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Consolidated Rail Corp. v. Dover, City of

Citation: 8 ELR 20616
No. No. 77-387, 450 F. Supp. 966/11 ERC 1882/(D. Del., 04/26/1978)

In consolidated cases brought by a railroad and a municipality, the court rules that a local ordinance regulating excessive noise has been preempted by the federal Noise Control Act of 1972 and is invalid. The federal statute explicitly preempts all local noise control measures which are not identical with implementing regulations promulgated by the Environmental Protection Agency (EPA). The court determines that the federal regulations are applicable to the type of marshalling and switching operation against which the city's enforcement action is directed, noting that although the regulations do not apply to noises emanating from fixed facilities within switching yards, they have been judicially determined to apply to noises emanating from locomotives and railroad cars within such yards. The court also rules that the city cannot establish a claim in nuisance based on plaintiff's generation of excessive noise since the city may not do indirectly by means of a common law claim for nuisance what it can not do directly through enforcement of its noise control ordinance. The court similarly rejects the claim that plaintiff's handling and storage of dangerous chemicals constitutes a nuisance to the city's residents. This area of environmental regulation has also been preempted by a federal statute, the Hazardous Materials Transportation Act. Finally, the court finds that even apart from the preemption barriers, under the doctrine of primary jurisdiction it would defer the issue of whether a nuisance has been created to EPA, which has the expertise and statutory authority to determine such factual questions.

Counsel for Consolidated Rail Corp.
Robert K. Payson, Christopher J. Warner
Potter Anderson & Corroon
350 Delaware Trust Bldg., Wilmington DE 19899
(302) 658-6771

Henry R. Horsey
Morris, James, Hitchens & Williams
327 S. State St., Dover DE 19901
(302) 678-8815

Counsel for City of Dover
Nicholas H. Rodriguez
Schmittinger & Rodriguez, P.A.
414 S. State St., Dover DE 19901
(302) 674-0140