On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D.
We consider in this appeal whether the State Board of Public Utilities (BPU or Board) has jurisdiction over the hours during which a landfill, holding a certificate of convenience and necessity, may operate. The landfill would deny BPU that power.
An abbreviated history of this accelerated appeal is necessary to a full understanding of what this issue comprehends. On May 7, 1971 the Helen Kramer Sanitary Landfill (the Landfill) applied to BPU for a certificate of public convenience and necessity to operate its landfill. On September 22, 1972 the Landfill filed a tariff with BPU which set forth its rates, hours of operation and miscellaneous additional terms and conditions of its operation. The certificate of public convenience and necessity was issued in March 1976.
In May 1977 the Landfill filed a petition with the BPU seeking modification of its tariff to amend the rate schedule to
reflect the rates actually charged since 1970 and to eliminate an inapplicable rate schedule. At the hearing on this petition held June 21, 1978, the Landfill orally sought a tariff amendment enlarging its hours of operation. On February 22, 1979, the Landfill was advised of a written BPU staff position with respect to the petition for rate change and the oral request for enlargement of the hours of operation. According to this document, the staff authorized the requested change in rates. The staff, however, recommended that the hours not be enlarged --
By letter dated March 19, 1979 (presumably in anticipation of having their request for a change in operations rejected) the Landfill withdrew its motion to increase its hours of operation. The Board's decision, an order on March 21, 1979, adopted the staff position on rates and, despite the Landfill's attempted withdrawal of the issue of operating hours, adopted the staff position with respect to that matter also. Accordingly, the Landfill was ordered immediately to "cease and desist from operating during hours not presently authorized by the Board." The Landfill appealed from that portion of the order denying extended operating hours.
Subsequent to the filing of the notice of appeal on April 16, 1979, BPU filed a Chancery Division complaint seeking to enjoin the Landfill from operating in contravention of its decision and order of March 21, 1979, imposition of $100 fine a day for noncompliance with the BPU order and interlocutory injunctive relief with respect to that order. After abortive attempts to reach an amicable disposition of the controversy, the trial judge ruled that the Landfill would be required to comply with the operating hours reflected in its filed tariff in accordance with
the Board's order of March 21, 1979. The Landfill's appeal from this trial court order is before us and not the appeal from the BPU order of March 21, 1979.*fn1
The essential issue posed is whether BPU is vested with jurisdiction over operating hours of landfills under either N.J.S.A. 48:2-13, the provision generally descriptive of the scope of Board jurisdiction, or N.J.S.A. 48:13A-1 et seq. , ...