On appeal from the Hackensack Meadowlands Development Commission and the Board of Public Utilities.
Gaulkin, Bilder and Arnold M. Stein. The opinion of the court was delivered by Gaulkin, P.J.A.D.
We hold here that a host community benefit in excess of the $1.00 per ton authorized by N.J.S.A. 13:1E-28 for a municipality having an approved sanitary landfill facility may not be imposed except upon a prior determination of the Board of Public Utilities (BPU) that the resultant rates charged to the landfill users are just and reasonable.
Hackensack Meadowlands Development Commission (HMDC) operates an approved sanitary landfill facility on a tract straddling the border between the Borough of North Arlington and the Town of Kearny. Pursuant to the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 et seq., all of the municipalities of Hudson County are required to direct their solid waste to that facility, whose rates are regulated by BPU pursuant to the Solid Waste Utility Control Act of 1970 (SWUCA), N.J.S.A. 48:13A-1 et seq. See, generally, A.A. Mastrangelo, Inc. v. Environmental Protec. Dep't., 90 N.J. 666 (1982).
As required by N.J.S.A. 13:1E-28, HMDC has paid to North Arlington and Kearny the equivalent of $1.00 per ton on all solid waste accepted for disposal at its landfill; by agreement between them, North Arlington receives 80% of those amounts and Kearny 20%. On July 7, 1988, North Arlington and Kearny filed with BPU a joint petition seeking an emergency increase in the host community benefit pursuant to N.J.S.A. 13:1E-28 "from the minimum $1.00 per ton to $10.00 per ton," effective January 1, 1988. The petitioners represented that in "[i]nformal contacts" HMDC "has expressed no objection" and urged that the increased benefit "is properly a 'surcharge' and does not require a rate hearing or notice to parties other than the HMDC."
Having learned informally of the pendency of the petition, appellants Robert Janiszewski, Hudson County Executive, the County of Hudson and the Hudson County Improvement Authority moved to intervene in the BPU proceedings. On October 26, while the petition and the motion were pending, HMDC held a public meeting at which it discussed the petition. After hearing public comment on behalf of the appellants and others, HMDC adopted its resolution 88-56 that
[HMDC] supports the petition of North Arlington/Kearny before the Board of Public Utilities for an increase in host community benefits.
On November 14, BPU wrote to HMDC "to seek clarification" of the resolution:
Please be advised that the Board views the amount of host community benefit, which is based upon agreement between the host community and the utility and which is in excess of the statutory minimum, as a non-reviewable surcharge, N.J.S.A. 13:1E-28. Accordingly, the Board seeks confirmation that the HMDC did vote to enter into an agreement with North Arlington and Kearny to provide those municipalities with a host community benefit of $10.00 as set forth in the petition. Once such confirmation is received, that amount will be added to rates as a surcharge without further review by the Board.
In response to that advice, HMDC met on December 8. After again hearing from objectors, HMDC adopted its resolution 88-68 that
[HMDC] agrees to and supports the petition of North Arlington and Kearny before the Board of Public Utilities for a host community fee of eight dollars
for the Borough of North Arlington and two dollars a ton for the town of Kearny.
The resolution, however, set forth that the HMDC "does not support" making the increased benefit retroactive to January 1, 1988 but ...