200 N.J. Super. 544 | N.J. Super. Ct. App. Div. | 1985
The opinion of the court was delivered by
This matter comes on before the court on appeal from a joint order of the New Jersey Department of Environmental Protection (DEP) and the New Jersey Board of Public Utilities (BPU), dated May 15, 1984, redirecting solid waste flow in Cape May County, New Jersey, for a period of 180 days. The matter is complex so that an understanding of the case requires that its factual and procedural history be set forth at length. Implicated in the case are substantive and procedural questions concerning the validity of the order. We conclude that while the case may be technically moot, we should nevertheless decide the substantive issues raised. However we will not consider the procedural questions as the situation giving rise to them is not likely to be repeated.
In 1970 the Legislature adopted the New Jersey Solid Waste Management Act, L.1970, c. 39, N.J.S.A. 13:1E-1 et seq., requiring each county to develop and formulate a solid waste management plan. N.J.S.A. 13:1E-20. However prior to 1979 Cape May County had not adopted any solid waste management plan. Thus solid waste in the county was being disposed of at that
Inasmuch as the regional facility was scheduled to supersede the existing landfills, F & S contemplated closing its Woodbine landfill, a procedure which it initially thought would pose no major problems. While F & S was required to comply with State closure regulations, it believed it could do so by placing two feet of cover on the landfill and grading and seeding it.
The delays in opening the regional landfill and closing the local operations proved to have an enormous economic significance. In May 1983 the DEP promulgated new and more comprehensive regulations governing the closure and post-closure care and record-keeping requirements for landfills. F & S recognized the impact of these changes and thus wrote to the DEP on July 21, 1983 stating that it had insufficient funds to pay for the new requirements and because of the imminent closing of its operation it would have inadequate time to generate additional funds to cover the enhanced costs. It claimed that as of July 21, 1983 it had only $51,838 in its landfill closure escrow account with no alternative funds available. F & S said that Woodbine, which owned the landfill site, was in tight financial condition and could not be expected to pay any closure expenses.
Notwithstanding these financial problems the DEP notified F & S in September 1983 of its obligation to comply with the new closure requirements. Meetings between representatives of the DEP and F & S ensued concerning the details of the new rules. Then on January 17, 1984 the DEP issued an order specifying the steps necessary for F & S to comply with the new regulations. These steps included submission of a supplemental engineering closure design which would include plans for final grading, operations, a two-foot permeable cap covered with 12 inches of soil to support vegetative growth, storm water management, cross sections, construction detail sheets and methane gas evacuation. The matter was further complicated by requirements that F & S comply with the Pinelands Comprehensive Management Plan and obtain a New Jersey Pollutant Discharge Elimination System permit. Further F & S
The adverse financial impact of these plans on F & S was clear. It estimated the cost to satisfy the new regulations would be $1,992,000. Quite understandably F & S sought relief in this situation. On March 2, 1984 it filed a verified petition in support of emergency relief with the BPU seeking: interim rate relief to enable it to recover the costs of closing the landfill in accordance with the new DEP regulations; continuation of its waste flow to enable it to comply with the DEP regulations; and an amendment to the waste flow regulations to permit continuation of waste flow to the Woodbine landfill. It is not clear from the record whether notice of this petition was given to the CMCMUA. However, even before the petition was filed the DEP had encouraged the CMCMUA to meet with officials from the DEP, Woodbine and P & S to discuss F & S’s problem. Further we note that the county seems to have recognized the problem for at that time the freeholders were considering adoption of an amendment to their plan which would have redirected waste then being disposed of in another landfill to the P & S Woodbine site pending the opening of the regional landfill.
Eventually F & S became aware that the county would not support the continued operation of the Woodbine landfill. Thus on April 4, 1984 F & S requested a declaratory ruling from the BPU suspending the operative date of the provision in the waste flow regulations, N.J.A.C. 7:26-6.5(e)(7), which directed that the waste previously placed in the Woodbine site be redirected to the regional landfill when it opened. F & S desired the suspension pending an agreement allowing it to operate following the opening of the regional landfill.
On April 9, 1984 F & S filed an amendment to its verified petition of March 2, 1984 pursuant to N.J.A.C. 14:1-6.5 seeking ex parte emergent relief as requested in the April 4 letter. The amendment included: (1) a pro forma statement of income for
Joseph Ferrante, Jr., the attorney for F & S, served a copy of the amendment to its petition on George Marinakis, a representative of the CMCMUA, by certified mail on April 9, 1984 and the CMCMUA received this material on April 11,1984. According to John J. Pislor, a BPU official, on April 9, 1984 he, Pislor, notified Theodore O’Neill, waste manager of the CMCMUA of the F & S applications. Pislor indicates he told O’Neill that the BPU would consider the matter on April 12, 1984. O’Neill, however, denies receiving this call.
At a meeting held on April 12, 1984 the BPU considered and acted upon the F & S matter. The BPU had given formal notice of the meeting pursuant to N.J.S.A. 10:4-18. The BPU unanimously determined to issue an order granting an emergency redirection of waste flow from the CMCMUA regional landfill to the F & S landfill for a period of 180 days after the opening of the regional landfill. The BPU granted this relief because of its analysis of the financial status of F & S. The relief, however, was conditioned upon the DEP accepting the order inasmuch as the relief could only be granted upon a determination by the DEP that an emergency situation existed. The 180-day period was the longest time during which a redirection could be allowed without amendment to the Cape May County Solid Waste Management Plan. N.J.A.C. 7:26-6.7(b)(3).
On April 30, 1984 the BPU issued an interim order reflecting the April 12, 1984 determination. The BPU concluded it had the authority and duty to fashion economic relief for F & S to
(1) Petitioner [F & S], by virtue of its operation of a sanitary landfill owned by and leased from the Borough of Woodbine, is a public utility subject to the jurisdiction of the Board pursuant to N.J.S.A. 48:13A-1 et seq. and the Department [of Environmental Protection] pursuant to N.J.S.A. 13:1E-1 et seq.;
(2) By promulgation of joint rules for interdistrict and intradistriet solid waste flow, duly adopted on December 6, 1982, solid waste heretofore directed to petitioner’s facility will be redirected to the Cape May County regional landfill when it becomes operational;
(3) The Cape May County regional landfill is scheduled to become operational on or about May 15, 1984, at which time, pursuant to N.J.A.C. 7:26-6.5(e)(7) petitioner will no longer be receiving solid waste at its facility;
(4) The Department in exercising its jurisdiction over environmental aspects of petitioner’s operation pursuant to N.J.S.A. 13:1E-1 et seq., has determined a number of environmental improvements to be necessary to petitioner’s facility so as to satisfy the requirements of N.J.S.A. 13:1E-100 et seq.; [The BPU referred to DEP’s January 17, 1984 order on this point.]
(5) Pursuant to N.J.S.A. 13:1E-100 et seq., petitioner is required to submit Closure and Post-Closure Financial Plans consistent with-the Department’s Administrative Order of January 17, 1984;
(6) Subject to verification at hearing, environmental improvements mandated by the Department will cost petitioner $1,992,000;
(7) Recovery of such costs will be effectively precluded by virtue of the operation of N.J.A.C. 7:26-6.5(e)(7), in that petitioner will no longer be receiving solid waste at its facility after the Cape May County regional landfill becomes operational on or about May 15, 1984;
(8) By virtue of the operation of N.J.A.C. 7:26-6.5(e)(7), petitioner will be unable to submit a Closure and Post-Closure Financial Plan consistent with the Department’s directives;
(9) Petitioner’s inability to submit such plan will preclude it from continuing to provide safe, adequate and proper service in an environmentally sound manner as mandated by N.J.S.A. 48:2-23;
(10) It is therefore appropriate to modify the subject rule so as to permit petitioner the opportunity to receive solid waste after Cape May County regional landfill becomes operational;
(11) That until such modification is effected or until such other remedial action as is deemed appropriate by the Department is taken, an emergency economic condition will exist at the Foundations and Structures sanitary landfill facility, Woodbine Borough, Cape May County.
Subsequent to the issuance of the interim order a public hearing was held in Woodbine on the proposed rate increase for F & S. Following the hearing the BPU approved a stipulation agreed upon by rate counsel, F & S, the BPU staff and Woodbine for an interim increase. The rates were to be equivalent to those.charged at the regional landfill.
On May 15, 1984 the DEP adopted the interim order of April 30, 1984 proposed by the BPU. The BPU and DEP on May 15, 1984 jointly issued the order which permitted F & S to continue to accept solid waste from municipalities in its service area for
On May 22,1984 the CMCMUA filed a notice of appeal to this court from the joint order of the DEP and BPU of May 15,1984 granting F & S an emergency redirection of solid waste flow for 180 days. On June 4, 1984 the CMCMUA filed a motion in this court for temporary relief from the joint BPU/DEP order. By our order of June 8, 1984 we denied this motion. Thus the redirection to F & S remained effective.
The joint order redirecting waste was due to expire on November 11,1984. However on October 12,1984 the Borough of Woodbine, as intervenor, filed a verified motion with the BPU for emergency relief seeking further suspension of N.J.A.C. 7:26-6.5(e)(7).
The four issues raised on this appeal are whether the appeal is moot, whether the CMCMUA has standing to challenge the order, whether the order was lawfully issued or was arbitrary and capricious and whether the CMCMUA was denied due process in the issuance of the order.
We realize that in view of the expiration of the 180-day redirection period this appeal may be moot. Nevertheless we conclude that we should consider the substantive issues on the merits. F & S and the Borough of Woodbine have already filed one request for an extension of the redirection order and the BPU has again recommended to the DEP that F & S be granted a redirection of waste flow thereby exempting F & S from the operation of N.J.A.C. 7:26-6.5(e)(7), a recommendation the DEP has rejected. Appeals have been taken from the DEP action. Thus even though the initial redirection order has expired, the parties continue to have a financial stake in the controversy. Possibly a decision by us as to the validity vel non of the order of May 15, 1984 will be germane in the later appeals. Moreover, the bypassing of the regional plan presents a matter of particular concern to the public interest that should be addressed. In concluding that we should consider the substantive issues on the merits we note that we are not confined by the strict “case or controversy” requirements of the federal courts. See In re Boardwalk Regency Corp. Casino License, 90 N.J. 361, 367 (1982), app. dism. sub nom. Perlman v. Att’y Gen. of N.J., 459 US. 1081, 103 S.Ct. 562, 74 L.Ed.2d 927
F & S contends that the CMCMUA lacks standing to appeal. We disagree. Standing requires that a litigant have a sufficient stake and real adverseness with respect to the subject matter of the litigation, and a substantial likelihood that some harm will fall upon it in the event of an unfavorable decision. N.J. Chamb. Commerce v. N.J. Elec. Law Enforce. Comm., 82 N.J. 57, 67 (1980). Clearly the decision adversely impacted on the CMCMUA for it deprived the CMCMUA of revenues.
The CMCMUA contends the order of May 15, 1984 was arbitrary, capricious and unreasonable, ultra vires, and without legal or factual basis. It asserts that the DEP and BPU could only order a redirection of waste to the F & S landfill if the DEP determined there was an emergency condition warranting redirection. See N.J.A.C. 7:26-6.7. The CMCMUA submits the facts do not support the DEP’s finding of an emergency because the only emergency was economic hardship of F & S. It maintains that N.J.A.C. 7:26-6.7 was not designed to protect an operator’s economic interest. Moreover, the CMCMUA contends that the DEP and BPU failed to consider the harm to the public interest caused by allowing F & S to continue operating an inefficient landfill.
The DEP and BPU contend they properly exercised powers under N.J.A.C. 7:26-6.7 in issuing the emergency redirection of solid waste flow because the order enabled F & S to earn funds towards closing the landfill in accordance with DEP closure requirements. Moreover they argue that N.J.A.C. 7:26-6.7 was intended to provide broad flexibility in the exercise of emergen
We conclude that the adoption of the interim order was not ultra vires. Administrative regulations are customarily afforded a rebuttable presumption of validity and thus a finding that an order is ultra vires is disfavored. A.A. Mastrangelo, Inc. v. Environmental Protec. Dep’t, 90 N.J. 666, 683 (1982). Moreover, the absence of an express statutory authorization in the enabling legislation will not preclude administrative agency action where, by reasonable implication, that action can be said to promote or advance the policies and findings that served as the driving force for the enactment of the legislation. Id. at 683-684.
N.J.S.A. 48:13A-2 provides:
The Legislature finds and declares that the collection, disposal and utilization of solid waste is a matter of grave concern to all citizens and is an activity thoroughly affected with the public interest; that the health, safety and welfare of the people of this State require efficient and reasonable solid waste collection, disposal and utilization service; that such service will more likely be achieved if the Public Utility Commission is charged with the duty of setting and enforcing standards and rates for regulating economic aspects of solid waste collection, disposal and utilization service; and that the exercise of any*558 power herein provided for shall be deemed to be in the public interest and for a public purpose.
Thus the Supreme Court has indicated that the Legislature intends the BPU to have the role in statewide solid waste management to assess and regulate the economic aspects of the industry. A.A. Mastrangelo, Inc. v. Environmental Protec. Dep’t, supra, 90 N.J. at 681.
Additionally, N.J.S.A. 48:2-23 provides:
The board may, after hearing, upon notice, by order in writing, require any public utility to furnish safe, adequate and proper service, including furnishing and performance of service in a manner that tends to conserve and preserve the quality of the environment and prevent the pollution of the waters, land and air of this State, and to maintain its property and equipment in such condition as to enable it to do so.
The board may, pending any such proceedings, require any public utility to continue to furnish service and to maintain its property and equipment in such condition as to enable it to do so.
In view of these statutes we agree with the conclusion of the BPU that it was the Legislature’s intent to vest it with the powers necessary to ensure that disposal operators subject to its jurisdiction have the economic capacity to effectuate the environmental mandates of the DEP. Thus N.J.A.C. 7:26-6.7 authorizing redirection order is valid and the order of May 15, 1984 was not ultra vires.
Of course our determination that the order was within the power of the BPU does not terminate our substantive inquiry. We must also ascertain whether there is sufficient credible competent evidence in the record to support the conclusion of the BPU and the DEP. See Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981). We recognize, however, that in viewing the record we must afford a presumption of reasonableness to the administrative action. See A.A. Mastrangelo, Inc. v. Environmental Protect. Dep’t, supra, 90 N.J. at 687. The basis for the authorization was the determination by the BPU and- DEP that the F & S landfill needed
The record clearly supports these conclusions. On January 17, 1984 the DEP issued an administrative order specifying the steps necessary under the new regulations for closure of the F & S landfill. Implementation of the order would increase the closing costs of F & S to an estimated amount of $1,992,000 compared to the previously anticipated cost of approximately $245,000. Further its pro forma statement of income for the period April 1 to June 30, 1984 reflected a loss of $1,935,715, and its pro forma balance sheet as of June 30, 1984 showed its total liabilities exceeded its assets. From this evidence it was reasonable for the BPU and DEP to conclude that F & S would not be able to finance the required improvements for closure. This inability could effectively preclude F & S from continuing to provide safe, adequate and proper service, which includes closure and post-closure monitoring, in an environmentally sound manner. Thus the joint BPU and DEP order redirecting waste to F & S for a period of 180 days was founded on sufficient credible competent evidence and was not arbitrary, capricious nor unreasonable and it must be upheld.
In conclusion we make the following determinations: (1) the CMCMUA has standing to appeal the joint order; (2) we will consider the substantive but not the procedural aspect of the appeal; (3) the order is valid. Thus we affirm the order of May 15, 1984.
It seems also to have received limited amounts of waste from Upper Township.
These proceedings having been taken after the filing of the appeal in this case are not properly part of the record here. But we now expand the record to include them. See First Jersey Securities, Inc. v. S.E.C., 194 N.J.Super. 284, 293 n. 5 (App.Div.1984).
The parties should not infer from our opinion that we are expressing any opinion on the merits of the later appeals.
