Bergen County Utilities Authority v. State

648 A.2d 513, 276 N.J. Super. 577, 1994 N.J. Super. LEXIS 425
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 21, 1994
StatusPublished

This text of 648 A.2d 513 (Bergen County Utilities Authority v. State) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bergen County Utilities Authority v. State, 648 A.2d 513, 276 N.J. Super. 577, 1994 N.J. Super. LEXIS 425 (N.J. Ct. App. 1994).

Opinion

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

The issue in this case is whether the Bergen County Utilities Authority (the BCUA) is responsible for fees and expenses assessed by the Division of Rate Counsel in the Department of the Public Advocate (Rate Counsel).1

The BCUA did not contest Rate Comiséis right to intervene in the rate-setting proceedings. Rather, it argues that Rate Counsel is not entitled to assess legal fees and expenses against it under N.J.S.A. 52:27E-19a because its March 1991 petition “sought no change in services whatsoever, and was expressly limited to approval of its proposed rate reduction.”

The Bergen County Board of Chosen Freeholders created the BCUA on March 23, 1978, to provide Bergen County certain water, sewer, and solid waste services. The BCUA has provided solid waste services and facilities since January 2, 1981. Its operations are subject to the New Jersey Solid Waste Manage[580]*580ment Act (N.J.S.A 13:1E-1 to -207) and certain solid waste management plans adopted for the county’s district.

On February 11,1991, the BCUA filed (as required by N.J.S.A. 48:13A-6 and N.J.S.A. 48:13A-6.2) an application with the Board of Public Utilities (the BPU) for a certificate of public convenience and necessity to operate a solid waste transfer station in North Arlington, New Jersey.2 At the same time, the BCUA also filed its initial tariff or solid waste rate structure.

Thereafter, on May 7, 1991, an Assistant Deputy Public Advocate sent a letter to the BPU with a copy to the BCUA, to inform it that Rate Counsel planned to participate fully in the proceedings regarding the BCUA’s application for a certificate of public convenience and permanent rate structure.

The BPU granted the BCUA’s request for a certificate on August 16, 1991, and accepted its initial tariff or rate structure on an interim basis, subject to refund based upon further review. On December 24, 1991, the Director of Rate Counsel wrote the Executive Director of the BCUA concerning the same matter and requested him to add another Rate. Counsel attorney to the service list.

According to the BCUA, the rate structure accepted by the BPU had been promulgated in January 1990 in accordance with the then applicable rate-setting protocol established by the Municipal and County Utilities Authorities Law, particularly N.J.S.A 40:14B-23. The “interim” rate structure accepted had already been in effect for nearly nineteen months and remained in effect until May 15, 1993, according to the BCUA. The BCUA points out that during that period “no taxpayer, system user or governmental agency” challenged or contested the reasonableness of its rate structure.

[581]*581On March 10, 1993, the BCUA petitioned the Department of Environmental Protection and Energy (DEPE) under N.J.S.A. 48:13A-6.2b,3 to decrease its solid waste service rate for municipal waste from $124 to $122 per ton. The BCUA asserts that, at the time, “[n]o change in services were contemplated.” As of that time, according to Rate Counsel, neither the BPU nor DEPE had granted final approval of the BCUA’s initial rate structure or services.

According to the BCUA, Rate Counsel moved, without objection, on March 29, 1993 to intervene (as of right) in the proceedings relating to BCUA’s initial rate scheme and subsequent modification thereto. Rate Counsel states, however, that it “intervened on behalf of the public interest in all the proceedings subsequent to the BCUA’s February 11, 1991, application.” On May 4, 1993, Rate Counsel again notified the BCUA that it intended to participate in the application and petition process “insofar as changes in rates and/or services of the [BCUA] are at issue.” Rate Counsel also advised the BCUA that it would be sending bills for its expenses pursuant to N.J.S.A. 52:27E-19a.

On May 14,1993, the DEPE ordered the Office of Legal Affairs to transmit the BCUA’s application for a certificate of public convenience and necessity, and petition for a decrease in rates, to the Office of Administrative Law (the OAL) for consolidation and a full hearing, as a contested case, on the setting of final rates and tariff design.

The DEPE also ordered the BCUA to submit by December 1, 1993, a copy of its 1994 solid waste budget and petition for solid waste disposal rates for solid waste generated in Bergen County to be effective March 1,1994. In addition, the DEPE temporarily [582]*582adjusted the BCUA’s initial rates and tariff design for solid waste disposal for the period between May 14, 1993 and February 28, 1994; and directed the OAL to address a $31 million accounting adjustment, which the BCUA had made of unappropriated retained earnings, relating to accounting for municipal solid waste landfill closure/post closure care costs. This entire matter is apparently still pending before the OAL.4

On June 3, 1993, the BCUA’s attorney wrote the Director of Rate Counsel, disputing Rate Counsel’s authority to assess legal expenses under N.J.S.A. 52:27E-19a against the BCUA. The BCUA took the position that because the proceedings presented “neither an increase in the rate, toll or fare, or charge of the BCUA, or discontinuance or change of any required service,” the statute was not implicated.

On September 14, 1993, Rate Counsel issued a “Final Agency Determination” assessing legal fees and expenses (totaling $17,-516.75) against the BCUA for its representation of the public interest, from March to June 1993, in the rate proceedings.

After the BCUA filed its notice of appeal challenging the final determination assessing costs against it, Rate Counsel issued bills on December 14, 1993 (totaling $4,720 for legal services provided in June, July, and August 1993) and on January 28, 1994 (totaling $12,240.50 for legal services between August and November 1993), respectively.5 The total amount assessed against the BCUA was $34,477.25. This amount does not exceed the maximum statutory assessment allowed ($72,699) pursuant to N.J.S.A. 52:27E-19a.

The Department of the Public Advocate Act of 1974, (the Act) N.J.S.A. 52:27E-1 to -47, established the Department of the Public Advocate. The enabling legislation gave the Public Advo[583]*583cate broad authority and discretion in determining whether to represent or refrain from representing the public interest in any proceeding. See, e.g., N.J.S.A. 52:27E-17, -18, -29, -31.

Rate Counsel was charged with representing and protecting “the public interest ... in proceedings before and appeals from any State ... agency ... charged with regulation or control of any business, industry or utility regarding a requirement that the business, industry or utility provide a service or regarding the fixing of a rate, toll, fare or charge for a product or service.” N.J.S.A. 52:27E-18.

The Act “provides for the payment of the fees and expenses incurred by Rate Counsel for such representation.” State Farm, Mut. Auto. Ins. Co. v. State, Dept. of Public Advocate, 227 N.J.Super. 99, 117, 545 A.2d 823 (App.Div.1988), aff'd, 118 N.J.

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Bluebook (online)
648 A.2d 513, 276 N.J. Super. 577, 1994 N.J. Super. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergen-county-utilities-authority-v-state-njsuperctappdiv-1994.