APPEAL from the Circuit Court of Cook County; the Hon. JOHN
GANNON, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Chicago and North Western Railway Company (hereinafter North Western), appeals from a judgment of the circuit court, sitting without a jury, finding it guilty of 18 violations of the City of Des Plaines noise-control ordinance.
The defendant contends that (1) the city ordinance is in direct conflict with the Illinois Pollution Control Board Noise Regulations, and is therefore preempted by same and unenforceable; and, alternatively, if the city ordinance is enforceable, that (2) the section which the defendant was found to have violated does not prohibit the noise which formed the basis of the prosecution; and (3) the noise measurements taken by the city could not establish a violation under the language of the ordinance.
The uncontradicted statement of facts in the defendant's brief indicates that the defendant North Western operates a suburban commuter rail service in the Chicago metropolitan area, which services approximately 100,000 passengers each day. In connection with this rail operation, North Western maintains a fleet of diesel locomotives and passenger cars which are stored in various rail yards throughout the metropolitan area. One such rail yard is the Des Plaines Coach Yard in Des Plaines, Illinois, where 4 diesel locomotives and approximately 19 cars are stored each weekday night. These locomotives and coaches make up four suburban commuter trains, each of which has its first stop each morning and its final stop each evening in Des Plaines. The trains leave the yard beginning at approximately 6:40 a.m. and return in the evening after 5 p.m.
Prior to the time the trains depart from the Des Plaines Coach Yard, the locomotive engines are started, or in some cases the engines are permitted to run at idle overnight.
On March 11, 1974, the City of Des Plaines served complaints on North Western alleging 27 violations of its Control of Unwarranted Noises Ordinance on 14 days during the month of November 1973. The complaints in each case charged a violation of section 10 of the ordinance (section 8-13-10 of the City Code of Des Plaines) for the generation of noise by four commuter locomotive engines. Prior to trial North Western moved to dismiss the complaints, and the motion was denied. North Western was thereafter found guilty by the court of 18 of the 27 charges and was fined $500 and costs. It then perfected its appeal to this court.
We are first confronted with the contention by North Western that the action of the Illinois Pollution Control Board in adopting noise regulations preempted the City of Des Plaines from exercising its constitutional home-rule powers (Ill. Const. (1970), art. VII, § 6) in the same area. In discussing this contention it would do well to supply some additional facts.
The Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1001 et seq.) was enacted by the Illinois General Assembly with an effective date of July 1, 1970. It recites in section 2, inter alia:
"(a) The General Assembly finds:
(iv) that it is the obligation of the State Government * * * to encourage and assist local governments to adopt and implement environmental-protection programs consistent with this Act; * * *." (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002(a)(iv).)
It further provides that:
"(b) It is the purpose of this Act, as more specifically described in later sections, to establish a unified, state-wide program supplemented by private remedies, to restore, protect and enhance the quality of the environment, * * *." (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002(b).)
In section 25 of the Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1025), the Illinois Pollution Control Board was vested with the authority to adopt regulations prescribing limitations on noise emissions. Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1025.
Subsequent to enactment of the Environmental Protection Act, the 1970 Illinois Constitution became effective, on July 1, 1971. It vests "home rule units" with broad authority to:
"exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and ...