UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 27, 1986
THE BALTIMORE AND OHIO RAILROAD COMPANY, D/B/A ONE OF THE CHESSIE SYSTEM RAILROADS; THE BALTIMORE AND PHILADELPHIA RAILROAD COMPANY, D/B/A/ ONE OF THE CHESSIE SYSTEM RAILROADS, MOUNT CLARE PROPERTIES (DELAWARE), INC; AND CHESSIE MOTOR EXPRESS, INC.
CHARLES M. OBERLY, III, ATTORNEY GENERAL OF THE STATE OF DELAWARE AND JOHN E. WILSON, III, SECRETARY OF THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL OF THE STATE OF DELAWARE; CHARLES M. OBERLY, III AND JOHN E. WILSON, III, APPELLANTS
On Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 84-0452)
Before: HIGGINBOTHAM, SLOVITER and MANSMANN, Circuit Judges.
Opinion OF THE COURT
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 rail yard property lines, which include 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 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.
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