ELR Citation: ELR 20446
No(s). 85-5272 (3d Cir. Jan 8, 1988)

The court rules that the Noise Control Act (NCA) does not facially preempt Delaware's noise control statute and regulations. Delaware had threatened to enjoin alleged violations of its regulations by refrigerated shipping units at plaintiffs' railyard. The federal Environmental Protection Agency (EPA) has promulgated noise control regulations for rail carriers, as required by the NCA, but those regulations do not include standards for refrigerated units or general railyard noise. The court rules that the NCA does not show congressional intent to occupy the field of railroad noise control. The NCA states that regulations promulgated under §17, which governs railroad noise control, preempt state regulations. This statement would be unnecessary if the statute preempted all state regulations. The NCA authorizes EPA to determine that state regulations do not conflict with federal regulations, which also shows that the statute is not preemptive. The NCA's general statement that control of major noise sources in commerce requires federal action and nationally uniform treatment does not prove federal occupation of the field, especially since the NCA also says that states and localities have primary responsibility for noise control. NCA §17 provides that a federal noise regulation bars direct state regulation of noise emissions by the same rail facility or equipment, unless the state regulation mirrors the federal regulation. The court rules that this plainly does not mean that any federal noise regulation bars every state noise regulation. The legislative history of the NCA supports this reading of §17. If EPA had promulgated a complete regulatory program, as Congress expected, that program would completely preempt state regulation. The court rules that since EPA's regulations are not comprehensive, the preemption is not complete. The court also rules that EPA's decision not to issue regulations on these issues did not preempt state regulation by showing a federal purpose to leave them unregulated. An agency must make it very clear that it intends its action, or especially its inaction, to preempt state action before a court may allow such preemption. EPA did not make that intent clear. EPA was also reluctant to issue any regulations at all, which suggests that its decision not to issue any regulations was not preemptive. The court holds that EPA still has not decided to occupy the field with either regulation or nonregulation.

[Related opinions are published at 15 ELR 20584 and 16 ELR 20526.]

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

Counsel for Appellees
William E. Manning
Duane, Morris & Heckscher
1220 Market Bldg., Suite 700, Wilmington DE 19899
(302) 571-5550

Before Sloviter and Mansmann, JJ.