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Des Plaines v. Chicago & N.w. Ry. Co.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. John Gannon, Judge, presiding.


Rehearing denied December 2, 1976.

Following a bench trial in the circuit court of Cook County, defendant, Chicago and North Western Railway Company (hereinafter North Western), was found guilty of 18 violations of plaintiff's, the City of Des Plaines, "Control of Unwanted Noises" ordinance. It was fined $500 and costs. On appeal, the appellate court affirmed the judgment. (City of Des Plaines v. Chicago and North Western Railway Co., 30 Ill. App.3d 944.) We granted North Western leave to appeal, in which it primarily contends that the Illinois Noise Pollution Control Regulations adopted by the Illinois Pollution Control Board under authority of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1025) preempted Des Plaines from enforcing its ordinance.

The facts are undisputed. North Western operates a suburban commuter service in the Chicago area. In connection therewith, it maintains a fleet of diesel locomotives and passenger cars in various rail yards throughout the area of its service. One of these yards is located in Des Plaines, where four locomotives and 19 or 20 passenger cars are stored overnight during the week. The locomotives and cars are used each weekday morning to form four commuter trains, which leave the yard beginning at 6:40 a.m. and return in the evening after 5 p.m. The initial and final stop of each train is the City of Des Plaines. Depending upon weather conditions, the diesel locomotives are either run at idle overnight or are started in the morning prior to their departure.

Des Plaines, a home rule municipality, enacted a noise control ordinance, effective October 16, 1972. On March 11, 1974, it served complaints on North Western charging 27 violations of its ordinance during the month of November, 1973. The alleged violations were based upon the noise resulting from the preparation of the four diesel locomotives prior to their morning departure. At trial, North Western was found guilty of 18 of the 27 charges.

The Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1001 et seq.), effective July 1, 1970, provided in section 25 (ch. 111 1/2, par. 1025) that the Illinois Pollution Control Board may adopt regulations prescribing limitations on noise emissions. Pursuant to this authority, the Board adopted such regulations on July 26, 1973, which included limits on noise emissions from railroad yards. The regulations, however, provided a minimum 12-month grace period for existing noise emission sources to effect compliance with the new standards. It was during this grace period that the violations of the Des Plaines noise ordinance by North Western occurred.

North Western maintains that environmental regulation of noise pollution has been preempted by the State under the noise regulations adopted by the Pollution Control Board. Accordingly, it argues, Des Plaines has no authority to enact a noise control ordinance. Prior to a consideration of this issue, however, we must determine, although the parties have not specifically raised this question, whether the regulation of noise pollution falls within the grant of home rule powers contained in section 6(a) of article VII of the 1970 Constitution. That section provides, in pertinent part:

"(a) * * * Except as limited by this Section, a home rule unit may 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 to incur debt." (Emphasis added.)

In Ampersand, Inc. v. Finley, 61 Ill.2d 537, 539-40, which considered the effect of this provision, we noted that "[t]he terms of this grant are broad and imprecise and were purposely left without definition. [Citations.] It was the intention of the constitutional convention to refrain from writing into the Constitution what has been referred to as a `laundry list' setting forth all areas to be designated as of statewide concern or all areas to be designated as being of local concern. * * * It was acknowledged in the constitutional debates that by virtue of the general language of the grant and the qualifying phrase `pertaining to its government and affairs' the right of a home rule unit to exercise any power will ultimately depend upon an interpretation by this court as to whether or not the power exercised is within the grant of section 6(a)." In explaining the intended limitation of this section, the Local Government Committee stated in its report to the constitutional convention: "It is clear, however, that the powers of home-rule units relate to their own problems, not to those of the state or the nation." 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1621 (hereinafter cited as Proceedings).

While noise pollution may initially appear to be a matter of local concern, an analysis of the problem reveals that noise pollution is a matter requiring regional, if not statewide, standards and controls. As with air or water pollution which may emanate from a small, local source and then travel outward to foul an entire area or region, noise pollution also extends beyond its source, although on a more limited scale than air or water pollution. Local municipalities often border upon one another. While certain categories of noise pollution may be confined within the boundaries of one municipality, such as an irate motorist sounding his horn, other categories are not so limited. A railroad yard or industrial district located on the boundary of one municipality will obviously affect other municipalities with noise pollution emissions. Of particular relevance is the question of noise emissions from trains in transit which may pass through numerous municipalities en route to their destination. During oral argument in the present case, counsel for Des Plaines acknowledged that the ordinance in question was designed to regulate unwanted noise emissions affecting Des Plaines residents whether or not the noise pollution originated within that municipality. Des Plaines, therefore, recognized in its ordinance that control of unwanted noise emissions was not a matter of local concern.

In Metropolitan Sanitary District v. City of Des Plaines, 63 Ill.2d 256, this court considered the issue of whether Des Plaines could require the sanitary district to comply with a city health ordinance in order to construct a sewage treatment plant within the city, which would serve various municipalities. The health ordinance required that a permit be obtained if the sewage works were capable of causing or contributing to the emission of airborne odors or bacteria in violation of standards set forth in the ordinance. The sanitary district had previously secured a permit from the Illinois Environmental Protection Agency for the construction, operation and maintenance of the plant. (Ill. Rev. Stat. 1973, ch. 111 1/2, pars. 1013(a)(ii)-(iv), 1039.) Compliance with the State permit requirements included compliance with the State air pollution standards. We held that the application of the Des Plaines ordinance did not pertain to its "government and affairs" within the meaning of section 6(a). While finding that the fundamental difficulty was that the regulation of a regional district by part of that region was incompatible with the purpose for which the district was created, we also recognized the regional nature of the environmental problem. We noted that the Local Government Committee of the constitutional convention reported that "Control of air and water pollution, flood plains and sewage treatment are often cited as important examples of areas requiring regional or statewide standards and control" (7 Proceedings 1642), and that similar sentiment was expressed during debates on the convention floor (4 Proceedings 3094-95, 3335). We further noted that in regard to the General Assembly's leadership role in the solution of environmental pollution, the General Government Committee wrote:

"There are myriad problems which must be overcome in this effort to preserve our environment. Not least among these is the problem of duplication of efforts. It is essential to the cause that the inter and intra governmental efforts complement one another, that there be a coordinated plan of action with uniform standards." (6 Proceedings 700.)

We held this language could not be read to indicate the intent of the constitutional framers that home rule municipalities possess the power to regulate regional or statewide environmental problems.

In enacting the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1001 et seq.), the General Assembly made certain legislative findings in regard to ...

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