IN RE READOPTION OF <u>N.J.A.C.</u> 14:2Â (NEW JERSEY BOARD OF PUBLIC UTILITIES)
A-3913-14T2
| N.J. Super. Ct. App. Div. | Aug 18, 2017Background
- Appellants are trade groups representing water and wastewater utilities challenging BPU readoption (2015) of N.J.A.C. 14:2-4.2(c), a One-Call regulation governing who must mark underground facilities before excavation.
- The Underground Facility Protection Act (UFPA) requires excavators to notify the One-Call system; operators then must mark facilities within three business days. "Operator" is statutorily defined as one who owns, operates, or controls an underground facility.
- N.J.A.C. 14:2-4.2(c) deems an operator to "control" all portions of a metered-service facility that are not on the customer side of the meter, regardless of ownership; it was first adopted in 2007 and readopted in 2015.
- Appellants argued the rule improperly compels utilities to mark and enter private property for lines they do not own/control, and exposes them to trespass liability; they also challenged the sufficiency of BPU's responses during rule readoption under the APA.
- BPU defended the rule as necessary to protect the public and utilities, asserted utilities "control" lines up to the meter (and can prosecute illegal taps), and cited existing utility-access and service-termination regulations as addressing access issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BPU exceeded statutory authority by deeming utilities to "control" customer-side lines they do not own | Rule unlawfully expands statutory definition of "operator" by treating mere users of a line as controllers and operators | BPU: public safety and federal one-call standards justify deeming utilities to control lines up to the meter; utilities can prosecute illegal taps so they "control" the line | Court: declined to decide definitively but questioned BPU's legal basis and remanded for fuller explanation of why readoption without change was warranted |
| Whether BPU's readoption complied with APA comment-and-response requirements (meaningful, reasoned responses) | BPU's written responses were inadequate, arbitrary and capricious; agency failed to address appellants' substantive concerns | BPU argued its responses and policy reasons justified readoption and cited public-safety rationale | Held: BPU's responses did not fully address comments; remand ordered so BPU can amplify and justify its reasoning within 90 days (or propose rule change) |
| Whether existing BPU utility-access rules immunize utilities from trespass claims when entering private property to mark facilities | Appellants: cited access rules do not authorize entry for mark-outs and do not provide trespass immunity | BPU: N.J.A.C. 14:3-3.6 and related rules allow reasonable access and termination remedies, supporting readoption | Court: questioned BPU's claim of implied trespass immunity under those rules; required the BPU to clarify its reasoning on access/immunity on remand |
Key Cases Cited
- Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576 (discussing UFPA purpose to protect public and utilities)
- Nelson v. Bd. of Educ., 148 N.J. 358 (agency regulations accorded deference when consistent with statute)
- George Harms Constr. Co., Inc. v. N.J. Tpk. Auth., 137 N.J. 8 (standards for judicial review of agency action)
- Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549 (agency responses to public comments must be reasoned and supported)
- In re Petition of Elizabethtown Water Co., 107 N.J. 440 (Chenery principle: review is limited to reasons the agency gave at the time of decision)
- In re Provision of Basic Generation Serv. for Period Beginning June 1 2008, 205 N.J. 339 (public-comment role in rulemaking)