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In re Application for Certificate of Public Convenience and Necessity for Solid Waste Collection

Decided: May 27, 1975.

IN THE MATTER OF THE APPLICATION FOR CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR SOLID WASTE COLLECTION BY NELSON W. MASON, SR


Carton, Crane and Kole. The opinion of the court was delivered by Carton, P.J.A.D.

Carton

Solid Waste Industry Council, an association of solid waste collectors, appeals from a determination of the Board of Public Utility Commissioners (Board) granting a certificate of public convenience and necessity for solid waste collection. It raises a number of substantive and procedural questions relating to the Solid Waste Utility Control Act of 1970, N.J.S.A. 48:13A-1 et seq.

In 1973 Nelson W. Mason, Sr. made an application for a certificate of public convenience and necessity to operate a solid waste collection business in Cumberland County. A hearing was conducted on the application by a hearing examiner after publication in a Bridgeton newspaper of a notice of such hearing. At the hearing the Solid Waste Industry Council (SWIC) and SCA Services, Inc. (SCA), an interstate holding company with solid waste collection operations in New Jersey, made motions to intervene. Both motions were denied but the hearing examiner permitted counsel for SWIC to make a statement as an objector at the hearing. A representative of SCA also spoke as an objector, claiming that two existing concerns had the capacity to provide adequate service in Cumberland County. He also questioned Mason's qualifications to provide service adequate for the public needs. SCA did not appeal.

The hearing examiner's written report to the Board noted that SWIC and SCA were denied status as intervenors. The hearing examiner recommended the issuance of the certificate to Mason. He found that Mason's experience and on-the-job training were sufficient for him to serve adequately the number and type of customers which the record indicated; that his application and proposed tariff showed his customers would pay a reasonable price for service rendered, resulting in a sufficient income to cover operating expenses; that the equipment to be used by him was adequate to engage reasonably and efficiently in a solid waste collection operation of the type and size indicated by the record, and that the objectors had failed to show he was incapable of adequately operating this collection service in Cumberland County. The Board adopted the hearing examiner's report and recommendations.

It appears that prior to the issuance of the order the objectors had filed timely notices of exception to the hearing examiner's report and recommendations, but that these notices were inadvertently not brought to the Board's attention and the order was issued without reviewing the objectors' exceptions. The Board then decided to treat the exceptions as a motion for reconsideration and, after reviewing the exceptions and the record as a whole, the Board issued its decision denying the motion for reconsideration. SWIC thereupon filed its notice of appeal.

SWIC advances two major objections to the Board determination here appealed from. One is procedural. SWIC contends that it was improperly denied intervenor status at the hearing. The second is substantive. SWIC contends that a finding that existing service is inadequate, a determination not made in this case, is a prerequisite to the granting of a certificate of public convenience and necessity.

These and other questions raised by SWIC must be considered against the background of the relevant statutes and administrative rules.

The Solid Waste Utility Control Act, N.J.S.A. 48:13A-1 et seq., was adopted in 1970 for the purpose of regulating the

solid waste collection and disposal industry. To that end the industry was designated a public utility and subjected to the regulatory authority of the Board of Public Utility Commissioners. The Board was vested with a full range of powers to perform its regulatory duties. It was empowered to make all necessary rules, regulations and administrative orders for the regulation of rates and the utility aspects of the industry, N.J.S.A. 48:13A-4; to establish franchise areas, N.J.S.A. 48:13A-5; to issue certificates of public convenience and necessity to persons found qualified, N.J.S.A. 48:13A-6, and to revoke such certificates under specified conditions, N.J.S.A. 48:13A-9.

In addition, N.J.S.A. 48:13A-10 prohibits the monopolization or attempted monopolization of the solid waste industry.

The Board has rule-making powers under N.J.S.A. 48:2-12 generally, and under N.J.S.A. 48:13A-4 specifically, for the solid waste industry. This authority has been exercised through the adoption of a series of rules concerning the form and procedure for public hearings, which rules are published in the New Jersey Administrative Code. Under N.J.A.C. 14:3-10.6 the Board may hold a hearing to grant a certificate of public convenience and necessity and must hold a hearing before denying an application. Hearings, when held, are open to the public ...


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