Defendant argues first, that the Legislature preempted the field of solid waste management and, because the Town's ordinances are inconsistent with the Solid Waste Management Act, they are invalid; second, that the Town's ordinances are unconstitutionally vague; and third, that the ruling on the preliminary injunction established the law of the case, collaterally estopping Town Court from considering the issue.

First, as to preemption, in 1988 the Legislature enacted the Solid Waste Management Act, which is codified in various statutory sections, including Environmental Conservation Law Title 27. The Solid Waste Management Act, which empowers local governments to adopt ordinances that will achieve the objectives of that law, relied on the ECL's pre-existing definition of solid waste: "'Solid waste' means all . . .  substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection, . . . including but not limited to . . . industrial and commercial waste" (ECL 27-0701). According to another section of Title 27, also enacted prior to the Solid Waste Management Act, nothing in the state legislation regarding management of solid waste "shall preclude the right of any [local government] to adopt local . . . ordinances" so long as the local legislation will "comply with at least the minimum applicable requirements set forth in" the legislation (ECL 27-0711). Thus, local laws governing municipal solid waste management broader than--but consistent with--the state legislation are explicitly permitted by the Environmental Conservation Law.

Defendant was convicted under the Town's recycling ordinances of accumulating and storing municipal solid waste on his property, as municipal solid waste is defined in the local ordinance (including, but not limited to, "garbage, refuse and other discarded solid waste materials . . . resulting from industrial, commercial and agricultural operations and from community activities" [Town Law (Recycling Ordinance) § 109-3]).

Contrary to defendant's contention, the Town's definition of solid waste is not in any sense inconsistent with the Solid Waste Management Act. Further, the state did not intend to preempt this field, and has explicitly delegated to municipalities broad powers to manage their own waste problems. Those sections of the Solid Waste Management Act absorbed into the Environmental Conservation Law offer no suggestion that they should so overtake the field as to preempt local legislation. In Monroe-Livingston Sanitary Landfill, Inc. v Caledonia (, 51 NY2d 679, 683-684 [1980]), we 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. In 1988, eight years after our decision in Monroe- Livingston, the Legislature added the Solid Waste Management Act to the Environmental Conservation Law. Had the Legislature intended to preempt the local regulation of solid waste management, it could have done so in the 1988 Act. The Legislature's silence in this regard is continuing assurance that the state has not preempted local legislation of issues related to municipal solid waste management.[2]

Because defendant was purchasing the unused tree bark from a commercial lumber operation and storing it on his property for an extended period of time with the intent to resell it as mulch, he was--as the lower courts found--in violation of the Town's recycling ordinances ( see Town Law [Recycling Ordinance] §§ 109-4 [A], [B]).

Second, as to defendant's claims that the statutes under which he was convicted were unconstitutionally vague, defendant--given the Town CEO's letter and defendant's appeal to the Zoning Board--was on actual notice both that the Town considered the tree bark he was purchasing a municipal solid waste, and of the purported illegality of his mulching operation. Having been reasonably apprised that the operation--purchasing, processing and storing a commercial byproduct--was illegal before he began the operation, his as-applied vagueness challenge to the recycling ordinance is without merit. Similarly, defendant had actual notice that the Town considered his mulching operation an impermissible use of his property under the local zoning law (Town Law [Zoning Ordinance] § 150-11 [A]). Again, the Town's CEO ticketed defendant for his use, notifying him that his proposed composting operation, using mostly the same raw materials he also proposed to use in his mulching facility, was neither residential nor agricultural--which charge he appealed and from which he sought a variance--thereby assuring this Court that defendant was on actual notice of the purported criminality of his conduct.

Having determined that defendant's as-applied challenges to the recycling and zoning laws are without merit, "the facial validity of the [ordinances are] confirmed. . . .  That is so because, in rejecting the as-applied challenge, [we] . . . have necessarily concluded that there is at least one person--the defendant--to whom the [ordinances] may be applied constitutionally" ( People v Stuart, , 100 NY2d 412, 422-423 [2003]). Of course, "[a] defendant on notice may indeed challenge the statute facially where it is so vague that it leaves the police with arbitrary rather than enforceable standards in every application" ( id. at 423 n 9 [emphasis added]). Here, however, the local ordinance was not so vague as to permit or encourage arbitrary or discriminatory enforcement in every case. Therefore, defendant's facial vagueness challenge fails as well.

Finally, mere denial of the motion for a preliminary injunction did not constitute the law of the case or an adjudication on the merits ( see Van Wagner Advertising Corp. v S. & M. Enterprises, , 67 NY2d 186, 190 n 1 [1986]). Thus, Supreme Court's order denying the Town's application for preliminary relief enjoining defendant from operating his mulching facility did not have preclusive effect on the ongoing criminal prosecution.

Defendant's remaining contentions likewise lack merit.

Footnotes

1   In a letter to the Department of Environmental Conservation, defendant estimated that his facility would use about 3,000 cubic yards of tree bark annually. According to the defendant's trial witness, the operation would involve 40 to 60 tractor-trailer loads of tree bark per month.

2   Having determined that the Legislature did not preempt the field of solid waste management, we will not import the exceptions to solid waste set forth in the state's enabling regulations as "beneficial use determinations" (6 NYCRR 360-1.15 [b] [3]). We note, however, that the beneficial use determination upon which defendant asks us to rely exempts wood bark when mulched "at a compost facility operated in compliance with Subpart 360-5 of this Part." Defendant presented no evidence that his facility complied with this regulation.