Federal Preemption of Railroad Noise
Control: A Case Study and Comment

Jeffrey 0. Cerar*

The United States Environmental Protection Agency (EPA), in
administering the various federal environmental laws of the 1970's,
has often been caught in the middle of hotly contested social dis-
putes. EPA has been the focal point of such charged issues as
whether the quality of air in pristine areas should be maintained if
it may mean the cessation of economic development in those
areas;' or whether Americans in major cities ought to be required
to reduce the use of automobiles by 80% in order to restore their
air to safe levels;2 or whether the automobile industry should be
required to work toward future compliance with air emission stan-
dards which they now say are unachievable. 3 These tugs-of-war
most often represent a confrontation between two national in-
terests, the need for regulation to protect public health and wel-
fare, and the need of American industry to produce and profit in
an atmosphere free of regulatory interference.

One such battle is currently being waged over a law dealing with
the control of noise from interstate railroads. Though the stakes are

* B.A., University of Utah, 1967; J.D., Columbia University School of Law, 1972.

Mr. Cerar is an attorney at the United States Environmental Protection Agency.
Except where specified, the opinions he expresses in this article represent his per-
sonal views and not those of the EPA.

1. Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C.), aff'd per curiam, 4
ERC 1815 (D.C. Cir. 1972) aff'd by an equally divided Court sub nom. Fri v. Sierra
Club, 412 U.S. 541 (1973).

2. See 38 Fed. Reg. 2194 (1973), published under court order, City of Riverside v.
Ruckelshaus, 4 ERC 1728 (C.D. Cal. 1972); 38 Fed. Reg. 17683 (1973); 38 Fed. Reg.
31232 (1973) (codified in 40 C.F.R. §§ 52.220-52.270 (1976)).

3. See J. QUARLES, CLEANING UP AMERICA 177-95 (1976); see also 40 Fed. Reg.
11900 (1975) (suspending the effective date of the 1977 model year emission stan-
dards for hydrocarbons and carbon monoxide). Two bills to further extend the effec-
tive date of those requirements died with the adjournment of the 94th Congress, see
S. 3219, 94th Cong., 2d Sess. (1976); H.R. 10498, 94th Cong., 2d Sess. (1976); S. REP.
No. 717, 94th Cong., 2d Sess. (1976); H.R. REP. No. 1175, 94th Cong., 2d Sess.
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much lower than in many of EPA's other disputes, the railroad
noise matter deserves attention because these same two national
interests, having now predictably collided, at one time formed a
partnership that produced the law at issue. Thus, this case study
adds a dynamic element which itself should be examined so that its
operation may be anticipated in future interactions between these
potentially competing interests.

While railroad noise may not necessarily be an environmental
problem of national scope, EPA has estimated that about 2.3 mil-
lion Americans are exposed to levels of railroad noise high enough
to adversely affect their health or welfare. 4 In recent years, com-
munities where railroad noise has been most intrusive have, each
in its own manner, attempted to solve their problems by regula-
tion. 5 The railroads in turn have come to view the proliferation of
differing state and local noise control regulations as an intrusion on
their freedom to go about the business of moving goods and people
in interstate commerce. 6

In the Noise Control Act of 1972, 7 Congress attempted to satisfy
the divergent interests of the communities and the railroads. The
railroads wanted relief from bothersome state and local regulations,
and the environmentalists were willing not to fight them in ex-
change for their acceptance of effective noise control at the federal
level. To reach this end Congress employed the legal device of
preemption, whereby federal regulations once enacted would su-
persede those imposed under the authority of state and local gov-
ernments to regulate.

As it has turned out, however, EPA, the federal agency chosen
by Congress to administer this law, has found itself unable to
provide effective national solutions to many of the specific noise

4. U.S. ENVIRONMENTAL PROTECTION AGENCY, BACKGROUND DOCUMENT FOR

RAILROAD NOISE EMISSION STANDARDS 8-18 (1975). EPA has determined that ad-
verse impact from noise begins at 55 Ldn, U.S. ENVIRONMENTAL PROTECTION

AGENCY, INFORMATION ON LEVELS OF ENVIRONMENTAL NOISE REQUISITE TO

PROTECT PUBLIC HEALTH AND WELFARE WITH AN ADEQUATE MARGIN OF SAFETY

29 (1974). "Ldn" is the noise level in decibels expressed in terms of a time-weighted
average over a twenty-four hour period; this technique weighs more heavily the
hours between 10:00 P.M. and 7:00 A.M. by adding 10 decibels to the readings taken,
to account for the greater degree to which the same noise levels interfere with night-
time activity, id. at 13.

5. See notes 151-155 and accompanying text infra.
6. See notes 99-113 and accompanying text infra.
7. 42 U.S.C. §§ 4901-4918 (Supp. IV 1974).

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Preemption of Railroad Noise Control

problems that are local in nature, and unwilling under those cir-
cumstances to take action which would prevent state and local gov-
ernments from acting on their own. The railroads are smarting
from frustrated expectations.8

The issue has thus been joined: Does EPA have discretion with
respect to its scope of regulation under the Act? May it be re-
quired to regulate beyond the boundaries it sets for itself? Can the
railroads reasonably require broader federal preemption which
serves their interests? Does any significant state and local authority
to control railroad noise remain under the Act? This article ex-
plores these questions and the implications of their possible an-
swers.

I. PREEMPTION AND THE NOISE CONTROL ACT OF 1972

The Noise Control Act of 19729 evolved from a bill submitted by
the Administration 10 and introduced in both Houses of Congress
in early 1971.11 The bill, like the final Act, proclaimed Congress'
idealism for an environment for all Americans free from noise
which jeopardizes their health or welfare. 12 At the same time, it
asserted that while primary responsibility for control of noise rests
with state and local governments, federal action is essential to deal
with major noise problems requiring national uniformity of treat-
ment. 13 These policies are reflected in numerous places through-
out the Act, which authorizes EPA to set noise emission standards
which become preemptive of the standards that state or local gov-
ernments could otherwise have adopted or enforced.14

The doctrine of preemption has been developed by the courts
for the purpose of avoiding "conflicting regulation of conduct by
various official bodies which might have some authority over the

8. See Comments of the Association of American Railroads on Proposed Noise
Emission Standards, August 19, 1974, EPA docket No. ONAC 7201002, at 24-36.

9. 42 U.S.C. §§ 4901-4918 (Supp. IV 1974).
10. See COUNCIL ON ENVIRONMENTAL QUALITY, THE PRESIDENT'S 1971 EN-

VIRONMENTAL PROGRAM 3, 186-96 (1971).
11. S. 1016, 92d Cong., 1st Sess. (1971); H.R. 5275, 92d Cong., 1st Sess. (1971);

H.R. 5388, 92d Cong., 1st Sess. (1971); H.R. 6578, 92d Cong., 1st Sess. (1971)
[identical bills, hereinafter cited as H.R. 5275].

12. H.R. 5275, supra note 11, § 2(b); 42 U.S.C. § 4901(b) (Supp. IV 1974).
13. H.R. 5275, supra note 11, § 2(a)(3); 42 U.S.C. § 4901(a)(3) (Supp. IV 1974).
14. On the subject of preemption and environmental control generally, see P.

Soper, The Constitutional Framework of Environmental Law, in FEDERAL EN-
VmONMENTAL LAw 20, 77-100 (1974).

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subject matter."15 In the field of interstate commerce the conflict
arises from two causes. First, the regulation of commerce is a
power granted to the federal government 16 but not denied the
states,17 thus leaving the states with some residual authority over
commerce. 8 Where the federal government and the states regu-
late the same problem, there is often conflict.' 9 Courts have also
held that federal inaction can sometimes override state authority, 20

and although such cases should not be considered preemption
cases in the pure sense of the word, 2 ' these decisions have pro-
vided important ideological roots for the pure preemption cases.

The second source of conflict is particularly relevant to our dis-
cussion: state and local governments, in taking legitimate actions
under their police power to protect public health, welfare and
safety, may thereby regulate interstate commerce in a manner in-
consistent with federal law. To the extent there is such inconsis-
tency, the federal law is entitled, under the Supremacy Clause of
the United States Constitution, to prevail.2 2 But, in general,
"evenhanded local regulation to effectuate a legitimate local public
interest is valid unless preempted by Federal action,"2 3 or unduly
burdensome on interstate commerce.24

The basic test of whether state action is preempted is twofold: (1)
Does the nature of the subject matter require that federal action
shall be exclusive? (2) If not, did Congress' clear and manifest in-
tent demand that its action be exclusive?2 5

15. Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees v.
Lockridge, 403 U.S. 274, 285-86 (1971).

16. U.S. CONST. art. I, § 8, cl. 2.
17. See U.S. CONST. art. I, § 10.
18. U.S. CONST. amend. X.
19. See, e.g., Pennsylvania v. Nelson, 350 U.S. 497 (1956); Hill v. Florida, 325

U.S. 538 (1945); Hines v. Davidowitz, 312 U.S. 52 (1941).
20. See note 26 and accompanying text infra.
21. On this issue, see Freeman, Dynamic Federalism and the Concept of Pre-

emption, 21 DEPAUL L. REV. 630 (1972); Comment, A Conceptual Refinement of the
Doctrine of Federal Preemption, 22 J. PUB. L. 391 (1973); Note, Preemption as a
Preferential Ground: A New Canon of Construction, 12 STAN. L. REV. 208 (1959).

22. U.S. CONST. art. VI, § 2.
23. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443 (1960).
24. Id. at 443. Although it is beyond the scope of this article to consider the

extent to which any state action may constitute an undue burden on interstate com-
merce, it must be kept in mind that any law or regulation which passes the preemp-
tion test must still be subjected to this separate inquiry.

25. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); see
Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960).



Preemption of Railroad Noise Control

In early cases, the courts were frequently presented with state
laws in areas where the Congress had not acted. Preemption was
therefore based necessarily on whether the state law intruded in a
field which by its nature demanded that all regulation be federal.
Where the imperative of federal exclusivity was found, the state
laws were found unconstitutional, even though there was no fed-
eral law with which to conflict and hence no indication of congres-
sional intent. 26 Where the imperative was lacking, the federal inac-
tion was taken as an indication that the states were free to act. 27

As Congress has gradually expanded the scope of the subjects it
has regulated, it has become increasingly possible for the courts to
supplement this inquiry with findings of congressional intent as to
whether federal action was thought to be properly exclusive.
Courts still find that some fields, such as the conduct of foreign
affairs, by nature demand federal exclusivity because of a dominant
federal interest. 2 But almost always there is some related federal
law which permits a further inquiry into Congress' intent. 29 In
such cases, the objectives of federal enactments are examined to
determine whether a state law presents an obstacle to fulfilling
those objectives, 3 0 or whether Congress' scheme of regulation is so
pervasive as to have left little room for state or local action. 31 Thus,
congressional intent is emerging as the overriding basis for decid-
ing preemption cases.

This has been particularly true in cases involving the police
power. Because this power has been historically reserved to the
states,32 the inherent exclusivity test never stands alone. Rather,
the courts start with the "assumption that the historic police pow-
ers of the States were not to be superseded by the federal Act
unless that was the clear and manifest purpose of Congress." 33

26. E.g., Leisy v. Hardin, 135 U.S. 100 (1890); Cooley v. Board of Wardens of
Philadelphia, 53 U.S. (12 How.) 299 (1851).
27. E.g., Plumly v. Massachusetts, 155 U.S. 461 (1894).
28. E.g., Pennslyvania v. Nelson, 350 U.S. 497 (1956).
29. See id.
30. E.g., Hines v. Davidowitz, 312 U.S. 52 (1941).
31. E.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).

See Note, Aircraft Noise Abatement: Is There Room for Local Regulation? 60
CORNELL L. REV. 269 (1975).

32. See Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944); Munn v. Illinois,
94 U.S. 113 (1877).

33. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also Askew v.
American Waterways Operators, Inc., 411 U.S. 325 (1973); Southern Pacific Co. v.

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Clear and manifest does not necessarily mean expressed, and the
courts have gone into the legislative history, the statement of pur-
pose clauses and the other sections of the federal legislation in
order to divine Congress' purpose. 34

To aid the courts in interpreting its intent with respect to
preemption, Congress often includes in statutes clauses which
specifically preempt, or specifically limit the amount of preemption
which the courts may otherwise have implied. 35 This practice has
been common in the drafting of environmental legislation in the
1970's. For example, the Clean Air Act and the Federal Water
Pollution Control Act contain omnibus preemption-limiting sections
which mandate that, except as expressly provided elsewhere in
those Acts, nothing therein be interpreted to preclude or deny the
power of states or their political subdivisions to adopt and enforce
standards for the emission of pollutants. 3 6 Both sections, however,
restrict both state and local authority from setting standards less
stringent than federal standards.

Preemption sections are found in most environmental statutes.
Some state clearly that there shall be no preemption,3 7 and others
specify that state and local governments may no longer establish
requirements which are not identical to the federal requirements. 38

Arizona, 325 U.S. 761 (1945); Florida Line and Avocado Growers, Inc. v. Paul, 373
U.S. 132 (1963); Maurer v. Hamilton, 309 U.S. 598 (1940); Napier v. Atlantic Coast
Line R. Co., 272 U.S. 605 (1926).

34. E.g., Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973);
Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees v. Lock-
ridge, 403 U.S. 274 (1971); Florida Lime and Avocado Growers, Inc. v. Paul, 372
U.S. 132 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); Hines v.
Davidowitz, 312 U.S. 52 (1941).

35. In these cases as well, the courts, in interpreting preemptive language, have
operated under a presumption in favor of maintaining the police power of the states.
See, e.g., Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973);
Chrysler Corp. v. Rhodes, 416 F.2d 319 (1st Cir. 1969); Chrysler Corp. v. Tofany, 419
F.2d 499 (2d Cir. 1969); Exxon Corp. v. City of New York, 372 F. Supp. 335
(S.D.N.Y. 1974); Allway Taxi, Inc. v. City of New York, 340 F. Supp. 1120 (S.D.N.Y.
1972), aff'd, 468 F.2d 624 (2d Cir. 1972).

36. Clean Air Act § 116, 42 U.S.C. § 1857d-1 (Stpp. IV 1974); Federal Water
Pollution Control Act § 510, 33 U.S.C. § 1370 (Supp. IV 1974).

37. E.g., Federal Water Pollution Control Act §§ 303(f), 311(o)(2), 33 U.S.C.
§§ 1313(f), 1321(o)(2) (Supp. IV 1974) (water quality standards and liability for spills
of oil and hazardous substances).

38. E.g., Federal Environmental Pesticide Control Act of 1972 § 24(b), 7 U.S.C.
§ 136v(b) (Supp. IV 1974) (labeling and packaging of pesticides); Clean Air Act
§§ 211(c)(4)(A), 233, 42 U.S.C. §§ 1857f-6c(c)(4)(A), 1857f-11 (1970) (motor vehicle
fuels and air pollution from aircraft).

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Preemption of Railroad Noise Control

In between these two ends of the spectrum are provisions which
prohibit only those state and local laws which relieve any person of
having to comply with federal requirements; 39 those which prohibit
only state or local actions which either do not meet the objectives
of the federal legislation, 40 or are in conflict with it, where the
context indicates that "conflict" means inconsistency with the pollu-
tion control objectives of the federal law;41 those which prohibit
state or local laws which are in conflict with the federal standards,
where the objectives of the federal law include some interstate
commerce considerations; 42 those which prohibit certain specified
types of state or local laws and permit other types; 43 and those
which require federal approval before the state or locality can
act. 44 None of the environmental statutes contains an absolute pro-
hibition against state or local regulatory action.

A study of these preemption provisions reveals that those toward
the more federally exclusive end of the spectrum tend to be most
often related to mobile pollution sources, or sources distributed in
interstate commerce, and those which are more permissive toward
state and local authority tend to relate to fixed sources. This cor-
relation implies that national uniformity is an important inter-
state commerce interest in choosing a preemption standard. Leg-
islative history and expressions of statutory purpose also show the
goal of national uniformity. And even though national uniformity is
a common goal of federal environmental legislation, it is most often

39. E.g., Safe Drinking Water Act §§ 1414(e), 1423(c), 42 U.S.C. §9 300g-3(e),
300h-2(c) (Supp. IV 1974) (public water systems and underground drinking water);
Federal Environmental Pesticide Control Act of 1972 § 24(a), 7 U.S.C. § 136v(a)
(Supp. IV 1974) (control of pesticides).

40. E.g., Federal Water Pollution Control Act §§ 303(a)(2), (3), 33 U.S.C.
§§ 1313(a)(2), (3) (Supp. IV 1974) (water quality standards).

41. E.g., id. §§ 307(b)(4), 311(o)(3), 33 U.S.C. §§ 1317(b)(4), 1321(o)(3) (Supp. IV
1974) (pretreatment effluent standards, and oil and hazardous substance liability).

42. E.g., Noise Control Act of 1972 § 8(c), 42 U.S.C. § 4907(c) (Supp. IV 1974)
(noise labeling).

43. E.g., Federal Water Pollution Control Act § 312(f), 33 U.S.C. § 1322(f) (Supp.
IV 1974) (marine sanitation devices); Clean Air Act § 209(a), (c), 42 U.S.C. §§
1857f-6a(a), (c) (1970) (air pollution from motor vehicles); Noise Control Act of 1972
§ 6(e), 42 U.S.C. § 4905(e) (Supp. IV 1974) (noise from products distributed in com-
merce).

44. E.g., Federal Environmental Pesticide Control Act of 1972 §§ 4(a)(2), (f),
24(c), 7 U.S.C. §§ 136(b)(a)(2), (I), 136v(c) (Supp. IV 1974) (certification and registra-
tion of pesticides); Clean Air Act § 209(b), 42 U.S.C. § 1857f-6a(b) (1970) (air polli-
tion from motor vehicles).

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mandated in connection with products or sources that move in in-
terstate commerce.

A. Noise Control Act

The Noise Control Act explicitly states a national uniformity
objective. 45 Its sections dealing with mobile sources and products
distributed in commerce contain preemption provisions which
place restrictions on the authority of state and local governments to
set standards, but preserve their authority to regulate sources of
noise in ways other than standard setting.4 6 This approach assures
national uniformity with respect to requirements placed upon
manufacturers and carriers which, if different from place to place,
could make their interstate commercial operations hopelessly com-
plex. At the same time, it retains state and local initiatives regard-
ing activities which may differ without causing such disruption.

Section 6, dealing with products distributed in commerce, is the
most broadly reaching standard-setting authority in the Noise Con-
trol Act, allowing EPA to require the quieting of virtually any
noisy product.47 Section 6(e)(1) provides that

[n]o State or political subdivision thereof may adopt or enforce
with respect to any new product for which a regulation has been
prescribed by the Administrator under this section, any law or
regulation which sets a limit on noise emissions from such new
product and which is not identical to such regulation of the
Administrator. 48

Section 6(e)(2), however, operates as a caveat, that,
[s]ubject to sections 17 and 18, nothing in this section precludes
or denies the right of any State or political subdivision thereof to
establish and enforce controls on environmental noise (or one or

45. Noise Control Act of 1972 § 2(a)(3), 42 U.S.C. § 4901(a)(3) (Supp. IV 1974). On
the subject of national uniformity and preemption under the Noise Control Act, see
A. Greenwald, Preemption and Jurisdiction, Noise Law Chameleons, [1976] 54
NOISE REG. REP. D-1 (BNA); S. Plager, Preserving State Law from Federal Preemp-
tion under the 1972 Noise Control Act, 2 ENVT'L CONTROL NEWSLETTER No. 12, at
14 (1974).

46. Noise Control Act of 1972 §§ 6(e), 8(c), 17(c), 18(c), 42 U.S.C. §§ 4905(e),
4907(c), 4916(c), 4917(c) (Supp. IV 1974).

47. Id. § 6, 42 U.S.C. § 4905 (Supp, IV 1974). For a discussion of this section, see
Comment, Toward the Comprehensive Abatement of Noise Pollution: Recent Fed-
eral and New York City Noise Control Legislation, 4 ECOLOGY L.Q. 109, 115-26
(1974); Note, The Noise Control Act of 1972--Congress Acts to Fill the Gap in En-
vironmental Legislation, 58 MINN. L. REV. 273, 288-91 (1973).

48. Noise Control Act of 1972 § 6(e)(1), 42 U.S.C. § 4905(e)(1) (Supp. IV 1974).

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Preemption of Railroad Noise Control

more sources thereof) through the licensing, regulation, or re-
striction of the use, operation, or movement of any product or
combination of products. 49

The preemption provision found in section 17, dealing with in-
terstate railroads, goes further than that for products regulated
under section 6. Rather than totally reserving control of the use,
operation or movement of products to the states and local govern-
ments, it provides that in some instances these also will be pre-
empted, although the Administrator of EPA may in defined cases
waive such preemption. 50

Section 17(a) required the Administrator of EPA to publish,
within one year after passage of the Act, final regulations for sur-
face carriers engaged in interstate commerce by railroad. These
regulations were to include "noise emission standards setting such
limits on noise emissions resulting from operation of the equipment
and facilities of surface carriers engaged in interstate commerce by
railroad which reflect the degree of noise reduction achievable
through the application of the best available technology, taking in-
to account the cost of compliance." 5 1 Such regulations and any
amendments are to be promulgated only after consultation with the
Secretary of Transportation on matters of safety and availability of
technology. 52 The preemption clause is section 17(c):

(c)(1) Subject to paragraph (2) but notwithstanding any other
provision of this Act, after the effective date of a regulation
under this section applicable to noise emissions resulting from
the operation of any equipment or facility of a surface carrier
engaged in interstate commerce by railroad, no State or political

49. Id. § 6(e)(2), 42 U.S.C. § 4905(e)(2) (Supp. IV 1974). Note the exclusion of rail
and motor carriers, which operates to avoid any ambiguity as to the breadth of the
caveat.

50. Noise Control Act of 1972 § 17(c), 42 U.S.C. § 4916(c) (Supp. IV 1974). Sec-
tion 18(c) of the Act, 42 U.S.C. § 4917(c) (Supp. IV 1974), which applies to motor
carriers, is structured virtually identically, and therefore much of what is said about
section 17 will be true of section 18 as well. The differences in the operating cir-
cumstances of railroads and motor carriers, however, make it impossible to assume

that conclusions reached with respect to section 17 will necessarily hold for section
18.

51. Noise Control Act of 1972 § 17(a)(1), 42 U.S.C. § 4916(a)(1) (Supp. IV 1974).
Note that, unlike section 6, section 17 requires that standard setting be driven not by

considerations of public health and welfare, but by cost and technological considera-
tions. Thus, EPA could conceivably set standards under section 17 which are more
stringent than those requisite to protect public health and welfare.

52. Noise Control Act of 1972 § 17(a)(3), 42 U.S.C. § 4916(a)(3) (Supp. IV 1974).

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subdivision thereof may adopt or enforce any standard applicable
to noise emissions resulting from the operation of the same
equipment or facility of such carrier unless such standard is
identical to a standard applicable to noise emissions resulting
from such operation prescribed by any regulation under this sec-
tion.

(2) Nothing in this section shall diminish or enhance the rights
of any State or political subdivision thereof to establish and en-
force standards or controls on levels of environmental noise, or
to control, license, regulate, or restrict the use, operation, or
movement of any product if the Administrator, after consultation
with the Secretary of Transportation, determines that such stan-
dard, control, license, regulation, or restriction is necessitated
by special local conditions and is not in conflict with regulations
promulgated under this section. 53

Thus, Congress has delegated to the Environmental Protection
Agency the responsibility for developing, in consultation with the
Secretary of Transportation, regulations which would control rail-
road noise and ease the burden on the railroads from conflicting
state and local noise controls. As with all statutes, the intent and
spirit which complete the explicit statutory language can be dis-
covered only by looking to the legislative history.

B. Legislative History

Of the several noise control bills which were being considered in
1971-1972, 54 none directly addressed railroad noise. It was in the
Senate Public Works Committee that section 17 originated. That
committee's version of the Noise Control Bill, S.3342, did not deal
with railroads when originally introduced on March 4, 1972. 5 Dur-
ing the hearings which were held on this and similar noise bills,
the Association of American Railroads (AAR), the railroad industry
trade association, submitted a letter to the committee suggesting
an amendment to the bill that "provide[d] for Federal regulation of
noise relating to interstate carriers." 5 6 The language would have

53. Noise Control Act of 1972 § 17(c), 42 U.S.C. § 4916(c) (Supp. IV 1974).
54. See Hearings on H.R. 5275 and Other Bills Before the Subcomm. on Public

Health and Environment of the House Comm. on Interstate and Foreign Commerce,
92d Cong., 1st Sess. (1971); Hearings on S. 1016 and S. 1566 Before the Subcomm.
on the Environment of the Senate Comm. on Commerce, 92d Cong., 1st Sess. (1971);
Hearings on S. 1016, S. 3342 and HR. 11021 Before the Subcomm. on Air and
Water Pollution of the Senate Comm. on Public Works, 92d Cong., 2d Sess. (1972).

55. See Public Works Committee Hearings, supra note 54, at 2.
56. Id. at 489.

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1976] Preemption of Railroad Noise Control

required EPA to commence a study and investigate interstate car-
rier noise, its health and welfare effects and the technological
feasibility of controlling it. Further, it would have required the
Administrator of EPA to propose regulations which

shall include noise emission standards setting such limits on
noise emissions resulting from operation of the equipment and
facilities of surface carriers engaged in interstate commerce as in
the Administrator's judgment, base [sic] upon the published
report of his study and investigation, are reasonably required to
protect the public health and welfare. 57

The proposal contained a preemption provision requiring identity
between federal standards and those promulgated by political sub-
divisions. However, provision was made for exceptions upon appeal
to the Administrator. 58

Although the House Committee which was considering a noise
bill did not include the AAR suggestions, 59 the Senate Public
Works Committee reported out S.3342 on September 19, 1972,60

which contained sections on railroad noise. However, they were
different from the AAR recommendations in several respects. First,
rail and motor carriers were dealt with in separate but virtually
identical sections. Second, the study and investigation were elim-
inated. Third, the basic criterion of the standards, the "level
reasonably required to protect public health and welfare," had
been changed to the level which "reflect[s] the degree of noise
reduction achievable through application of the best available tech-
nology, taking into account the cost of compliance." 61 Finally, the

57. Id. at 490.
58. The provision read as follows:
Notwithstanding any other provision of this Act, no State or political subdivision
thereof may adopt or enforce any standard respecting noise emissions resulting
from the operation of equipment or facilities of surface carriers engaged in inter-
state commerce unless such standard is identical to a standard applicable to
noise emissions resulting from such operation prescribed by any regulation
under this section: Provided however, that the Administrator may by regulation,
upon the petition of a State or political subdivision thereof, permit such excep-
tions as in his judgment are necessitated by special local conditions and will not
place unreasonable burdens upon commerce.

Id.
59. The House Committee reported out a bill on February 19, 1972, H.R. 11021,

92d Cong., 2d Sess. (1972). H.R. 11021 was passed by the House of Representatives
on February 29, 1972, 118 CONG. REC. 6065 (1972).

60. S. 3342, 92d Cong., 2d Sess. (1972). S. REP. No. 1160, 92d Cong., 2d Sess.
(1972).

61. S. 3342, 92d Cong., 2d Sess. § 511(a), 118 CONG. REC. 35892 (1972).



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proviso to the preemption provision left more power to political
subdivisions.

62

This section of the bill, section 513, was the topic for floor de-
bate in the Senate on October 12 and 13, 1972, and the subject of
preemption was extensively discussed. Two issues which were of
greatest interest were the breadth of preemption and the circum-
stances under which the EPA Administrator could waive preemp-
tion. As to the latter subject, the report which accompanied this
bill, though straightforward in most respects, contained a statement
that was on its face puzzling: that the Administrator could waive
preemption with respect to a state or local regulation if he "deter-
mines it to be necessitated by special local conditions or not in
conflict with regulations under this part." 63 The explanation for the
Senate Report's analysis lay in section 408 of the bill, dealing with
new product standards. That section had its own preemption provi-
sion, section 408(e)(2), which had a proviso relating to rail and
motor carrier regulations to clarify the intended relationships of the
three sections. In the proviso it was allowed that nothing in that
section was intended to diminish the rights of state and local gov-
ernments to establish and enforce such more restrictive limits
on rail carrier noise through the application of use, operation or
movement controls as the Administrator of EPA may determine
were necessitated by special local conditions. Thus, the bill ap-
peared to set up, through sections 513 and 408(e)(2), alternative
bases for waiver of preemption. Recognizing this intent as ex-
plained in the Report, Senator Hartke moved to amend section 513
to insert before "not in conflict" the words "necessitated by special
local conditions or." 64 The amendment was passed.6 5

It was Senator Hartke who, in advocating his amendment, pro-
vided the most detailed discussion of the preemptive effect of EPA
standards. In his speech he emphasized the need to balance local
power to respond to special situations against federal preemption to

62. Id. § 513, which, in relevant part, read as follows:
Provided, however, That nothing in this section shall diminish or enhance the
rights of any State or political subdivision thereof to establish and enforce stan-
dards or controls on levels of environmental noise, or to control, license, regulate
or restrict the use, operation or movement of any product as the Administrator,
after consultation with the Secretary of Transportation may determine to be not
in conflict with regulations promulgated under this part.
63. S. REP. No. 1160, 92d Cong., 2d Sess. 19 (1972) (emphasis added).
64. 118 CONG. REC. 35881 (1972).
65. 118 CONG. REC. 35882-83 (1972).

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Preemption of Railroad Noise Control

protect interstate carriers. 66

Senator Tunney, the floor manager of the bill, said:

The reason we put this language into the bill was that we
wanted to make it clear that it was Federal preemption for inter-
state trades and the railroads. It was not initially in the bill, so
we put in the preemption so that we would give the railroads
and the carriers some awareness and some security that they
would not have to abide by 50 different State jurisdictions and
Lord knows how many tens of thousands of local jurisdictions. It
is in the bill now. It is a complete preemption. 67

These seemingly dispositive exchanges still leave questions as to
the totality of preemption, because the language to which they
were referring did not survive final enactment into law. The bill
was, however, passed by the Senate on that day, October 13,
1972,68 reading as follows:

66. 118 CONG. REC. 35881 (1972):
Mr. President, one of the basic purposes of title V of this bill, as explained in the
committee report, is to assure the maximum practical uniformity in regulating
the noise characteristics of interstate carriers such as the railroads and motor
carriers which operate from coast to coast and through all the States, and in
hundreds of communities and localities.

Without some degree of uniformity, provided by Federal regulations of coun-
trywide applicability which will by statute preempt and supersede any different
State and local regulations or standards, there would be great confusion and
chaos. Carriers, if there were not Federal preemption, would be subject to a
great variety of differing and perhaps inconsistent standards and requirements
from place to place. This would be excessively burdensome and would not be in
the public interest.

At the same time, States and localities ought to have and retain the power to
develop and enforce noise standards and regulations that are needed and de-
signed to meet special local situations even though such standards and regula-
tions may differ from the Federal rules.

The problem, of course, is to strike a proper balance that will take account of
and protect all of these interests.

This amendment applies to an interstate carrier that moves across the Nation.
It provides that they shall not be subjected to and harassed by unreasonable
standards in separate localities. It provides that local communities can still have
standards which are more strict than those at the Federal level, but that there
shall be a standard in the regulations that shall be governed by such items
which are necessities to deal with the local noise conditions. Otherwise, the
trains and the carriers coming through could have 75 different regulations which
would apply to them.
67. 118 CONG. REc. 35882 (1972); see also comments of Senators Magnuson and

Cannon, 118 CONG. REC. 35881-82 (1972); Senator Randolph, 118 CONG. REC. 35412
(1972); Senator Tunney, 118 CONG. REC. 35418-19 (1972), 118 CONG. REC. 37317-18
(1972).

68. 118 CONG. REc. 35886 (1972).

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Sec. 513. Notwithstanding any other provision of this Act, after
the effective date of regulations under this part, no State or
political subdivision thereof may adopt or enforce any standard
respecting noise emissions resulting from the operation of
equipment or facilities of surface carriers engaged in interstate
commerce by railroad unless such standard is identical to a stan-
dard applicable to noise emissions resulting from such operation
prescribed by any regulation under this section: Provided how-
ever, That nothing in this section shall diminish or enhance the
rights of any State or political subdivision thereof to establish
and enforce standards or controls on levels of environmental
noise, or to control, license, regulate or restrict the use, oper-
ation, or movement of any product as the Administrator, after
consultation with the Secretary of Transportation may deter-
mine to be necessitated by special local conditions or not in
conflict with regulations promulgated under this part. 69

The form in which this provision was finally passed by both
houses differed in two critical respects. The first change was to
make the preemption applicable only to "any standard applicable to
noise emissions resulting from the operation of the same equipment
or facility," 70 as regulated by EPA. The impact of this addition
appears to be a severe narrowing of the preemption. Whereas in
the Senate version there was preemption with respect to State and
local standards on all equipment and facilities after the first EPA
standard was set, no matter how narrow the scope of its coverage,
the final version was preemptive only with respect to equipment or
facilities which EPA had expressly regulated.

The second change appeared in the clause which Senator Hartke
had added. Careful eleventh-hour draftsmen had deleted the lan-
guage in section 6(e) (formerly section 408(e)(2)) which the Hartke
amendment had rendered unnecessary, but had inexplicably
changed "or" to "and" in section 17(c)(2), again substantially affect-
ing its meaning. 71 These changes did not seem earthshaking, and
were lost in the shuffle as the bill was approved first by the
House 7 2 and then by the Senate 7 3 on October 18, 1972, the last
day of the 92d Congress. Unfortunately, the animus behind these
changes remains a mystery, because the bills, having been up for

69. S. 3342, 92d Cong., 2d Sess. § 513, 118 CONG. REC. 35893 (1972).
70. Noise Control Act of 1972 § 17(c)(1), 42 U.S.C. § 4916(c)(1) (Supp. IV 1974)

(added language emphasized).
71. See notes 179-202 and accompanying text infra.
72. 118 CONG. REC. 37088 (1972).
73. 118 CONG. REC. 37319 (1972).

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Preemption of Railroad Noise Control

reconciliation on the eve of adjournment, did not have the luxury
of a committee of conference or conference report. The Act was
signed into law on October 27, 1972.74

II. EPA ACTIONS UNDER SECTION 17

On February 1, 1973, three months after the Noise Control Act
became law, EPA took the first formal step to implement section
17 by issuing an advance notice of proposed rulemaking announc-
ing its intent to develop regulations, and inviting the participation
of all interested parties. 75 This notice allowed 60 days for comments
and solicited specific response to eight questions, dealing with iden-
tifying the major sources of railroad noise, their health and welfare
impact, possible technological solutions and their cost, alternative
strategies to deal with the general problem of railroad noise, safety
factors, and the possible impact of federal regulations on existing
standards. 76 The comment period was subsequently extended to
June 1, 1973.77

On the basis of its early work, EPA discovered the complexity of
the industry it had undertaken to regulate. It was not until July 3,
1974, almost one year past the statutory deadline, 78 that proposed
regulations were published. 79 Following the proposal, a public
hearing was held in Chicago, Illinois, on August 14, 1974, to allow
for further public participation.8 0

The proposed rule announced EPA's intention to regulate rail
cars and locomotives, and discussed in detail its rationale for doing
so and for excluding other equipment and facilities of rail car-
riers. 8 ' The notice asked for public comments on EPA's proposed
action, and announced the availability of a detailed "Background
Document" supporting its position.82

After having studied the problem for 1/2 years and engaging the
assistance of a major contractor and the National Bureau of Stan-
dards, EPA had in July 1974 concluded that many railroad-related

74. 8 PRESIDENTIAL DOCUMENTS 1583 (1972).

75. 38 Fed. Reg. 3086 (1973).
76. Id.
77. 38 Fed. Reg. 10644 (1973).
78. Noise Control Act of 1972 § 17(a)(1), 42 U.S.C. § 4916(a)(1) (Supp. IV 1974).

79. 39 Fed. Reg. 24580 (1974).
80. See 39 Fed. Reg. 28316 (1974).
81. 39 Fed. Reg. 24580-83 (1974).
82. See 39 Fed. Reg. 24585 (1974).

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noise sources would be more properly controlled by state and local
actions. 83

EPA's final regulation was published on January 14, 1976,84 over
two years behind the statutory schedule.85 It did not represent a
change in the principles expressed in EPA's earlier notice. EPA
remained of the view that of all railroad noise sources, trains-rail
cars and locomotives-have the greatest noise impact, and that
these moving sources bear the greatest vulnerability to interference
by differing state and local standards.8 6 On this basis, EPA's first
regulation for railroad noise covered only these two classes of rail-
road equipment, and excluded facilities. 87

83. 39 Fed. Reg. 24580-81 (1974):
Many railroad noise problems can best be controlled by measures which do not
require national uniformity of treatment to facilitate interstate commerce at this
time. The network of railroad operations is imbedded into every corner of the
country, including rights-of-way, spurs, stations, terminals, sidings, marshaling
yards, maintenance shops, etc. Protection of the environment for such a complex
and pervasive industry is not simply a problem of modifying noisy equipment,
but get [sic] down into the minutiae of countless daily railroad operations at
thousands of locations across the country. The environmental impact of a given
railroad operation will vary depending on whether it takes place, for example, in
a desert or adjacent to a residential area. For this reason, EPA believes that State
and local authorities are better suited than the Federal government to consider
fine details such as the addition of sound insulation or noise barriers to particu-
lar facilities, or the location of noisy railroad equipment within those facilities as
far as possible from noise-sensitive areas, etc. There is no indication, at present,
that differences in requirements for such measures from place to place impose
any significant burden upon interstate commerce. At this time, therefore, it ap-
pears that national uniformity of treatment of such measures is not needed to
facilitate interstate commerce and would not be in the best interest of environ-
mental protection.

The national effort to control noise has only just begun, however; and it is
inevitable that some presently unknown problems will come to light as the effort
progresses. Experience may teach that there are better approaches to some as-
pects of the problem than those which now appear most desirable. The situation
may change so as to call for a different approach. Section 17 of the Noise Control
Act clearly gives the Administrator of the Environmental Protection Agency au-
thority to set noise emission standards on the operation of all types of equipment
and facilities of interstate railroads. If in the future it appears that a different
approach is called for, either in regulating more equipment and facilities, or
fewer, or regulating them in a different way or with different standards consis-
tent with the criteria set forth in section 17, these regulations will be revised
accordingly.
84. 41 Fed. Reg. 2183 (1976).
85. Noise Control Act of 1972 § 17(a)(2), 42 U.S.C. § 4916(a)(2) (Supp. IV 1974).
86. 41 Fed. Reg. 2185 (1976).
87. Note the distinction between "equipment," or movable property, and

"facilities" or fixed installations. Although the terms are not defined in the Act, they
come from historical railroad usage. See 45 U.S.C. §§ 432, 435, 562 (1970).



Preemption of Railroad Noise Control

The standards were a limited first attempt, but EPA was bound
by the Act to consider cost as a constraint on the stringency of the
standards. 88 EPA has estimated that at least until 1980, the stan-
dards will serve only to prevent an increase in train noise levels.8 9

They require all locomotives to meet a noise level of 93dBA at all
throttle settings, and 73dBA at idle, when standing still and mea-
sured at 100 feet. 90 For locomotives under moving conditions the
standard is 96dBA. 91 New locomotives-those of which manufac-
ture is completed after December 31, 1979-will have to reduce
those levels by six, three and six dBA, respectively. 92 These stan-
dards represent a partial retreat from the July 1974 proposal which
would have required that all locomotives, rather than just newly
manufactured locomotives, meet the more stringent standards in
1980. 93 The shift in position resulted from data submitted by the
industry which called into question certain of EPA's findings on
cost and technological capability. 94 The final standards for rail cars,
which became effective December 31, 1976, prohibit the operation
of rail cars which, alone or in combination with other cars, produce
levels in excess of 88dBA at speeds of 45 miles per hour or less, or
93dBA at speeds over 45 miles per hour. 95 As a result of these
standards, EPA estimates that the total number of people adversely
impacted by railroad noise may eventually be reduced by up to
500,000,96 leaving 1.8 million people exposed to undesirable noise
levels. 97

EPA's most recent action on railroad noise control was the publi-
cation of a proposed regulation under subsection 17(c) which would

88. Noise Control Act of 1972 § 17(a)(1), 42 U.S.C. § 4916(a)(1) (Supp. IV 1974).
89. BACKGROUND DOCUMENT, supra note 4, at 8-1.
90. 40 C.F.R. § 201.11(a) (1976). DbA is the abbreviation for decibels on the

A-weighted scale; the A-weighting is a means of expressing as a single number the
sound level of a noise containing a wide range of frequencies, in a manner
representative of the human ear's response. See U.S. ENVIRONMENTAL PRO-
TECTION AGENCY, PUBLIC HEALTH AND WELFARE CRITERIA FOR NOISE, at

Glossary-I (1973).
91. 40 C.F.R. § 201.12(a) (1976).
92. 40 C.F.R. §§ 201.11(b), 201.12(b) (1976).
93. 39 Fed. Reg. 24586 (1974).
94. 41 Fed. Reg. 2189 (1976).
95. 40 C.F.R. § 201.13 (1976).
96. 41 Fed. Reg. 2190 (1976).
97. BACKGROUND DOCUMENT, supra note 4, at 8-18. The Department of Trans-

portation, as required by section 17(b), has published a proposed regulation setting
forth the procedures by which it will enforce the EPA standards. 41 Fed. Reg. 49183
(1976).

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provide guidance for state and local governments seeking from the
Administrator a waiver of preemption with respect to regulations
which are necessitated by special local conditions and not in con-
flict with federal standards. 98

III. THE DISPUTE BETWEEN EPA AND THE RAILROADS:

THE PREEMPTIVE REACH OF SECTION 17

The preemptive reach of section 17 is governed by two subsec-
tions, 17(a), the EPA standard-setting requirement, and 17(c), the
preemption provision. Section 17(a) is relevant because section
17(c) takes effect only after the effective date of EPA regulations,
and is limited in extent by the breadth of EPA's regulations (al-
though this latter point may be subject to dispute).

Because the railroads' basic concern has always been preemp-
tion, and EPA's concern has always been noise control, they have
never been in agreement on how best to implement section 17 of
the Noise Control Act. The Association of American Railroads has
participated tirelessly in EPA's rulemaking under section 17, 99 and
has from the beginning attempted to convince EPA that Congress
intended the federal government to exercise virtually exclusive
dominion over the control of railroad noise, replacing state and
local authority except in the narrowly defined cases falling under
section 17(c)(2). 100

EPA has never been convinced that such was the congressional
intent. Rather, EPA sees section 17 as allowing an integrated solu-
tion to railroad noise: state and local standards where those are
most effective and do not pose burdens on interstate commerce
because of their diversity, and national standards where they can
be effective or where the need for uniformity compels national
standards. 101

98. Railroad Noise Emission Standards, Special Local Determinations, Notice of
Proposed Rulemaking, 41 Fed. Reg. 52317 (1976) [hereinafter cited as Proposed
Rule]. This document proposes to amend 40 C.F.R. Part 201 by adding Subpart C, §
201.30-201.34.

99. See Statement of the Association of American Railroads to EPA, April 2, 1973,
EPA Docket No. ONAC 7201001; Comments of the Association of American Rail-
roads on Proposed Railroad Noise Emission Standards, August 19, 1974, EPA Docket
No. ONAC 7201002 [hereinafter cited as 1974 AAR Comment].

100. 1974 AAR Comment, supra note 99, at 36-38. The U.S. Departments of
Transportation and Commerce have supported this position. Record, documents 107,
112, AAR v. Train, No. 76-1353 (D.C. Cir., filed Apr. 13, 1976).

101. See 39 Fed. Reg. 24580-81 (1974).

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Preemption of Railroad Noise Control

A. The Mandate of Section 17(a)

AAR has recognized that the two ways to gain the desired
preemption are to broaden the reading of section 17(c), and to re-
quire EPA to claim the whole field by regulating all noise sources
under 17(a). Thus, since the issue as to the breadth of 17(c) awaits
an actual controversy, or at least a petition for review of EPA's
preemption regulations, l02 AAR has up to now principally pursued
the argument that section 17(a) places a mandatory duty on EPA to
regulate all sources of railroad noise. The Association has consis-
tently objected to any narrowing of the scope of EPA regulations.
When EPA published its proposed standards in July 1974,103 AAR
offered a counter proposal:

[T]he railroads recommend that the EPA specifically prescribe
noise standards regulating the noise emitted by area-type
sources such as yards and terminals. Such standards would apply
to all noise generated within area-type sources. To the extent
that noise from retarders, shops, switching impacts, idling
locomotives, and standing refrigerator cars is propagated within
yards and terminals, such noise would be blanketed by the
area-noise standard. There would thus be no necessity for
specific noise standards applicable to those named sources.

The railroads [further] recommend that the EPA promptly es-
tablish special noise limits applicable to the noise from special
purpose equipment that is operated on tracks such as track-
laying equipment, cranes, and snow plows.' 0 4

AAR suggested that these standards be set at currently prevail-
ing railroad noise levels, and take effect within 270 days. EPA was
thereafter to investigate the feasibility of any reductions in noise
that could be achieved in the future.' 05

EPA rejected AAR's recommendation. The Agency determined
that the types and characteristics of all area-type railroad noise
sources in the nation were extremely diverse, and that as a result,
effective control at the national level was not possible. 1°6 State and
local governments, EPA concluded, were best suited to address
fixed noise sources within their jurisdictions, 10 7 and because there

102. See note 98 and accompanying text supra.
103. 39 Fed. Reg. 24580 (1974).
104. 1974 AAR Comment, supra note 99, at 40-42.
105. Id. at 41.
106. 41 Fed. Reg. 2186 (1976).
107. Id.

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was no indication that interjurisdictional differences in standards
presented a problem with respect to fixed sources, national uni-
formity was not necessary.' 08 On the other hand, EPA found,
those sources operating within such facilities which move through
various jurisdictions and thus require national uniformity-
trains-were protected by EPA's standards for rail cars and loco-
motives. 109

After the EPA regulation was published in January 1976, the
AAR filed a petition for judicial review. 110 The State of Illinois in-
tervened as a party respondent. In that lawsuit, AAR has argued
the general proposition that the structure of section 17 and its
legislative history make clear Congress' intent that state and local
governments be preempted from the field of railroad noise control.
The evils Congress thus hoped to cure were three-fold, they argue:

(1) State and local regulations which would conflict with and
frustrate the purposes of the Act and interfere with Federal reg-
ulation of the railroad industry; (2) state and local regulations
which would impose a burden upon and interfere with interstate
commerce; and (3) uncertainty about jurisdiction over railroad
noise control which would produce unnecessary and unending
litigation, tying up the courts, costing governmental bodies and
the railroad industry enormous sums of money, and delaying in-
terminably the effectuation of the purposes of the Noise Control
Act. "'l

More specifically, AAR has challenged the sufficiency of EPA's
regulation setting standards on rail cars and locomotives on the
grounds that the Noise Control Act expressly requires EPA to issue
standards covering all railroad equipment and facilities. In support
of this proposition AAR analyzes the language of the Act, "12 pas-
sages in the legislative history where preemption was referred to as
total" or "complete", 113 and caselaw on preemption.

A case principally relied upon is Burbank v. Lockheed Air

108. Id.
109. Id.
110. AAR v. Train, No. 76-1353 (D.C. Cir., filed Apr. 13, 1976). This petition was

filed in the U.S. Court of Appeals for the District of Columbia Circuit, as required by
section 16 of the Noise Control Act, 42 U.S.C. § 4915 (Supp. IV 1974).

111. AAR v. Train, No. 76-1353 (D.C. Cir., filed Apr. 13, 1976), Brief of Petition-
ers, 8-9; see also id. at 32-50.

112. Id. at 17-22.
113. Id. at 22-30; see, note 67 and accompanying text supra.

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Preemption of Railroad Noise Control

Terminal, Inc.," 4 a 1973 Supreme Court decision which found
preemption under section 7 of the Noise Control Act (amending
section 611 of the Federal Aviation Act). 115 Section 7 contains no
preemptive provision; the Court based its finding on the pervasive
nature of federal regulation of aircraft noise. Burbank, AAR ar-
gued, is important to the controversy over section 17 of the Act
because (1) it is the first and only Supreme Court decision on the
preemptive effect of the Noise Control Act, (2) it finds preemption
under section 7 even though preemption was not specifically pro-
vided in the Act, (3) the preemption language of section 17 is vir-
tually identical to that deleted from the original Senate version of
section 7 which the Court referred to as an express preemption
section, and (4) the Court looked carefully at the possible cumula-
tive effects of a decision upholding the Burbank ordinance. 116

On the specific point at issue in AAR v. Train, EPA defends the
limited scope of its regulation by arguing that it exercised reasoned
discretion in determining which sources of railroad noise to regu-
late, a discretion that was within the intent of Congress and effec-
tuates the purposes of the Noise Control Act.' 17 EPA's position is
that the Act does not on its face say that EPA is required to regu-
late every source of railroad noise, 118 and that to interpret the Act
that way would lead to an absurd result since the term "facilities
and equipment" in section 17(a) includes such things as office
typewriters and building air conditioners. 119 Accordingly, EPA ar-
gues, an exercise of reasoned discretion is necessary to determine
which sources to regulate and which to leave unregulated.'12  The
State of Illinois as intervenor took the same positions as EPA on
these issues. 121

114. 411 U.S. 624 (1973).
115. Noise Control Act of 1972 § 7, 42 U.S.C. § 4906 (Supp. IV 1974), amending

49 U.S.C. § 1431 (Supp. IV 1974).
116. Brief of Petitioners at 14-15, AAR v. Train, No. 76-1353 (D.C. Cir., filed

Apr. 13, 1976). With respect to the third point, it is not in fact the case that section
17(c) contains any language virtually identical to that referred to in Burbank.
Burbank's reference, 411 U.S. at 636, was to the version of S. 3342 which passed the
Senate, which contained an aviation preemption provision stating: "No State or polit-
ical subdivision thereof may adopt or enforce any standard respecting noise emis-
sions from any aircraft or engine thereof." S. 3342, 92d Cong., 2d Sess. § 505, 118
CONG. REC. 35892 (1972).

117. Brief of Respondents at 6-7.
118. Id. at 9-14.
119. Id. at 22-23.
120. Id. at 24-26.
121. Brief of Intervenor.

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Although AAR did not press its challenge so far as to say that if
EPA had discretion, it abused it or exercised it arbitrarily or ca-
priciously in violation of the Administrative Procedure Act, l22 EPA
pursued this question. It described the approach the Administrator
had used in deciding what to regulate and showed how he had
derived that approach from express elements of congressional ob-
jectives stated in the Noise Control Act.123 It pointed to four areas
of inquiry which it had applied to the prospective sources of rail-
road noise:

(1) Is it a significant noise source? (2) Is state or local control of
this source more appropriate than federal regulation? (3) Does
the burden imposed by differing state and local controls require
national uniformity with respect to this source? (4) Would a fed-
eral noise standard have undesirable safety implications? 2

The application of this inquiry may be seen in the preambles to
EPA's final regulation,125 and to the proposed regulation.126 As the
basis for these questions, EPA's brief pointed to the purposes and
policies stated in the Noise Control Act:' 2 7 (1) that it is the policy
of Congress to promote an environment free from noise which
jeopardizes public health or welfare; 128 (2) that "primary responsibil-
ity for control of noise rests with State and local governments";' 2 9 and
(3) that "Federal action is essential to deal with major noise sources
in commerce control of which requires national uniformity of treat-
ment."'130

A good deal of AAR's strategy in arguing that EPA's regulation
was too narrow in scope was to impress the court with the prob-
lems flowing from state and local regulation, and to argue that
Congress intended broad preemption. However, lest that argument
affect the interpretation of section 17(c), on which EPA and AAR
again would surely differ when that issue ripens, EPA protested in
its brief in AAR v. Train that the meaning of section 17(c) was not
at issue there. This case simply posed a question of legislative in-

122. 5 U.S.C. § 706 (1970).
123. Brief of Respondents at 26-36.
124. Id. at 28.
125. 41 Fed. Reg. 2184-88 (1976).
126. 39 Fed. Reg. 24580-83 (1974).
127. Brief of Respondents at 26-36.
128. Noise Control Act of 1972 § 2(b), 42 U.S.C. § 4901(b) (Supp. IV 1974).
129. Noise Control Act of 1972 § 2(a)(3), 42 U.S.C. § 4901(a)(3) (Supp. IV 1974).
130. Id.



Preemption of Railroad Noise Control

tent as to the discretion EPA had to select which sources of rail-
road noise it would regulate. Both EPA and Illinois, however,
devoted part of their briefs to countering AAR's argument on
preemption. On the matter of the relevance of Burbank v. Lock-
heed Air Terminal, Inc., both EPA and Illinois minimized its rele-
vance to the railroad preemption question, principally because of
the different statutory frameworks of the two sections of the Act.131

Whereas the railroad section contained a specific preemption pro-
vision, the aircraft section at issue in Burbank did not. EPA and
Illinois contended that other caselaw is more relevant, namely
cases where courts were being asked to interpret congressional in-
tent on specific preemption provisions,' 3 2 rather than to search for
"evidence of a 'pervasive federal scheme of regulation' from which
to infer preemption.' 133 In those cases, they argued, courts have
interpreted the langauge narrowly, particularly in areas where the
police power, which has traditionally been reserved to state and
local government, is at issue. The language of section 17(c), they
argued, is replete with bases for narrow interpretation.134

Further, the legislative history as viewed by EPA favored a nar-
row interpretation of section 17(c). By rejecting a provision which
would have preempted with respect to all railroad sources even
though EPA's standards might apply to only a narrow group of
sources,13 5 Congress had evidenced both a desire to narrow the
scope of preemption under 17(c), and an acknowledgement that
EPA may in fact not decide to regulate every source.' 3 6 Because
the statements in the legislative history relating to "total" and
"complete" preemption referred to this earlier version, which was
in a sense total preemption, EPA argued that such statements did
not detract from its narrower interpretation of the final Act.137

B. The Meaning of Section 17(c)

The meaning of section 17(c) is discussed at length below. How-
ever, one aspect of the issue deserves mention at this point (al-

131. See Brief of Intervenor at 13; Brief of Respondents at 19.
132. Brief of lntervenor at 10-13; Brief of Respondents at 14-16.
133. Brief of Intervenor at 13.
134. Id. at 12-14; Brief of Respondents at 16-19. See sections III B. and IV A.

infra.
135. See note 69 and accompanying text supra.
136. Brief of Respondents at 13-14.
137. Id. at 18.

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

though this may turn out not to be a serious question): how would a
party argue that section 17(c) does not restrict its preemptive
coverage to only those noise sources regulated by EPA? AAR's Au-
gust 1974 comment to EPA provides some insight into the subject.
At that time, AAR's tentative position was to place section 17(c)(2)
in the role as the operative preemption language. They interpreted
that subsection as prohibiting any state or local railroad regulation
which establishes standards or controls on levels of environmental
noise, or which controls, licenses, regulates or restricts the use,
operation or movement of any product, without EPA's first deter-
mining that such law is necessitated by special local conditions and
is not in conflict with EPA's regulations.' 13 Under this analysis,
subsection 17(c)(1) would have to be viewed as an exception to
17(c)(2), allowing states and communities to set standards without
going through the 17(c)(2) determination process if such standards
are on EPA regulated equipment or facilities and are identical to
the federal standards.

Again, AAR relied on statements made by Senators during the
floor debates relating to "complete" or "total" preemption. 139 It

should be noted, however, that AAR stressed the importance of
EPA's decision not to regulate sources other than rail cars and
locomotives. "The failure to regulate is closely tied to the subject
of preemption. With respect to noise sources that are regulated by
EPA, federal preemption will occur. With respect to noise sources
that are not regulated, it can be argued-as EPA argues-that
there is no preemption.' 140

EPA has indeed made that argument, as its proposed preemp-
tion regulation explains. EPA views subsection 17(c)(1) as the basic
preemption provision which lays down the general rule that once
EPA has regulated a noise source, the states and local governments
are precluded from setting or enforcing emission standards on
the same source. unless those standards are identical. Subsection
17(c)(2), then, does not expand the preemption prescribed in
17(c)(1); rather it provides that any action precluded by 17(c)(1)
may be taken if EPA, in consultation with the Department of
Transportation, waives the preemption according to the specified
criteria. The enumeration in 17(c)(2) of standards, controls on en-

138. 1974 AAR Comment, supra note 99, at 29.
139. Id. at 32-35; see note 66 supra.
140. Id. at 29.



Preemption of Railroad Noise Control

vironmental noise, and use, operation or movement restrictions
suggests that the term "standards" as used in subsection 17(c)(1)
was intended, EPA argues, to include any action which would have
the same effect as setting an emission standard on the federally
regulated source. 141

The difference between these two approaches to section 17(c) has
great practical significance. If the EPA interpretation is adopted
there will be a large class of state and local actions which will not
be subject to preemption and can thus be taken without EPA in-
volvement. If the other approach is adopted, once EPA's limited
standards take effect, no state or local government can thereafter
regulate any interstate railroad noise source unless it either (1) sets
an emission standard on a federally regulated source that is identi-
cal to the federal standard, or (2) gets a waiver of preemption from
EPA after satisfying the "not in conflict" and "special local condi-
tions" criteria of section 17(c)(2).

Assuming that the EPA approach prevails, a difficult but un-
avoidable question will arise: what exactly is included in the term
"the same .. .equipment" under section 17(c)(1)?.

There are some pieces of railroad equipment, of course, such as
office typewriters, that have little to do with rail cars or locomo-
tives, and are obviously not "the same." However, many pieces of
railroad equipment are not so obviously independent. Some are
included on a piece of regulated equipment. For example, when
EPA set a moving standard for rail cars, it was aiming at the sound
of the car moving. Some rail cars, however, have refrigerator units
which make noise. Do the states and localities retain authority to
regulate those units? EPA answered no, reasoning that since the
sound of the refrigerator could not be differentiated from the other
sounds of a moving car, the standard applied to the "total
noise. '"142 The fact remains that it can be a separate noise, and a
separate problem, particularly when the car is left standing over-
night on a siding with its cooling unit running. 143

Another difficult problem is presented by rails. The railroad car

141. 41 Fed. Reg. 52317 (1976). This approach differs slightly from one earlier
suggested by EPA in the preamble to EPA's standards, 41 Fed. Reg. 2192-3 (1976).
That analysis would have preempted standards on regulated equipment, as well as
any other kind of controls on such equipment which were not standards; however, in
the case of the latter, EPA could waive preemption under § 17(c)(2) criteria.

142. 41 Fed. Reg. 2193 (1976).
143. See BACKGROUND DOCUMENT, supra note 4, at 0-1, 0-2, R-18 to -21.

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standard was designed to quiet the noisy episodes of rail-wheel in-
teraction resulting from poorly maintained wheels. 144 However, as
EPA has acknowledged, poorly maintained track can also cause
high noise levels. 145 Are the states and localities free to set
maintenance standards for tracks, or are they preempted because
the EPA standard for rail cars applies to rail-wheel noise? EPA
answered that they were preempted, reasoning that rails and
wheels are the integrated source of rail car noise. 146 Presumably,
the railroads would agree with EPA on this point.

On a related issue involving retarders, the railroads and EPA are
not in agreement. Retarders are devices affixed to rails which apply
pressure to the wheels of free-rolling rail cars to slow them down.
They are used in "humping yards," where cars roll freely downhill
on segregating tracks to assemble trains. The friction between the
retarder and the wheel causes a very loud, high-pitched squeal.
EPA has stated that because it has not regulated retarders it re-
gards the state and local authorities as being free to do so. 147 The
railroads are expected to argue that, like rail-wheel noise, the noise
of retarders is "caused" by rail cars, and therefore the rail car stan-
dard preempts with respect to retarders. This issue may be left for
the courts to decide in later challenges.

IV. WHAT REMAINS FOR STATE AND LOCAL ACTION:

EPA's PRESCRIPTION

Despite the pendency of the legal issues discussed above, state
and local regulators, besieged by continuing complaints of railroad
noise, are asking what they can do. EPA has confronted this ques-
tion over the last several years, and, having found it to have many
subtle complications, has proposed a comprehensive regulation to
define its interpretation of the preemptive effect of section 17, and
to explain how it will interpret the terms "necessitated by special
local conditions" and "not in conflict" when deciding whether to
grant waivers of preemption. 148 It is this proposal which is ex-

144. 41 Fed. Reg. 2187 (1976).
145. Id. See also BACKGROUND DOCUMENT, supra note 4, at P-I to -11.
146. 41 Fed. Reg. 2187, 2193 (1976).
147. 41 Fed. Reg. 2193 (1976).
148. 41 Fed. Reg. 52317 (1976). This step, while not necessarily unprecedented,

will certainly be viewed as unorthodox by some commentators. As early as August
1974, AAR assailed EPA for expounding in the preamble to the proposed standards
on its theory of the preemptive effect of section 17. AAR contended that "Federal



1976] Preemption of Railroad Noise Control

pected to bring to a head the issues not yet ripe in AAR v. Train.
After taking comments on the proposal, EPA will publish a final
regulation in 1977. In all likelihood it will be subjected to judicial
review by whichever of the widely divergent points of view it of-
fends most greatly. 149

A. Types of State and Local Actions Preempted

At the outset it is helpful to examine the several options avail-
able to a regulatory body developing a strategy to control railroad
noise. First, it can set emission standards, standards limiting the
noise level which can be produced by a piece of equipment or a
facility. An example is EPA's standards for locomotives and rail
cars.150 Emission standards could also be set on facilities, requiring
that at the perimeter of the facility, a single event noise level of
XdBA could never be exceeded 151 or requiring that the 24-hour
average day-night noise level could not exceed YLdn. 152

Another option would be to set equipment standards or design
standards on railroad equipment or facilities, that is, require a

administrative agencies, such as EPA, have no jurisdiction to offer binding interpre-
tations or advisory opinions on the subject of preemption." 1974 AAR Comment,
supra note 99, at 36. EPA responded in its January 1976 preamble that:

[T]he Noise Control Act of 1972 is clear in its contemplation that Federal and
State governments work together in the control of noise. However, the Act also
provides, in some cases, that the Federal authority be preemptive. The Agency
therefore feels that it is proper for it to explain the extent of its regulations and
to indicate the point beyond which the States and local governments may act;
and that it is not prohibited from assisting the State and local governments by
indicating ways in which the Agency believes they may augment its regulatory
efforts.

41 Fed. Reg. 2190 (1976). In the same philosophical vein, EPA has now proposed to
elevate its advice to the status of regulations, citing as authority both section 17 of
the Noise Control Act and the Administrative Procedure Act requirement that Agen-
cies publish rules of procedure and Agency interpretations of general applicability. 5
U.S.C. §§ 552(a)(1)(C), (D). Section 16 of the Noise Control Act provides a mechanism
for judicial review of that regulation.

149. Or, as is not uncommon with EPA, it may be challenged by both. See, e.g.,
Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir. 1976), where environmental groups,
power companies and a state challenged an EPA regulation to implement the Clean
Air Act's policy that the quality of the air should not be significantly degraded.

150. See notes 90-95 and accompanying text supra.
151. See, e.g., Chicago, Ill., Environmental Control Ordinance § 17-4.12 (1969);

Bloomfield, N.J., Ordinance Providing Measurement Regulations and Control of
Railroad Noise § 2(a) (1975).

152. For an example of a time-weighted noise standard on railroads, see Min-
nesota Pollution Control Agency, Noise Pollution Control Regulations § NPC 2(b)
(1974); see also Minneapolis, Minn., Noise Control Ordinances § 948.030 (1972).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

specific type of noise control technology. For example, an ordi-
nance might require that every locomotive operating within the
jurisdiction be equipped with a muffler meeting certain specifica-
tions. Or it might require that any rail yard be surrounded by a
noise barrier meeting certain criteria.

A third approach would be to impose controls on the use, opera-
tion or movement of facilities or equipment. One such control
would be a requirement that no refrigerator car be permitted to
idle overnight within 100 yards of the railroad boundary.1 53

Another such control would be a speed limit on all movements
through a town. Many communities favor night curfews on railroad
yard operations.1 54 Other examples are legion, and are tailored to
specific communities' particular noise problems.

A different type of regulation which has been employed is the
receiving land-use standard. 155 This regulation is distinguished
from a facility noise emission standard by the fact that a receiving
land-use standard relates to noise levels at the perimeter of the
impacted property rather than the noise producing property. Such
a standard may require, for example, that no school shall be sub-
jected to exterior noise levels in excess of 60 Ldn. This kind of
standard is most useful for preconstruction screening of land uses;
but it has been imposed in many cases where both the sources and
receivers are already established. 156 In the latter case, it could
have the effect of setting a standard with which a railroad might
have to comply.

Section 17(c)(2) categorizes these various types of potential state
or local regulations as: (1) standards, (2) controls on levels of en-
vironmental noise, and(3) regulations which control, license, regu-
late or restrict the use, operation or movement of a piece of
equipment or a facility. How does this categorization affect pre-
emption?

153. See, e.g., Ordinance Regulating the Idling of Diesel Powered Railroad En-
gines Within the City of Jenkins, Kentucky (1974).

154. It is a common practice for regulations to set dual standards, one applicable
during the day and a more stringent standard applicable during nighttime hours. See,
e.g., Minnesota Regulations, supra note 152, § NPC 2(b); Bloomfield, N.J., Ordinance,
supra note 151, § 2(a). A very stringent nighttime standard could result in a de facto
curfew.

155. See, e.g., PORTLAND, ORE., CODE tit. 18 § 18.10.010 (1976); Illinois Pollution
Control Board, Rules ch. 8, rules 202-07 (1973).

156. See, e.g., ordinances cited in note 155 supra.

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Preemption of Railroad Noise Control

As has been pointed out above, 157 EPA considers section 17(c)(1)
to be the operative preemption provision. Under this interpreta-
tion, the only action subject to preemption in the first instance is
"any standard applicable to noise emissions resulting from opera-
tion of the same equipment or facility"'158 regulated by EPA. The
term "standard" as generally understood, and as used in other
parts of the Noise Control Act, refers to an emission limitation, a
criterion for specifying the maximum permissible noise level, and
is quite distinct from controls on the use, operation or movement
of products. 159 The compendium contained in section 17(c)(2),
however, seems to contemplate that the term "standard" in section
17(c)(1) may include these other types of controls. In order to rec-
oncile the two subsections, EPA has concluded that the term
"standards" should include these other types of controls in any case
where they would have the same effect as setting a standard on a
piece of federally regulated equipment, that is, where they would
require it to meet a higher standard.' 60 This interpretation serves
as a fundamental principle in EPA's regulation of railroad noise
because it defines the class of preempted regulations.

Applying this principle, the proposal provides that a state or
local action is preempted only if it (1) sets a more stringent nu-
merical noise standard on a federally regulated source, or (2) by
its terms requires physical modification of a federally regulated
source, or (3) effectively requires the physical modification of a
federally regulated source.' 61 "Effectively requires" is defined as:
"[a]ny action imposing a requirement such that compliance can be
achieved by physical modification of Federally-regulated equip-
ment or facilities, and no reasonable alternative exists which does
not involve physical modification of Federally-regulated equipment
or facilities. "162 "Physical modification of Federally regulated equip-
ment or facilities" is in turn defined as: "[p]hysical modifications in
addition to or more stringent than those necessary for the equip-

157. See note 141 and accompanying text supra.
158. Noise Control Act of 1972 § 17(c)(1), 42 U.S.C. § 4916(c)(1) (Supp. IV 1974)

(emphasis added).
159. See Noise Control Act of 1972 §§ 6(c)(1), 7(a), 17(a), (c), 18(a), (c), 42 U.S.C.

§§ 4905(c)(1), 4906(a), 4916(a), (c), 4917(a), (c) (Supp. IV 1974).
160. Proposed Rule, supra note 98, §§ 201.30(g), 201.30(h), 201.32(b), 41 Fed.

Reg. 52318-19 (1976).
161. Id. § 201.32(b), 41 Fed. Reg. 52319 (1976).
162. Id. § 201.30(g), 41 Fed. Reg. 52318 (1976).

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ment or facilities to meet the Federal standards.- 163

Under this construct, as EPA explains it, a state or local action is
not preempted if it applies only to equipment that EPA has not
regulated. 164 Nor would an action be preempted if it applies to
federally unregulated rail facilities (such as rail yards and termi-
nals), if it does not effectively require physical modification of a
federally regulated piece of equipment. 165 An example of a
preempted regulation under this test might be a noise emission
standard on a rail yard which is so stringent that it cannot be
achieved without reducing the noise level of locomotives below the
EPA standard. On the other hand, if it could be achieved by mov-
ing idling refrigerator cars to the interior of the yard overnight, it
would not be preempted under this test.

Design standards on facilities that are not federally regulated
would never be preempted. 166 Additionally, a regulation which
does apply to federally regulated equipment but which controls
only use, operation or movement of such equipment (without set-
ting a standard) is not preempted unless it effectively requires
physical modification. 167 One such regulation which would be
preempted would be a community ordinance stating that locomo-
tives may not use the main rail line in town after 8:00 P.M. unless
they produce noise levels 10 dBA below the EPA standard, where
ceasing nighttime operations is not a viable alternative for the rail-
roads.

Another class of non-preempted actions are those which set
standards identical to EPA's.' 68 As a logical consequence EPA has
judged that Congress intended to also permit standards which are
less stringent,169 based upon the obvious, but unstated, assumption
that if section 17(c)(1) clearly permits the state and local govern-
ments to add their enforcement effort to EPA's standards by setting
identical standards, Congress did not intend to preclude them from
adding a lesser effort by enforcing against only those who are greatly
exceeding EPA's standards.

163. Id. § 201.30(h), 41 Fed. Reg. 52318 (1976).
164. Id. § 201.32(e)( 4 ), 41 Fed. Reg. 52319 (1976). Note the distinction between

facilities and equipment, supra note 87.
165. Id. § 201.32(e)(5), (6), 41 Fed. Reg. 52319 (1976).
166. Id. § 201.32(e)( 7 ), 41 Fed. Reg. 52319 (1976).
167. Id. § 201.32(e)(3), 41 Fed. Reg. 52319 (1976).
168. Id. § 201.32(e)(1), 41 Fed. Reg. 52319 (1976).
169. Id. § 201.32(e)(2), 41 Fed. Reg. 52319 (1976).

[3: 1



Preemption of Railroad Noise Control

A related issue is whether the identity of standards implies that
enforcement procedures must be identical as well. Clearly, some-
thing more than the simple numerical standard must be identical.
A number by itself means nothing; it becomes a standard when the
conditions, instrumentation and measurement distances are de-
fined. Not every element of the compliance procedures 170 is neces-
sarily so definitive, however. This is an issue which the courts have
not yet faced. 171 When they do, they will probably continue to
interpret preemptive provisions narrowly and find only certain
elements essential to the "identity" of the standard, and others
subject to state and local flexibility. 172

Three other classes of regulations would not be preempted
under EPA's approach: (1) restrictions on the use of warning de-
vices (horns, whistles, etc.), 173 which were specifically excluded
from compliance with EPA's standards; 174 (2) receiving land-use
standards 175 which can be met reasonably without physical modifi-
cation of federally regulated railroad equipment; 176 and (3) use, op-
eration or movement controls imposed for reasons other than noise
control. 177

With the exception of identical standards, this large class of un-
preempted state or local actions would be totally eliminated by the
broad preemption approach which the railroads favor. Presumably,
the states and local governments, which have a correspondingly
large class of railroad noise problems which EPA's standards do not
solve, will strongly favor the EPA preemption interpretation.

170. 40 C.F.R. §§ 201.20-201.24 (1976) (EPA measurement methodology); 41 Fed.
Reg. 49183 (1976) (U.S. Dept. of Transportation proposed compliance procedures).

171. Cf., Portland Cement Assn. v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973)
cert. denied, 417 U.S. 921 (1974), which recognized that the test methodology used
in developing the standard is an essential piece of information for the public to re-
view during informal rulemaking.

172. For example, the D.O.T. proposed Railroad Noise Emission Compliance
Regulations, 41 Fed. Reg. 49183 (1976), contains provisions relating to who may per-
form tests and under what circumstances, when a non-complying locomotive may be
moved, and requirements as to frequency of calibration of measurement equipment.
None of these procedural requirements effects the stringency of the standard.

173. Proposed Rule, supra note 98, § 201.32(e)(9), 41 Fed. Reg. 52319 (1976).
174. 40 C.F.R. § 201.10 (1976).
175. See notes 155-56 and accompanying text supra.
176. Proposed Rule, supra note 98, § 201.32(e)(8 ), 41 Fed. Reg. 52319 (1976).
177. Id. § 201.32(e)(10), 41 Fed. Reg. 52319 (1976). Again, there is an unstated

but intuitive assumption that this Noise Control Act could not have intended to free
the railroads from State and local control of all kinds for all purposes.

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B. The Meaning of "Special Local Condition" and
"Not in Conflict"

EPA has been struggling for several years with the issues raised
by section 17(c)(2) and the similar provision for motor carriers in
section 18(c)(2).1 78 When the interstate motor carrier noise stan-
dards were published in October of 1974,179 EPA stated that it
would publish guidelines for special local determinations under
that section within 120 days. 180 These were finally proposed on
November 29, 1976.181

Much of the delay resulted from a reluctance to come to grips
with the preemption issues discussed above. However, a good deal
of the difficulty springs from the illogic of the language of section
17(c)(2) itself. It allows the Administrator to waive preemption if he
determines that both conditions exist, that is, that the state or local
regulation is necessitated by special local conditions, and that it is
not in conflict with the federal regulations. One is compelled to
ask, if the state or local regulation is not in conflict with the federal
regulation, why must EPA be concerned with it? If it does not
conflict, it does not hamper the national uniformity goals of section
17; therefore, logically, it should be permitted irrespective of the
existence of any special local conditions.

Indeed, the legislative history of this part of the Act indicates
that this was Congress' original intent. The "and" between "neces-
sitated by special local conditions" and "not in conflict" was "or" in
the version passed in the Senate on October 13, 1972.182 Given
the fact that the "and" is there and must be dealt with, the ques-
tion becomes one of how to relate the two elements. Should EPA
have a clear test of "not in conflict," and if that is not met deny the
application regardless of the special conditions? Should they have a
firm requirement for "special local conditions," and if that is not
met deny the application without reaching the question of conflict?
Or, should EPA engage in some qualitative weighing, permitting
state and local regulations which, although conflicting to some ex-
tent, remedy a very special situation, or which, though treating a
problem not overly special, present no conflict at all.

178. Noise Control Act of 1972 § 18(c)(2), 42 U.S.C. § 4917(c)(2) (Supp. IV 1974).
179. 40 C.F.R. §§ 202.10-202.23 (1976).
180. 39 Fed. Reg. 38214 (1974).
181. 41 Fed. Reg. 52320 (1976).
182. See note 64 and accompanying text supra.

[3:1I



Preemption of Railroad Noise Control

The language of the Noise Control Act would not preclude a
balancing approach, and the legislative history suggests that Con-
gress might favor such an approach. Statements made on the floor
of the Senate during consideration of the Bill discussed the need to
protect the public, and the need to allow communities to do their
own regulating where the federal standards are not adequate to
protect them. 183

EPA's draft regulation proposes to adopt a balancing approach. It
states that EPA will not treat each of the two criteria of section
17(c)(2) ("not in conflict" and "necessitated by special local condi-
tions") as independently dispositive. In other words, it does not say
that if the slightest degree of conflict exists it will not waive
preemption. Rather, it announces that EPA will weigh three fac-
tors: (1) the degree of the conflict, (2) the severity of the special
conditions, and (3) the existence of alternative means of achieving
the needed noise control that are not preempted.18 4 This third fac-
tor relates both to the question of conflict (since conflict is more
offensive if there are non-conflicting ways to solve the problem),
and to the question of "necessitated" (since the regulation in ques-
tion is not necessary if there are other means).

EPA interprets the statute this way to be consistent with its in-
terpretation of the preemptive intent of section 17(c). If EPA were
to deem a regulation to be in conflict because it requires physical
modification of a federally regulated piece of equipment, and lets
this be dispositive, then every request for waiver would necessarily
be denied, since every regulation which is preempted (requiring
waiver) would, by EPA's definition, effectively require modification
of federally regulated equipment.185

Having announced that it would weigh the degree of conflict
against the severity of the special local condition, how will EPA
define these terms? Does "conflict" mean that compliance with the
local regulation inhibits compliance with the federal standard?
Does it mean that the local standard requires the railroad to modify
equipment which meets the federal standard? It probably means
both of these. Suppose, however, that a local regulation does not
expressly require modification of federally regulated equipment

183. See 118 CONG. REC. 35881-82, 37318 (1972).
184. Proposed Rule, supra note 98, § 201.34(b), 41 Fed. Reg. 52320 (1976).
185. See criteria for determining whether an action is preempted, notes 161-62

and accompanying text supra.

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

and such modification is only one of the means of compliance.
Under EPA's preemption theory, if it is preempted at all, modifica-
tion is the only way to comply at reasonable cost. Is the amount of
cost relevant to determining the degree of conflict? More gener-
ally, is it a conflict if a state or local law requires the railroads to
spend too much money on noise control? Some would find it
troubling to answer that EPA should engage in this inquiry. Had
Congress considered the question, which it probably did not, it is
doubtful that it would have answered that EPA, by virtue of sec-
tion 17 of the Noise Control Act, is to be the guardian of the rail-
roads' economic health. And yet, how can EPA avoid considering
cost?

Conflict has other dimensions, moreover. Consider a yard loco-
motive which never goes out on the rights of way, but shuttles cars
back and forth in a rail yard. Since it operates in a fixed location, it
will not be subject to numerous different standards in different
jurisdictions-the problem section 17 was intended to combat.' 8 6

National uniformity is not necessary if the locomotive has to meet
the standard of only one jurisdiction.

EPA has avoided giving complete rules in its draft regulation but
does enumerate the factors it will consider. EPA states that in as-
sessing the degree of conflict with the federal regulatory scheme,
the Agency will "consider the degree to which granting the appli-
cation would be inconsistent with the policy of the Noise Control
Act of providing federal standards for sources of noise in commerce
which require national uniformity of treatment."' 187 Considered rel-
evant in such assessment will be: (1) the numer of pieces of rail-
road equipment that would be affected; (2) the degree to which
affected equipment operates in jurisdictions other than that which
seeks to regulate them; (3) whether the state or local action would
impose burdensome testing requirements that differ from the fed-
eral requirements; and (4) the degree to which the free flow of
commerce would be impeded by the regulation. 188

Defining "special local conditions" is a matter with which EPA is
understandably more comfortable. Although the meaning of the
term is discussed nowhere in the legislative history, the context in
which it is used indicates that it means some prevailing circum-

186. See note 67 and accompanying text supra.
187. Proposed Rule, supra note 98, § 201.34(d), 41 Fed. Reg. 52320 (1976).
188. Id.

[3: 1



Preemption of Railroad Noise Control

stances in a given community or state which would cause the Ad-
ministrator to determine that more noise reduction should be
achieved there. This will require some showing of special or un-
usual circumstances. If the test were simply whether the federal
standards adequately protect health and welfare, almost every
community would qualify, since EPA's analysis shows that the
limiting constraints of cost and available technology prevented EPA
from setting the standards at levels low enough to eliminate ad-
verse impacts on all persons.'8 9

What is a community with a special condition? Is it one with a
heightened interest in noise control? Probably not, since the Noise
Control Act's recognition that all Americans are entitled to an envi-
ronment free from noise which jeopardizes their health and welfare
would indicate that all are entitled to be interested in noise
control.190 Is it a community with a historically low ambient noise
level, such as Moab, Utah, or Yumatilla, Oregon, where increases
in noise are especially noticeable? Is it a community with a high
ambient noise level and a high population density, such as Chicago
and New York, where increases may cause more people to be im-
pacted in terms of annoyance or even hearing loss? Or is it some-
thing more specific, such as an unusually large concentration of
noise sensitive activities around a railroad facility, such as schools,
libraries, churches, concert halls, hospitals, nursing homes, large
housing developments? Or is it a geographical factor, such as a
steep hill in town where railroad engines must labor noisily? It
may be a special condition more closely related to railroad opera-
tions. For example, some communities have only one or two trains
a day; others have several tracks that are major freight routes, or
major commuter lines which run scores of trains a day beginning
before dawn and ending after the children have gone to bed. Some
towns have only a small station; others have huge freight yards.

EPA's answer begins in the same legal philosophical terms as its
definition of conflict: in assessing the severity of the special local
condition "the Administrator will consider the degree to which de-
nying the application would be inconsistent with the policy of the
Noise Control Act of providing an environment free from noise that
jeopardizes the public health and welfare."' 191 The Administrator

189. See notes 96-97 and accompanying text supra.
190. Noise Control Act of 1972 § 2(b), 42 U.S.C. § 4901(b) (Supp. IV 1974).
191. Proposed Rule, supra note 98, § 201.34(c), 41 Fed. Reg. 52320 (1976).

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will consider whether there exist geographical, topographical or
demographic conditions which render the federal standards inade-
quate to protect public health and welfare. "Such factors as the
proximity of noise-sensitive populations to noise sources, or condi-
tions which increase either the duration or intensity of noise will
be considered relevant. '" 192

These criteria, by their nature, leave room for considerable sub-
jectivity. This is particularly true in light of the balancing process in
which EPA would engage. If this entire approach ever emerges as a
final regulation, and if it survives the legal challenges in the Court
of Appeals, the inevitable challenges to EPA's decisions on individ-
ual applications for waivers of preemption will serve as the final test-
ing ground of the reasonableness and usefulness of this balancing
approach. 1

93

All waivers of preemption granted (or denied) by EPA under
section 17(c)(2) will be subject to judicial review by any party who
is aggrieved.194 In any such lawsuits, the scope of review will be
that prescribed in the Administrative Procedure Act. 195 The issues
will therefore include whether EPA's action granting or denying
the waiver was arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law;196 whether it was contrary to
constitutional right, power, privilege or immunity; 197 and whether
it was in excess of the Administrator's statutory jurisdiction, author-
ity or limitations, or short of statutory right. 198

The Environmental Protection Agency and many other federal
agencies have been respondents in a long line of cases under the

192. Id. § 201.34(c)(1), 41 Fed. Reg. 52320 (1976).
193. The initial testing ground was the interagency review process under which

the draft regulation was circulated before proposal. This review was engrafted upon
the rulemaking requirements of the Administrative Procedure Act by the Director,
Office of Management and Budget, through a memorandum to the heads of all De-
partments and Agencies of the federal government on October 5, 1971. This directive
required that all proposals and final rules pertaining to environmental quality, con-
sumer protection and occupational safety and health be submitted before proposal
and before final publication to the Office of Management and Budget and distributed
for comment to all interested federal agencies. In EPA's case the process is, at its
worst, a forum for pressure politics and, at its best, a severe test of the logic, legiti-
macy and thoroughness of EPA rulemaking.

194. 5 U.S.C. §§ 702, 704 (1970); 28 U.S.C. § 1331, as amended by Pub. L. No.
94-574, 90 Stat. 2721; see Califano v. Sanders, 97 S. Ct. 980 (1977).

195. 5 U.S.C. § 706 (1970).
196. 5 U.S.C. § 706(2)(A) (1970).
197. 5 U.S.C. § 706(2)(B) (1970).
198. 5 U.S.C. § 706(2)(C) (1970).

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Administrative Procedure Act. The courts have established a rigor-
ous test of the Agencies' actions, 199 and engage in a "searching and
careful" inquiry into the facts in order to determine whether there
has been a "clear error of judgment."200 This experience 20 ' has
made it clear that EPA will need detailed information in order to
support its grants or denials of waivers.

The gathering of this detailed information will represent a sig-
nificant burden, much of which will fall on the state or community,
and some of which may fall on the railroads. The process will prob-
ably involve public notice and comment procedures, 20 2 and possi-
bly public hearings, further adding to the complexity and expense.
For these reasons, EPA has tried in its draft proposed regulation to
identify those types of state and local actions which are not pre-
empted, so that they will not have to engage unnecessarily in this
cumbersome process.

The resource demands of the waiver application process em-
phasize the importance of clarifying the scope of preemption. More
fundamentally, section 17(c)(2) imposes with respect to the pre-
empted regulation one significant legal hurdle that it would not
otherwise have faced. Before the Noise Control Act of 1972, a state
or community could constitutionally defend a noise control on an
interstate railroad simply by establishing that it did not impose an
undue burden on interstate commerce. Now, any regulation which
is preempted must be shown to be necessitated by special local

199. See Verkuil, Judicial Review of Informal Rulemaking, 60 VA. L. REV. 185
(1974); Leventhal, Environmental Decisionmaking and the role of the Courts, 122 U.
PA. L. REV. 509 (1974); Wright, The Courts and the Rulemaking Process: The Limits
of Judicial Review, 59 CORNELL L. REV. 375 (1974).

200. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
Accord, Ethyl Corp. v. EPA, 541 F.2d 1, 37 n.79 (D.C. Cir.), cert. denied, 426 U.S.
941 (1976); Sierra Club v. EPA, 540 F.2d 1114, 1123 (D.C. Cir. 1976).

201. For a glimpse of EPA's history in judicial review, see Ethyl Corp. v. EPA,
541 F.2d 1 (D.C. Cir.), cert. denied, 426 U.S. 941 (1976); Amoco Oil Co. v. EPA, 501
F.2d 722 (D.C. Cir. 1974); Texas v. EPA, 499 F.2d 289 (5th Cir. 1974), cert. denied,
421 U.S. 945 (1975); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.
1973), cert. denied, 417 U.S. 921 (1974), aff'd on rehearing sub. nom. Portland Ce-
ment Ass'n v. Train, 513 F.2d 506 (1975); International Harvester Co. v. Ruckel-
shaus, 478 F.2d 615 (D.C. Cir. 1973).

202. EPA issued in conjunction with its proposed waiver regulation guidelines
setting forth the procedures it would expect applicants to follow and types of
information which their applications should contain. See 41 Fed. Reg. 52317 (1976).
These guidelines were to have been a part of the regulation, but were removed at
the request of the Office of Management and Budget as a gesture toward decreasing
the volume of federal regulations.

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conditions and not in conflict with federal noise regulations; and in
addition it still may not impose an undue burden on interstate
commerce.

203

V. COMMENT

All of these uncertainties will be resolved by the courts in due
time, but it is difficult to resist the temptation to suggest how, in
this writer's opinion, they ought to be resolved. If Congress had con-
sidered all the complex practical implications which have been
touched on above, the answers might be easier. It is axiomatic,
however, that Congress could never devote that kind of attention
to an issue like railroad noise. Nor is the Act sufficiently clear on
its face to resolve these questions. It is probably true that the rail-
roads, who persuaded the Senate Public Works Committee to in-
clude their recommended section in the Noise Control Bill, S.
3342, thought that they knew exactly what the implications were
and exactly what they wanted to achieve. But policies much
broader than the railroads' perceived need for freedom from the
burdens of state and local regulation inhibit the EPA from uncriti-
cally accepting the railroads' interpretation of the Noise Control
Act.

A reasonable resolution of the question of the degree of preemp-
tion prescribed by section 17 of the Noise Control Act requires
that three propositions (none of which will be fully accepted by all
parties) be kept clearly in mind. First, the states and their political
subdivisions have traditionally enjoyed the power to regulate
for the protection of the health and welfare of their citizens, and
that power should not be diminished without good reason. Courts
have treated this as a basic principle in preemption cases, both
in searching for Congress' intent in the absence of preemption
language, and in the narrow interpretation given to preemption
sections. 204

Second, if there is a dominant theme in the legislative history of
section 17, it is that the burdens on interstate commerce which
Congress hoped to ease by preemption were those which could be
eased by national uniformity. Again and again, references were
made to the chaos and confusion that would result from moving

203. See 41 Fed. Reg. 52318 (1976).
204. See notes 33-35 and accompanying text supra.

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Preemption of Railroad Noise Control

noise sources traveling through different jurisdictions with differing
and inconsistent requirements.2 0 5 All local regulations represent
some degree of burden on carriers because compliance costs re-
duce profits. Yet at no time in the legislative history was it said that
all local regulations should be preempted; nowhere in the Act does
the term "burden on interstate commerce" appear.2 0 6

Third, the primary objective of the Noise Control Act is to con-
trol noise.2 0 7 Despite the concomitant objective of national unifor-
mity, in none of the Act's preemption provisions does preemption
take effect before the effective date of EPA regulations, and none
of these provisions forbids state or local governments from enacting
their own standards identical to EPA's. 20 8

Based upon these propositions, the doubts as to whether section
17(a) orders EPA to fully occupy the field, and whether section
17(c) preempts broadly or narrowly, should be resolved in favor of
the maintenance of state and local authority. In the absence of an
unequivocal requirement that EPA regulate every fixed and mov-
ing instrumentality of the interstate rail carriers, EPA ought to be
able to exercise a reasoned discretion in determining which sources
it will regulate. A determination based upon a weighing of the
need for national uniformity with respect to a specific type of facil-
ity or equipment against the ability to regulate more effectively at
the local level seems most legitimate. 209

By the same token it would be fundmentally unsound for a court
to interpret section 17(c) so as to preempt state and local control of
facilities or equipment not regulated by EPA.2 1 0 It seems neces-
sary, however, to include within the preemptive scope all equip-
ment which is a part producer of the particular noise to which EPA
standards apply if preemption is to have any meaning.

The closer issue is the validity of EPA's intricate analysis of what
is preempted and what is not.2 1 1 It is based upon the distinction

205. See notes 63-67 and accompanying text supra.
206. By contrast, AAR used the term in its proposal to the Senate Public Welfare

Committee, see note 58 supra.
207. Noise Control Act of 1972 §§ 2(a)(1), (2), (b), 42 U.S.C. § 4901(a)(1), (2), (b)

(Supp. IV 1974).
208. Noise Control Act of 1972 §§ 6(e)(1), 17(c)(1), 18(c)(1), 42 U.S.C.

§9 4905(e)(1), 4 9
16(c)(1), 4917(c)(1) (Supp. IV 1974).

209. See section III A. supra.

210. See section III B. supra.

211. See section IV supra.

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between emission standards and other types of noise control mea-
sures, a distinction well known in Congress and recognized in various
parts of the Act. 2 12 Moreover, EPA includes as standards anything
which effectively requires physical modification of federally regu-
lated sources.2 13 This benchmark is a recognition that emission
standards are technological requirements, and that conversely
technological requirements are basically emission standards. By
applying this benchmark, EPA is able to account for and harmonize
all the language of section 17(c).

Finally, EPA's approach of publishing its preemption interpreta-
tion as a regulation subject to judicial review2 14 provides a three-
prong program for resolving the many issues raised by the Act. It
gives guidance on a complex legal and technical subject in the ab-
sence of which state and local governments may have been dis-
couraged from taking action within their power. It sets up a unified
thesis for judicial interpretation in an area traditionally reserved for
the courts. And it assures an early, central, authoritative and or-
derly resolution of the legal issues without engaging many lower
courts over many years.

Following the EPA prescription all the way would result in a
preemption far narrower than what the railroads hoped to obtain in
1971 when they started all of this. To be sure, the business of
setting noise emission standards on equipment that moves from
one jurisdiction to another does rightfully demand national unifor-
mity, and EPA's standards serve a useful purpose. It cannot be
denied, however, that railroad noise is a localized problem.
Strategies involving special fixes, use, operation and movement
controls and other approaches could be tailored to individual com-
munities' noise situations to bring immediate and specific relief to
those most affected without affecting EPA's standards and without
causing chaos or confusion by their lack of uniformity. Moreover,
they would still be subject to the traditional constitutional test of
undue burden on interstate commerce.

If the courts agree with the railroads on these issues, com-
munities will be left helpless to decide for themselves that they
have a noise problem and to solve it their own way. To find them
preempted would throw a gauntlet before them, requiring them at

212. See note 159 and accompanying text supra.
213. See notes 161-62 and accompanying text supra.
214. See note 148 and accompanying text supra.

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1976] Preemption of Railroad Noise Control 41

great expense to convince EPA and a reviewing court that they
have a special local condition that necessitates their action and that
such action is not in conflict with federal regulations, two tests
which are subjective and not clearly defined, and which may or
may not permit a balancing of public need against the interference
with interstate commerce. In the face of such a burden state and
local governments may simply decide that they cannot afford to
take the steps necessary for the protection of their citizens' health
and welfare.