On appeal from the Board of Public Utilities.
King, Dreier, Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
The opinion of the court was delivered by
This appeal is taken from a decision of the Board of Public Utilities (BPU) to review the reasonableness of a host community benefit pursuant to N.J.S.A. 13:1E-28. Here, we decide the jurisdictional span of the DEPE in similar matters.*fn1
The Burlington County Board of Chosen Freeholders (County) owns and operates a landfill for the disposal of sanitary waste. The landfill is located in both Mansfield and Florence Townships and began operations on February 1, 1989. The Solid Waste Management Act, N.J.S.A. 13:1E-1 to -207, sets forth that both Townships are entitled to a host community benefit for receiving solid waste. N.J.S.A. 13:1E-28.*fn2
On February 1, 1989, the County awarded a franchise for solid waste disposal to the Burlington County Resource Recovery Complex Landfill, and landfill operations began that day. The County agreed with Florence Township (Florence) to pay it a benefit of $1.16 per ton for all solid waste accepted at the landfill. The County was unable to reach a similar agreement with Mansfield Township (Mansfield) and, as a result, paid it $1 per ton for 1989 and 1990.
In November 1990, Mansfield filed a petition with the BPU requesting that it establish a benefit for the Township and that it direct the benefits to be made retroactive to February 1, 1989. Mansfield requested a $12 per ton benefit, and asked that the BPU add an escalation factor to the benefit amount.
In February 1991, the County filed a motion to dismiss Mansfield's petition on the basis that the BPU lacked jurisdiction to approve a host community benefit in the absence of an agreement between the County and Mansfield. The BPU later denied the County's motion for dismissal on the basis that the lack of an agreement between the owner of a landfill and a host community did not prohibit it from considering a host community benefit in excess of the statutory minimum. The BPU directed its staff to review Mansfield's petition and consider the reasonableness of the proposed benefit.
In September 1991, the County moved before the DEPE for a stay of the BPU decision and also filed a notice of motion for leave to appeal the BPU's order. The DEPE granted the County's request for a stay, pending the outcome of its motion for leave to appeal. We denied the County's motion and, thereafter, the County filed a motion for reconsideration.*fn3
In February 1992, we granted the DEPE's motion to file a brief, the County's motion for reconsideration and granted leave to appeal.
The County contends that the DEPE*fn4 lacks jurisdiction to review its payment plan with Mansfield. Specifically, the County claims that the previous ...