On appeal from the Board of Public Utilities.
Furman, Cohen and Ashbey. Cohen, J.A.D.
Landfill and Development Company (L & D) operates a solid waste disposal facility in Burlington County. It applied to the Board of Public Utility Commissioners (BPU) for an increase in rates to raise some $12.9 million to pay for closure measures and post-closure maintenance required by the Department of Environmental Protection (DEP). L & D's petition was opposed, and the matter was therefore transferred to the Office of Administrative Law as a contested case. After proceedings there, Administrative Law Judge (ALJ) Diana C. Sukovich issued an initial decision which was subsequently adopted in a ruling of BPU granting the requested increase. Burlington County and Eastampton Township appealed to this court, and we now affirm essentially for the reasons contained in the May 9, 1984 decision of BPU in which it adopted the thorough opinion of Judge Sukovich dated March 22, 1984. For emphasis, we add some necessary comments.
L & D operates subject to the economic regulation and supervision of BPU, N.J.S.A. 48:2-13; Twp. of Deptford v. Woodbury Ter. Sewerage Corp., 54 N.J. 418, 424 (1969), and subject to DEP jurisdiction over the environmental aspects of its facility. N.J.S.A. 13:1E-24; A.A. Mastrangelo, Inc. v. Environmental Protection Dep't., 90 N.J. 666, 672 (1982). L & D cannot operate without approval of both agencies, N.J.S.A. 13:1E-5a; N.J.S.A. 48:13A-6. BPU fixes rates and determines whether a proposed increase in a utility's rates is "just and reasonable." N.J.S.A. 48:2-21.
In September 1982, DEP approved L & D's amended registration and engineering design which embodied measures for closure and post-closure maintenance required by the new Sanitary
Landfill Facility Closure and Contingency Fund Act. N.J.S.A. 13:1E-100 t seq. and N.J.A.C. 7:14A-1.1 et seq. It contemplated operation until September 1985 when L & D would be filled to capacity. In May 1983, L & D petitioned BPU for a rate increase to pay for the newly required improvements. It estimates of the cost of $12.9 million and its remaining capacity of 3.83 million cubic truck yards have not been seriously challenged.
After L & D's May 1983 petition, there was a prehearing conference in July and a public hearing in August. Hearings before the ALJ were scheduled for September 12 and October 19, 20 and 21. Interim deadlines were set for discovery and submission of issues and witness lists.
After the September 12 hearing, apparently successful settlement discussions resulted in the preparation of a stipulation permitting the rate increase, with the proceeds to be paid into an escrow fund supervised by DEP and BPU. Withdrawals were to be made from the fund solely for closure and post-closure maintenance costs with the excess, if any, available for further environmental purposes.*fn1
The October hearing dates were cancelled because of the apparent settlement, except that on October 20 a discussion was held on the record before the ALJ about the terms of an agreement which generally satisfied L & D, the Public Advocate as rate counsel, and BPU staff. Other parties attended to express their positions. No opposition was raised by the two appellants here or any other party. The appellants said they would look to L & D and its parent corporation if escrowed funds were insufficient to pay all closure and maintenance
costs. At the end of the discussion, L & D was to circulate the stipulation for execution. By letter dated October 26, the ALJ advised the parties that a failure to object to the stipulation would be taken as an expression of no opposition.
The stipulation which circulated varied in insignificant respects from the October 20 version. On November 7, the stipulation was filed, executed by L & D, the Public Advocate and BPU staff. Every other party (including the County) except Eastampton Township promptly advised the ALJ that they did not ...