filed as amended february 12 1988.: January 8, 1988.
On Appeal from the United States District Court for the District of Delaware, D.C. Civil Action No. 84-0452. On Remand from the United States Supreme Court.
Higginbotham, Sloviter and Mansmann, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This interlocutory appeal, returned to us by the United States Supreme Court, raises a legal question under the Supremacy Clause: whether Delaware's noise control statute and regulations thereunder are facially preempted by section 17 of the Noise Control Act of 1972, 42 U.S.C. § 4916(c) (1982). Because we conclude that the state regulatory scheme at issue in this appeal is not facially preempted by the federal statute, we will vacate the district court's order preliminary enjoining enforcement of Delaware's noise control statute and regulations against a Delaware shipping facility, and we will remand this matter for further proceedings consistent with this opinion.
I. FACTUAL & PROCEDURAL BACKGROUND
The Wilsmere shipping facility, located in northern New Castle County, Delaware, handles both rail and trucking operations (i.e., it is "intermodal" in nature). In addition to the noise produced by a typical railyard, the Wilsmere intermodal facility generates noise through the operation of two types of refrigerated shipping units, trailers on flat cars ("TOFCs") and containers on flat cars ("COFCs"). TOFCs and COFCs, which are transferred as "piggyback" units to and from truck trailers and railroad flatcars, produce noise because their refrigerator components (generators or compressors) operate continuously, keeping these units cold as they await transport out of the facility.
The Wilsmere facility is located directly adjacent to the residential communities of Brack-Ex, Elsmere and Roselle, Delaware. Prior to 1983, the appellee-owners used their Wilsmere facility as a rail switching yard. Its operations then, which included the movement of locomotives and the movement and coupling of railcars, produced intermittent noise of limited duration. Beginning in late 1983, intermodal operations at the facility increased dramatically. Not surprisingly, noise-related complaints by neighboring residents also began to increase at this time.
This action was triggered in August 1984 when appellant Wilson, Secretary of the Delaware Department of Natural Resources and Environmental Control, informed counsel for one of the appellee corporations (collectively, "the Chessie group") that Delaware's Department of Justice was preparing to bring an action under the Delaware Noise Control Act, 4 Del. Code Ann. tit. 7, §§ 7101-7125 (1983), and the regulations thereunder. This impending action was to seek injunctive relief against alleged noise violations at the Chessie group's Wilsmere intermodal facility. The Chessie group responded to the threat of state legal action by filing this federal action. On constitutional grounds, they sought to restrain Secretary Wilson and appellant Oberly, Delaware's Attorney General, from acting in their official capacities to apply and enforce state noise control provisions. The Chessie group's motion for a temporary restraining order was granted by the district court after a hearing on August 20, 1984, and their request for a preliminary injunction was granted on Supremacy Clause grounds on April 9, 1985. Baltimore & O.R.R. Co. v. Oberly, 606 F. Supp. 1340 (D. Del. 1985) ("B&O R.R.").
II. APPELLATE PROCEEDINGS
Secretary Wilson and Attorney General Oberly took an interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) (1982) from the district court's order granting the Chessie group's motion for a preliminary injunction. On October 18, 1985, this Court invited the United States Environmental Protection Agency ("EPA") to express its legal views on the Supremacy Clause issue. In compliance with our request, EPA filed a nine-page legal memorandum. The EPA concluded that the Delaware noise regulation that would have formed the basis of the threatened state legal action was preempted by EPA's prior actions under federal law. After oral argument by the parties on November 18, 1985, we affirmed the judgment of the district court. Baltimore & O.R.R. Co. v. Oberly, 782 F.2d 29 (3d Cir.) (per curiam), vacated and remanded, 479 U.S. 980, 107 S. Ct. 562, 93 L. Ed. 2d 568 (1986) (mem.). In our published opinion, after noting our agreement with the district court's reasoning, we explicitly noted the fact that
EPA . . . argued that section 17 of the [federal] Noise Control Act preempts the Delaware standard where EPA has adopted federal standards regulating noise from railroad facilities and, further, [where EPA] has considered and then declined to prescribe a federal property line [noise] standard for railroad facilities on the ground that it is unnecessary.
Pursuant to 28 U.S.C. § 1254(2) (1982), Oberly and Wilson then appealed our judgment to the United States Supreme Court. The Court, before it acted upon the jurisdictional statement filed by appellants, invited the Solicitor General to file a brief expressing the views of the United States. Oberly v. Baltimore & O.R.R. Co., 476 U.S. 1181, 106 S. Ct. 2912-13, 91 L. Ed. 2d 542 (1986). In response to the Court's request, the Solicitor General filed an amicus brief taking the position that EPA's 1982 decision that property line noise regulations were unnecessary, discussed infra, does not preempt Delaware's noise regulations. The Solicitor General also noted that,
[r]egrettably, because of a failure of communication within the Department of Justice, [the EPA] brief was filed in the court of appeals without having been brought to the attention of either the Assistant Attorney General for Land and Natural Resources or the Solicitor General, and therefore [was ...