On appeal from an order of the New Jersey Board of Public Utilities.
J. H. Coleman, Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.
[226 NJSuper Page 345] Robros Recycling Corporation (Robros) appeals from a decision and order of the Board of Public Utilities (BPU), dated October 27, 1986, (1) denying Robros's application for a certificate of public convenience and necessity to operate a solid waste transfer station pursuant to N.J.S.A. 48:13A-6, (2) assessing a penalty in the amount of $31,000 for "operation of an uncertificated transfer station" for at least 62 days in the months of June, July and August 1986 and (3) declaring that denial of the application for the certificate of public convenience and necessity left Robros "with authority to receive only source-separated, 100% recyclable materials for processing and/or disposal" and putting Robros on notice "that [if] it engage[d] in solid waste collection and/or disposal activities
without the requisite Board approvals, authorizations and certificates, it [would be] subject to penalties as provided for by law." The third portion of the decision and order is not really contested before us. However, on this appeal Robros contends that it was entitled to a plenary hearing in this consolidated matter relating to its application for a certificate of public convenience and necessity and an order to show cause issued by the BPU as a result of Robros's operation of the transfer station without a certificate.
Robros argues that its application for the certificate required a plenary hearing in light of N.J.S.A. 52:14B-11 and that a hearing was required with respect to the order to show cause by virtue of the fact that there was a "contested case" as defined by the Administrative Procedure Act, N.J.S.A. 52:14B-2(b) and -9, and the implementing provisions of the Administrative Code. Robros also contends that, even if a plenary hearing was not required, the decision of the BPU lacked adequate findings of fact and conclusions of law, embodied a penalty in violation of authorizing legislation, N.J.S.A. 48:13A-12b, and constituted an abuse of discretion. It also contends that the Administrative Law Judge (ALJ) erred in basing her decision on an answer which constituted an admission to the ultimate fact and, therefore, should not have been considered by the BPU.
We affirm the determination of the BPU that a penalty could be assessed but conclude that the amount of the penalty exceeded the amount authorized by law. We also conclude that a plenary hearing is necessary for consideration of Robros's petition for issuance of a certificate of public convenience and necessity. The amount of the penalty should also be reconsidered at that hearing. In our view, these holdings resolve all issues in dispute on this appeal and moot any questions not directly discussed.
In 1981, Robros filed an application for a certificate of public convenience and necessity to operate a solid waste transfer
station pursuant to N.J.S.A. 48:13A-6. It also filed a proposed tariff. The application and tariff were amended, apparently on more than one occasion, and the matter was ultimately referred to the Office of Administrative Law for hearing as a contested case, pursuant to N.J.S.A. 52:14F-1 et seq. The facts concerning the processing of the application, number of amendments and reasons for the delay were never fully developed at a plenary hearing because the BPU staff moved for summary disposition based on facts admitted in the application and in discovery in advance of a hearing.*fn1 These facts were:
(1) Robros applied for a certificate of public convenience and necessity to operate a transfer and low technology resource recovery operation on February 18, 1981.
(2) Initial operation designed to test equipment began in late 1984.
(3) Initial commercial operations for handling solid waste began in early 1985.
(4) Operations involving processing of recycled paper and cardboard began in early 1983.
(5) The following haulers are using the Robros facility: United Carting Company, Browning Ferris Industries, Vaparo, Inc., Five Brothers Carting Company, Inc. and Garramone & Sons.
A hearing on the motion for summary judgment was conducted before an ALJ on June 3, 1986. At the hearing, counsel for Robros indicated that "notwithstanding the fact that the Company ha[d] conceded its operator ha[d] operated in violation of Title 48 requiring a Certificate of Public Convenience and Necessity, the Company nonetheless [was] entitled to a full and complete hearing on its application for a license prior to a denial if that [was] to be the result." The parties referred to our unpublished opinion in In the Matter of the Petition of A-1 Carting Co., Inc. to Purchase Assets and Issue Evidence of
Debt Due in More than 12 Months, A-5545-83T7 (App.Div.January 14, 1986), certif. den. 104 N.J. 381 (1986), counsel for Robros contending that this court did not hold that the failure to obtain a certificate is "in and of itself dispositive." According to Robros's counsel, "[w]hat the Court said was that the Board could, if it chose, rely on that circumstance as a basis for denial." Counsel claimed that a full ...