Fritz, Lynch, and Martino. The opinion of the court was delivered by Fritz, J.A.D.
We will not tarry over the questionable procedure employed in achieving this review. Respondents complain mildly about the procedure and in particular the untimeliness of the appeal. Regardless of whether the procedure employed is vulnerable, we would consider it unfortunate if all who wanted to mount a constitutional attack on a statute of such broad reach as that with which we are here concerned went about it this way. But the question is before us, and all concerned, including the court, recognize the importance of and necessity for an appellate adjudication. We will decide the merits.
Appellant challenges section 2.1 of chapter 14 of the New Jersey Air Pollution Code, promulgated by the Department of Environmental Protection (Department) pursuant to the
authority of N.J.S.A. 26:2C-8 and more particularly N.J.S.A. 26:2C-8.4, implemented by N.J.S.A. 13:1D-7 and N.J.S.A. 13:1D-9(n), and by N.J.S.A. 39:3-70.2. That section reads as follows:
No person shall operate any diesel-powered motor vehicle or permit any diesel-powered motor vehicle which he owns to be operated upon the public highways of the State if the vehicle, when in motion, emits visible smoke in the exhaust emissions within the proximity of the exhaust outlet, for a period of more than five seconds. [ N.J.A.C. 7:27-14.2; emphasis added]
Appellant argues that (a) this regulation contravenes N.J.S.A. 26:2C-8.4 in that a "no visible smoke" standard is unattainable without modification to the equipment; (b) the "no visible smoke" standard is unreasonable and confiscatory and therefore arbitrary, capricious, and unconstitutional, in that it bears no real and substantial relation to the desired end, there is no reasonable way to avoid its violation, and it is inconsistent with other standards, and (c) the standard imposes an unreasonable burden on interstate commerce. The intervening New Jersey Motor Truck Association forwards essentially the same arguments, with perhaps more emphasis on an alleged conflict with a national standard and the suggestion of federal preemption.
At the outset, we are completely satisfied that the Department has been properly and competently empowered by the statutes cited above to regulate smoke emissions from motor vehicles and to enforce sanctions for violations of those regulations. We are equally satisfied that if such regulations are: properly promulgated, reasonable in the sense of being nonarbitrary and designed to accomplish a permissible end, and nondiscriminatory against interstate commerce as well as unlikely to disrupt required uniformity, then there is no constitutional problem arising from the Commerce Clause. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 448, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960);
cf. In re Complaint of Brotherhood of R.R. Trainmen, 49 N.J. 174, 183 (1967). Finally, we are content that not only has there been no federal preemption here, but the federal government has specifically authorized and encouraged the adoption of state and local laws designed to control pollution. 42 U.S.C.A. 1857a(a). As is pointed out in In re Complaint of Brotherhood of R.R. Trainmen, supra :
In Florida Lime & Avocado Growers v. Paul, supra [373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963)], the Supreme Court pointed out that federal regulation of a field in commerce should not be deemed preemptive of state power in the absence of persuasive reason -- "either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. [Citations omitted.]" 373 U.S., at p. 142, 83 S. Ct. 1210 * * *. * * * Indeed, it may be said that state regulatory provisions having local safety as their objective are the least likely to be held preempted. [49 N.J. at 182-183]
We conclude that there is no legal impediment to control by the Department of motor vehicle smoke emission. We turn to the particular section here challenged. Initially we note that a hearing was held in advance of the promulgation, on proper notice. Copies of the proposed regulation were distributed in advance. The regulations ...