On appeal from the Department of Environmental Protection.
Furman, Long and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.
This appeal by the Township of Mount Olive is the second before us between the same parties arising out of the disruption of Morris County solid waste disposal services threatened by the impending shutdown of the Edgeboro Landfill in Middlesex County on January 1, 1988. On the first appeal, we affirmed Department of Environmental Protection (DEP) approval on July 28, 1987 of an amendment to the Morris County District Solid Waste Management Plan, which was adopted following a public hearing. The township now appeals from DEP's issuance on October 28, 1987 of a Master Performance Permit to Morris County Transfer Station, Inc. (MCTS) to construct and operate for five years a transfer station at the site within the township approved in the district solid waste management plan amendment.
The township raises four issues before us:
I: THE FAILURE OF THE DEP TO HOLD A HEARING ON THE ISSUANCE OF A MASTER PERFORMANCE PERMIT, AS REQUIRED BY LAW AND AS EXPLICITLY PROMISED TO THE RESIDENTS OF MOUNT OLIVE BY THE DEP, AMOUNTS TO AN INTOLERABLE DISREGARD FOR PROPER PROCEDURE WHICH TAINTS AND INVALIDATES THE ENTIRE PROCESS FOLLOWED BY THE DEP IN THIS MATTER, AND RESULTED IN A SUCCESSFUL ATTEMPT TO LULL THE PUBLIC INTO COMPLACENCY WHILE GOING "FULL STEAM AHEAD".
II: THE MASTER PERFORMANCE PERMIT DIFFERS SO RADICALLY AND SUBSTANTIALLY FROM THE MORRIS COUNTY SOLID WASTE MANAGEMENT PLAN AMENDMENT UPON WHICH IT IS BASED, THAT NO PROPER LEGAL BASIS EXISTS FOR ISSUANCE OF A MASTER PERFORMANCE PERMIT.
III: THE DEP HAS FAILED TO ESTABLISH THAT IT HAS MET THE GROUNDS REQUIRED BY N.J.A.C. 7:26-1.10, WHICH GROUNDS ARE A PREREQUISITE TO ISSUANCE OF A MASTER PERFORMANCE PERMIT.
IV: THE MASTER PERFORMANCE PERMIT IS FUNDAMENTALLY FLAWED IN ITS TERMS AND CONDITIONS AND IN FAILING TO REQUIRE SPECIFIC OFF-SITE IMPROVEMENTS AND SPECIFIC ON-SITE ENVIRONMENTAL CONTROLS.
The focus of this appeal is on DEP's failure to hold a public hearing prior to its issuance of the Master Performance
Permit to MCTS pursuant to N.J.A.C. 7:26-1.10. No constitutional challenge is brought, see In re App. of Modern Indus. Waste Service, 153 N.J. Super. 232 (App.Div.1977). We reject the township's claim of a statutory right to a hearing. N.J.A.C. 7:26-1.10(b) does not provide for a public hearing if its four criteria are met:
1. The transfer station facility is consistent with the approved district solid waste management plan of the solid waste management district in which the facility is to be located;
2. The Commissioner has determined that development of the transfer station facility must commence forthwith in order to avert a major disruption in the provision of solid waste disposal services, which disruption would be inconsistent with the purpose and intent of the Solid Waste Management Act, N.J.S.A. ...