Request for Solid Waste Utility Customer Lists, Matter of
| Citation | 205 N.J.Super. 390,501 A.2d 162 |
| Parties | In the Matter of the REQUEST FOR SOLID WASTE UTILITY CUSTOMER LISTS. |
| Decision Date | 19 November 1985 |
| Court | New Jersey Superior Court – Appellate Division |
Robert K. Walsh, Roseland, for appellants on Schedule A (Carella, Byrne, Bain & Gilfillian, Roseland, attorneys; Arthur Vanderbilt, II, Roseland, on the brief). 1
Joseph Rosa, Jr., Montclair, for appellants on Schedule C (Michael F. Riccardelli, Montclair, attorney).
Dennis A. Estis, Iselin, for appellants on Schedule G (Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Iselin, attorneys; Dennis A. Estis, Iselin, on the brief).
Scerbo, Kobin, Litwin & Wolff, Morristown, for appellants on Schedule D (Arthur R. Kobin, Morristown, on the brief).
Frank W. Gasiorowski, Scotch Plains, for appellants on Schedule H.
Vincent J. Dotoli, South Plainfield, for appellants on Schedule B.
John A. Gonnella, East Orange, for appellants on Schedule F Cindy K. Miller, Deputy Atty. Gen., for respondent (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Cindy K. Miller on the brief).
Before Judges MORTON I. GREENBERG, LONG and HAVEY.
The opinion of the court was delivered by
HAVEY, J.A.D.
Appellants, the Waste Management Association, the National Solid Waste Management Association, and 92 individual solid waste collection companies, appeal from the April 1, 1985 order of the Board of Public Utilities (Board) which requires solid waste utilities to provide the Board with a complete list of all their customers, including the rates charged, rate schedules applied and the frequency and type of service supplied. The order requires the customer lists to be updated semi-annually. It provides that the lists would not be made available for inspection or use by other utilities or the public. The order had originally been promulgated on November 30, 1984 without the provision making the customer lists confidential. Because of objections filed by appellants, implementation of the order was suspended, a hearing was held on March 20, 1985 and the order was reconsidered. The order was reissued on April 1, 1985 with the provision making the customer lists confidential.
Appellants challenge the order, arguing that the Board had no authority to issue it; that it must be vacated since it was entered without adequate notice and evidentiary hearing; that it requires the disclosure of confidential "trade secrets" and is therefore an unlawful "taking" of a property right, and that the order provides no adequate safeguard to ensure the confidentiality of the "trade secret" information. We affirm.
Appellants argue that the production of the information sought can be compelled only as an incident to a pending or contemplated inquiry or investigation of a matter affecting a public utility. See N.J.S.A. 48:2-19 and 48:2-36.1. Since no such inquiry or investigation is present here, they argue that no statutory authority exists for the "sweeping demand" made by the April 1, 1985 order. The argument, in our view, ignores the Board's broad regulatory and rule-making authority to protect the public interest. Under the general provisions of Title 48 of the Revised Statutes, the Board is vested with supervisory and regulatory jurisdiction and control over all public utilities, including utilities involved in sewer, solid waste collection and solid waste disposal. N.J.S.A. 48:2-13. It is empowered to fix just and reasonable rates, N.J.S.A. 48:2-21(b)1, and modify existing rates it finds to be "... unjust, unreasonable, insufficient or unjustly discriminatory or preferential." N.J.S.A. 48:2-21(b)1. It may direct its officers and employees to inspect and examine books and records of any utility respecting any matter within its jurisdiction not privileged in a judicial proceeding, N.J.S.A. 48:2-16.2, and may investigate "... upon its own initiative ... any matter concerning any public utility[.]" N.J.S.A. 48:2-19a. It is empowered to compel the production of a utility's books and records and any data relevant to any inquiry, investigation or proceeding undertaken by the Board. N.J.S.A. 48:2-36.1.
The Solid Waste Utility Control Act of 1970, N.J.S.A. 48:13A-1, et seq., recognized the compelling need to regulate the economic aspects of solid waste collection and disposal. N.J.S.A. 48:13A-2. Prior to the act, the solid waste industry was "... composed of numerous scavengers, serving overlapping territories ... [and] fraught with the potential for abuse in the form of favoritism, rigged bids, official corruption, and the infiltration of organized crime." In re Application of Saddle River, 71 N.J. 14, 22, 362 A.2d 552 (1976). The act complemented the Board's general powers over utilities by granting the Board specific authority to designate franchise areas in the solid waste industry, N.J.S.A. 48:13A-5; issue certificates of public convenience and necessity, a condition precedent to engaging in the business, N.J.S.A. 48:13A-6; Regulate rates, n.J.S.A. 48:13A-4, And approve tariffs, n.J.S.A. 48:13A-6.1. It authorizes the Board to compel production of contracts, books, and records, "... necessary to enable the Board to administer its duties as prescribed by law and this act." N.J.S.A. 48:13A-11. The act prohibits monopolies in the solid waste business and prescribes civil and criminal penalties for violations of the act. N.J.S.A. 48:13A-10 and 48:13A-12.
We are entirely satisfied that this pervasive legislative scheme provides ample authority for the Board to compel production of the data sought by the April 1, 1985 order, even absent a pending inquiry of a particular utility or utilities. Legislative grants of jurisdiction to the Board have traditionally been liberally construed to grant the widest range of regulatory and investigatory power over utilities subject to its jurisdiction. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 70-71, 494 A.2d 804 (1985); Public Utilities Bd. v. Helen Kramer San. Landfill, 171 N.J.Super. 500, 505, 410 A.2d 70 (App.Div.1979). The powers expressly granted are in turn attended by "... those incidental powers which are reasonably necessary or appropriate to effectuate the specific delegation." New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562, 384 A.2d 795 (1978); see also In re New Jersey Bd. of Public Utilities, 200 N.J.Super. 544, 557, 491 A.2d 1295 (App.Div.1985).
The information sought is unquestionably necessary to ensure the efficiency of solid waste collecting and disposal, and to prevent underpricing, monopolies, and other practices inimical to the public interest. See State v. Scioscia, 200 N.J.Super. 28, 40, 490 A.2d 327 (App.Div.1985), certif. den. 101 N.J. 277, 501 A.2d 942 (1985). The order is prophylactic in nature, intending to prevent anti-competitive acts and practices before they begin. It is abundantly clear that disclosure to the Board of the type of information sought is critical to the Board's recognition of potential anti-competitive practices. It would severely compromise the Board's power to protect the public interest to require an anti-competitive practice to develop first before the Board could compel disclosure of the critical data as part of an inquiry or investigation. We conclude that the Board was empowered to enter the April 1, 1985 order.
We also reject appellants' claim that the order must be vacated because it was entered without adequate notice and evidentiary hearing. We know of no statutory or regulatory requirement that a public hearing be held before the filing of certain data is required by the Board or an investigation is initiated. See In re Application of Waterfront Com., 32 N.J. 323, 334-335, 160 A.2d 832 (1960). Moreover, the matter does not qualify as a "contested case" under N.J.S.A. 52:14B-2(b), since no factual issues are implicated by the Board's exercise of its broad investigatory powers. See Bally Mfg. Corp. v. N.J. Casino Control Comm'n, 85 N.J. 325, 334, 426 A.2d 1000 (1981), app. dism. 454 U.S. 804, 102 S.Ct. 77, 70 L.Ed.2d 74 (1981). In any event, appellants were given ample opportunity after November 30, 1984 to protest the order in writing and at the hearing held by the Board on March 20, 1985, prior to final adoption of the order.
Appellants next contend that the information sought constitutes privileged trade secrets and is therefore protected from disclosure under N.J.S.A. 48:2-16.2 which permits Board officers and employees to inspect "... all books ..., records and memoranda kept by any public utility ... which would not be privileged in any judicial proceeding." [Emphasis supplied]. They also argue that the Board's order constitutes an unlawful "taking" of a property right.
We find appellants' argument unpersuasive for several reasons. Firstly, N.J.S.A. 48:13A-11, which applies...
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