On appeal from Final Decision of the Department of the Public Advocate, Division of Rate Counsel.
Before Judges Petrella, Havey and Cuff.
The opinion of the court was delivered by
The issue in this case is whether the Bergen County Utilities Authority (the BCUA) is responsible for fees and expenses assessed by the Division of Rate Counsel in the Department of the Public Advocate (Rate Counsel).*fn1
The BCUA did not contest Rate Counsel's right to intervene in the rate-setting proceedings. Rather, it argues that Rate Counsel is not entitled to assess legal fees and expenses against it under N.J.S.A. 52:27E-19a because its March 1991 petition "sought no change in services whatsoever, and was expressly limited to approval of its proposed rate reduction. "
The Bergen County Board of Chosen Freeholders created the BCUA on March 23, 1978, to provide Bergen County certain water, sewer, and solid waste services. The BCUA has provided solid waste services and facilities since January 2, 1981. Its operations are subject to the New Jersey Solid Waste Management Act (N.J.S.A. 13:1E-1 to -207) and certain solid waste management plans adopted for the county's district.
On February 11, 1991, the BCUA filed (as required by N.J.S.A. 48:13A-6 and N.J.S.A. 48:13A-6.2) an application with the Board of Public Utilities (the BPU) for a certificate of public convenience and necessity to operate a solid waste transfer station in North Arlington, New Jersey.*fn2 At the same time, the BCUA also filed its initial tariff or solid waste rate structure.
Thereafter, on May 7, 1991, an Assistant Deputy Public Advocate sent a letter to the BPU with a copy to the BCUA, to inform it that Rate Counsel planned to participate fully in the proceedings regarding the BCUA's application for a certificate of public convenience and permanent rate structure.
The BPU granted the BCUA's request for a certificate on August 16, 1991, and accepted its initial tariff or rate structure on an interim basis, subject to refund based upon further review. On December 24, 1991, the Director of Rate Counsel wrote the Executive Director of the BCUA concerning the same matter and requested him to add another Rate Counsel attorney to the service list.
According to the BCUA, the rate structure accepted by the BPU had been promulgated in January 1990 in accordance with the then applicable rate-setting protocol established by the Municipal and County Utilities Authorities Law, particularly N.J.S.A. 40:14B-23. The "interim" rate structure accepted had already been in effect for nearly nineteen months and remained in effect until May 15, 1993, according to the BCUA. The BCUA points out that during that period "no taxpayer, system user or governmental agency" challenged or contested the reasonableness of its rate structure.
On March 10, 1993, the BCUA petitioned the Department of Environmental Protection and Energy (DEPE) under N.J.S.A. 48:13A-6.2b,*fn3 to decrease its solid waste service rate for municipal waste from $124 to $122 per ton. The BCUA asserts that, at the time, "no change in services were contemplated." As of that time, according to Rate Counsel, neither the BPU nor DEPE had granted final approval of the BCUA's initial rate structure or services.
According to the BCUA, Rate Counsel moved, without objection, on March 29, 1993 to intervene (as of right) in the proceedings relating to BCUA's initial rate scheme and subsequent modification thereto. Rate Counsel states, however, that it "intervened on behalf of the public interest in all the proceedings subsequent to the BCUA's February 11, 1991, application." On May 4, 1993, Rate Counsel again notified the BCUA that it intended to participate in the application and petition process "insofar as changes in rates and/or services of the [BCUA] are at issue." Rate Counsel also advised the BCUA that it would be sending bills for its expenses pursuant to N.J.S.A. 52:27E-19a.
On May 14, 1993, the DEPE ordered the Office of Legal Affairs to transmit the BCUA's application for a certificate of public convenience and necessity, and petition for a decrease in rates, to the Office of Administrative Law (the OAL) for consolidation and a full hearing, ...