Bischoff, Kole and Gaulkin.
The Township of Saddle Brook (township) appeals from an administrative order issued by the Department of Environmental Protection (DEP) granting a certificate of registration to Modern Industrial Waste Service, Inc. (Modern) for the operation of a solid waste transfer station in the township.
On September 14, 1971 Modern purchased the premises located at 251 Second Street in the township. On this property is located a facility for the operation of a solid waste transfer station. The property is located in a heavy industrial zone and its present usage as a solid waste transfer station is a permitted one. Access to the facility is through adjacent residential zones.
In August 1974 the township issued a building permit for a ramp at the facility and, in January of 1975, issued a permit for the construction of a building to enclose the compactor used by Modern.
From April 1975 to December 1975 the township used the facility and paid Modern for this service.
In December 1975 the Solid Waste Administration (SWA), a bureau of the DEP, discovered that Modern was operating the transfer facility without prior registration and ordered Modern to cease operations or to register. On January 21, 1976 Modern submitted an application for registration to the SWA which, on January 29, 1976, sent notices to various officials of the township advising them of the application for registration filed by Modern and stating:
The Solid Waste Management Act permits the Department of Environmental Protection to deny registration to any solid waste operation if, in its opinion, that operation would violate the regulations promulgated under that act. The Bureau of Solid Waste Management wishes to extend to you the opportunity to comment on this facility. We would appreciate any factual information indicating that the operation of this facility would be in conflict with either local zoning or planning or concern for its impact upon traffic, public safety, public buildings or institutions.
On February 25, 1976 the township, through its health officer, responded by letter and detailed various complaints of residents in the area concerning the operation of the transfer facility. They included complaints as to (1) the sole means of access to the facility being through adjacent residential zones, and (2) noise pollution. The township did not request a hearing.
On October 8, 1976 the SWA granted Modern's application for a certificate of registration, conditioned upon compliance with certain requirements, including: (1) limitation of noise levels; (2) prohibition against acceptance of certain described types of waste; (3) compliance with all applicable rules, regulations and ordinances of all local, state and federal agencies, and (4) construction and operation in compliance with certain designated standards.
The township appeals from the grant of a certificate of registration, contending it had a statutory right to a hearing which was denied. The township relied upon the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. , specifically N.J.S.A. 52:14B-9(a), which provides that "In a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice." A contested case is defined in the statute as "a proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their
interests, after opportunity for an agency hearing." ...