



III.   STIPULATED FACTS

  The parties agreed and stipulated to the following facts:

  1.  Requiring a customer to sign an agreement specifying a minimum term of 
service may have the effect of discouraging the customer from exercising its 
right to terminate service under WAC 480-70-710(1) and choose another carrier. 
Some regulated carriers may be using preprinted service agreement forms 
implemented before the advent of the Commission’s customer service rules.

  2.  Some carriers are including minimum lengths of service, extended notice 
requirements for cancellation, and liquidated damages provisions in service 
agreements for transportation and disposal of medical waste.

  3.  Including a liquidated damages provision in a service agreement 
discourages customers from exercising their right to terminate service under 
[WAC 480-70-710(1)] and choose service provided by another carrier without 
restriction.

  4.  There are currently approximately 75 solid waste carriers with authority 
to transport biomedical waste in limited service areas of the state, and two 
carriers of biomedical waste with statewide authority.  While the carriers with 
statewide authority are in competition with each other across the state, they 
also compete with carriers in limited service areas.

  5.  There is currently competition in the market for provision of services of 
transportation and disposal of biomedical waste.

  6.  Not-for-profit hospitals have requested bids from different carriers in 
order to obtain the lowest rates.

  7.  There is an exception to the requirement that carriers may only assess 
rates and charges set forth in tariffs filed with the Commission.  RCW 
81.28.080 provides, in part, that “common carriers subject to the provisions of 
this title may carry, store, or handle, free or at reduced rates, property for 
. . . charitable purposes.”

  8.  Under the current practice of carriers providing reduced rates to 
not-for-profit hospitals and clinics but charging tariffed rates to for-profit 
hospitals and clinics, the difference is not the type of service provided, but 
the organization to whom the service is provided.

  9.  Biomedical waste collection companies do not offer below-tariff rates for 
regular biomedical waste collection service to non-profit hospitals and clinics 
for charitable purposes but rather as a means to compete for this business.

IV.   ADDITIONAL REQUESTS FOR RELIEF

  In the briefs and memoranda submitted to the administrative law judge, 
various parties requested the following additional or different relief beyond 
that sought by the Commission Staff in its petition.

  BFI, WRRA, the WSHA, and the Commission Staff requested that the Commission 
grandfather existing service agreements between biomedical waste carriers and 
nonprofit hospitals and clinics.

  BFI and WRRA requested that the Commission examine whether an exclusive 
marketing agreement between Stericycle and the marketing arm of WSHA, 
Washington Hospital Services, is appropriate in a regulated market.

  The Commission Staff stated in its Reply Memorandum that it had no specific 
evidence to support its concern that carriers with biomedical waste collection 
authority are not holding themselves out as available to provide service in 
less profitable areas, and abandoned that part of its request.

  The Commission Staff requested, in its Reply Memorandum, that the Commission 
order that biomedical waste collection companies that provide regular 
biomedical or other regular waste collection service to nonprofit 
organizations, governmental units, or charitable organizations to have on file 
an approved tariff including the reduced rates prior to providing such service.

V.  INITIAL ORDER

  The Initial Order would conclude and declare that:

  1.  Provisions in a service agreement for the collection and transportation 
of biomedical waste relating to minimum period of service and notice of 
discontinuance of service are subject to the requirements of WAC 480-70-710(1).

  2.  Requirements in a service agreement for the collection and transportation 
of biomedical waste that require a customer to give more than three business 
days’ notice to the carrier to discontinue service, or that require a minimum 
length term of service of more than three business days, or that provide 
liquidated damages for violation of such provisions, violate WAC 480-70-710(1).

  3.  A liquidated damages provision in a service agreement for the collection 
and transportation of biomedical waste is subject to the tariff filing 
requirements of RCW 81.28.080.

  4.  The current practice in the solid waste industry of biomedical waste 
carriers charging reduced rates for service to nonprofit hospitals and clinics, 
for competitive rather than charitable purposes, is illegal.

  The Initial Order would conclude that it would be improper for the Commission 
to grandfather existing below-tariff rates. It would conclude that even free or 
reduced-rate service must be conducted under tariff, but would decline to enter 
an order to that effect.  It would decline to review the marketing agreement 
between Stericycle and Washington Hospital Services, concluding that the 
legality or appropriateness of the agreement is beyond the scope of the issues 
raised by the petition, and that insufficient facts are before the Commission 
concerning the agreement.

VI.   PETITIONS FOR ADMINISTRATIVE REVIEW

  All parties except Commission Staff filed petitions for administrative review.

  No party on review contends that the prevailing practice among biomedical 
waste carriers of offering reduced rates to nonprofit hospitals and clinics for 
competitive purposes is permissible under Commission statutes.  However, BFI 
and Stericycle take issue with the Initial Order’s analysis and the wording of 
its proposed conclusion and order on the reduced-rate issue.

  The WSHA requests that the Commission grandfather existing reduced rates in 
service agreements.   BFI, WRRA, and the small carriers that are participating 
jointly with WRRA request that the Commission provide an adjustment interval 
during which the reduced rates may remain in effect.   

  BFI and WRRA request that the Commission scrutinize the marketing agreement 
between Stericycle and the market arm of the WSHA.  BFI contends that to ignore 
or deflect this opportunity to address the issue will relegate this proceeding 
to an incomplete and ultimately ineffective effort to reevaluate this unique 
industry. BFI contends that the Commission should remand for evidentiary 
hearings if additional facts are necessary.

  WRRA, BFI, and Stericycle respond to other parties’ petitions for 
administrative review.  Commission Staff replies to the petitions.  Commission 
Staff concurs in the conclusions reached in the Initial Order, with one 
exception. Commission Staff requests that the Commission modify the Initial 
Order to allow a brief transition period in which companies that have been 
providing biomedical waste collection services to nonprofit organizations under 
contracts or service agreements with the understanding that these agreements 
were not subject to the tariff filing requirements of the Commission may 
continue to serve these customers under these agreements until a tariff filing 
is made.  Commission Staff suggests that the companies be required to file 
tariffs for these services within thirty days of the service of a final order.

VII.   RELEVANT STATUTES AND RULES

  The following rules and statutes provide the legal framework for analysis of 
the issues framed by the Commission Staff petition.

A. Terms of service; notice of cancellation; 

  WAC 480-70-710  Discontinuance of service.  (1) By a customer.  A customer 
may discontinue service by notifying the company to stop service.  The notice 
shall be made to the company at least three full business days before the next 
scheduled pickup date. . . . .

B. Rates

  RCW 81.28.010  Duties as to rates, services, and facilities.  All charges 
made for any service rendered or to be rendered in the transportation of 
persons or property, or in connection therewith, by any common carrier, . . . 
shall be just, fair, reasonable and sufficient.

  RCW 81.28.040   Tariff schedules to be filed with commission--Public 
schedules--Commission’s powers as to schedules.  Every common carrier shall 
file with the commission and shall print and keep open for public inspection, 
schedules showing the rates, fares, charges, and classification for the trans- 
portation of persons and property within the state between each point upon the 
carrier’s route and all other points thereon; . . .

  The Commission has power, from time to time, to determine and prescribe by 
Order such changes in the form of the schedules as may be found expedient, and 
to modify the requirements of this section in respect to publishing, posting, 
and filing of schedules either in particular instances or by general rule or 
Order applicable to special or peculiar circumstances or conditions.



  RCW 81.28.050   Tariff changes--statutory notice--Exception.  Unless the 
commission otherwise orders, no change may be made in any classification, rate, 
fare, charge, rule, or regulation filed and published by a common carrier other 
than a rail carrier, except after thirty days’ notice to the commission and to 
the public.  In the case of a solid waste collection company, no such change 
may be made except after forty-five days’ notice to the commission and to the 
public[.]

  RCW 81.28.080   Published rates to be charged--Exceptions.  No common carrier 
shall charge, demand, collect or receive a greater or less or different 
compensation for transportation of persons or property, or for any service in 
connection therewith, than the rates, fares and charges applicable to such 
transportation as specified in its schedules filed and in effect at the time; 
nor shall any such carrier refund or remit in any manner or by any device any 
portion of the rates, fares, or charges so specified excepting upon Order of 
the commission as hereinafter provided, nor extend to any shipper or person any 
privileges or facilities in the transportation of passengers or property except 
such as are regularly and uniformly extended to all person and corporations 
under like circumstances.  No common carrier shall, directly or indirectly, 
issue or give any free ticket, free pass or free or reduced transportation for 
passengers between points within this state, except . . . [a long list of 
exceptions and provisos follows].

  Common carriers subject to the provisions of this title may carry, store or 
handle, free or at reduced rates, property for the United States, state, county 
or municipal governments, or for charitable purposes, or to or from fairs and 
exhibitions for exhibition thereat, and may carry, store or handle, free or at 
reduced rates, the household goods and personal effects of its employees and 
those entering or leaving its service and those killed or dying while in its 
service.

* * *
 
  RCW 81.28.180   Rate discrimination prohibited.   A common carrier shall not, 
directly or indirectly, by any special rate, rebate, drawback, or other device 
or method, charge, demand, collect, or receive from any person or corporation a 
greater or lesser compensation for any service rendered or to be rendered in 
the transportation of persons or property, except as authorized in this title, 
than it charges, demands, collects, or receives from any person or corporation 
for doing a like and contemporaneous service in the transportation of a like 
kind of traffic under the same or substantially similar circumstances and 
conditions[.]

  RCW 81.28.190   Unreasonable preferences prohibited.  A common carrier shall 
not make or give any undue or unreasonable preference or advantage to any 
person or corporation or to any locality or to any particular description of 
traffic in 
any respect whatsoever, or subject any particular person or corporation or 
locality or any particular description of traffic, to any undue or unreasonable 
prejudice or disadvantage in any respect whatsoever. . . .

VIII.   THE COMMISSION’S REGULATION OF BIOMEDICAL WASTE COLLECTION

  The transportation of solid waste for collection or disposal is governed by 
Chapter 81.77 RCW.  Biohazardous or biomedical waste is solid waste for 
purposes of Chapter 81.77.  Other chapters in Title 81 RCW govern all regulated 
carriers or common carriers in general, including solid waste collection 
companies.

  The collection and disposal of biomedical waste requires specialized 
handling, and involves heightened exposure to liability for both the carrier 
and the generator of the waste.  Because of the unique requirements and 
attributes of the activity, some holders of general solid waste authority from 
the Commission do not provide biomedical waste collection service.  Certain 
carriers have specialized in biomedical waste collection service.  

  The Commission has recognized the specialized nature of biomedical waste 
collection in granting authority to provide such service.  Although the solid 
waste industry historically has been characterized by monopoly service in a 
given territory, the Commission has granted overlapping authority for this 
specialized service.   RCW 81.77.040 provides that the Commission may grant 
solid waste authority only if the service is required by the public convenience 
and necessity.  The statute also expresses a preference for monopoly service in 
the collection of solid waste, allowing the Commission to grant new authority 
in already-served territory only if it finds that the existing certificate 
holder will not provide satisfactory service.  In applications for specialized 
biomedical waste authority, the Commission has interpreted the statutory 
requirements consistently with the unique requirements and attributes of the 
service, giving considerable weight to testimony of waste generators regarding 
their service requirements.  See, Order M.V.G. No. 1596, In re Ryder 
Distribution Resources, Inc., App. No. GA-75154 (January 1993); Order M.V.G. 
No. 1663, In re Sureway Medical Services, Inc., App. No. GA-75968 (November 
1993); and Order M. V. G. No. 1761, In re Ryder Distribution Resources, Inc., 
App. No. GA-75154; In re Stericycle of Washington, Inc., App. No. GA-77539 
(August 1995), and Orders cited therein.  The Commission has granted statewide 
specialized biomedical waste authority to two carriers -- the predecessor of 
BFI, and Stericycle.

  The Commission has emphasized that the generator/shipper of the waste may 
face continued liability for its handling, and has afforded considerable weight 
to the reasons underlying a shipper’s request to use a certain company.  One 
result of a grant of overlapping authority is competition among carriers, a 
situation which generally has not occurred in traditional segments of the 
industry.  The difference in treatment and the resulting evolution of a highly 
competitive market in this segment of the industry apparently has caused some 
carriers to question whether Commission regulations that apply to the solid 
waste industry in general apply to these specialized carriers.

IX.   COMMISSION DISCUSSION AND DECISION

  The specialized service of collection and transportation of biomedical waste 
has come into being within this decade.  As noted above, it has evolved into a 
highly competitive industry as a result of the Commission interpreting RCW 
81.77.040 consistently with the unique requirements and attributes of the 
service.   A more lengthy discussion is provided in BFI’s brief.  Service 
agreements have become the norm in this industry, in part because of the 
up-front costs of commencing service.  Many agreements were drafted before the 
Commission’s consumer notice rules were adopted, and have not been updated to 
comply with the rules.

  We recognize that there has been uncertainty both within the industry and 
among the Staff of the Commission concerning the applicability to this 
specialized service of the Commission’s consumer notice rules, concerning the 
applicability of the “charitable purposes” exception in RCW 81.28.080, and 
concerning the necessity to charge tariff rates nonprofit hospitals.  This is 
the Commission’s first opportunity to consider formally the issues raised in 
the petition for declaratory ruling.
As noted above, a number of the Initial Order’s proposed conclusions were not 
challenged; after our own review we adopt these agreed-upon conclusions.

A. UNCONTESTED ISSUES

 1. Service Agreements

  The Commission agrees with the Initial Order’s conclusions and orders with 
respect to minimum period of service, notice of termination of service, and 
liquidated damages, and adopts them.


  The parties have stipulated that some carriers of biomedical waste are using 
service agreements which include a minimum length of service, extended notice 
requirements for cancellation of service by a customer, and liquidated damages 
provisions for termination earlier than allowed by the agreement.

  WAC 480-70-710 applies to all solid waste collection companies.  There is no 
exception to its requirements, express or implied.  All of the parties appear 
to concur in the Initial Order’s conclusion and order respecting the 
applicability of the rule, and its conclusion and order to the effect that 
provisions in biomedical waste collection service agreements that are 
inconsistent with the rule violate the rule.

  RCW 81.28.080 prohibits carriers from demanding or collecting charges that 
are not set out in a filed tariff.  A liquidated damages charge for violating 
length of service or notice of cancellation provisions of a biomedical service 
agreement, therefore, must be set out in a tariff in order to be lawfully 
demanded or collected. No party challenges the Initial Order’s conclusion that 
the tariff filing requirements of RCW 81.28.080 are applicable to liquidated 
damages provisions.

  Clearly, provisions in a service agreement or other service arrangement for 
biomedical waste service that require a customer to provide more than 
three-business-days’ notice to a solid waste carrier to terminate service, or 
that require a minimum service period longer than three business days, or that 
provide liquidated damages applicable on violation of such provisions, violate 
WAC 480-70-710(1), unless the carrier has obtained a waiver of the rule from 
the Commission.  Liquidated damages provisions in a service agreement are 
subject to the tariff filing requirements of RCW 81.28.080 (and therefore also 
subject to the requirements of RCW 81.28.040 and WAC 480-70-240).

 2. Reduced Rates

  On review, no party challenges the Initial Order’s determination of several 
threshold issues.  We adopt the following determinations from the Initial Order 
for purposes of this Order.  The certificated carriers that are offering 
reduced (below-tariff) rates to nonprofit hospitals and clinics for biomedical 
waste collection service are common carriers, as defined by RCW 81.77.010(3).  
As common carriers, they are subject to the requirements of chapter 81.28 RCW.  
The charitable purposes provision of RCW 81.28.080 allows a common carrier to 
choose to provide free or reduced-rate service; the exception is not a grant of 
discretionary authority to the Commission to allow or disallow carriers to 
charge free or reduced rates.

  RCW 80.28.020 provides that common carriers may carry property free or at 
reduced rates “for charitable purposes.”  In determining whether a carrier is 
offering free or reduced-rate service for charitable purposes, we must look at 
both the nature of the recipient and at the intention of the carrier.  The 
recipient must be what is commonly viewed as an object of charity, and the 
carrier must have a donative intent.  It is well established in Washington that 
nonprofit hospitals are charitable organizations.  In re Rust’s Estate, 168 
Wash. 344, 12 P.2d 396 (1932).  Thus, the recipients are charitable 
organizations.

  The second inquiry then becomes: do the carriers providing the service have a 
donative intent.  Thus, the test examines the purpose of the carrier providing 
the service.  In this proceeding the parties have stipulated:

9.   Biomedical waste collection companies do not offer below-tariff rates for 
regular biomedical waste collection service to non-profit hospitals and clinics 
for charitable purposes but rather as a means to compete for this business.

Stipulation of Facts.

  Based upon this factual stipulation, the prevailing practice among biomedical 
waste carriers offering reduced rates for regular service to nonprofit 
hospitals and clinics is competition rather t