On appeal from decision of the Department of Environmental Protection.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Ard, J.A.D.
The Township of Chester (township) appeals from the decision of the Department of Environmental Protection (DEP) granting approval to Combe Fill Corporation (Combe Fill) to construct a 1,050-foot access road to its sanitary landfill in the township. Appellant contends that the provisions of its zoning ordinance requiring site plan approval and an environmental impact statement are "interstitial" interests not preempted by the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq. The township also contends that the decision of the DEP is unsupported by the record.
The facts pertinent to this appeal are as follows: Combe Fill acquired the landfill in November 1978. In early 1979 it submitted a site plan for the construction of a new road in the landfill to the Township of Chester's Planning Board. It commenced construction on the road prior to securing approval. After review by the township engineer, the township successfully obtained an injunction preventing Combe Fill from continuing construction of the road until it secured approval.
Thereafter the DEP conducted a public hearing. Township Engineer Fox and other individuals were heard regarding the proposed road. The engineer stated:
The proposed road is close to the zone boundary line between the commercial zone and the residential zone and is approximately 175 feet from a residence. The noise from trucks climbing the proposed road would be a nuisance.
The proposed plan does not contain provisions for drainage or storm water management. The proposed road would destroy an existing detention basin.
The proposed plan provides for the road to be surfaced with four inches of crushed stone or a quarry process. Mr. Fox [the engineer] stated that the road should be paved to provide an adequate surface on the road. Based on his experience, Mr. Fox stated that a dirt road or a stone road going up the slope with heavy truck traffic is not stable. Mr. Fox further stated that pavement is necessary for stability and to provide for a positive directional flow of water to a storm drain facility. Mr. Fox presented pictures showing Parker Road (the municipal road from which access is gained to the landfill) covered with mud and debris from the portion of the road which had been constructed prior to the injunction.
A steel guard rail should be constructed on the easterly side of the road to prevent trucks from going over the side of the slope.
Subsequently, in a memorandum, the engineer asserted that a variance, an environmental impact statement and an erosion control plan were required. He also claimed that the noise from the trucks using the new road would be a nuisance. Acting on that information, the Planning Board of the Township of Chester passed a resolution opposing the approval of the proposed plan and suggested alternate solutions. In January 1980 the township representatives conferred with the DEP. As a result, on February 19, 1980 Combe Fill submitted a revised plan for the proposed road. Township Engineer, Fox, again made critical observations and proposed additional recommendations. There was no public hearing on the revised plan.
On April 24, 1980 the Acting Director of the Solid Waste Administration approved the revised plan, expressing satisfaction with the operation of the landfill and its environmental ramifications. He also notified the township that it would not require Combe Fill to comply with Fox' proposal changing the location of the road. DEP maintained that the construction of the road, as per the Fox recommendation, would have required extensive removal of rock.
In disputing the action of DEP the township does not argue that the Solid Waste Management Act, ...