Preemption and the Noise Control Act: Court Rejects EPA's Local Control Strategy for Railroad Regulation

7 ELR 10231 | Environmental Law Reporter | copyright © 1977 | All rights reserved


Preemption and the Noise Control Act: Court Rejects EPA's Local Control Strategy for Railroad Regulation

[7 ELR 10231]

In one of the first judicial decisions interpreting the Noise Control Act of 19721 and the Environmental Protection Agency's (EPA) obligations under it, the Court of Appeals for the District of Columbia Circuit has rejected EPA's argument for narrow federal preemption of noise source regulation and held that the agency must issue noise standards for railroad "equipment and facilities" (the statutory phrase) covering more than just rail cars and locomotives.2 EPA had interpreted the Act to give it wide discretion as to which noise sources in the rail industry it would regulate, leaving as much regulatory authority as possible to the state and local agencies more familiar with the noise problems caused by different local conditions. The decision is a long step toward requiring national uniformity of railroad noise regulation, vindicating the rail industry's interpretation of the language it had lobbied into the original Noise Control Act. The standards already promulgated, applying to existing and new rail cars and locomotives, were left standing. While the decision does not disturb the statutory provision allowing local authorities to impose regulations different from existing federal standards in response to special local conditions and after approval by the federal government, the ruling will put a heavy burden on EPA to expand its noise control efforts. Unfortunately, the agency has long given a low priority to noise pollution control relative to other programs.

Railroad Provisions in the Act

Early drafts of the noise control bill contained no special provisions for the railroads. The Association of American Railroads, however, proposed in hearings before the Senate Public Works Committee that a special study be made of interstate surface carrieroperations and that EPA be specifically required to propose noise emission standards for their equipment and facilities. As the bill moved through Congress, the study idea was eliminated, and rail and motor carriers were dealt with in separate but identical sections. The debates focused on the extent of federal preemption, which had to be broad enough to meet the understandable concern of the railroads [7 ELR 10232] that they not be subjected to innumerable inconsistent local regulations yet flexible enough to meet the need of states and localities to modify the federal standards because of special local conditions.3

As finally passed, the Noise Control Act of 1972 noted in its preamble that although "primary responsibility" for control of noise rests with state and local governments, federal action "is essential to deal with major noise sources in commerce, control of which requires national uniformity of treatment."4 In § 17(a), dealing with railroad noise emision standards,5 EPA was directed to promulgate standards "setting such limits on noise emissions resulting from the operation of the equipment and facilities" of interstate railroads. Furthermore, § 17(c)(1)6 provides that after EPA issues any regulation, states and localities may not regulate "the same equipment or facility" unless the standard is identical to the federal standard. Although these provisions clearly leave railroad noise regulation to EPA's development of uniform national standards, § 17(c)(2)7 recognized that in certain circumstances local regulation could be substituted for the national standard:

(2) Nothing in this section shall diminish or enhance the rights of any State or political subdivision thereof to establish and enforce standards or controls on levels of environmental noise, or to control, license, regulate, or restrict the use, operation, or movement f any product if the Administrator, after consultation with the Secretary of Transportation, determines that such standard, control, license, regulation, or restriction is necessitated by special local conditions and is not in conflict with regulations promulgated under this section.

EPA Regulation

From the beginning of its effort to regulate railroad noise, EPA acknowledged that the complex and nationwide nature of the rail industry argued for uniformity of standards but that many problems could best be controlled by measures tailored to local conditions. The noise impact of a railroad operation varies according to whether it takes place in a rural, unpopulated area or in a large urban area. Thus, the agency believed that state and local authorities were best suited to deal with the details of rail operations and that uniform national standards for such activities were not needed and "would not be in the best interest of environmental protection."8

Proceeding from the foregoing assumptions, EPA considered various categories of railroad noise sources to determine those which required nationally uniform regulatory treatment to avoid the disruption of interstate commerce. EPA divided the noise sources into the following major categories: office buildings, repair and maintenance shops, terminals, track and rights-of-way, horns and other warning devices, special purpose equipment, and trains. EPA concluded that train noise from locomotives and rail cars was most susceptible to federal regulation, although such noises could affect the other categories, because trains moved constantly between jurisdictions and could not practically be stopped at every political boundary and modified to comply with local rules. Thus, in 1974, EPA proposed railroad noise emission regulations, pursuant to § 17 of the Noise Control Act, which were limited to the operation of locomotives and railroad cars.9

Most of the extensive public comment on the proposed regulations came from the industry, and it took another year and a half for EPA to issue its final regulations.10 The agency reiterated its view that:

the control of certain of these noise sources, such as fixed facilities, or equipment used infrequently or primarily in one location, is best handled by the State and local authorities, rather than the Federal government, since the State and local authorities are believed in this case to be better able than the Federal government to consider local circumstances in applying such measures as the addition of noise barriers or sound insulation to particular facilities, or the positioning of noisy equipment within these facilities as far as possible from noise-sensitive areas. Further, and more importantly, the EPA did not find during its analysis, and has not received from rail carriers, any information identifying situations where lack of uniform State and local laws with respect to these facilities and equipment has imposed any significant burden on interstate commerce.11

EPA's interpretation of the Act's requirements, therefore, came down to federal regulation of noise emissions solely from locomotives and railroad cars. In addition, EPA subsequently proposed regulations to clarify the preemptive effect of § 17(c)(1) and to guide state and local authorities in the implementation of the waiver authority of § 17(c)(2) of the Act.12 State standards subject to preemption are defined as those which would require the physical modification of a facility or piece of equipment which is in compliance with federal noise emission standards. Specifically, more stringent local regulations would be preempted if they applied to federally regulated equipment or facilities. If a state or local standard were not in this category, it could be adopted and enforced without EPA involvement, but if it were preempted, it would require EPA approval for waiver of federal preemption. The waiver procedures set out a number of factors to be considered that essentially establish a balancing test to justify a substitution of the local rule for the federal standard.

EPA's Delay and Discretion

The most obvious aspect of EPA's response to the railroad noise provisions of the Noise Control Act is the extraordinary delay in implementation. Proposed regulations were mandated within nine months of passage of [7 ELR 10233] the Act on October 27, 1972 but were not issued until June 24, 1974. The proposed regulations were to be made final 90 days after they were issued, but the final standards were not promulgated until December 31, 1975, to become effective a year later. The continued complexity of the problem was the basic reason for the delay, but doubtless the federal government's low priority on noise control efforts was a contributing factor. One positive result of the delay was that EPA apparently felt compelled to make the full-scale study of noise in the railroad industry that had been proposed in some earlier drafts of the bill.

A second noteworthy feature is that EPA, through the regulatory process, developed a discretionary interpretation of the Act's directive to regulate the "operation of the equipment and facilities" of interstate rail carriers. Because the Act only preempts state or local standards relating to the "same equipment or facility" regulated by EPA, the establishment of standards for the vast panoply of rail equipment and facilities other than locomotives and rail cars was viewed as being left to local control. Local railroad noise control strategies could thus involve, besides design standards on equipment and facilities, operational regulation and land use standards for surrounding property affected by railroad noise. This discretionary interpretation is clearly consistent with the Act's preamble emphasizing that primary responsibility for noise control rests with local rather than federal authorities. The Act's specific provision for federal authority over railroad noise carries a contrary connotation, however, and there is no indication that EPA is directed to identify and regulate some sources of railroad noise but not others. EPA brushed aside this conflict by noting that at the present time only train noise required nationally uniform standards but that subsequent experience may require EPA to cast its regulatory net wider. EPA's position meant that localities could regulate certain sources of railroad noise but might later find themselves preempted by subsequent EPA regulations. The localities would then be required to go through the § 17(c)(2) process of justifying a waiver of preemption. This interpretation placed a great burden of uncertainty on localities and left the rail industry in limbo regarding standardization of equipment.

Litigation

After EPA's final regulations were issued, the Association of American Railroads, pursuant to § 16 of the Act, sought judicial review in the United States Court of Appeals for the District of Columbia Circuit, arguing that EPA's limitation of federal regulation to locomotives and rail cars was invalid because the Act contemplated standards covering all equipment and facilities. EPA denied that the Act required federal regulation of every source of railroad noise on the ground that this would lead to the absurd result of requiring regulation of railroad office typewriters and air conditioners. Rather, the agency argued, Congress intended it to exercise reasonable discretion in determining what sources of railroad noise to regulate in order to effectuate the overall purposes of the Act.13

In Association of American Railroads v. Costle,14 the D.C. Circuit emphatically rejected EPA's interpretation of the Act's requirements.The court saw the basic issue as the scope of EPA's mandatory duty to regulate and the extent of the "equipment and facilities" of interstate railroads for which noise emission standards must be issued under § 17(a). Since all regulations promulgated under § 17(a) have preemptive effect, the scope and existence of federal preemption are not specifically at issue, and the flexibility inherent in allowing local variances under § 17(c)(2) would have no bearing on the scope of EPA's regulatory jurisdiction.

In a straightforward analysis, the court found no limitation either in the statute, its policy, or its legislative history to justify federal regulation of less than all railroad equipment and facilities, nor any language giving EPA discretion to choose which railroad noise source to regulate. The court emphasized that the policy concern of Congress that the railroads should not have to bear the burden of a variety of state and local controls mitigates against the agency's narrow reading of the statute: "concern for 'maximum practical uniformity' is certainly consistent with a broad definition of 'equipment and facilities.'"

The court also dealt with the spectre raised by EPA that its interpretation of the Act would compel it to regulate the most insignificant noise source down to office typewriters. EPA had already established broad noise-source categories of railroad equipment and facilities that might be subject to regulation. EPA's failure was not in omitting such trivial items, but in carving out only one category of equipment for regulation. The court recognized that there may be insignificant items within those broad categories, and that the agency could reasonably omit those items from federal regulation as long as its regulations at least covered all railroad "equipment and facilities."

Consequences

Notwithstanding EPA's failure to comply fully with the mandate of § 17(a), the court let the locomotive and railroad car regulations stand as promulgated. The adequacy of those regulations was not at issue, and the court saw no reason to reject the agency's partial compliance with the statutory mandate. Thus, while the industry won judicial acceptance of its view of the meaning of language which it had been instrumental in having written into the statute, it nevertheless now has to standardize its locomotive and rail car equipment to comply with the regulations. Regarding the remainder of their equipment, for which final noise emission standards should have been issued in 1973, the railroads are not under immediate threat of either federal regulation, because of the long lead time apparently needed by EPA to prepare noise control regulations, or local regulation, because they would still be subject to later federal preemption.

The court's decision is of great concern to EPA because the agency must now undertake the task of developing and issuing more comprehensive regulations within one year. Considering that it took EPA more than [7 ELR 10234] three years, instead of the one year mandated by the Act, to comply only partially, this deadline may be difficult to meet. The delay in full implementation of the Act will also affect state and local efforts to regulate railroad noise because those efforts will still be subject to preemption by any forthcoming federal regulation.

Conclusion

EPA's difficulties with this aspect of the Noise Control Act suggest a broader criticism of federal efforts to control noise pollution. As a relatively new area of environmental regulation, noise control has suffered from an absence of the recognition and urgency that pervades air and water pollution problems and that is increasingly present with respect to chemical substances. This low priority has resulted in "slow and ineffective" efforts to reduce environmental noise, according to one government report.15 Congress has made few efforts to prod EPA on its noise control program, even failing to date to reauthorize a one-year funding extension for noise programs through fiscal 1978, preferring instead to focus its concerns on the more politically visible issue of aircraft and airport noise, a field in which primary regulatory responsibility lies with the Federal Aviation Administration.

Despite the low priority it has given noise control, EPA is continuing to regulate nonrailroad noise sources16 and recently instituted a product labeling program.17 In addition, EPA has developed a national noise abatement strategy18 emphasizing product regulation and state and local efforts. Doubtless the preemption issue will continue to be the subject of litigation under the Noise Control Act because although state and local authorities are preempted from imposing product noise emission standards different from federal regulations, such agencies are not prevented from regulating the use, operation, and movement of "any product" regardless of federal standards.19

The Association of American Railroads v. Costle decision represents judicial acceptance of the need for nationally uniform railroad noise regulation that had been urged by the industry and which Congress recognized in the Noise Control Act. As a special source of noise pollution which crosses state lines and has a nationwide impact, a special provision for the railroads is defensible. But the task that lies ahead for EPA to comply with the court's mandate will be lengthy and burdensome, and the court's ruling may thus serve to slow down the agency's noise control efforts even further.

1. 42 U.S.C. §§ 4901-4918, ELR STAT. & REG. 41501-07.

2. Association of American Railroads v. Costle, No. 76-1353, __ F.2d __, 7 ELR 20730 (D.C. Cir. Aug. 23, 1977).

3. For a discussion of the legislative history of the Noise Control Act and the railroad provision, see Cerar, Federal Preemption of Railroad Noise Control: A Case Study and Comment, 3 COLUM. J. ENVT'L L. 1, 10-14 (1976).

4. Noise Control Act § 2(a)(3), 42 U.S.C. § 4901(a)(3), ELR STAT. & REG. 41501.

5. 42 U.S.C. § 4916(a), ELR STAT. & REG. 41506.

6. 42 U.S.C. § 4916(c)(1), ELR STAT. & REG. 41507.

7. 42 U.S.C. § 4916(c)(2), ELR STAT. & REG. 41507.

8. 39 Fed. Reg. 24581 (1974).

9. EPA, Railroad Noise, Proposed Emission Standards, 39 Fed. Reg. 24580 (1974).

10. EPA, Railroad Noise Emission Standards, 41 Fed. Reg. 2184 (1976) (to be codified in 40 C.F.R. pt. 201).

11. Id. at 2185.

12. EPA, Railroad Noise Emission Standards, 41 Fed. Reg. 52317 (1976).

13. See Cerar, supra note 3, at 20-21.

14. No. 76-1353, __ F.2d __, 7 ELR 20730 (D.C. Cir. Aug. 23, 1977).

15. General Accounting Office, Noise Pollution — Federal Program to Control It Has Been Slow and Ineffective (CED-77-42) (Mar. 18, 1977).

16. See, e.g., 42 Fed. Reg. 35804 (1977) (wheel and crawler tractors); 42 Fed. Reg. 43226 (1977) (truck-mounted solid-waste compactors); 42 Fed. Reg. 45776 (1977) (buses).

17. EPA, Noise Labeling Standards, General Provisions, 42 Fed. Reg. 31722 (1977).

18. See 8 ENVIR. REP. (BNA), Curr. Dev. 227 (June 10, 1977).

19. Noise Control Act § 6(e), 42 U.S.C. § 4905(e), ELR STAT. & REG. 41503.


7 ELR 10231 | Environmental Law Reporter | copyright © 1977 | All rights reserved