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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STEIN, J., writing for a majority of the Court.

    In this appeal, the Court considers the extent to which the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts the state regulation of railroads.

    In 1992, New York Susquehanna & Western Railway Corporation (Railroad) began construction on a train maintenance facility in the Village of Ridgefield Park (Village). The Railroad has maintained a right-of-way through the Village for over a century. The maintenance facility is located in a light-industrial area that is near a residential area and park. The facility is used primarily to refuel locomotives, add oil to crankcases, and for other maintenance functions. At the facility, there are up to thirteen diesel locomotives idling for hours at a time. The facility has prompted complaints from Village officials and residents about noise, fumes, soot, and ground vibrations.

    The Railroad began construction at the Village site without applying for zoning or construction permits or otherwise informing the Village of its plans. The Village contacted the Railroad in May 1992 to request information about the ongoing construction and to inform the Railroad that it was required to apply for permits. The Railroad responded with certain information and further assured the Village that it would inform the Village and apply for permits if it decided on any further construction in the future.

    In June and July 1992, the Village and the Railroad discussed plans for the Railroad's construction of an engine house to minimize noise and air pollution. Throughout those discussions, construction on the maintenance facility continued, without application by the Railroad for zoning or construction permits. Between June 1992 and early 1993, the maintenance facility became operational, but the plans for the engine house had not progressed. The Village received no response to its subsequent inquiries in respect of construction of the engine house, which was never built.

    In November 1993, the Village filed suit against the Railroad seeking a determination requiring it to obtain municipal permits, to permit municipal inspections, to cease the maintenance of a public nuisance, and to cease operations at the maintenance facility until the municipal requirements were met. The Village alleged that the facility threatened the public health, safety, and welfare.

    In February 1998, the trial court granted the Railroad's motion for summary judgment, finding that pursuant to the ICCTA, the Surface Transportation Board (STB) exercises exclusive regulatory jurisdiction over matters relating to authorization of construction of railroad facilities. The trial court noted that a contrary ruling would allow the Village to interfere with railroad activity in contravention of the ICCTA's stated purpose of decreasing regulation of railroads.

    The Appellate Division affirmed, with modifications, the trial court's grant of summary judgment to the Railroad. The panel concluded that all state action with any economic impact on railroads was preempted by the ICCTA and that the states retained a certain residuum of historic police powers, but not those related to railroad service, operations and physical properties or structures.

    The Supreme Court granted the Village's petition for certification. Thereafter, but prior to argument before the Court, the STB preliminarily interpreted the preemptive effect of the ICCTA in the matter. In its decision, the STB stated that the ICCTA preempts all municipal zoning regulations as applied to railroads. The STB further found that local land use restrictions are preempted because they can be used to frustrate transportation-related activities and interfere with interstate commerce. However, because the manner in which land-use restrictions interfere with interstate commerce is a “fact-bound question,” the STB declined to decide the issue comprehensively without the participation of the Railroad. It therefore deferred its decision in that respect.

    In respect of public health and safety matters, the STB determined that although state and local government entities retain certain police powers and may apply non-discriminatory regulation to protect public health and safety, their actions must not have the effect of foreclosing or restricting the railroad's ability to conduct its operations. In respect of building codes, the STB determined that railroads are exempt from the traditional permitting process but not from most other generally applicable laws, such as certain local fire, health, safety, and construction regulations and inspections.

    The STB retained jurisdiction in the matter and will issue a final opinion after submissions from the parties in that case, noting specifically that there may be additional unresolved preemption issues on which the Village and the Railroad may need clarification.

HELD: Although the village of Ridgefield Park may not require permits of the New York Susquehanna & Western Railway Corporation, the Railroad must notify the Village when it is undertaking an activity for which another entity would require a permit; the Village may enforce its local fire, health, plumbing, safety and construction regulations to the Railroad's maintenance facility, and the Railroad may not deny the Village access for reasonable inspection of its maintenance facility.

1. Preemption is not to be lightly presumed and the historic police powers of the States are not to be superseded by federal law unless that was the clear and manifest purpose of Congress. (pp. 8-9)

2. The STB's preliminary decision is analytically consistent with the Appellate Division's interpretation of the ICCTA. (pp. 19-20)

3. State courts generally have jurisdiction to enforce rights deriving from federal statutory law. (pp. 20-21)

4. The Village may enforce its local fire, health, plumbing, safety and construction regulations to the extent that they are applicable to the existing maintenance facility, and the Railroad may not deny the Village access for reasonable inspection of that facility. (pp. 20-21)

5. Because the parties voluntarily commenced the site plan review process before the litigation commenced, the Railroad's ability to conduct its operations will not be foreclosed or restricted by requiring it to submit again to the site plan review. (pp. 22-23)

6. Our courts cannot adjudicate common law nuisance claims against the Railroad because to do so would infringe on the STB's exclusive jurisdiction over the location and operations of railroad facilities. (p. 24)

    Judgment of the Appellate Division is MODIFIED and the matter is REMANDED to the Law Division for such further proceedings as may be required to implement the Court's disposition.

     JUSTICE LONG filed a separate dissenting opinion. Justice Long would affirm the decision of the Appellate Division requiring the matter to proceed before the STB. She believed that the Court's ruling in the matter was premature and out of conformity with the principles of preemption and the well-established rule that litigation is to proceed in a cohesive, and not piecemeal, manner.

CHIEF JUSTICE PORITZ and JUSTICES O'HERN and COLEMAN join in JUSTICE STEIN's opinion. JUSTICE LONG filed a separate dissenting opinion in which JUSTICES GARIBALDI and VERNIERO joined.

VILLAGE OF RIDGEFIELD PARK,

    Plaintiff-Appellant,

            v.

NEW YORK SUSQUEHANNA & WESTERN RAILWAY CORPORATION, A Corporation authorized to do business in New Jersey,

    Defendant-Respondent.

Argued January 4, 2000-- Decided April 5, 2000

On certification to the Superior Court, Appellate Division.    

Martin T. Durkin and Lewis P. Goldshore argued the cause for appellant (Durkin & Boggia and Goldshore & Wolf, attorneys).

J.S. Lee Cohen argued the cause for respondent (DeCotiis, Fitzpatrick & Gluck, attorneys; Kevin M. Kinsella, on the brief).

Thomas W. Dunn submitted a letter in lieu of brief on behalf of amici curiae, New Jersey State League of Municipalities and New Jersey Institute of Municipal Attorneys (William John Kearns, Jr., General Counsel, attorney).

            The opinion of the Court was delivered by
STEIN, J.
    This appeal requires the Court to decide the extent to which

        The jurisdiction of the [STB] over

        (1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

        (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

            [ 49 U.S.C.A. §10501(b)(1) and (2).]

    The ICCTA defines “transportation” as

        (A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and

        (B) services related to that movement . . .

        (A) a bridge, car float, lighter, ferry, and intermodal equipment used by or in connection with a railroad;

        (B) the road used by a rail carrier and owned by it or operated under an agreement; and

        (C) a switch, spur, track, terminal, terminal facility, and a freight depot, yard, and ground, used or necessary for transportation;

            [ 49 U.S.C.A. §10102(6).]

    The ICCTA defines “rail carrier” a

        a person providing common carrier railroad transportation for compensation ...

            [ 49 U.S.C.A. §10102(5).]

    The Appellate Division interpreted that statutory language

as follows:

            The language of the statute does not expressly limit preemption to strictly “economic regulation” nor does it state that the states retain historic police powers over railroads and their property. We are told, pursuant to the clear language of the statute, that the “construction” and “operation" of the railroad's “facilities” falls within the Board's express and exclusive jurisdiction. 49 U.S.C.A. §10501(b)(1) and (2). By definition, a railroad's “facility,” “warehouse,” “yard,” "property," "instrumentality," and "equipment of any kind related to the movement of passengers or property," "regardless of ownership or an agreement concerning use" are all within the scope of the Act's concept of “transportation.” 49 U.S.C.A. §10102(9)(A). Thus, pursuant to the statutory language, the Board appears to have exclusive jurisdiction over everything pertaining to the railroad's facility in the Village mentioned in the Act's definition of transportation, i.e., the tracks and sidetracks, the sand tower, the lube oil and diesel fueling facilities and tanks, the converted box cars, the yard bulls, the proposed engine house, and so on.

            The legislative history and policy surrounding the statute may also be considered in determining the scope of a statute's preemption. Medtronic, Inc. v. Lohr, 518 U.S. at 494, 116 S.Ct. 2240. The section-by-section analysis portion of the congressional "history" to the ICC Termination Act, entitled Section. 10301. General Jurisdiction, for example, states,

            This provision replaces the railroad portion of former Section 10501. Conforming changes are made to reflect the direct and complete pre-emption of State economic regulation of railroads. . . . The former disclaimer regarding residual State police powers is eliminated as unnecessary, in view of the Federal policy of occupying the entire field of economic regulation of the interstate rail transportation. Although States retain the police powers reserved by the Constitution, the Federal scheme of economic regulation and deregulation is intended to address and encompass all such regulation and to be completely exclusive.

            [H.R. Conf. Rep. No. 104-422, Dec. 18, 1995; (emphasis supplied).]

            When the Act was adopted, Congress retained the section entitled general jurisdiction, delineated as § 10501. However, the Congressional intent stated above with regard to the proposed § 10301 readily applies to § 10501. Both sections cover the same topic, general jurisdiction. The only distinction is the section number assigned. From the language in this legislative history, Congress surely intended the Act to preempt all State economic regulation of railroads. But it is also apparent from the noted history that Congress intended the states retain certain police powers reserved by the Constitution. We conclude that all state action with any economic impact on railroads was preempted by the Act and that the states retained a certain residuum of historic police powers, but presumably those not related to railroad service, operations and physical properties or structures.

            A review of the "Rail Transportation Policy" section of the Act reveals the Act's focus is on the deregulation of many aspects of the interstate railroad system, not only on strictly economic aspects. For example, one policy stated is to "reduce regulatory barriers to entry into and exit from the industry." 49 U.S.C.A. §10101(7). Another policy is to "minimize the need for Federal regulatory control over the rail transportation system and to require fair and expeditious regulatory decisions when regulation is required." 49 U.S.C.A. §10101(2). Another policy is to increase "competition and demand for services.” 49 U.S.C.A. §10101(1). The “Policy” section also states that "it is the policy of the United States Government . . . (8) to operate transportation facilities and equipment without detriment to the public health and safety." 49 U.S.C.A. §10101(8). The policy section also states that safety, safe and suitable working conditions, unlawful discrimination, anti-trust violations, and energy conservation are policy considerations. Id. at (3), (11), (12) and (14). However, the dominant public policy emphasis is on a very substantial overall deregulation of the railroad industry. As aptly stated in CSX Transportation, Inc. v. Georgia Public Service Commission, 944 F.Supp. 1573, 1583 (N.D. Ga. 1996), "[b]y preempting state regulation of railroad operations, and granting exclusive jurisdiction over the regulation of almost all aspects of railroad operations to the [Board], Congress removes the ability of states to frustrate its policy of deregulating and reviving the railroad industry." The Act obviously intended that national transportation interests dominate over parochial concerns and impulses.

            [Ridgefield Park, supra, 318
            N.J. Super. at 398-400.]

    Guided by the doctrines of federal preemption and primary jurisdiction, the Appellate Division found that the Village must first seek relief from the STB:
        "As the agency with authority delegated from Congress to implement the provisions of the ICC Termination Act, the STB is uniquely qualified to determine whether state law should be preempted." CSX Transportation, Inc. v. Georgia Public Service Commission, 944 F.Supp. at 1584 (quoting Medtronic, 518 U.S. at 496, 116 S. Ct. 2240.) The STB may act on the problem and devise a plan which gives these troubled citizens a measure of relief. We cannot presume and have no reason to believe that the STB will ignore legitimate citizen complaints. The STB may also choose to spell out the precise contours of the residual state police powers which it finds survive the broadly-phrased federal preemption statute and are compatible with the national policy of railroad deregulation and federal primacy. If so, this present action will be promptly reinstated at the trial level upon plaintiff's application and given every priority towards an expedited resolution.

            [Ridgefield Park, supra, 318 N.J. Super. at 405-07 (footnote omitted).]

    Regarding building codes, the STB determined that railroads are exempt from the traditional permitting process but not, as the railroad argues, from most other generally applicable laws:
            Given the broad language of 49 U.S.C. 10501(b) and the case law interpreting it, our preliminary view is that local entities such as the Borough can not require that railroads seek building permits prior to constructing or using railroad facilities because of the inherent delay and interference with interstate commerce that such requirements would cause. At the same time, we believe local authorities can take actions that are necessary and appropriate to address any genuine emergency on railroad property, and that interstate railroads such as NYSW are not exempt from certain local fire, health, safety and construction regulations and inspections.

                    [Id. at *8.]

Although railroads may not be forced to submit to a local permitting process because of the inherent potential for delay, railroads generally are still subject to state regulation of their facilities. The STB specifically determined that
        state and local entities can enforce in a non-discriminatory manner electrical and building codes, or fire and plumbing regulations, so long as they do not do so by requiring the obtaining of permits as a prerequisite to the construction or improvement of railroad facilities. With regard to the kinds of inspections that are permissible on property owned or used by interstate railroads, the potential for interference depends on the nature of the action by the state or local government and the effect on rail transportation and Board remedies; we see no simple, clear line of demarcation that has been or could be drawn, except that the inspection requirements or local regulations must be applied and enforced in a non-discriminatory manner and that preclearance permitting requirements plainly are preempted. Again, we cannot go beyond these general principles here without more information about particular inspection and similar requirements that may be at issue in this case. Parties may file further information and comment on these issues.

             [Id. at *8 (citations omitted)
             (emphasis added).]

VILLAGE OF RIDGEFIELD PARK,

    Plaintiff-Appellant,

            v.

NEW YORK SUSQUEHANNA & WESTERN RAILWAY CORPORATION, A Corporation authorized to do business in New Jersey,

    Defendant-Respondent.

LONG, J., dissenting.
    I would affirm the decision of the Appellate Division requiring this matter to proceed before the STB, the agency authorized by Congress to implement the ICCTA. 49 U.S.C.A. §10501. Nothing in the after-decided Riverdale case, supra, justifies a different outcome. 1 999 WL 715272. By its own terms, the STB's ruling in Riverdale is preliminary only; it is subject to change depending on a full review of the facts. Id. at *8. Indeed, as the STB itself acknowledged, there may be additional unresolved preemption issues in Riverdale. Id. at *1 n.2. Our ruling here is premature and out of conformity, not only with the principles of preemption, but with the well established rule that litigation is to proceed in a cohesive, and not piecemeal, manner.
    In Riverdale, the STB acknowledged that state and local entities “retain certain police powers,” so long as their actions do not “have the effect of foreclosing or restricting the railroad's ability to conduct its operations or otherwise unreasonably burden[ing] interstate commerce.” Id. at *5-6. That agency refused, however, to detail which powers it retained and which it ceded “without more information as to the particular police power issues that may be involved in this case.” Id. at *6.
    This case should be heard in the first instance by the STB. After a preemption determination by that agency based on these particularized facts, the actual contours of the state case will be clear; at that time, meaningful action may be taken by local authorities subject to state judicial review. In my view, the majority has created a haphazard scheme for addressing the difficult issue presented by this case.

    JUSTICES GARIBALDI and VERNIERO join in JUSTICE LONG'S opinion.

NO. A-101

    
VILLAGE OF RIDGEFIELD PARK,

    Plaintiff-Appellant,

        v.

NEW YORK SUSQUEHANNA & WESTERN
RAILWAY CORPORATION, etc.,

    Defendant-Respondent.

DECIDED April 5, 2000 Chief Justice Poritz