Opinion
No. 85-5272.
Argued November 18, 1985.
Decided January 27, 1986.
William E. Manning (argued), David S. Swayze, Prickett, Jones, Elliott, Kristol Schnee, Wilmington, Del., for appellees.
F. Henry Habicht, II, Asst. Atty. Gen., Land and Natural Resources Div., Lawrence R. Liebesman, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for EPA.
John J. Polk (argued), Deputy Atty. Gen., Dept. of Justice, Wilmington. Del., for State of Delaware.
Appeal from the United States District Court.
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 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.