On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Dreier, Skillman and Villanueva. The opinion of the court was delivered by Dreier, J.A.D.
Super Kwik, Inc., a licensed solid waste hauler, appeals from a summary judgment upholding provisions of the traffic control ordinances of Mansfield Township and Florence Township. The ordinances required that waste haulers passing through the Townships follow the precise routes specified by Plan Amendment 87-2 to the Burlington County District Solid Waste Management Plan. The narrow issue presented in this case is whether the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -48, preempted the municipalities' authority to enact conforming traffic control ordinances pursuant to N.J.S.A. 39:4-197(1)(b) (authorizing municipalities to limit the use of streets to certain classes of vehicles; see also N.J.S.A. 40:67-16.6), or the general municipal powers contained in N.J.S.A. 40:48-2.
The question presented to us is a close one, but we determine that there is no preemption, and the ordinances are enforceable. One of the problems we face in determining the municipalities' power to regulate traffic proceeding to or from the facility is that the Solid Waste Management Act specifically provides for its own enforcement. N.J.S.A. 13:1E-9 provides that the codes, rules and regulations adopted by the Department of Environmental Protection and Energy (DEPE) relating to solid waste collection and disposal "shall have the force and effect of law. [They] . . . shall be enforced by the department and by every local board of health, or county health department, as the case may be." N.J.S.A. 13:1E-9a. The DEPE has promulgated N.J.A.C. 7:26-3.1 (improper transportation prohibited) stating, that transportation of solid waste shall be only by the transportation systems set forth in the regulations or approved by the
Department. N.J.A.C. 7:26-3.4(j) (Transporter Requirements (General)) specifically directs:
All solid waste vehicles used for transportation of solid waste shall . . . access and exit solid waste facilities in accordance with designated solid waste vehicle routes as specified in either the appropriate district solid waste management plan or the permit for the particular solid waste facility.
State statute and DEPE regulations thus direct waste haulers to adhere to the specified routes, and such regulations are to be enforced locally by the DEPE and the county and local boards of health. It could therefore be said that the State has preempted the field.
The practical reality of such enforcement would mean that either the DEPE or the county or local boards of health*fn1 would be forced to rely on the happenstance of an official being present when a truck deviated from the assigned routes. If a local police officer observed such deviation, the truck would have to be detained until a DEPE or health board official could be dispatched to issue an appropriate summons. We are thus concerned about the lack of an express delegation of power to municipalities such as that found in N.J.S.A. 13:1E-9.3 relating to unlawful collection or disposal of solid waste.*fn2
The Legislature has recently amended the general remedies section, N.J.S.A. 13:1E-9, greatly broadening enforcement powers. It reads, in part:
(l) Pursuit of any remedies specified in this section [ N.J.S.A. 13:1E-9] shall not preclude the pursuit of any other remedy provided by any other law.
[ L. 1990, c. 70, § 1(l).]
This provision has not yet become law since it is to become effective only upon the enactment of a ...