782 F.2d 29
24 ERC 1151, 16 Envtl. L. Rep. 20,526
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.
v.
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.
Appeal of Charles M. OBERLY, III and John E. Wilson, III.
No. 85-5272.
United States Court of Appeals,
Third Circuit.
Argued Nov. 18, 1985.
Decided Jan. 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.
Before HIGGINBOTHAM, SLOVITER and MANSMANN, Circuit Judges.
OPINION OF THE COURT
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. Sec. 7101 et seq.; Noise Control Act of 1972, Sec. 17, 42 U.S.C. Sec. 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.
