Before Judges Stern, Landau and Braithwaite.
The opinion of the court was delivered by: Landau, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey Tax Court.
This case comes to us on remand by the Supreme Court, 154 N.J. 604 (1998), which granted a motion by the State of New Jersey (State) for leave to appeal a Tax Court order granting partial summary judgment to American Trucking Associations, Inc. and Suttles Truck Leasing, Inc., plaintiffs in a class action. On the proofs before it, the Tax Court ruled that hazardous waste transporter registration fees, authorized under N.J.S.A. 13:1E-18 of the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -207, and regulations *fn1 adopted by the Department of Environmental Protection (DEP) to register and track vehicles that collect or deliver hazardous waste in New Jersey, constitute a burden upon interstate commerce in violation of the Commerce Clause, U.S. Const., art. I, § 8, ¶ 3.
The courts of each of the fifty states have jurisdiction to make separate and varying rulings as to the commerce impact of the hazardous waste hauling fees of their respective states. We conclude, however, that a final judgment, and particularly summary judgment, should not issue in this state absent critical input from the United States Department of Transportation (USDOT), which has been charged by Congress with administration of the Hazardous Materials Transportation Act (HMTA), 49 U.S.C.A. § 5101 to 5127, to promote uniformity and to ensure fairness of hazardous waste hauling fees imposed by the respective states. Accordingly, we reverse and remand, with directions.
In a Tax Court complaint dated October 26, 1992, plaintiffs challenged the constitutionality of the hazardous waste transporter fee regulation promulgated by the DEP. Plaintiffs claimed that the transporter fees are flat taxes, unapportioned, and not fairly related to the feepayer's level of presence or activities in New Jersey.
In lieu of answering the complaint, the State moved to transfer the matter to the Appellate Division. By order dated January 3, 1994, the Tax Court denied the motion to transfer because of plaintiffs' contention that the transporter fees were not fees for services but revenue raising devices that were the functional equivalent of flat taxes. We denied the State's motion for leave to appeal.
On August 3, 1994, the presiding Tax Court Judge denied the parties' cross-motions for summary judgment, finding that genuine issues of material fact precluded entry of summary judgment.
The Tax Court Judge later certified the class. Plaintiffs and the State again cross-moved for summary judgment in 1997. By order entered March 23, 1998, another Tax Court Judge granted plaintiffs' motion and denied the State's cross-motion.
The State moved unsuccessfully before the Tax Court for a stay of the decision, for a stay of proceedings on plaintiffs' claim for a refund and an award of counsel fees, as well as for an order certifying the March 23, 1998 order as a final judgment under R. 4:42-2. We denied the State's motions for leave to appeal and for stay pending appeal, but on June 30, 1998, the Supreme Court granted leave to appeal and summarily remanded the matter to this court for resolution. On August 4, 1998, we stayed further proceedings in the Tax Court pending resolution of the appeal, but denied the State's renewed motion for a stay of operation of the Tax Court decision.
The Challenged Regulations
At the time the complaint was filed, the hazardous waste transporter fees were codified at then N.J.A.C. 7:26-4A.3(g)(1). Effective October 21, 1996, the transporter fees were recodified at N.J.A.C. 7:26G-3.3(g). 28 N.J.R. 1693(a); 28 N.J.R. 4606(a). The rates were modified slightly, lowering the annual amounts due, but retaining the same structure:
"(g) The fee schedule for hazardous waste transporters is as follows:"
"1. All hazardous waste transporters shall pay an annual registration fee. A State of New Jersey hazardous waste transporter registration decal will be issued for each hazardous waste cab and transport unit (as defined at N.J.A.C. 7:26G-4.2) for which a fee is paid. The fee registration year shall extend from October 1 through the following September 30. The fee shall accompany the submission of the annual registration application. All vehicles registered with the Department must be owned or leased by the applicant. If the vehicle is leased, a copy of the lease must be submitted with the registration application. The registration of a hazardous waste transporter is nontransferable and fees are not refundable. The annual registration fees are as follows:"
"i. Each hazardous waste cab: $21.00;"
"ii. Each hazardous waste transport unit, either detachable or with a permanently attached hazardous waste cab, having a capacity less than or equal to one ton (one ton = one cubic yard = 200 gallons):"
"iii. Each hazardous waste transport unit without a hazardous waste trailer having a capacity greater than one ton (one ton = one cubic ...