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LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT).

The Second Department determined that the Westchester County Solid Waste Commission properly found that petitioner had not obtained a permit to allow the transport of waste within Westchester County and imposed a $15,000 fine. Petitioner had obtained a permit from the state Department of Environmental Conservation (DEC) and argued that the Westchester County law was preempted by the state law and violated the Commerce Clause. The Second Department rejected those arguments:

“The constitutional home rule provision confers broad police power upon local government relating to the welfare of its citizens”… . In instances where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, a local law that regulates the same subject matter is considered inconsistent and will not be given effect. “It is . . . well settled that, if a town or other local government is otherwise authorized to legislate, it is not forbidden to do so unless the State, expressly or impliedly, has evinced an unmistakable desire to avoid the possibility that the local legislation will not be on all fours with that of the State” … . The legislature’s intent to preempt a particular area can be inferred from a declaration of policy or from a comprehensive and detailed scheme in a particular area … . However, the fact that State and local laws touch upon the same area is insufficient to support a determination that the State law has preempted the entire field of regulation in a given area … .

In Monroe-Livingston Sanitary Landfill v Town of Caledonia (51 NY2d 679, 683-684), the Court of Appeals held that the State had not preempted the field of waste management through the solid waste disposal provisions that then existed in the Environmental Conservation Law. Eight years after the decision in Monroe-Livingston, the Legislature added the Solid Waste Management Act of 1988 (hereinafter the Act) to the Environmental Conservation Law. Had the Legislature intended to preempt the local regulation of solid waste management, it could have expressly said so in the Act. Matter of MVM Constr., LLC v Westchester County Solid Waste Commn., 2018 NY Slip Op 04731, Second Dept 6-27-18

​ENVIRONMENTAL LAW (LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT))/WASTE (ENVIRONMENTAL LAW, MUNICIPAL LAW, LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT))

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