Baltimore and Ohio Railroad Co. v. Oberly

No. 85-5272 (782 F.2d 29, 24 ERC 1151) (3d Cir. January 27, 1986)

The court holds that § 17 of the Federal Noise Control Act preempts Delaware's stricter noise control statute and regulations regarding activities at an interstate railroad facility. Adopting the rationale of the district court decision, 15 ELR 20584, the court rules that the Noise Control Act preempts a state standard where the Environmental Protection Agency has adopted federal standards regulating railroad noise or, as in this case, where it has declined to prescribe a federal property line noise standard because it is unnecessary.

Counsel for Appellees
William E. Manning, David S. Swayze
Prickett, Jones, Elliott, Kristol & Schnee
P.O. Box 1328, Wilmington DE 19899
(302) 658-5102

Counsel for Appellants
F. Henry Habicht II, Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

John J. Polk, Deputy Attorney General
Department of Justice, State Office Bldg., 820 N. French St., Wilmington DE 19801
(302) 571-2500

Before Higginbotham, Sloviter and Mansmann, JJ.

[16 ELR 20526]

Per Curiam:

In this appeal, we are presented with the question of whether the Delaware noise control statute and its regulations, as applied to activities at an interstate railroad facility, are preempted by the Federal Noise Control Act of 1972, even though the federal agency had not promulgated regulations to control noise emissions from railyard property lines, which included refrigerated rail cars and refrigerated trailers and containers (trailer on flat car/containers on flat car — TOFC/COFC). 7 Del. C. § 7101 et. seq.: Noise Control Act of 1972, § 17, 42 U.S.C. § 4916.

We hold that the application of the Delaware noise control statute to the interstate railroad facility in issue is preempted by the federal noise control statute for the reasons noted in Judge Stapleton's opinion. Baltimore and Ohio R. Co. v. Oberly, 606 F. Supp. 1340 (D. Del. 1985). In addition, we note that, at our request, the General Counsel of the United States Environmental Protection Agency ("EPA") filed a memorandum of law addressing the EPA's views as to whether the Delaware statute is preempted. The EPA also agreed that section 17 of the Noise Control Act preempts the Delaware standard where EPA has adopted federal standards regulating noise from railroad facilities and further, has considered and then declined to prescribe a federal property line standard for railroad facilities on the ground that it is unnecessary.

Accordingly, the judgment of the district court will be affirmed.