Petition for Writ of Certiorari — Kansas City Southern Railway Co. v. Rushing

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B91090 DEC 2 8 1999

No. 4_ne OF THE CLERK

In The

Supreme Court of the United States

KANSAS CITY SOUTHERN RAILWAY COMPANY,

Petitioner,

WILLARD RUSHING AND PATRICIA RUSHING,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Cuartes E. Ross

Counsel of Record

CuHap M. KNIGHT

Wise CartTeR CHILD & CARAway, P.A.

600 Heritage Building

401 East Capitol Street

Jackson, Mississippi 39201

(601) 968-5500

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. May a court impose as a requirement for estab-

lishing compliance with the railroad noise emission stan-

dards promulgated pursuant to the Federal Noise Control

Act of 1972, 42 U.S.C. § 4916, proof of representativeness

of the measured noise emissions above and beyond that

provided for in Environmental Protection Agency (EPA)

regulations, where the NCA expressly delegates authority

to enforce the noise emission standards to the EPA, and

the EPA has promulgated specific enforcement pro-

cedures specifying the time duration and activity levels

necessary to establish compliance?

2. Must opinion testimony by lay persons on techni-

cal matters requiring specific scientific measuring equip-

ment and expertise be supported by minimum indicia of

reliability before being admitted as competent evidence

by a trial court (as would be the case with “expert”

testimony on the same issue) even though the testimony

is characterized by the proponent as “lay” testimony?

3. Must the lower appellate court sitting in diversity

follow the express holding of the Mississippi Supreme

Court interpreting applicable Mississippi substantive

law?

The parties to the proceeding are limited to those

named in the caption. Petitioner Kansas City Southern

Railway Company is a wholly owned subsidiary of Kan-

sas City Southern Lines, Incorporated.

PARTIES TO THE PROCEEDING

iii

TABLE OF CONTENTS

Page

NI ke ck ckcbeesccdnnle. i

Parties to the Proceeding ............ ei hde shke ces ii

SSDP Caen iRee nee OP Se iii

nn NNN 6 eS eesti ge iv

ny osc vas cicadas 1

ee ae en ee 1

Constitutional and Statutory Provisions Involved... 1

EE SE re ee ci oe 1

A. Course of Proceedings and Disposition of the

MMP EDELG Watts foe oa SS ee 2

B. Statement of Pertinent Facts ................... 3

Reasons for Granting the Writ..................... 5

I. The petition should be granted because the opin-

ion below on a matter of national importance

conflicts with this Court's prior ruling in preserv-

ing policy-making decisions regarding the opera-

tion of legislation to the legislature ........... 5

II. The petition should be granted because the

opinion below conflicts with this court’s prior

rulings on the “gate-keeping” role of a trial

judge when admitting opinion testimony on

DON NOU sso hci vice ceases cuinds 8

II. The petition should be granted because the

opinion below fails to follow applicable Mis-

oat ok ete age ig AR oe gag Mes ie 10

GREEN ESSE ERA Ug be a i a 13

TABLE OF AUTHORITIES

Page

Cases Citep:

Bates vo. US., 522. US... 199 L.2ea.24 215 G97) « ..:.. 6

City of Burbank v. Lockheed Air Terminal, Inc., 411

St. Ga (ASTD) 5. oii as its CLIP eI eee 7

Dean v. Southern Ry. Co., 73 So. 55 (Miss. 1916)

ea eg ye par ee eee Sy or ee eT eS ee 10, 11, 12

Director, OWCP v. Newport News Ship., 514 U.S. 122

cL...) BERR Reo a wpm err nns, Flite ait Aiko AE Pea as 6

Erie R.R. v. Tompkins, 304 U.S. 64 (1938)............. 12

Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167

Sg, PRD pe ear ney Pe Se ee ha ere 9, 10

Matthias v. Minneapolis, etc. R. Co., 125 Minn. 224,

106 Ta. W. Ss, oe. bath. GN) MOE os oi es ices s 11

Robertson v. New Orleans & G.N.R.R., 129 So. 100

ti . Peeeeereperny oo et eet ie ee ee 10, 11, 12

Rodriquez 0: 11.S., 480 US. 522 (1987)... 0. cccasvndicse. 5

Statutes CITED:

Oe Sac NO ih ik sis i a 2, 3 8

ZB SBA. BARD) aw ok eps a ihas BERK E SS aa 1

Se Ths Oe WO Rhee eke nesatAaeekdavdnrtieewen et 1,5

BRR ote Papa Ear ee Aas erie? ome huang iy eum gy 5

REGULATIONS CITED: 3

SG EB. Bee Pert trAO ss ois i av nves Cepectcaea eeheeneee as 3

if oe Se eb ee | ee re ee Drm rUTy erst 3

TABLE OF AUTHORITIES - Continued

Page

40 C.ER. §§ 201.11-27.. 2.0... 2. eee eee eee ee eee tenes 5

40 C.ER. § 201.15. ..... 22. cece cece cece cece eeeecee 4

49 C.ER. § 201.20........... eee e reece rere eer eeeecces 3

49 C.ER. §§ 201.21-27.......--- cece eee etter eee eens 3

40 C.ER. § 201.26(b).....---- eee eee eee e ee eee eees 4,6

CRS S201 IO) os ns pied coset ors eo tates 4

APPENDIX

Appendix A - Opinion of the United States Court

of Appeals for the Fifth Circuit Filed August 30,

AOUE 6b: 4 vend baie 05's GAAS elie ea aia a App. 1

Appendix B — Order of the United States District

Court for the Southern District of Mississippi

yued August 27, 1998... 6.060. shee es App. 49

Appendix C - Order of the United States Court of

Appeals for the Fifth Circuit Filed September

ro Ml i Pewee E PIUwe TT CET eng PT nce Tree ee App. 58

Appendix D - Statutory Provisions ............ App. 60

PETITION FOR WRIT OF CERTIORARI

Petitioner, the Kansas City Southern Railway Com-

pany (“KCS”), respectfully requests that a writ of cer-

tiorari be issued to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 185 F.3d 496 (5th Cir. 1999)

(App. A). The opinion of the district court is reported at

14 FSupp.2d 869 (S.D. Miss. 1998) (App. B).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit (“Court of Appeals”) was entered on

August 30, 1999. The Court of Appeals denied a timely

petition for rehearing en banc on September 29, 1999

(App. C).

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Federal Noise Control Act of 1972, 42 USL.

§ 4901, et seq., is lengthy, as are the regulations promul-

gated pursuant thereto. The pertinent text of this Act and

the associated regulations will be set out in Appendix D.

; .

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the

Case

The Plaintiffs herein, Willard and Patricia Rushing,

assert a common law claim that KCS’s rail yard located in

Pearl, Mississippi, constitutes a private nuisance.

KCS moved for summary judgment, asserting that

the Federal Noise Control Act of 1972 (NCA), 42 U.S.C.

§ 4916, preempted Plaintiffs’ nuisance claim for noise in

the yard, and that KCS’s operations at the rail yard are

“public” functions privileged from private court action

under Mississippi law. The District Court granted KCS’

summary judgment motion, holding that the affidavit of

Defendant’s expert, Dr. Michael Seidemann, established

compliance with the NCA; there was no contrary material

evidence in the record; and Plaintiffs’ state law claims of

private nuisance relating to noise were preempted. The

District Court did not expressly rule on KCS’s state law

defense.

On appeal by the Plaintiffs, the Court of Appeals

ruled that KCS, through its expert, had produced evi-

dence of compliance with the NCA, and the NCA, if

satisfied, preempts a state common law nuisance action.

However, the Court overturned the entry of summary

judgment, holding that Plaintiffs’ lay affidavits opining

that the sound measured by KCS’s expert was not repre-

sentative of the sound heard by Plaintiffs on other occa-

sions created a triable issue on NCA compliance. The

Court of Appeals further held that KCS’s switching oper-

ations at the rail yard are private functions subject to

nuisance actions under Mississippi law.

)

| Ey es ee ee é

B. Statement of Pertinent Facts

Plaintiffs own property located near KCS’s mainline

railroad track in Pearl, Mississippi. Adjoining the main

line track is a rail switching yard operated by KCS as a

main line hub. Cars from arriving trains are switched in

the yard to form new trains, which are then sent out on

the main line to other distant locations. In switching, it is

necessary to uncouple and re-couple cars, which neces-

sarily creates noise.

After Plaintiffs brought this lawsuit, KCS retained Dr.

Michael Seidemann, a forensic audiologist, to conduct

sound level measurements at the Plaintiffs’ property to

determine whether the noise emissions complied with the

permissible sound levels set forth in regulations promul-

gated pursuant to the NCA.! These regulations set out

specific permissible decibel noise emission levels as mea-

sured from properties affected by noise from railroad

switching operations. See 40 C.F.R. §§ 201.11-16.

The regulations also set forth “criteria [that] .. .

contain the necessary parameters and procedures for the

measurement of the noise emission levels prescribed in

the standards” established by the regulations. 40 C.F.R.

§ 201.20 (emphasis added). The criteria specify the quan-

tities to be measured, the measurement instrumentation,

the test site, weather and background noise criteria, and

the procedures to be used. Id. at §§ 201.21-27.

With regard to testing car coupling noise emissions,

‘the regulations require that at least 30 car couplings be

1 See Appendix E for reprint of the NCA regulations, 40

C.F.R. §§ 201.1-28.

measured during a “measurement period [of] at least 60

minutes and not more than 240 minutes . . -” 40 C.ER.

§ 201.26(b). This data is used to determine the “adjusted

average maximum A-weighted sound level”, 46 C.ER.

§ 201.26(b)(3), which is then compared with the maxi-

mum level allowed by the NCA. Id.; 40 C.ER. § 201.15.

Dr. Seidemann’s affidavit explained the equipment

used, the steps taken to ensure accurate measurement,

the location where the measurements were taken, and

that he complied with all NCA testing criteria. Signifi-

cantly, Dr. Seidemann also testified that he measured the

minimum thirty car couplings during the two-hour tc

four-hour time period mandated by the NCA regulations.

Though not required by the regulations, Dr. Seidemann

tested on two separate occasions, and during both found

the sound levels reaching the Rushing’s property to be

well within the permissible NCA limits.

In opposition (and contrast) to Dr. Seidemann’s testi-

mony, the record contains only Plaintiffs’ subjective opin-

ions that the sound levels measured by Dr. Seidemann

were “much lower” than what they normally heard, and

the activity measured was not “typical”. The Plaintiffs’

affidavits are not based upon, and do not even refer to,

the measurement criteria set forth in the NCA regula-

tions.

REASONS FOR GRANTING THE WRIT

I. THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THIS

COURT’S PRIOR RULINGS PRESERVING POLICY-

MAKING DECISIONS REGARDING THE OPERA-

TION OF LEGISLATION TO THE LEGISLATURE.

Congress pronounced a policy behind the NCA of

regulating noise emissions in instances where “national

uniformity” is required. 42 U.S.C. § 4901. The Act dele-

gates to federal agencies responsibility for carrying out

programs to further this policy. 42 U.S.C. § 4903(a). With

respect to railroad noise regulation, Section 4916 autho-

rizes the Administrator of the Environmental Protection

Agency to promulgate appropriate noise emission stan-

dards which reflect “application of the best available

technology, taking into account the cost of compliance,”

42 U.S.C. § 4916(a)(1), and “appropriate consideration for

safety and technological availability.” 42 U.S.C.

§ 4916(a)(3). The Secretary of Transportation is then

charged with responsibility for promulgating regulations

designed “to insure compliance” with the standards. 42

U.S.C. § 4916(b). From this grant of authority arose the

Part 201 noise emission standards and the compliance

testing guidelines codified at 40 C.F.R. §§ 201.11-27.

“Deciding what competing values will or will not be

sacrificed to the achievement of a particular objective is

the very essence of legislative choice . . . ” Rodriguez v.

_ULS., 480 U.S. 522, 526 (1987). In the present case, the

standards and compliance regulations promulgated pur-

suant to the NCA stand as the product of a legislative

balancing of competing interests of public welfare, tech-

nology and costs of compliance. 42 U.S.C. § 4916(a)(1),

(b). Constant, daily testing of noise emissions from all

affected properties is impractical, so Congress ensured a

minimum level of representativeness in coupling noise

testing results by requiring that compliance be deter-

mined by taking the time-weighted average of noise gen-

erated by at least 30 rail car couplings over a two-hour to

four-hour testing period. 40 C.ER. § 201.26(b).

The legislative arm charged with the responsibility

balanced the competing interests and arrived at a work-

able solution to the need for representativeness. It was

beyond the Fifth Circuit’s province to upset this balance.

As set forth by this Court in the decision of Director,

OWCP v. Newport News Ship, 514 U.S. 122 (1995), courts

are not free to add to the means set forth by the Legisla-

ture to accomplish a given goal when the Legislature has

clearly prescribed a specific means to accomplish the

goal. Quoting this Court,

Th[e] principle [of construing a statute liberally

to achieve its purpose] may be invoked, in case

of ambiguity, to find present rather than absent

elements that are essential to operation of a

legislative scheme; but it does not add features

that will achieve the statutory “purposes” more

effectively. Every statute purposes, not only to

achieve certain ends, but also to achieve them

by particular means - and there is often a con-

siderable legislative battle over what those

means ought to be.

Id. at 135-136. Consistent with this basic separation of

powers principle, this Court held on certiorari that an

additional “intent to defraud” element could not be read

into a criminal proscription against misappropriating fed-

eral student loan funds. Bates v. U.S., 522 U.S. __, 139

L.Ed.2d 215, 222 (1997) (holding “we ordinarily resist

reading words or elements into a statute that do not

appear on its face.”) (emphasis added).

The Court of Appeals’ ruling in the present case

imposes upon railroads an additional prerequisite to

establishing compliance than is imposed by the express

language of the NCA regulations. It can only be assumed

that the Court of Appeals determined that this additional

burden would more effectively ensure that a railroad’s

operations will consistently and regularly comply with

the regulations. However, this Court's prior decisions

discussed supra hold such to be beyond the court’s discre-

tion.

Consistent with this principle, this Court expressly

held that state regulation of aircraft noise sources covered

. by the NCA is improper, holding:

We are not at liberty to diffuse the powers given

by Congress to FAA and EPA by letting the

States or municipalities in on the planning. If

that change is to be made, Congress alone must

do it.

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624,

640 (1973). The Fifth Circuit’s ruling flies directly in the

face of this Court’s holding in Burbank, and it sets a

dangerous precedent which will impact the operations of

' railroads operating throughout the nation.

Rail yard switching operations like those conducted

at the KCS switching yard in Pearl, Mississippi, are inte-

gral parts of the overall interstate rail transportation

effort. By forbidding state or local regulation of railroad

—————————————— Ll TT

noise in any manner inconsistent with the federal regula-

tions, 42 U.S.C. § 4916(c)(4), the NCA expresses a legisla-

tive policy of national uniformity in the regulation of

noises generated by railroad operations and establishes

the balance between state and federal regulations. This

policy would be thwarted in this and other instances

should the Court of Appeals’ decision in the present case

stand, for the only evidence necessary to defeat a defense

of NCA compliance would be testimony from a bystander

that the sound measured in compliance with the NCA

criteria was not “representative” of the sound heard by

the bystander at other times. The NCA would effectively

be rendered meaningless. For this reason, the Petition

should be granted.

II. THE PETITION SHOULD BE GRANTED

BECAUSE THE OPINION BELOW CONFLICTS

WITH THIS COURT’S PRIOR RULINGS ON THE

“GATE-KEEPING” ROLE OF A TRIAL JUDGE

WHEN ADMITTING OPINION TESTIMONY ON

TECHNICAL SUBJECTS.

The Court of Appeals erred in holding that Plaintiffs’

lay opinion testimony was sufficient to generate a triable

issue with regard to NCA compliance. Implicit in this

holding is a conclusion by the Court that Plaintiffs’ testi-

mony on this issue was competent.

Lay opinion testimony is permissible on appropriate

subjects under Rule 701 of the Federal Rules of Evidence;

however, the testimony deemed competent by the Court

of Appeals addressed a technical issue of compliance

with the NCA noise maximums without any reference to

whether the technical criteria of the NCA had or had not

been satisfied. Opinion testimony on a technical subject is

not competent unless supported by reasonable indicia of

reliability. Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct

1167, 1174 (1999). Plaintiffs’ characterization of their

opinions as “lay” rather than “expert” does not excuse

them from their obligation to satisfy this prerequisite to

admissibility. The lower court decision, however, if

allowed to stand, would create the perverse situation

where an expert could not testify on a technical subject

without the Kumho standard being met, but a lay witness

could testify on the same subject merely by disclaiming to

be an expert. Such cannot be the intended result of the

Kumho decision.

Plaintiffs’ testimony was accepted by the Court of

Appeals as a competent opinion that the noise emissions

originating from the rail yard typically exceed the NCA

maximums. Otherwise, the Court would have been

bound to uphold the District Court’s award of summary

judgment. This conclusion is compelled by the fact that

Plaintiffs offered no other testimony which would sup-

port a finding of NCA non-compliance. Yet, Plaintiffs

offered no proof that they were knowledgeable of the

NCA’s testing requirements, used the equipment required

by the NCA, or were experienced in measuring noise

emissions. Plaintiffs offered no evidentiary support of

any kind for a determination by the Court that their

_ subjective perceptions regarding the levels of noise emis-

sions were reasonably reliable indicators that the actual

noise levels exceeded the NCA maximums.

ett ARSE AEN RAIL REA LRG ESE EN Pash Lg

; The Court of Appeals’ admission of Plaintiffs’ testi-

mony into evidence and its finding that the same consti-

tuted sufficient evidence of NCA non-compliance to

—————————————————

defeat summary judgment ignores its “gate-keeping”

responsibility addressed by this Court in Kumho, supra.

Though Kumho addresses expert testimony, the same rule

should apply with equal force to lay testimony on the

Same subject matter. Kumho should be expressly extended

to state as much. For this reason, the Petition should be

granted.

Ill. THE PETITION SHOULD BE GRANTED

BECAUSE THE OPINION BELOW FAILS TO

FOLLOW APPLICABLE MISSISSIPPI PRECE-

DENT.

KCS presented undisputed evidence that its rail yard

is a main line switching yard used to transport cars for

customers throughout several states. The only evidence

in the record showed that the activity complained of by

the Rushings involves rail cars being switched in the yard

to go immediately back out on the main line in trains.

Such activity is deemed a “public” activity under Missis-

sippi law shielded from liability as a private nuisance.

The two central Mississippi cases relevant to this

point are Dean v. Southern Ry. Co., 73 So. 55 (Miss. 1916)

and Robertson v. New Orleans & G.N.R.R., 129 So. 100

(Miss. 1930). In Dean, the track complained of by the

plaintiff was a “service track, made necessary for the

depositing and taking aboard of large quantities of cotton

handled by a large compress. .. . ” Dean, 73 So. at 56. The

Court found that the spur track was installed to serve the

public generally, “and that the noise produced by the

defendant’s train over and upon the spur track fell into

the same class as the noise produced by the operation of

trains over the main line of the railroad.” Id. at 56. For

this reason, the Court held the activity on the spur track

was “public,” and not actionable as a private nuisance,

but instead was “damnum absque injuria.” Id.

The Dean Court set out the distinction between public

(i.e., non-actionable) and private (i.e., actionable) acts of a

railroad by quoting with approval the Minnesota case of

Matthias v. Minneapolis, etc. R. Co., 125 Minn. 224, 146

N.W. 353, SI L.R.A. (N.S.) 1017 as follows:

_. . the roads have the right to accommodate

their increasing traffic and travel without lia-

bility, so long as their trains are operated with-

out negligent disregard of the comfort and

usable value of plaintiff’s property, and for this

purpose, to lay such additional tracks, side tracks,

and switches, into and through the station as may be

required to accommodate such traffic, . . . and it is

only for the additional conveniences of roundhouse,

sandhouses, coal bins, coal chutes, and the switch-

yards and tracks necessary to operate such additional

conveniences . . . that the plaintiff can complain.

Id. at 57 (emphasis added). The Court of Appeals failed to

recognize the distinction between types of switching

tracks utilized in a railroad’s operation. As described in

the above quote, switching tracks used to route locomo-

tives and raiicars to a roundhouse or other repair or

service facility are “private”, while switching tracks used

‘to switch cars for further travel on the main line are

“public.”

In Robertson, decided 17 years after Dean, the Missis-

sippi Supreme Court further clarified that a yard activity

“exercised in the direct or immediate service of the public

in the carrying of passengers and in the transportation or

handling of freight” are public functions. Id. at 102. The

undisputed facts showed the latter to be the case with the

KCS Pearl yard. The Robertson facts involved side and

yard tracks, railroad work shops, refueling, firing and

watering places, and a place for cleaning cars and

engines. Id. at 101. The Robertson Court stated that nui-

sance actions were only allowed against “private” rail-

road activities, meaning those “permanent features of the

service which appertain merely to the means of the sup-

ply of those instrumentalities, and in keeping them in

order and making them available for said direct ser-

vice ... ” as opposed to those “exercised in the direct or

immediate service of the public in carrying of passengers

and in the transportation or handling of freight.” Id. at

101, 102.

KCS’ trainmaster testified that the KCS rail yard

“consists of several switching tracks which run off the

main line” and “is in essence an interstation switching

point, or hub, wherein trains drop off and pick up rail

cars and deliver them to various locations in the coun-

try.” Referring to railroads as “quasi public works,” see

Dean, 73 So. at 57, the Mississippi Supreme Court, with its

distinction between public and private acts of railroads,

has adopted a policy which does not allow one individual

to deprive the public of the benefits of railroads. Id. The

Court of Appeals was bound to strictly adhere to Missis-

sippi law on this matter, Erie R.R. v. Tompkins, 304 U.S. 64

(1938), and its decision will significantly impact the inter-

state operations of railroads in Mississippi with regard to

noise emissions or other industry by-products that could

potentially be labeled a nuisance. KCS must now rely

| cs lille et

AAP

upon this Court to remedy the Court of Appeals’ error.

Considering the substantial impact on interstate com-

merce the erroneous interpretation of Mississippi law by

the Court of Appeals will have if allowed to stand, this

Petition should be granted.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Cuartes E. Ross

Counsel of Record

CuHap M. KNIGHT

Wise CARTER CHILD & Caraway, P.A.

600 Heritage Building

401 East Capitol Street

Jackson, Mississippi 39201

(601) 968-5500

Attorneys for Petitioner

BREA LS Llive ar tor Andrea Abt oan os

App. 1

Willard R. RUSHING and Patricia Ann Rushing,

Plaintiffs-Appellants,

KANSAS CITY SOUTHERN RAILWAY COMPANY,

Defendant-Appellee.

No. 98-60590.

United States Court of Appeals,

Fifth Circuit.

Aug. 30, 1999.

Thomas W. Prewitt, Ridgeland, MS, for Plaintiffs-

Appellants.

Charles Edwin Ross, Chad Michael Knight, Wise,

Carter, Child & Caraway, Jackson, MS, for Defendant-

Appellee.

Appeal from the United States District Court for the

Southern District of Mississippi.

Before KING, Chief Judge, and SMITH and BARKS-

DALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Willard and Patricia Rushing appeal the dismissal of

their nuisance action brought against Kansas City South-

-ern Railway Company (“KCS”). Concluding that the dis-

trict court took an over-expansive view of federal

preemption and overlooked genuine issues of material

fact in entering summary judgment for KCS, we reverse

and remand for further proceedings.

App. 2

According to the summary judgment record, the

Rushings purchased their home along KCS’s “main line”

railroad track, where trains passed by only a couple of

times each day. In 1996, however, KCS built a switching

yard located about fifty-five feet from the Rushings’

property. The yard, a vital part of KCS’s successful opera-

tions, serves as a “hub” for attaching and detaching rail

cars to position them in sequence to travel to various sites

around the country. Allegedly, the switching operations

necessarily, and perhaps excessively, produce various

noise and vibration emissions. Specifically, the noise and

vibrations come from (1) cars colliding together to cou-

ple, (2) rail cars in motion, (3) stationary and passing

locomotives, and (4) locomotive whistles.!

As part of the switchyard project, KCS built a large

earthen berm, topped with an acoustical noise barrier, to

mitigate the noise emissions that might disturb area resi-

dents. The Rushings allege that the berm has failed to

eliminate the noise and does nothing to stop the vibra-

tions. After KCS began using the switchyard, they claim

to have experienced “physical symptoms, anxiety, deteri-

orating health, etc., resulting from the constant vibration,

exceedingly high noise, and violent shocks coming from

the rail yard.” The shocks and vibrations also allegedly

have caused their home to shift and crack.

1 Even though trains no longer use whistles, we use the

term “whistles,” as do the parties, to refer to air horns and other

audible warning devices.

App. 3

Il.

The Rushings sued [sic] suit in state court, alleging a

common law claim that the switchyard was a private

nuisance.2 KCS removed to federal court on the basis of

diversity jurisdiction. In an amended answer, KCS

pleaded the affirmative defense of preemption.

In its initial pre-discovery disclosure, KCS indicated

that Dr. Michael Seidemann was an industrial audiolo-

gist, expected to testify on sound measurements, taken

both in the past and possibly in the future, of noise levels

at the switchyard, to establish that the sound emissions

originating in the yard complied with federal regulations

promulgated pursuant to the Noise Control Act (“NCA”),

42 US.C. § 4901 et seq. The regulations promulgated

under the NCA, codified at 40 C.F.R. § 201.1 ef seq., set

maximum decibel (“dB”) levels for train operations and

provide the procedures to follow in conducting sound-

level testing to establish NCA compliance.

Over the Rushings’ objection, the magistrate judge

granted KCS’s motion to allow Seidemann to measure

sound levels on the Rushings’ property, to determine

whether they complied with the federal regulations cen-

tral to the preemption defense. Seidemann conducted his

2 In their brief, the Rushings claim that they also allege

negligence. KCS correctly points out that they do not. If,

however, KCS implies that the Rushings fail to state a nuisance

claim by failing to allege negligence, it is mistaken. See, ¢.g.,

McFarlane v. Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 391 (1928)

(Cardozo, J.) (“Nuisance as a concept of law has more meanings

than one. The primary meaning does not involve the element of

negligence as one of its essential factors.”).

ieee

App. 4

tests in conformity with NCA regulations during one

evening, in the Rushings’ presence. KCS timely desig-

nated Seidemann as an expert witness and served the

Rushings with a copy of his “Expert Witness Report”

pursuant to Fep. R. Civ. P. 26(a)(2)(B). The report detailed

the testing conducted, the methods employed, and the

results.

KCS moved for partial summary judgment on the

claims for excessive noise and vibrations. It asserted that

the NCA preempted the noise claim stemming from rail

car coupling activity; that the Federal Rail Safety Act of

1970 (“FRSA”), 49 U.S.C. § 20101 et seq., preempted the

claim based on whistle blowing; and that, per Mississippi

tort law, the noise and vibrations complaints were not

actionable under a private nuisance theory, because

KCS’s operation of the switching yard is a public func-

tion.

KCS supported the NCA preemption claim with an

affidavit from Seidemann, describing himself as “a foren-

sic audiologist, licensed in audiology by the Mississippi

Council of Advisors in Speech Pathology and Audio-

logy.” The affidavit also attested that Seidemann had

conducted his tests from points on the Rushings’ prop-

erty with the prescribed equipment, properly calibrated

to ensure accuracy.

Seidemann conducted his tests in two-hour shifts and

measured a minimum of thirty car couplings during each

shift, as required by the regulations. The affidavit

explained that he tested noise emissions originating from

(1) rail cars in motion, (2) car couplings, (3) Stationary

locomotives, and (4) passing locomotives. He concluded

App. 5

that the noise emissions fell within the decibel limits

established by the NCA regulations.

In response, the Rushings filed a document entitled

“Material Facts in Issue.” They claimed factual disputes

existed related to Seidemann’s qualifications to make the

“assertions” contained in his affidavit, the conditions

under which he tested, and his conclusion that the noise

and vibrations fell within the NCA’s limits.

As evidence, the Rushings submitted only affidavits

executed by them in which they both claimed that the

noise levels and activity on the night Seidemann took his

measurements were much lower than normal. They also

attested that the trains operated in a different manner

than usual that night, such as not getting running starts

and not coupling multiple cars at the same time. In addi-

tion, they claimed that the trains usually sounded their

whistles excessively, and often with no apparent purpose.

Twelve and fourteen days later, respectively, without

seeking or securing the court’s permission, KCS filed two

“supplements” to its summary judgment motion. The

first contained a copy of Seidemann’s Fep. R. Civ. P. 26

report that it previously had sent to the Rushings.

Accompanying the report was Seidemann’s curricuium

vitae (“CV”). The second included another copy of his CV

and an affidavit in which Seidemann emphasized his

qualifications. KCS refers to these submissions as rebuttal

evidence.

A month later, the Rushings moved to supplement

their response with an affidavit from an employee of

Employment Health Services (“EHS”), a company with

expertise in environmental noise, explaining the results of

App. 6

their own tests. EHS measured sound levels inside the

house at a weighted sound level of 105dB, easily exceed-

ing the 92dB permitted by the NCA regulations for coup-

ling activities. See 40 C.ER. § 201.15.

The motion explained that the Rushings were not

wealthy, and the testing was rather expensive. “It was not

until they read the Railroad’s position that relied upon

Seidemann’s measurements that did not comport with the

conditions in which they lived, that they decided that

they would spend the money to employ someone to

perform similar measurements of the noise levels that

exist under conditions consistent with those in which

they actually lived.” The motion indicated that support-

ing affidavits could be filed and that the supplementation

would not delay the trial that was over one hundred days

away. KCS opposed the motion, arguing that the supple-

_ mentation was untimely and that the Rushings had failed

to designate an expert witness within the ordered time.

The court granted KCS’s motion for partial summary

judgment based on its affirmative defenses, reasoning

that the NCA preempts the nuisance claim insofar as it is

based on noise related to the Switching activities, relying

on Seidemann’s affidavit attesting that the noise levels he

measured fell within the applicable regulatory maxi-

mums. The court also held that the NCA preempts the

claim related to vibrations, because there is a direct cor-

relation between the vibrations and the noise, and they

stem from the same regulated source — coupling activ-

ities. After noting that the FRSA might occupy the field of

locomotive warning devices and railroad safety regula-

tion, the court found that it preempted the nuisance claim

based on excessive whistling because the trains whistled

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App. 7

“in the interest of safety” as they approached a grade

crossing and before moving backwards. Finally, the court

refused to grant the Rushings’ motion to supplement

their response with EHS’s findings, because they had

failed timely to designate their expert and had not moved

for leave to designate out of time.°

The Rushings moved for reconsideration of the sum-

mary judgment, offering deposition testimony from their

neighbors that KCS had obtained just days before the

ruling. They posited that they had not interviewed the

affiants prior to the depositions but included them in

their disclosure simply because they listed everyone who

might have knowledge of the situation.

KCS opposed reconsideration, because the motion

did not present “newly discovered evidence.” The court

agreed and also refused to reconsider its exclusion of

EHS’s testimony, referring again to the failure timely to

designate the witness. The court concluded that the

motion merely reargued the merits of summary judg-

ment, which is inappropriate for a motion to reconsider.

Ill.

We review a summary judgment de novo, applying

the same standards as the district court. See Webb v.

Cardiothoracic Surgery Associates, P.A., 139 F.3d 532, 536

3 KCS asserts that the court also “held that the switching

operations conducted by KCS are in the public interest and, as a

result, are privileged from civil prosecution.” Although the

court noted that KCS had made the argument and referenced it

again in its second order, it never addressed the issue’s merits.

App. 8

(Sth Cir.1998); Figgie Int'l, Inc. v. Bailey, 25 F.3d 1267, 1269

(Sth Cir.1994), Summary judgment is appropriate if the

evidence on record “show[s] that there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fep. R. Civ. P.

56(c). The admissibility of evidence is subject to the same

standards and rules that govern the admissibility of evi-

dence at trial. See Donaghey v. Ocean Drilling & Exploration

Co., 974 F.2d 646, 650 n. 3 (Sth Cir.1992); Lavespere v.

Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 175-76 (Sth

Cir.1990).

The moving party bears the initial burden of demon-

strating an absence of evidence supporting the nonmo-

vant’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the burden of

establishing the issue at trial is on the nonmovant, the

movant accomplishes this merely by pointing out the

absence of evidence in the record supporting the issue. Id.

at 323-24, 106 S.Ct. 2548. Although we consider the evi-

dence and all reasonable inferences to be drawn there-

from in the light most favorable to the nonmovant, the

nonmoving party may not rest on the mere allegations or

denials of its pleadings, but must respond by setting forth

specific facts indicating a genuine issue for trial. See

Webb, 139 F.3d at 536; Figgie, 25 F.3d at 1269-70.

KCS does not dispute that the Rushings state a nui-

Sance claim; rather, it asserts affirmative defenses that

entitle it to judgment as a matter of law notwithstanding

the Rushings’ prima facie claim. Of course, summary judg-

ment may be granted on this basis. But, because KCS

bears the ultimate burden of persuasion on its affirmative

biiannniaaeei eet

App. 9

defenses, it must adduce evidence to support each ele-

ment of its defenses and demonstrate the lack of any

genuine issue of material fact with regard thereto. See

Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074

(5th Cir.), cert. denied, __ U.S. __, 118 S.Ct. 299, 139

L.Ed.2d 231 (1997).4

IV.

In addition to claiming that a genuine issue of mate-

rial fact exists regarding the preemption defense as the

record stands, the Rushings contest evidentiary rulings

that would alter the summary judgment record in their

favor. Although we affirm the evidentiary rulings, the

Rushings have demonstrated a genuine issue of material

fact on the nuisance claim as it relates to noise.

The Rushings also find error in the court’s conclu-

sions that the NCA preempts their shock and vibration

claim and that no genuine issue of material fact exists

regarding the defense that the FRSA preempts their

4 See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that party bearing

burden of persuasion must set forth sufficient factual material

to support determination that burden of persuasion has been

satisfied); accord Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.)

(“A defendant may use a motion for summary judgment to test

an affirmative defense which entitles that party to a judgment as

a matter of law. The defendant making such a motion must

demonstrate that no disputed material fact exists regarding the

affirmative defense asserted.”), cert. denied, __ U.S. __, 118

S.Ct. 298, 139 L.Ed.2d 230 (1997); Buttry v. General Signal Corp.,

68 F.3d 1488, 1492 (2d Cir.1995).

App. 10

excessive whistle blowing claim. KCS, in addition to dis-

puting the alleged errors, avers that we can affirm sum-

mary judgment on the ground that Mississippi tort law

does not allow a private nuisance suit against a railroad

acting in a public capacity. We reverse and allow the suit

to go forward insofar as the nuisance claim relies on

vibrations and excessive whistle blowing. KCS’s Missis-

sippi tort law argument erroneously interprets the state’s

caselaw; we reject it.

The Rushings contend that the court should have

excluded Seidemann’s affidavit, alleging that he does not

meet the requirements for admissibility of Frp. R. Evip.

702 expert testimony.5 Absent the affidavit, KCS lacks

summary judgment evidence to establish its affirmative

defense of compliance with the NCA regulations. We

conclude the court did not err.

We reverse the admission of expert testimony only

for abuse of discretion. See Black v, Food Lion, Inc., 171

F.3d 308, 310 (5th Cir.1999); Moore v. Ashland Chem. Inc.,

151 F.3d 269, 274 (Sth Cir.1998) (en banc), cert. denied, __

knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” Fep. R. Evip.

702.

App. 11

U.S. ___, 119 S.Ct. 1454, 143 L.Ed.2d 541 (1999). Failure to

object to expert testimony forfeits the objection, preclud-

ing full review on appeal. See Marceaux v. Conoco, Inc., 124

F.3d 730, 733 (5th Cir.1997). This rule applies equally to

evidence offered to support or oppose summary judg-

ment. See Donaghey, 974 F.2d at 650 n. 3; Williamson v.

United States Dep’t of Agric., 815 F.2d 368, 383 (5th

Cir.1987). If the objection is forfeited, we review for plain

error.®

The proper method of attacking the evidence is by a

motion to strike that contains specific objections. See 11

James W. Moore eT AL., Moore’s FEDERAL PRACTICE

§ 56.14[4][a], at 56-197 (3d ed.1999). The Rushings did not

move to strike, but merely raised unsubstantiated fact

issues regarding the expert’s qualifications.” Questioning

an expert’s qualifications at trial does not preserve the

error, even when the party earlier raised an objection in a

motion in limine; it constitutes an attack on the expert’s

credibility, not an objection to admissibility under rule

6 See Marceaux, 124 F.3d at 734; Snyder v. Whittaker Corp., 839

F.2d 1085, 1089 (5th Cir.1988); 11 James W. Moore Et Ax., Moore’s

FEDERAL Practice § 56.14[4][b], at 56-199 (3d ed. 1999)

(explaining that absent motion to strike with specific objection

to testimony, court will review only for plain error); Fev. R. Evip.

103(d) (stating that failure to object to evidence does not

preclude noticing plain error).

7 They queried, “Is Dr. Seidemann qualified to make the

assertions contained in his affidavit?” “Did Dr. Seidemann’s

opinion provide the basis for a legitimate assertion that the

noise and the other effects the Rushings regularly experience —

excessive vibration and shock waves - are within the

permissible limits of the Noise Control Act or are within its

intended scope?”

App. 12

702. See Marceaux, 124 F.3d at 734. If questioning an

expert's qualifications cannot constitute reiteration of an

objection, then, a fortiori, it cannot be an objection.’

As a result, we review for plain error. We may exer-

cise our discretion to reverse under plain error review

only when we find an error that is clear and obvious

under current law, that affects the defendant's substantial

rights, and that seriously would affect the fairness, integ-

rity or public reputation of judicial proceedings if left

uncorrected. See Marceaux, 124 F.3d at 734; United States v,

Calverley, 37 F.3d 160, 162-63 (5th Cir.1994) (en banc).

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Court

instructed district courts to function as gatekeepers, to

ensure that only reliable and relevant expert testimony is

presented to the jury. See id. at 590-93, 113 S.Ct. 2786.9 In

determining reliability, courts follow a flexible approach

in which they examine factors such as whether the tech-

nique can be (and has been) tested, whether it has been

subjected to peer review and publication, whether there

® Cf. FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)

(refusing to treat “response” as motion to strike where it failed

to alert the court to alleged deficiencies in oOpposition’s

affidavit).

® Although Daubert addressed traditional “scientific”

evidence, courts should apply the same rule to all rule 702

experts, including those relying on technical or other

specialized knowledge. See Kumho Tire Co. v. Carmichael, _ US.

—_— 119 S.Ct. 1167, 1174-75, 143 L.Ed.2d 238 (1999).

App. 13

is a known or potential rate of error, and whether the

relevant scientific community generally accepts the tech-

nique. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786;

Kumho, __ U.S. at __, 119 S.Ct. at 1175. Each of these

factors may or may not be relevant to the particular

inquiry. See id.; Black, 171 F.3d at 311.

The court did not plainly err in admitting

Seidemann’s affidavit. The Rushings first attempt to cast

doubt on the reliability of the testing method that

Seidemann used, pointing out that the court did not make

findings such as the acceptance of the technique and its

potential rate of error. As KCS responds, however, the

affidavit explains that Seidemann precisely followed the

techniques that the NCA regulations provide must be

used to determine regulatory compliance.

When applicable law mandates the use of a particular

test, the proponent of the test’s results should not have to

establish its reliability. Even if the opponent could prove

that it is unreliable, it would be unfair to the proponent to

exclude his expert evidence based on the mandated tech-

nique. Rather, its reliability irrebuttably should be pre-

sumed. Any other rule would place the testimony’s

proponent in the untenable position of being unable to

prove compliance with applicable law because he could

not introduce the results of the test mandated by that

same law.

It would be fair to challenge Seidemann’s compliance

with the mandated test; that is, to challenge whether he

followed the regulatory technique. If he failed to comply

App. 14

with that technique, Seidemann at the very least would

have to establish the reliability of his alternative tech-

nique; more likely, the evidence would fail as a matter of

law to establish compliance with those regulations. But

the record does not reveal that the Rushings have raised a

genuine fact issue regarding Seidemann’s compliance

with the technique.

The primary issue the Rushings raised in the district

court and emphasize in their brief is Seidemann’s quali-

fications to conduct outdoor sound measurements under

the NCA. They emphasize that Seidemann attested to

little experience in conducting outdoor environmental

measurements of railroad sounds. We find this argument

unpersuasive.

First, the “emphasis on qualifications over reliability

of the expert testimony reflect[s] a pre-Daubert sensi-

bility.” Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th

Cir.1997). Of course, qualifications remain important; rule

702 requires a qualified expert. A completely unqualified

expert using the most reliable of tests should not be

allowed to testify. But the heart of Daubert is relevance

and reliability. As long as some reasonable indication of

qualifications is adduced, the court may admit the evi-

dence without abdicating its gate-keeping function. After

that, qualifications become an issue for the trier of fact

rather than for the court in its gate-keeping capacity.

10 See Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (“Vigorous

cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible

evidence.”).

Sigh a Gt Rea 1 ONE RIA GER Ast

ee Oe

App. 15

More importantly, the record reveals that Seidemann

is qualified to administer the tests and testify regarding

their results. His affidavit explains in detail how he fol-

lowed the prescribed technique. He is licensed in audiol-

ogy by Mississippi and several other states. He holds

both a Masters and Ph.D. in the field, and has extensive

experience both teaching and practicing. He has sat on

and served as chairman of numerous committees related

to audiology. He has published extensively, including in

forensic and occupational audiology. He has twenty-nine

years of experience in conducting sound level measure-

ments in industry and in communities. Finally, his expert

testimony has been admitted in numerous other courts.

Although he may have limited hands-on experience with

the precise measurements he took, the court did not

plainly err in accepting his testimony in light of these

credentials. Cf. Lavespere, 910 F.2d at 176-77 (finding no

abuse of discretion on similar facts).

The Rushings point out that the initial affidavit filed

with the summary judgment motion did not include

Seidemann’s CV. The only relevant evidence Seidemann

sets forth in that initial affidavit is that he is a licensed

audiologist and that he conducted his measurements in

accordance with the NCA regulations. The Rushings aver

that the court should not have considered the supplemen-

tal affidavits that were filed without the court’s permis-

sion to substantiate Seidemann’s qualifications only after

the Rushings had raised the issue.

————LLLL

App. 16

The Rushings did not move to strike the supplemen-

tal affidavits. This failure differs slightly from the failure

to strike the expert affidavit, discussed above, but the

difference significantly affects our review. The Rushings’

objection to the expert affidavit is an evidentiary objec-

tion. As explained above, absent a timely objection or

motion to strike, a party forfeits evidentiary objections to

summary judgment evidence. We will] review, therefore,

only for plain error.

Here, however, the Rushings object to the supple-

mental affidavits on the ground that KCS failed to comply

with the procedural rules governing the admission of

evidence. Specifically, the argument’s merit rests on our

interpretation of Fep. R. Civ. P. 6 and 56. A failure to make

a procedural objection waives the error, precluding our

review.'! Because the Rushings waived any objection to

the affidavits’ untimeliness, we may not review the

alleged error.

‘1 See Donaghey, 974 F.2d at 650 n. 3 (finding procedural

objections to admissibility of summary judgment evidence

waived by failure to challenge in district court); McCloud River

R.R. v. Sabine River Forest Prods., Inc., 735 F.2d 879, 882 (5th

Cir.1984) (holding that party waived right to raise untimeliness

of supplemental affidavit by failing to object or move to Strike in

district court); Hicks v. Harris, 606 F.2d 65, 68 n. 3 (Sth Cir.1979)

(refusing to review Procedural objection to affidavit raised for

the first time on appeal, without a motion to strike in the district

court); Auto Drive-Away Co. of Hialeah, Inc. v. Interstate Commerce

Com’n, 360 F.2d 446, 448-49 (5th Cir.1966) (holding that, absent

timely motion to strike, affidavit’s non-compliance with

procedural rules waived); see also Calverley, 37 F.3d at 162

(discussing difference between waiver and forfeiture).

REE SES

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Fab RE Deol tan AS Ds

App. 17

The Rushings next argue that the court erred when it

denied their motion to supplement their summary judg-

ment response with the affidavit of their own expert from

EHS, revealing decibel readings at the Rushings’ home

well in excess of the regulatory maximums. KCS opposed

the motion because the Rushings had not designated the

expert within the time established by the court’s Case

Management Plan Order. The district court denied the

motion because the designation of the expert was

untimely and was attempted without leave of court to

designate out of time.

“The Civil Rules endow the trial judge with formida-

ble case-management authority.” Rosario-Diaz v. Gonzalez,

140 F.3d 312, 315 (1st Cir.1998). Part of the authority

includes establishing a case-management schedule that

the court enters as an order. See Fep. R. Civ. P. 16(b);

Unirorm U.S. Dist. Cr. Rutes D. Miss., Rule 6(d). Expert

witnesses must be designated in accordance with that

schedule. See id. rule 6(g); Untrorm U.S. Dist. Cr. Rutes D.

Miss. EXPENSE AND DeLay REDUCTION PLAN, § 4(I)(A)(4). A

party who fails to compiy with the ordered disclosure

schedule “shall not, unless such failure is harmless, be

permitted to use as evidence at a trial, at a hearing, or on

a motion any witness or information not so disclosed.”

See id. § 4(I)(A)(5). Indeed, a party who ignores any case-

management deadline does so at his own peril. See Fep. R.

App. 18

Civ. P. 16(f) (authorizing sanctions under Fep. R. Civ. P.

37(b)(2) for noncompliance). 12

We review a court's case-management decisions,

including whether to impose sanctions for violations of a

scheduling order and local rules, and the choice of sanc-

tion, such as refusing to permit an untimely designated

expert witness to testify, for abuse of discretion. See Sierra

Club v. Cedar Point Oil Co., 73 F.3d 946, 572 (5th Cir.1996);

Geiserman, 893 F.2d at 790. We will not disturb “a trial

court's decision to exclude evidence as a means of enforc-

ing a pretrial order . . . absent a clear abuse of discretion.”

Id. In assessing whether a court abused its discretion, we

examine four factors: the importance of the witness’s

testimony; the prejudice to the Opposing party of allow-

ing the witness to testify; the possibility of curing such

prejudice by granting a continuance; and the explanation,

if any, for the party’s failure to comply with the discovery

order. See Sierra Club, 73 F.3d at 572; Geiserman, 893 F.2d at

791.

The district court did not abuse its discretion. The

importance of the witness to the Rushings’ case is unde-

niable. Although not necessary for their case-in-chief, an

expert would prove invaluable in rebutting KCS’s

attempt to establish its affirmative preemption defense.

12 See also John v. Louisiana, 899 F.2d 1441, 1448-49 (5th

Cir.1990) (upholding sanctions under Feb. R. Cry. P. 16(f));

Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir.1990)

(upholding striking of expert pursuant to rule 16(f) for untimely

designation).

Se ee amen aor Mean ae ron nim aN Nee

————— LLL

App. 19

This importance, however, “cannot singularly override

the enforcement of local rules and scheduling orders.” Id.

at 792.

Furthermore, it would have prejudiced KCS, because

it would have needed time to research the witness,

review the material and, in response, probably conduct

more measurements. Of course, that prejudice could have

been ameliorated by a continuance; but delaying rulings

or trial never is ideal.13 More importantly, the court

decided to strike the testimony as a sanction for failing to

designate the expert; in such a case, prejudice is not a

strict requirement, and a continuance would have failed

to sanction the Rushings.'4

13 Although we face this issue in a summary judgment

posture, designation of an expert is not just for summary

judgment purposes; it applies to trial, as well. The potential

effects of late designation on trial, therefore, are relevant to our

analysis. The Rushings aver that the trial would not have been

delayed, but the possibility remains. The summary judgment

ruling certainly would have been delayed, and that would have

increased the likelihood that the trial, too, would be postponed.

14 See Sierra Club, 73 F.3d at 573 (“While a continuance

would have given the [non-offending party] more time to

review the late disclosures, such a measure would neither

punish [the offender] nor deter similar behavior in the future.”)

(quotation omitted); Chilcutt v. United States, 4 F.3d 1313, 1324 n.

30 (5th Cir.1993) (“While perhaps relevant to the type of

sanction imposed, a party need not always be prejudiced by its

opponent’s discovery abuses prior to the imposition of

sanctions. After all, the goal of sanctioning is not to reward the

complying party, but to punish the infracting party and to deter

others who may be want to engage in similar behavior.”); John,

899 F.2d at 1448-49 (holding prejudice not strictly required).

App. 20

Finally, the Rushings do not offer a persuasive justi-

fication for failing to designate their expert witness

within the ordered time or to move to designate out of

time earlier than their attempt to submit the expert affi-

davit. They argue that they did not need an expert for

their case-in-chief; they had no use for one until KCS had

relied on its expert report to support summary judgment,

and even then did not know the report’s importance until

KCS tried to make it reliable with the supplemental affi-

davits. They treated Seidemann as a fact witness until the

supplements established his expert qualifications.

Yet, over six months before the Rushings sought to

introduce the expert testimony, KCS amended its answer

affirmatively to plead the NCA preemption defense.

Eight months before the Rushings acted, KCS sought

permission to take measurements on their property for

the express purpose of supporting the defense; and ten

months before the Rushings now claim they knew they

needed an expert, KCS initially disclosed Seidemann as

an expert who would testify regarding sound levels at the

switching yard. At no time did the Rushings designate, or

move to designate out of time, their expert.

In light of these early indications that expert testi-

mony would be used in KCS’s defense, the Rushings

cannot justify waiting until the evidence actually was

relied on to designate their own expert, even though they

may have had no need to introduce or even gather expert

App. 21

evidence before then. The court acted within its discre-

tion.15

The Rushings aver that the district court erred in

granting partial summary judgment based on the NCA

preemption defense as it relates to noise. The regula-

tions, found at 40 C.ER. § 201 ef seq., set maximum noise

emissions for locomotives under both stationary and

moving conditions, for rail car operations, and for coup-

lings. Section 201.15 provides for an adjusted, averaged

maximum weighted sound level of 92dB at any measure-

ment location on residential or commercial property that

receives sounds from the railroad operations. We must

determine the preemptive reach of these regulations.

“Where a state [law] conflicts with, or frustrates,

federal law, the former must give way.” CSX Transp., Inc.

15 Because the facts would be no different, the court would

not abuse its discretion by denying a motion to designate out of

time filed on remand. Nonetheless, considering that the

preemption defense was not pleaded until after the Rushings’

time had expired, and in light of its apparent generosity in

considering KCS’s late-filed supplemental summary judgment

affidavits absent a motion, we hope that in the interest of justice

the court, on remand, will look favorably on a motion to

designate an expert out of time.

16 The Rushings also aver that the court erred in refusing to

include in the record deposition testimony, taken by KCS just

before the court ruled on the summary judgment motion, that

they attempted to introduce after the court had ruled via a

Motion to Reconsider. We do not reach this issue, because we

reverse on other grounds and its resolution will not affect the

proceedings on remand.

App. 22

v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 123

L.Ed.2d 387 (1993) (citing U.S. Consrt., art. VI, cl. 2).

Nonetheless, “a court interpreting a federal statute per-

taining to a subject traditionally governed by state law

will be reluctant to find pre-emption.” Id. at 664, 113 S.Ct.

1732. The NCA recognizes that it regulates an area of

traditional state concern: “primary responsibility for con-

trol of noise rests with State and local governments. .. . ”

42 U.S.C. § 4901(a)(3). And state common law tradi-

tionally governs nuisances. We will find preemption,

therefore, only if it is the clear and manifest intent of

Congress. See CSX Transp., 507 U.S. at 663, 113 S.Ct. 1732;

Davis v. Davis, 170 F.3d 475, 481 (5th Cir.1999) (en banc),

petition for cert. filed (June 15, 1999) (No. 98-2008).

When Congress provides an express preemption pro-

vision, we must focus on the plain wording of the clause.

CSX Transp., 507 U.S. at 664, 113 S.Ct. 1732. NCA’s

express preemption provision provides,

[A]fter the effective date of a regulation under

this section applicable to noise emissions .. . ,

no State . . . may adopt or enforce any standard

applicable to noise emissions resulting from the

operation of the same equipment unless such

standard is identical to a standard .

prescribed by any regulation under this section.

42 U.S.C. § 4916(c)(1).

This text is decidedly narrow. The NCA “was not

designed to remove all state and local control over noise.”

New Hampshire Motor Transport Ass’n v. Town of Plaistow,

App. 23

67 F.3d 326, 332 (ist Cir.1995).17 And the clause “in no

way suggests that Congress meant for the adoption of

any federal noise regulation to bar or displace every state

effort to regulate the noise emissions of interstate rail

carriers.” Baltimore & Ohio R.R. v. Oberly, 837 F.2d 108, 114

(3d Cir.1988).1® Rather, by its terms, the NCA preempts

only those state laws that disparately regulate the same

operations that federal regulations govern.!?

17 The court upheld a town’s curfew order enforcing a noise

ordinance against a trucking facility, for which regulations

setting maximum decibel limits have been promulgated

pursuant to the NCA. Although the town could not mandate

different decibel levels for motor carriers, neither the curfew

nor the ordinance purported to regulate decibel levels. See New

Hampshire Motor Transport, 67 F.3d at 332. “Rather, noise levels

were one element of an equation that also included ‘odors, dust,

smoke, refuse matter, fumes ... and vibration’ and that

prompted a limitation on operating hours for one specific site.”

Id. The court found this acceptable, holding “it would stretch

the [preemption clause’s] words beyond their ordinary meaning

to strike down a curfew order based on a range of concerns

where federal law regulates only the decibel levels of the

equipment.” Id.

18 The court upheld a state noise control statute governing

an intermodal shipping facility against a facial preemption

challenge. See Baltimore & Ohio R.R., 837 F.2d at 116. Absent

some actual conflict between the state statute and the federal

regulations, the court held that the state could apply its

ordinance to the facility. See id. at 109, 116.

19 Any claim that the NCA occupies the field of noise

regulation is unfounded. See id. at 113-14 (holding § 4916(c)(1)

“is not a global preemption provision”). Nor does 42 U.S.C.

§ 4911 (providing a federal right of action for injunctive relief to

force compliance with the NCA) evince an intent to completely

preempt state law. The same section provides that it does not

“restrict any right. . . under any statute or common law to seek

App. 24

A state may employ or allow a common law action

for damages, then, only to enforce federal regulations or

to regulate aspects of railroads and switching over which

the state has discretionary authority.2° This outlines the

parameters of KCS’s affirmative preemption defense. If

KCS establishes that it complies with the NCA’s noise

regulations, then the NCA preempts the nuisance suit

insofar as that suit complains of excessive noise. If KCS

fails to establish its regulatory compliance, then the suit

may proceed to enforce compliance by the award of dam-

ages for excessive, nuisance-causing noise. Similarly, if

KCS fails to establish that the NCA regulates the opera-

tion of the equipment at issue, then no preemption of

state law exists. The district court, therefore, correctly

concluded that Mississippi cannot enforce noise limits

stricter than those set forth in § 201.15, covering the

operations at KCS’s switchyard.?!

enforcement of any noise control requirement or to seek any

other relief.” 42 U.S.C. § 4911(e).

20 See Bieneman v. Chicago, 864 F.2d 463, 472-73 (7th

Cir.1988) (expiaining scope of permissible common law actions

in the context of federal regulation of airport noise, which is

governed, in part, by the NCA); cf. CSX Transp., 507 U.S. at 664,

113 S.Ct. 1732 (“Legal duties imposed on railroads by the

common law fall within the scope of these broad [FRSA

preemption] phrases.”).

21 See Consolidated Rail Corp. v. Dover, 450 F.Supp. 966, 970

(D.Del.1978) (holding switching operations covered by federal

noise regulations and hence local restrictions preempted if

inconsistent); cf. New Hampshire Motor Transp., 67 F.3d at 332

(holding that, although NCA preemption limited, it prevents

states from setting different decibel levels for carriers covered

under federal regulations); Southern Pacific Transp. Co. v. Public

Util. Com’n of Oregon, 9 F.3d 807, 811 (9th Cir.1993) (holding

App. 25

With the scope of KCS’s affirmative defense estab-

lished, we turn to the Rushings’ argument that the court

erred by granting summary judgment for KCS insofar as

they complain about noise at the switchyard. The ques-

tion is whether a genuine, material fact issue exists

regarding KCS’s compliance.

Seidemann attested that his measurements demon-

strate that KCS operates the switchyard in accordance with

the regulations. In their affidavits, however, the Rushings

dispute that Seidemann’s measurements reflect the noise

they typically hear. They claim that the court should have

admitted this testimony pursuant to Fep. R. Evin. 701,

governing lay opinions, and that it raises the factual ques-

tion whether KCS has established its compliance.*?

“state laws relating to noise emissions are preempted by the

NCA only when a regulation has been enacted pursuant to the

Act that covers the same carrier equipment.”). We recognize

that the First and Third Circuits view NCA preemption even

more narrowly, apparently allowing state regulation of noise

such as curfews .hat require operations even quieter than the

NCA regulation’s limits at certain times of day. See New

Hampshire Motor Transp., 67 F.3d at 332; Baltimore & Ohio R.R.,

837 F.2d at 116. We are wary of this approach, but need not

address it, because the Rushings have not urged, either on

appeal or in the district court, that their nuisance suit could

function as a similar temporal restriction.

22 Rule 701, Fep. R. Evip., provides that a non-expert

“witness’ testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally

based on the perception of the witness and (b) helpful to a clear

understanding of the witness’ testimony or the determination of

a fact issue.”

App. 26

We review a rejection of rule 701 testimony for abuse

of discretion. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 459

(Sth Cir.1996); Miller v. Universal City Studios, Inc., 650

F.2d 1365, 1374 (5th Cir.1981). Under rule 701, “a lay

opinion must be based on personal perception, must ‘be

one that a normal person would form from those percep-

tions,’ and must be helpful to the jury.” United States v.

Riddle, 103 F.3d 423, 428 (5th Cir.1997) (quoting Soden v.

Freightliner Corp., 714 F.2d 498, 511 (5th Cir.1983)); see also

Robinson v. Bump, 894 F.2d 758, 763 (5th Cir.1990).

We do not know whether the district court excluded

the testimony or, instead, decided that it did not raise a

genuine issue of material fact. The court’s opinion does

not mention the Rushings’ affidavits, but merely states

that KCS established compliance with the guidelines.

If the court did exclude the testimony, then it abused

its discretion. Indeed, KCS does not dispute this. The

Rushings perceived that the sounds on the night KCS’s

expert measured them were of a lesser volume than on a

typical night. There is no way to state this fact except by

the conclusory inference that they were quieter, and that

fact would be helpful to the jury in assessing KCS’s

compliance with the regulations.23

23 See Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d

1190, 1196 (3d Cir.1995) (“The prototypical example of the type

of evidence contemplated by the adoption of Rule 701 relates to

the appearance of persons or things, identity, the manner of

conduct, competency of person, degrees of light, or darkness,

sound, size, weight, distance, and an endless number of items

that cannot be described factually in words apart from

inferences.”).

Pan se ee

App. 27

The real dispute is whether this testimony raises a

genuine fact issue. We conclude that it does. KCS bears

the burden of adducing evidence to establish its compli-

ance, which the Seidemann affidavit accomplishes. The

Rushings came forward with specific facts contradicting

KCS’s evidence, disputing that the measurements are rep-

resentative of the noise they typically must endure. This

creates a factual issue for the jury, precluding summary

judgment.

KCS attacks the evidence in essentially three ways.

First, it argues that the Rushings’ assertions are legally

insufficient to contradict the expert testimony that the

measurements were taken in compliance with the NCA

regulations, and that they demonstrate compliance with

the maximum decibel levels. This argument misses the

point. :

The Rushings do not claim (at least on this point) that

the measurements failed to meet NCA specifications, or

that they did not demonstrate compliance on one night.

They contend, instead, that the measurements are not

representative and hence cannot establish compliance on

a typical evening. It would defeat the purpose of regulat-

ing maximum noise levels if a railroad could demonstrate

compliance on one evening but exceed the limits with

impunity every other night.

The representativeness of the measurements, then, is

material to compliance. Although, as KCS emphasizes,

the measurements may have captured the right amount of

App. 28

activity (at least 30 couplings per 60-to-240-minute ses-

sion), they did not necessarily record the volume regu-

larly associated with the switching yard. If the trier of

fact believed that on the night in question the operators

slowed the speed at which they coupled and coupled

fewer cars at a time, then it could reject KCS’s evidence as

atypical.

Second, in a related argument, KCS avers that lay

people are not competent to give NCA compliance opin-

ions; rather, expert testimony is required, and the Rush-

ings have timely proffered none. Even if true, this is a non

sequitur. The Rushings do not testify regarding NCA com-

pliance; they simply testify that the measurements are not

representative, because the noise was quieter than usual

on the evening they were taken. As explained above, the

Rushings are competent to make that assessment under

rule 701.

Finally, KCS argues that the evidence is insufficient

to create a genuine fact issue because it is too vague and

self-serving. KCS is right that the Rushings must come

forward with “significant probative evidence.” See State

Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (Sth

Cir.1990) (quoting In re Municipal Bond Reporting Antitrust

Litig., 672 F.2d 436, 440 (5th Cir.1982)). Although their

burden is not as high as it is on the typical nonmoving

plaintiff, because KCS bears the burden of proof on its

affirmative defense, a scintilla of evidence is not enough;

“there must be evidence on which the jury could reason-

ably find for the plaintiff.” Id. (quoting Anderson, 477 U.S.

App. 29

at 252, 106 S.Ct. 2505). Nor are conclusional allegations

sufficient.24

But merely claiming that the evidence is self-serving

does not mean we cannot consider it or that it is insuffi-

cient. Much evidence is self-serving and, to an extent,

conclusional. “At the margins there is some room ior

debate as to how ‘specific’ must be the ‘specific facts’ that

Rule 56(e) requires in a particular case.” Id. at 889, 110

$.0%.: 3177.

If the Rushings merely asserted that “the testing is

bad,” or “the noise usually is louder,” then we probably

would have to reject it as insufficient to create a genuine

fact issue. They offered more: They both attested that the

night in question was atypical — an assessment they are

qualified to make. Both gave numeric comparisons on a

one to ten scale of that night to a typical night.

The Rushings even proffered potential explanations,

based on their personal observations, for why it was

quieter than usual. Willard Rushing explained that “it

seemed the engineers did not start the cars running down

hill with the same speed they normally do and, therefore,

the noise that resulted from the impact of the coupling

and uncoupling operations, was significantly lower than

the noise that we usually hear. In fact, the uncoupling

during the meaSurements was one car at a time when

24 See Lujan v. National Wildlife Federation, 497 U.S. 871, 888,

110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“The object of [requiring

the nonmovant to set forth specific facts] is not to replace

conclusory allegations of the complaint or answer with

conclusory allegations of an affidavit.”).

App. 30

usually the uncoupling involves numerous cars at the

same time.” -

Similarly, Patricia Rushing observed that “the engi-

neers did not switch cars in multiples as they normally

do but switched only one car at a time. They did not get a

running start and then cut several cars loose at once as

they often do. Thus, the noise level created by coupling

was not representative of the noise level we normally

experience from the coupling activities.” As KCS

acknowledged at argument, “[c]lommon sense would tell

you that if you’re going faster, you're going to have a

louder noise.”

Willard Rushing testified that even “Dr. Seidemann

recognized that the operations had been changed or were

different from what he expected because he told my wife

and me that he had to go to the railroad yard to see what

was going on.” These provide sufficient specific facts

raising a genuine issue for trial on the affirmative defense

of preemption. Accordingly, KCS was not entitled to sum-

mary judgment on the nuisance claim based on noise

emissions.

The Rushings also contest the district court’s conclu-

sion that the NCA preempts their nuisance claim insofar

as it complains of vibrations and shocks from the switch-

yard activity. The only regulations applicable are those

limiting decibel levels of noise emissions from certain

train operations. Conspicuously absent is a clear and

manifest purpose to preempt state action beyond the

App. 3f

regulation of noise emissions from the specified opera-

tions. Neither the statute nor the regulations mention

vibrations. In fact, KCS does not contend that the NCA

regulates vibrations or shocks per se.25

The district court made the perfunctory conclusion

that, “[s]ince there is a direct correlation between the

level of vibrations and the level of noise, the Court finds

that the two are one in the same and therefore Plaintiff’s

nuisance claim based upon excessive vibrations will be

dismissed.” If this were true, we should find the shocks

and vibrations aspect of the claim preempted as well, for

a plaintiff should not be able to restrict vibrations as a

backdoor way of circumventing the noise regulations’

preemptive effect.

The summary judgment record, however, is devoid of

evidence supporting the court’s conclusion. Seidemann

did not attest to the fact, nor does other evidence indicate

that noise and vibrations are one and the same. Because

KCS seeks summary judgment on its affirmative defense,

it shoulders the burden of demonstrating the lack of a

genuine issue of material fact regarding it. It has not.

2° KCS does point out that the noise and vibraticns stem

from the same subject matter of coupling activities, citing CSX

Transp., 507 U.S. at 664-65, 113 S.Ct. 1732, for the proposition

that the subject matter regulated determines preemptive scope.

But viewing the preempted subject matter narrowly, as we must,

the subject matter is noise from coupling and not just coupling.

To establish preemption of the vibrations aspect of the

complaint, KCS must show that decibels and vibrations are

causally and directly correlated, such that the regulation of

vibrations directly would affect decibels and enable backdoor

regulation of noise.

App. 32

Nor can we accept the court's ipse dixit that they are

one and the same, as though it were a matter of which we

can take judicial notice. Sound is a complex phenomenon,

making it impossible to conclude, without evidence, that

the relevant vibrations and decibels are directly and caus-

ally correlated.

In addition, the Rushings claim damages from the

vibrations and shocks that shake their property. Although

some of the vibrations and shocks may be caused by

sound waves, no evidence substantiates that any of them

is [sic]. Perhaps large rail cars crashing together cause

shock waves distinct from sound waves that cause the

Rushings’ home to shake and wall decorations to slip.*°

KCS may be able to establish preemption with proper

evidence explaining why the pertinent vibrations and

decibels are directly correlated. But in the absence of

summary judgment evidence, the court should not have

dismissed this aspect of the claim.?7

26 The common observations that the Rushings make

convince us that evidence is required before we could accept the

court’s conclusion. A large bass speaker in a car might cause

excessive vibrations in a neighboring car without “sounding

loud.” An air horn and the clash of two train cars coming

together might be equally “loud” at the source, but the air horn

will not shake one’s windows, while the clashing cars might.

Dropping an empty metal drum onto a metal surface would

create a loud clanging noise and vibrations — not unlike the

clash of cymbals. The same drum filled with sand and dropped

from the same height onto the same surface would sound less

loud (more of a dull thud) but would create significantly larger

shock waves. -

27 Cf. British Airways Bd. v. Port Auth., 564 F.2d 1002, 1010-12

(2d Cir.1977) (treating noise and vibrations as distinct).

—

App. 33

The Rushings find error in the dismissal of their

nuisance claim as preempted by the FRSA insofar as it

complains of excessive train whistling, contending that a

genuine issue of material fact exists as to whether KCS

sounds its whistles only for necessary safety reasons. We

agree.

Recognizing that the NCA regulations explicitly

exclude train whistles from their scope, see 40 C.FR.

§ 210.10, the district court held that the FRSA preempted

the Rushings’ excessive whistling complaint. The FRSA

was enacted “to promote safety in all areas of railroad

operations and to reduce railroad-related accidents, and

to reduce deaths and injuries to persons... . ” CSX

Transp., 507 U.S. at 661, 113 S.Ct. 1732 (quoting 45 U.S.C.

§ 421). The Act grants the Secretary of Transportation

broad power to promulgate regulations “for all areas of

railroad safety.” Id. at 662, 113 S.Ct. 1732 (quoting 45

U.S.C. § 431(a)). Congress expressly defined the preemp-

tive scope of any promulgated regulations:

States may “adopt or continue in force any law,

rule, regulation, or standard relating to railroad

safety until such time as the Secretary has

adopted a rule, regulation or order, or standard

covering the same subject matter of such State

requirement.” Even after federal standards have

been promulgated, the States may adopt more

stringent safety requirements “when necessary

to eliminate or reduce an essentially local safety

App. 34

hazard,” if those standards are not “incompat-

ible with” federal laws or regulations and not an

undue burden on interstate commerce.

Id. (quoting 45 U.S.C. § 434).

“FRSA preemption is even more disfavored than pre-

emption generally.” Southern Pac., 9 F.3d at 813. The

restrictive terms of its preemption provision “indicate[ ]

that pre-emption will lie only if the federal regulations

substantially subsume the subject matter of the relevant

state law.” CSX Transp., 507 U.S. at 664, 113 S.Ct. 1732.

When applying FRSA preemption, the Court has

eschewed broad categories such as “railroad safety” and

has looked at the narrow categories of “warning devices”

installed at federally-improved grade crossings and

“train speed.” Id. at 665-75, 113 S.Ct. 1732; see also South-

ern Pac., 9 F.3d at 813.78

Regulations promulgated pursuant to the FRSA

require all lead locomotives to be equipped with audible

warning devices with a specified minimum decibel level.

See 49 C.F.R. § 229.129. From this regulation and the fact

that KCS allegedly sounds its whistles only as required

for safety reasons (at grade crossings and before backing

up), KCS contends that the nuisance claim is preempted.

Given the narrow scope of FRSA preemption, however,

28 KCS’s claim that the FRSA and its regulations “occupy

the field of locomotive warning devices and train safety” is

utterly at odds with the Court’s holding that the FRSA does not

preempt a wrongful death action based on an accident at a

grade crossing, despite the regulations’ coverage of warning

devices at federally-funded grade crossings. See CSX Transp.,

507 U.S. at 671-72, 113 S.Ct. 1732. The only case it cites,

unpersuasive authority on its own, pre-dates CSX Transp.

App. 35

the cited regulations do not preempt the claim. In fact,

the nuisance claim does not constitute a state railroad

safety regulation at all.

Specifically, the Rushings complain about when the

trains sound their whistles (at night, for no apparent

reason); the regulations address only the sound-produc-

ing capacity of the whistles.2? A sound capacity safety

regulation does not substantially subsume regulations on

when whistles are sounded. See Southern Pac., 9 F.3d at

813. Although the state likely could not regulate the

sounding of whistles by banning them altogether,

because it would defeat the purpose of the whistle capac-

ity provision, it can impose restrictions on when they are

sounded. See id. The FRSA does not preempt the nuisance

claim as a matter of law.

In a similar vein, KCS argues that the claim is pre-

empted because non-FRSA law requires it to sound whis-

tles when it does. We do not consider KCS’s reliance on

state law requiring a train to sound its whistle before a

grade crossing, because KCS did not raise the state stat-

ute in the district court and hence may not raise it now.

Nor may we rely on KCS’s operating rules that require

sounding a warning before reversing or crossing a grade.

Although KCS files these rules with the Federal Railroad

29 See Southern Pacific, 9 F.3d at 813 (upholding state

regulations that restrict the sounding of train whistles only at

grade crossings with certain safety devices and only between

certain hours).

Nene

App. 36

Administration, that agency neither approves nor adopts

them; they do not have the force of law and hence cannot

preempt state law. See id. at 812 n. 5.

A nuisance action embodies considerations of rea-

sonableness.29 Nuisance liability should be limited by

KCS’s necessary and reasonable sounding of whistles for

safety reasons; state law and KCS’s operating require-

ments may be relevant to establishing the reasonableness

of whistle soundings. If KCS demonstrated that it sounds

its whistles only in the interest of safety, we might be

persuaded that summary judgment is appropriate.

The Rushings, however, have demonstrated a genu-

ine issue of fact as to whether the trains sound whistles

only in the interest of safety. KCS introduced an affidavit

that attested that its trains sound whistles only before

grade crossings and before reversing. Willard Rushing,

on the other hand, avers that the trains sound whistles

30 See T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 953

(Miss.1992) ( “One is subject to liability for a private nuisance if,

but only if, his conduct is a legal cause of an invasion of

another’s interest in the private use and enjoyment of land, and

the invasion is either (a) intentional and unreasonable, or (b)

unintentional and otherwise actionable under the rules

controlling liability for negligent or reckless conduct, or for

abnormally dangerous conditions or activities.”) (quoting

RESTATEMENT (SECOND) OF Torts § 882). Sounding whistles

constitute an intentional invasion; “[a]n intentional invasion of

another’s interest in the use and enjoyment of land is

unreasonable if... the gravity of the harm outweighs the utility

of the actor’s conduct.” REesTATEMENT (SECOND) OF Torts § 826.

Bahet irs it

“a An WANE BCR) Tee R ARAL UR aad)

ee ae oy BE wy in ehet Ree Wi LY

App. 37

“for long periods of time when the trains are not moving

or beginning to move.”>!

KCS challenges Rushing’s testimony as “conclusion-

ary” and not based on “having observed the locomo-

tives,” arguing that we should not rely on this “mere

unsupported conjecture.” Yet Rushing specifically testi-

fied that the whistles sound when the trains are not

moving, and with no reference to a crossing or to revers-

ing. These observations necessarily imply that he person-

ally has observed the trains not moving while hearing

whistles. This presents competent summary judgment

evidence.

The district court held that “[t]he whistles on the

trains . . . are sounded as the trains approach a grade

crossing and before the trains move backward.” In reach-

ing this conclusion, it resolved conflicting testimony in

KCS’s favor. It cannot do this on a summary judgment

motion, however. See Anderson, 477 U.S. at 249, 106 S.Ct.

2505 (observing that “the judge’s function is not himself

to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue

for trial.”). The Rushings have demonstrated a genuine

issue of material fact on the FRSA preemption defense,

31 He further attests that they “are not signaling to move

since the trains do not in fact move after whistling but often sit

there for long periods simply tooting on the whistles — back and

forth.” “Whistles are often sounded at times that have no

reference to a crossing or to backing up. The whistles regularly

occur when the engines are neither moving nor beginning to

move.”

App. 38

and KCS has not established it is entitled to judgment as

a matter of law.

KCS also argues that it carries out its functions in the

public interest and that, under Mississippi law, a private

nuisance suit will not lie against a railroad for its public

acts, absent a showing of negligence. Contrary to KCS’s

suggestion, the district court did not decide this matter in

its order. Nonetheless, we may affirm summary judgment

on any basis evident in the record. See Chriceol v. Phillips,

169 F.3d 313, 315 (5th Cir.1999); Davis v. Liberty Mut. Ins.

Co., 525 F.2d 1204, 1207 (5th Cir.1976).

KCS correctly posits that absent a showing of negli-

gence, Mississippi tort law exempts the public functions

of a railroad from private nuisance suits. See Jenner v.

Collins, 211 Miss. 770, 52 So.2d 638, 640 (1951); Robertson

v. New Orleans & G.N.R.R., 158 Miss. 24, 129 So. 100, 102

(1930); Dean v. Southern Ry., 112 Miss. 333, 73 So. 55, 56-57

(1916). An action taken “to serve the public gener-

ally . . . must be characterized as a public and not a

private act of the railway company.” Dean, 73 So. at 56.

This distinction between public and private acts is cru-

cial, because only the public acts of a railroad are damnum

absque injuria. KCS contends that its switchyard activities

are public acts, because the operations are essential for

transporting goods over its lines to the public’s benefit.

KCS’s argument lacks merit. KCS quotes a long pas-

sage from Dean that holds a party cannot recover for “any

injury which is the result of noise produced by the opera-

tion of trains on main lines.” Id. This principle extends to

OPT Se SU Relay Fp Oe ne Ke RS et MEER te 4D

App. 39

spur tracks that connect to main lines. See id. But the next

paragraph after the one KCS quotes distinguishes that

case from a railroad’s private functions:

It may be conceded that a railroad company is

not protected by its charter in creating a private

nuisance. It cannot locate its machine shops,

roundhouses, coal chutes, water tanks, or pri-

vate switchyards near or adjacent to private

property under such circumstances as to create a

private nuisance and thereby depreciate or dam-

age private property. In the placing or construc-

tion of these conveniences the railroad company

has the power of selection; its act in placing or

installing these necessary conveniences must be

classed as the private acts of a public corpora-

tion.

Id. at 56-57.

KCS also quotes a passage from Robertson that ends

with the following:

As to all those functions which are exercised in

the direct or immediate service of the public in

the carrying passengers and in the transporta-

tion and handling of freight, these are public,

and, so long as exercised without negligence

and in the customary manner with appropriate

instrumentalities, are within the protection of

the public franchise. . . .

Robertson, 129 So. at 102. Yet the very next sentence states,

But to all those permanent features of the ser-

vice which appertain merely to the means of the

supply of those instrumentalities, and in keep-

ing them in order and making them available for

said direct service, they belong to the private

part, and, although incidental, are not things

App. 40

with which the public is directly concerned;

they are things which the railroad manages for

its own interest... .

Id.

The opinion goes on to quote the above passage from

Dean to distinguish traffic on mainlines, spur tracks, and

intersection switches from the private acts for which a

railroad may be liable, including the placement of a

switchyard near private property so as to create a nui-

sance. Id. Indeed, Robertson's ultimate holding allows a

nuisance action complaining of noise and vibrations from

a railroad’s switchyard that had been constructed next to

the plaintiff's home to proceed. See id. at 101-02.

The Rushings complain about the noise and vibra-

tions coming from KCS’s private switchyard, constructed

right next to their home - the very situation presented in

Robertson. Robertson’s holding is squarely on point. KCS

can be held liable under Mississippi law for bringing this

nuisance to the Rushings.

For the foregoing reasons, the judgment is

REVERSED and REMANDED for further proceedings.

KING, Chief Judge, concurring in part and dissenting

in part:

While I concur in much of the majority opinion, I

disagree on some crucial points. First, I cannot conclude

that the Rushings’ testimony that the noises emanating

from KCS’s railyard on the night that Seidemann took his

measurements were substantially quieter than the sounds

they typically endure raises a genuine issue of fact as to

App. 41

KCS’s compliance with the federal regulations. The Noise

Control Act of 1972 provides:

[A]fter the effective date of a regulation under

this section applicable to noise emissions result-

ing from the operation of any equipment or

facility of a surface carrier engaged in interstate

commerce by railroad, no State or political sub-

division thereof may adopt or enforce any stan-

dard 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 emis-

sions resulting from such operation prescribed

by any regulation under this section.

42 U.S.C. § 4916(c)(1). The federal regulations pro-

mulgated under this statute set out permissible sound

emission levels as measured from properties affected by

noise from railyard operations. See 40 C.ER. § 201.11

(standard for locomotive operation under stationary con-

ditions); id. § 201.12 (standard for locomotive operation

under moving conditions); id. § 201.13 (standard for rail

car operations); id. § 201.14 (standard for retarders); id.

§ 201.15 (standard for car coupling operations); id.

§ 201.16 (standard for locomotive load cell test stands).

The regulations also specify measurement criteria that

“contain the necessary parameters and procedures for

the measurement of the noise emission levels pre-

scribed. ...” Id. § 201.20; see id. §§ 201.21-.27. Thus,

sound emission levels within the limits set out in the

regulations, as measured in accordance with the pro- ~

cedures prescribed thereby, comply with federal law.

Under the Noise Control Act, a state may not adopt or

App. 42

enforce a different standard for noise emissions. See 42

U.S.C. § 4916(c)(1).

In this case, it is undisputed that Seidemann com-

plied with the federal regulations in taking his measure-

ments and that the measurements showed sound levels

well within the limits prescribed by the regulations.

While the Rushings insist that the noises emanating from

the switchyard during the night that Seidemann took his

measurements were not representative of the conditions

in which they usually live, the regulations do not require

that the sound emission measured be “typical,” whatever

that may mean. They do specify certain instruments, loca-

tions, lengths of time, and weather conditions for mea-

surement. I cannot imagine that compliance with the

Noise Control Act and its regulations requires that a

railroad go beyond the dictates of those documents to

ensure that measurements are “representative” or “typi-

cal.” Such a rule would run directly counter to the Act’s

prohibition on any standards for railroad noise emissions

that are not identical to those in the regulations. Indeed,

the majority’s reasoning guts the preemptive effect of the

federal regulations: No matter what sound emission mea-

surements show, a plaintiff will be able to obtain a trial

on her nuisance claim simply by claiming that the noises

measured were not typical. Therefore, I do not believe

that the Rushings’ testimony suffices to raise a genuine

issue of fact as to KCS’s compliance with the Act and the

regulations. I would hold that, insofar as it is based on

noise, the Rushings’ nuisance claim is preempted.

Subject to the discussion below, I agree with the

majority that federal law does not preempt the Rushings’

nuisance suit insofar as it is based on vibrations, shocks,

App. 43

and excessive train whistling. In my view, however, the

viability of these claims depends on whether the rail-

yard’s activities are public acts exempted from private

nuisance suits. I cannot join the majority’s characteriza-

tion of KCS’s argument in this regard as lacking in merit.

Two decisions of the Mississippi Supreme Court, Robert-

son and Dean, are central. In Robertson v. New Orleans &

G.N.R. Co., 158 Miss. 24, 129 So. 100 (1930), the plaintiff

filed a nuisance suit alleging that the defendant railroad

had “erected and constructed and is now maintaining

certain railroad tracks, including six private switch

tracks, each about one mile in length, yards, railroad

work shops, wye, terminals, a place for refueling, firing

and watering, and a place for the switching, storing and

cleaning of engines, coaches and cars” that produced

excessive noise, vibrations, and filth. Id. at 101. The lower

court dismissed the suit. See id. at 102. The Mississippi

Supreme Court ruled:

A railroad serves both the public and itself. As

to all those functions which are exercised in the

direct or immediate service of the public in the

carrying of passengers and in the transportation

and handling of freight, these are public, and, so

long as exercised without negligence and in the

customary manner with appropriate instru-

mentalities, are within the protection of the pub-

lic franchise granted to that end. But all those

permanent features of the service which apper-

tain merely to the means of the supply of those

instrumentalities, and in keeping them in order

and making them available for said direct ser-

vice, they belong to the private part, and,

although incidental, are not things with which

the public is directly concerned; they are things

App. 44

which the railroad manages for its own inter-

ear

The result is that for the normal operations,

however heavy this may be between station and

station, or from station to a local shipping or

loading point, or point of unloading, and what-

ever the number of tracks or trains, including all

station or interstation switching, there is no lia-

bility for consequential damages. But, to quote

the language of the Dean Case [Dean v. Southern

Ry. Co., 112 Miss. 333, 73 So. 55 (1916)], the

railroad “cannot locate its machine shops,

roundhouses, coal chutes, water tanks, or private

switchyards” and those other permanent things

which belong to its private concerns “near or

adjacent to private property under such circum-

stances as to create a private nuisance and

thereby depreciate or damage private property.”

The pleadings make in part, therefore, a case

which falls within this rule, and the cause

should not have been wholly dismissed.

Id. at 102. Contrary to the majority’s assertion, Robertson

neither holds that a railroad may be liable for “the place-

ment of a switchyard near private property so as to create

a nuisance” nor “allows a nuisance action complaining of

noise and vibrations from a railroad’s switchyard that

had been constructed next to the plaintiff’s home to pro-

ceed.” Rather, Robertson permits nuisance suits against

private switchyards. Moreover, while the Robertson court

held that not all of the plaintiffs’ case should have been

dismissed, it clearly viewed the lower court’s dismissal as

partially correct, and it did not specify which railroad

facilities among the many the plaintiffs named could give

rise to nuisance liability.

App. 45

Like Robertson, Dean provides some guidance as to

the public function-private function distinction but does

not ultimately control the case at bar. In Dean, the plain-

tiff filed a nuisance suit alleging excessive noise from a

spur track near his home that ran from the railroad’s

main line to a cotton compress. See Dean, 73 So. at 56. The

Mississippi Supreme Court noted that

[p}laintiff does not complain of private switch-

yards installed by the railroad company. The

spur track here complained of is a service track,

made necessary for the depositing and taking

aboard of large quantities of cotton handled bya

large compress — the legitimate railroad business

required by a legitimate compress business.

There is no contention by appellant that this

service track is unnecessary, or that there is any

negligence by the railroad company, either in

the selection of its engines and cars or in the

way they are handled and switched at this

point. The compress company had the right to

call for the installation of this service track, and,

if the railroad company should decline to install

or furnish it, it could be compelled to do so by

the Railroad Commission. The business done

over this spur track therefore is the same charac-

ter of business done at the regular freight

depots. The spur track was installed to serve the

public generally, and the act of installation must

be characterized as a public and not a private

act of the railway company. The noise produced

by the defendant’s trains over and upon this

spur track falls_in the same class as the noise

produced by the operation of trains over the

main line of railway.

App. 46

Id. at 56. Later, the court distinguished “machine shops,

roundhouses, coal chutes, water tanks, or private switch-

yards,” whose activities can give rise to nuisance liability,

on the grounds that “[i]n the placing or construction of

these conveniences the railroad company has the power

of selection. . . . But in the installation of a spur track like

the one here complained of the railroad company has no

option. It must afford the service, and in doing so it is

serving the public generally.” Id. at 56-57.

KCS argues that under the principles enunciated in

Dean and Robertson, the switchyard at issue in this case

cannot give rise to nuisance liability. KCS contends that

its railyard, like Dean’s spur track, is a public necessity,

not a convenience: “[T]he rail yard, which includes the

KCS main line, is a hub of interstate commerce used to

sequence and build up trains to be sent to different

destinations. The beneficiaries are the public in general

that transport loads over KCS’s interstate line, a function

that would not be possible without the yard.” In support

of this assertion, KCS cites the affidavit of Andy Martin,

the railyard’s trainmaster, who averred that the yard

“consists of several switching tracks, which run off of the

main line” and “is in essence an interstation switching

point, or hub, wherein trains drop off and pickup [sic]

railcars and deliver them to various locations in the coun-

try.” In my view, KCS’s argument that the railyard per-

forms public functions is not frivolous. The district court

did not address its merits,! however, and because I think

1 In its August 26, 1998 Opinion and Order on the

Rushings’ Second Motion to Supplement Response to Motion

for Summary Judgment and Motion to Reconsider and Reverse

App. 47

that the district court is better suited than the court of

appeals to make a first determination of whether the

activities taking place at the yard in question were public

functions, I would remand for such findings.

Accordingly, I would AFFIRM the district court’s

holding that federal law preempts the Rushings’ nuisance

claim insofar as it complains of excessive noise other than

train whistling, and I respectfully dissent from the major-

ity’s decision to reverse on this portion of the Rushings’

claim. I would REVERSE AND REMAND the district

court’s ruling on the vibration and train whistling issues

with instructions to (1) decide whether the railyard’s

activities are public acts exempt from private nuisance

suits under Mississippi law; (2) dismiss the lawsuit if it

finds that the railyard’s activities are, in fact, public acts;

and (3) address the vibration and train whistling claims

in light of our unanimous conclusion that these are not

preempted by federal law if it finds that the railyard’s

the Court’s Opinion and Order Filed Juiy 29, 1998, the district

court said: “In granting Defendant’s Motion for Summary

Judgment on July 29, this court found that (1) Plaintiffs’

allegations are preempted by the Noise Control Act of 1972, 42

U.S.C. § 4916 and (2) the switching activities at the rail yard are

in the public interest and cannot be the subject of a claim for

private nuisance.” The July 29, 1998 Opinion and Order does

not, however, so find; it merely recognizes that KCS claimed

that it was entitled to summary judgment because “the

, switching activities conducted at the rail yard are in the public

interest and cannot be the subject of a claim for private

nuisance.” Like the majority, I read the district court’s August

1998 statement as a mischaracterization of its earlier opinion

and conclude that it did not, in fact, address the merits of KCS’s

argument that its switching activities are public functions.

App. 48

activities are private acts.2 Accordingly, while I concur in

the majority’s decision to reverse and remand on these

issues, I differ strongly with the majority’s rationale for

so doing.

2 I] have no quarrel with the majority’s evidentiary and

procedural holdings.

App. 49

APPENDIX B

Willard R. RUSHING and

Patricia Ann Rushing, Plaintiffs,

Vv.

KANSAS CITY SOUTHERN

RAILWAY COMPANY, Defendant.

No. CIV.A.3:97-CV-419BN.

United States District Court,

S.D. Mississippi,

Jackson Division.

July 29, 1998.

Thomas W. Prewitt, Thomas W. Prewitt, Attorney,

Jackson, MS, for Plaintiffs.

Charles T. Ozier, Wise, Carter, Child & Caraway,

Jackson, MS, for Defendants.

OPINION AND ORDER

BARBOUR, District Judge.

Willard and Patricia Rushing (“Plaintiffs” or “Rush-

ings”) filed this claim alleging that the noise emissions

from the rail yard of Kansas City Southern Railway

(“Kansas City” or “Defendant”) are a nuisance. This

_ cause is before the Court pursuant to Defendant’s Motion

for Partial Summary Judgment. At issue is whether the

Plaintiffs’ nuisance claim is preempted by the Noise Ccn-

trol Act. Having considered the Motion, briefs of the

parties, and applicable legal authorities, the Court finds

App. 50

that Defendant’s Motion for Partial Summary Judgment _

is well taken and is granted.

I. BACKGROUND

The Rushings live at 1845 Twin Pine Drive in Pearl,

Mississippi. Kansas City Southern Railway Company

operates a switching station fifty-five feet from the Rush-

ings’ home. Kansas City has operated this station since

1990. The Rushings claim that they have tolerated

unbearable levels of noise caused by trains switching

cars, brakes screeching, and horns blowing at all hours of

the day and night. Plaintiffs claim that some of the noise

is created because Kansas City allows the cars to roll

down an incline and collide with other cars at the lower

end. When the cars collide, Plaintiffs claim that their

house vibrates, the windows rattle, the dishes in the

cupboard shake, and the pictures fall from the walls.

Plaintiffs filed a lawsuit in state court alleging that the

daily activity in the switching yard constitutes a private

nuisance. Plaintiffs claim that their lifestyle and quality of

life have been severe!v diminished. Kansas City removed

this action to this Court on the grounds that the parties

are completely diverse and has filed a Motion for Partial

Summary Judgment.

Kansas City claims that it is entitled to summary

judgment for two reasons: (1) Plaintiffs’ allegations that it

is creating an unreasonable level of noise emissions and

vibrations through its operation at the rail yard are pre-

empted by the Noise Control Act of 1972, 42 U.S.C. § 4916

and (2) the switching activities conducted at the rail yard

App. 51

are in the public interest and cannot be the subject of a

claim for private nuisance.

Il. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure states

in relevant part that summary judgment shall be ren-

dered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affi-

davits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

summary judgment as a matter of law. Fed.R.Civ.P. 56(c).

The United States Supreme Court has held that this lan-

guage “mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a

party who fails to make a sufficient showing to establish

the existence of an essential element to that party’s case,

and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986); see also Moore v. Mississippi

Valley State Univ., 871 F.2d 545, 549 (5th Cir.1989); Wash-

ington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th

Cir.1988).

The party moving for summary judgment bears the

initial responsibility of informing the district court of the

basis for its motion and identifying those portions of the

record in the case which it believes demonstrate the

_ absence of a genuine issue of material fact. Celotex, 477

U.S. at 323, 106 S.Ct. 2548. The movant need not, how-

ever, support the motion with materials that negate the

opponent’s claim. Id. As to issues on which the non-

moving party has the burden of proof at trial, the moving

——————————

App. 52

party need only point to portions of the record that

demonstrate an absence of evidence to support the non-

moving pvarty’s claim. Id. at 323-324, 106 S.Ct. 2548. The

non-moving party must then go beyond the pleadings

and designate “specific facts showing that there is a gen-

uine issue for trial.” Id. at 324, 106 S.Ct. 2548.

Summary judgment can be granted only if everything

in the record demonstrates that no genuine issue of mate-

rial fact exists. The district court, therefore, must not

“resolve factual disputes by weighing conflicting evi-

dence, . . . since it is the province of the jury to assess the

probative value of the evidence.” Kennett-Murray Corp. v.

Bone, 622 F.2d 887, 892 (5th Cir.1980). Summary judgment

is improper where the court merely believes it unlikely

that the non-moving party will prevail at trial. National

Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651

(5th Cir.1962).

Ill. DISCUSSION

A. Does the Noise Control Act Preempt Plaintiffs’ Pri-

vate Nuisance Claim?

The Noise Control Act 42 U.S.C. § 4916 (“NCA”) sets

maximum noise emissions for rail cars engaged in inter-

state commerce. The NCA preempts any state and local

regulation that is inconsistent with the standards set by

the NCA.

Section (c) of the NCA provides in pertinent part:

(1) . . . no state or political subdivision thereof

may adopt or enforce any standard applicable to

T= 7

App. 53

noise emissions resulting unless such standard

is identical to a standard applicable to noise

emissions resulting from such operation pre-

; scribed by any regulation under this section.

hel! rtp Boe"

42 U.S.C. § 4916(c)(1).

At least one federal court has recognized that “noises

emitted by . . . the movement of . . . locomotives and

railway cars in marshalling and switching yards... have

been preempted” by the NCA. Consolidated Rail Corp. v.

City of Dover, 450 F.Supp. 966, 972 (D.Del.1978). -

In Dover, the City of Dover created a noise ordinance

that regulated noise levels allowed by railroad operations

in residential areas. The defendant sought a permanent

injunction against the enforcement of the noise ordinance.

The Court held that the ordinance promulgated by the

City of Dover was preempted by the NCA because it was

not identical to federal regulations.

Thus, state law cannot impose stricter standards than

the Noise Control Act. Stated differently, a defendant

railroad is insulated from any state law claims if its noise

levels are in compliance with the NCA.

The Court notes that Section 201.10 et. seq. of the

Code of Federal Regulations set noise emission standards

that apply to locomotive and rail cars that operate in

interstate commerce. Section 201.15 regulates noise emis-

sions from switching operations at a rail yard. Section

201.15 provides that “no carrier subject to this regulation

Shall conduct car coupling operations that exceed an

adjusted average maximum Aweighted sound level of 92

eis <-

App. 54

The common law nuisance claim filed by the Plain-

tiffs based on noise is preempted by the NCA because

through that claim, Plaintiffs seek to impose on the

Defendant a stricter standard than that imposed by the

NCA. Defendant has established through the expert testi-

mony of Dr. Seidemann that the noise emissions emanat-

ing from the rail yard of the Defendant fall within the

federal guidelines. Thus, to the extent that Plaintiffs’

nuisance claim relies on allegations of excessive noise

caused by locomotive, rail car, or coupling operations, it

is preempted by the NCA.

B. Is Plaintiffs’ Private Nuisance Action Based on

Noise Emissions from Locomotive Whistles aiso

Preempted?

The Plaintiffs also allege that the whistle blowing by

the trains contributes to the excessive noise level. The

Defendant correctly points out that 42 C.F.R. § 201.10

does not apply to noise caused by warning devices (whis-

tle/horns) on locomotives.

Defendant claims that any nuisance claim based on

the blowing of whistles is preempted by the Federal

Railroad Safety Act of 1970, 45 U.S.C. §§ 421-444

(“FRSA”). The FRSA prescribes minimum sound levels

for warning devices on trains. At least one federal court

has recognized that a plaintiff “may well be able to estab-

lish that the federal government has occupied the field of

regulation of locomotive warning devices and railroad

safety.” Norfolk Southern Ry. Co. v. City of Hapeville, 779

F.Supp. 601, 604 (N.D.Ga.1991).

App. 55

The whistles on the trains of Kansas City are sounded

as the trains approach a grade crossing and before the

trains move backwards. Since the whistles are sounded in

the interest of safety and Plaintiffs have produced no

evidence that minimum sound levels of the FRSA have

been exceeded, the Court finds that any nuisance claim

based on excessive noise caused by the whistles of the

train is also preempted.

C. May Plaintiffs Bring a Nuisance Claim based on

Vibrations Caused by the Locomotives?

In the alternative, Plaintiffs argue that they may

bring a nuisance action based on vibrations caused by the

locomotives at the rail yard of the Defendant. Plaintiffs

claim that since vibration, shock, and impact are not

mentioned in the NCA, Congress has not preempted this

area.

Although Plaintiffs’ creative argument that the NCA

does not extend to a nuisance claim based on excessive

vibration has facial appeal, the Court is not persuaded by

this argument. Kansas City correctly points out that the

equipment which is the subject of Plaintiffs’ nuisance

claim has been regulated. Since there is a direct correla-

tion between the level of vibrations and the level of noise,

the Court finds that the two are one in the same and

therefore Plaintiff’s nuisance claim based upon excessive

vibrations will be dismissed.

App. 56

D. Plaintiffs’ Motion to Supplement Response to

Motion for Partial Summary Judgment.

The Court notes that the expert of the Defendant

found that the noise levels generated by its activities

were below the levels allowed by the NCA. This testi-

mony weighed heavily in the decision of the Court to find

that Plaintiffs’ nuisance claim was preempted by the

NCA. After the deadline for designating experts set forth

in the case management plan had expired, Plaintiffs hired

Employment Health Services (“EHS”) to measure sound

levels produced by the railway activities of the Defen-

dant. Plaintiffs hired EHS solely to respond to the Motion

for Partial Summary Judgment of the Defendant. EHS

recorded noise levels inside the Plaintiffs’ home of 105.0

dB. The Court notes that this level is higher than the level

permitted by the NCA and higher than the level recorded

by the expert of the Defendant.

The Court will not consider this evidence in ruling on

the summary judgment motion because Plaintiffs desig-

nated their expert witness after the deadline set in the

case management schedule. Plaintiffs did not file a

request for leave to designate expert witnesses out of

time. Since Plaintiffs designation of their expert was

untimely, they have not demonstrated that a triable issue

exists on the nuisance claim because the testimony of

their expert would not be admissible at trial. Accordingly,

the Court will not consider Plaintiffs’ expert report and

will grant partial summary judgment in favor of the

Defendant on Plaintiffs’ nuisance claim.

App. 57

IV. CONCLUSION

IT IS THEREFORE ORDERED that the Motion for

Partial Summary Judgment and Motions to Supplement

the Motion [32-1, 40-1 and 41-1] filed by Defendant Kan-

sas City Southern Railway are well taken and are granted.

IT IS FURTHER ORDERED that Plaintiffs’ Motion to

Amend [44-1] their response to Defendant’s Motion for

Partial Summary Judgment is not well taken and is

denied.

App. 58

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60590

WILLARD R. RUSHING; PATRICIA ANN RUSHING

Plaintiffs - Appellants

KANSAS CITY SOUTHERN RAILWAY CO

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi, Jackson

ON PETITION FOR REHEARING EN BANC

(Opinion 8/30/99, 5 Cir, __, __ F.3d __)

(Filed Sep. 29, 1999)

Before KING, Chief Judge, SMITH and BARKSDALE,

Circuit Judges

PER CURIAM:

(/) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor judge

in regular active service of the court having requested

that the court be polled on Rehearing En Banc (Fep. R.

eee

App. 59

Apr. P. and 5TH Cir. R. 35), the Petition for Rehearing En

Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. The court having been polled at

the request of one of the members of the court and a

majority of the judges who are in regular active service

not having voted in favor (Fev. R. App. P. and 51TH Cr. R.

35), the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Jerry Smith

United States Circuit Judge

App. 60

APPENDIX D

42 U.S.C. § 4901. Congressional findings and statement

of policy

(a) The Congress finds -

(1) that inadequately controlled noise pre-

sents a growing danger to the health and wel-

fare of the Nation’s population, particularly in

urban areas;

(2) that the major sources of noise include

transportation vehicles and equipment, machin-

ery, appliances, and other products in com-

merce; and

(3) that, while primary responsibility for

control of noise rests with State and local gov-

ernments, Federal action is essential to deal with

major noise sources in commerce control of

which require national uniformity of treatment.

(b) The Congress declares that it is the policy of the

United States to promote an environment for all Ameri-

cans free from noise that jeopardizes their health or wel-

fare. To that end, it is the purpose of this chapter to

establish a means for effective coordination of Federal

research and activities in noise control, to authorize the

establishment of Federal noise emission standards for

products distributed in commerce, and to provide infor-

mation to the public respecting the noise emission and

noise reduction characteristics of such products.

App. 61

42 U.S.C. § 4903. Federal Programs

(a) furtherance of Congressional policy

The Congress authorizes and directs that Federal

agencies shall, to the fullest extent consistent with their

authority under Federal laws administered by them,

carry out the programs within their control in such a

manner as to further the policy declared in section

4901(b) of this title.

(b) Presidential authority to exempt activities or facili-

ties from compliance requirements

Each department, agency, or instrumentality of the

executive, legislative, and judicial branches of the Federal

Government -

(1) having jurisdiction over any property or

facility, or

(2) engaged in any activity resulting, or which

may result, in the emission of noise,

shall comply with Federal, State, interstate, and local

requirements respecting control and abatement of envi-

ronmental noise to the same extent that any person is

subject to such requirements. The President may exempt

any single activity or facility, including noise emission

sources or classes thereof, of any department, agency, or

instrumentality in the executive branch from compliance

with any such requirement if he determines it to be in the

paramount interest of the United States to do SO; except

that no exemption, other than for those products referred

to in section 4902(3)(B) of this title, may be granted from

the requirements of sections 4905, 4916, and 4917 of this

App. 62

title. No such exemption shall be granted due to lack of

appropriation unless the President shall have specifically

requested such appropriation as a part of the budgetary

process and the Congress shall have failed to make avail-

able such requested appropriation. Any exemption shall

be for a period not in excess of one year, but additional

exemptions may be granted for periods of not to exceed

one year upon the President’s making a new determina-

tion. The president shall report each January to the Con-

gress all exemptions from the requirements of this section

granted during the preceding calendar year, together

with his reason for granting such exemption.

dards and regulations; status reports

(1) The Administrator shall coordinate the pro-

grams of all Federal agencies relating to noise research

and noise control. Each Federal agency shall, upon

request, furnish to the Administrator such information as

he may reasonably require to determine the nature, scope

and results of the noise-research and noise-control pro-

grams of the agency.

(2) Each Federal agency shall consult with the

Administrator in prescribing standards or regulations

respecting noise. If at any time the Administrator has

reason to believe that a standard or regulation, or any

proposed standard or regulation, of any Federal agency

respecting noise does not protect the public health and

welfare to the extent he believes to be required and

feasible, he may request such agency to review and report

to him on the advisability of revising such standard or

App. 63

regulation to provide such protection. Any such request

‘May be published in the Federal Register and shall be

accompanied by a detailed statement of the information

on which it is based. Such agency shall complete the

requested review and report to the Administrator within

such time as the Administrator specifies in the request,

but such time specified may not be less than ninety days

from the date the request was made. The report shall be

published in the Federal Register and shall be accom-

panied by a detailed statement of the findings and con-

clusions of the agency respecting the revision of its

standard or regulation. With respect to the Federal Avia-

tion Administration, section 1431 of Title 49 Appendix

shall apply in lieu of this paragraph.

(3) On the basis of regular consultation with appro-

priate Federal agencies, the Administrator shall compile

and publish, from time to time, a report on the status and

prog-2ss of Federal activities relating to noise research

and noise control. This report shall describe the noise-

control programs of each Federal agency and assess the

contributions of those programs to the Federal Govern-

ment’s overall efforts to control noise.

App. 64

42 U.S.C. § 4916. Railroad Noise emission standards

(a) Regulations; standards; consultation with Secretary

of Transportation

(1) Within nine months after October 27, 1972, the

Administrator shall publish proposed noise emission reg-

ulations for surface carriers engaged in interstate com-

merce by railroad. Such proposed regulations shall

include noise emission standards setting such limits on

noise emissions resulting from operation of the equip-

ment and facilities of surface carriers engaged in inter-

state commerce by railroad which reflect the degree of

noise reduction achievable through the application of the

best available technology, taking into account the cost of

compliance. These regulations shall be in addition to any

regulations that may be proposed under section 4905 of

this title.

(2) Within ninety days after the publication of such

regulations as may be proposed under paragraph (1) of

this subsection, and subject to the provisions of section

4915 of this title, the Administrator shall promulgate final

regulations. Such regulations may be revised, from time

to time, in accordance with this subsection.

(3) Any standard or regulation, or revision thereof,

proposed under this subsection shall be promulgated

only after consultation with the Secretary of Transporta-

tion in order to assure appropriate consideration for

safety and technological availability.

(4) Any regulation or revision thereof promulgated

under this subsection shall take effect after such period as

the Administrator finds necessary, after consultation with

App. 65

the Secretary of Transportation, to permit the develop-

ment and application of the requisite technology, giving

appropriate consideration to the cost of compliance

within such period.

(b) Regulations to insure compliance with noise emis-

sion standards

The Secretary of Transportation, after consultation

with the Administrator, shall promulgate regulations to

insure compliance with all standards promulgated by the

administrator under this section. The Secretary of Trans-

portation shall carry out such regulations through the use

of his powers and duties of enforcement and inspection

authorized by the Safety Appliance Acts [45 U.S.C.A. § 1

et seq.], subtitle IV of Title 49, and the Department of

Transportation Act [49 U.S.C.A. § 1651 et seq.]. Regula-

tions promulgated under this section shall be subject to

the provisions of sections 4909, 4910, 4911, and 4915 of

this title.

(1) Subject to paragraph (2) but notwithstanding

any other provision of this chapter, 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 com-

merce by railroad, no State or political 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

App. 66

is identical to a standard applicable to noise emissions

resulting from such operation prescribed by any regula-

tion under this section.

(2) 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, regu-

late, 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 necessi-

tated by special local conditions and is not in conflict

with regulations promulgated under this section.

(d) “Carrier” and “railroad” defined

The terms “carrier and “railroad” as used in this

section shall have the same meaning as the term “railroad

carrier” has in section 20102 of Title 49.

40 C.ER. § 201.1 Definitions.

As used in this part, all terms not defined herein

shall have the meaning given them in the Act:

(a) “Act” means the Noise Control Act of 1972 (Pub.

L. 92-574, 86 Stat. 1234).

(b) “Car Coupling Sound” means a sound which is

heard and identified by the observer as that of car coup-

ling impact, and that causes a sound level meter indicator

App. 67

(FAST) to register an increase of at least ten decibels

above the level observed immediately before hearing the

sound.

or partly by railroad and partly by water, within the

continental United States, subject to the Interstate Com-

merce Act, as amended, excluding street, suburban, and

interurban electric railways unless operated as a part of a

general railroad system of transportation.

(d) “Classification of Railroads” means the division

of railroad industry operating companies by the Inter-

state Commerce Commission into three categories. As of

1978, Class I railroads must have annual revenues of $50

million or greater, Class II railroads must have annual

revenues of between $10 and $50 million, and Class III

railroads must have less than $10 million in annual reve-

nues.

(e) “Commercial Property” means any property that

is normally accessible to the public and that is used for

any of the purposes described in the following standard

land use codes (reference Standard Land Use Coding

Manual. U.S. DOT/ FHWA, reprinted March 1977): 53-59,

Retail Trade; 61-64, Finance, Insurance, Real Estate, Per-

sonal, Business and Repair Services; 652-659, Legal and

other professional services; 671, 672, and 673 Govern-

mental Services; 692 and 699, Welfare, Charitable and

Other Miscellaneous Services; 712 and 719, Nature exhibi-

tions and other Cultural Activities; 721, 723, and 729,

Entertainment, Public and other Public Assembly; and

74-79, Recreational, Resort, Park and other Cultural

Ac* vities.

App. 68

(f) “dB(A)” is an abbreviation meaning A-weighted

_ sound level in decibels, reference: 20 micropascals.

(g) “Day-night Sound Level” means the 24-hour

time of day weighted equivalent sound level, in decibels,

for any continuous 24-hour period, obtained after addi-

tion of ten decibels to sound levels produced in the hours

from 10 p.m. to 7 a.m. (2200-0700). It is abbreviated as L

subdn.

(h) “Decibel” means the unit measure of sound

level, abbreviated as dB.

(i) “Energy Average Level” means a quantity calcu-

lated by taking ten times the common logarithm of the

arithmetic average of the antilogs of one-tenth of each of

the levels being averaged. The levels may be of any

consistent type, e.g. maximum sound levels, sound expo-

sure levels, and day-night sound levels.

(j) “Energy Summation of Levels” means a quantity

calculated by taking ten times the common logarithm of

the sum of the antilogs of one-tenth of each of the levels

being summed. The levels may be of any consistent type,

e.g., day-night sound level or equivalent sound level.

(k) “Equivalent Sound Level” means the level, in

decibels, of the mean-square A-weighted sound pressure

during a stated time period, with reference to the square

of the standard reference sound pressure of 20 micropas-

cals. It is the level of the sound exposure divided by the

time period and is abbreviated as L subeq.

(1) “Fast Meter Response” means that the “fast”

response of the sound level meter shall be used. The fast

dynamic response shall comply with the meter dynamic

App. 69

characteristics in paragraph 5.3 of the American National

Standard Specification for Sound Level Meters. ANSI

$1.4-1971. This publication is available from the American

National Standards Institute, Inc., 1430 Broadway, New

York, New York 10018.

(m) “Idle” means that condition where all engines

capable of providing motive power to the locomotive are

set at the lowest operating throttle position; and where all

auxiliary non-motive power engines are not operating.

(n) “Interstate Commerce” means the commerce

between any place in a State and any place in another

State, or between places in the same State through

another State, whether such commerce moves wholly by

rail or partly by rail and partly by motor vehicle, express,

or water. This definition of “interstate commerce” for

purposes of this regulation is similar to the definition of

“interstate commerce” in section 203(a) of the Interstate

Commerce Act (49 U.S.C. 303(a)).

(0) “Load Cell” means a device external to the loco-

motive, of high electrical resistance, used in locomotive

testing to simulate engine loading while the locomotive is

stationary. (Elecirical energy produced by the diesel gen-

erator is dissipated in the load cell resistors instead of the

traction motors).

(p) “Locomotive” means for the purpose of this reg-

ulation, a self-propelled vehicle designed for and used on

railroad tracks in the transport or rail cars, including self-

propelled rail passenger vehicles.

App. 70

(q) “Locomotive Load Cell Test Stand” means the

load cell § 201.1(0) and associated structure, equipment,

trackage and locomotive being tested.

(r) “Maximum Sound Level” means the greatest

A-weighted sound level in decibels measured during the

designated time interval or during the event, with either

fast meter response § 201.1(1) or slow meter response

§ 201.1(ii) as specified. It is abbreviated as L submax.

(s) “Measurement Period” means a continuous

period of time during which noise of railroad yard opera-

tions is assessed, the beginning and finishing times of

which may be selected after completion of the measure-

ments.

(t) “Rail Car” means a non-self-propelled vehicle

designed for and used on railroad tracks.

(u) “Railroad” means all the roads in use by any

common carrier operating a railroad, whether owned or

operated under a contract, agreement, or lease.

(v) “Receiving Property Measurement Location”

means a location on receiving property that is on or

beyond the railroad facility boundary and that meets the

receiving property measurement location criteria of sub-

part C.

(w) “Receiving Property” means any residential or

commercial property that receives the sound from rail-

road facility operations, but that is not owned or oper-

ated by a railroad; except that occupied residences

located on property owned or controlled by the railroad

are included in the definition of “receiving property.” For

App. 71

purposes of this definition railroad crew sleeping quar-

ters located on property owned or controlled by the rail-

road are not considered as residences. If, subsequent to

the publication date of these regulations, the use of any

property that is currently not applicable to this regulation

changes, and it is newly classified as either residential or

commercial, it is not receiving property until four years

have elapsed from the date of the actual change in use.

(x) “Residential Property” means any property that

is used for any of the purposes described in the following

standard land use codes (ref. Standard Land Use Coding

Manual. U.S. DOT/FHWA Washington, DC, reprinted

March 1977): 1, Residential: 651, Medical and other

Health Services; 68, Educational Services; 691, Religious

Activities; and 711, Cultural Activities.

(y) “Retarder (Active)” means a device or system

for decelerating rolling rail cars and controlling the

degree of deceleration on a car by car basis.

(z) “Retarder Sound” means a sound which is heard

and identified by the observer as that of a retarder, and

that causes a sound level meter indicator at fast meter

response § 201.1(1) to register an increase of at least ten

decibels above the level observed immediately before

hearing the sound.

(aa) “Sound Level” means the level, in decibels,

measured by instrumentation which satisfies the require-

ments of American National Standard Specification for

Sound Level Meters $1.4-1971 Type 1 (or SIA) or Type 2 if

adjusted as shown in Table 1. This publication is available

from the American National Standards Institute, Inc.,

1430 Broadway, New York, New York 10018. For the

App. 72

purpose of these procedures the sound level is to be

measured using the Aweighting [sic] of spectrum and

either the FAST or SLOW dynamic averaging characteris-

tics, as designated. It is abbreviated as LsubA.

(bb) “Sound Exposure Level” means the level in

decibels calculated as ten times the common logarithm of

time integral of squared A-weighted sound pressure over

a given time period or event divided by the square of the

standard reference sound pressure of 20 micropascals and

a reference duration of one second.

(cc) “Sound Pressure Level” (in stated frequency

band) means the level, in decibels, calculated as 20 times

the common logarithm of the ratio of a sound pressure to

the reference sound pressure of 20 micropascals.

(dd) “Special Purpose Equipment” means mainte-

nance-of-way equipment which may be located on or

operated from rail cars including: Ballast cribbing

machines, ballast regulators, conditioners and scarifiers,

bolt machines, brush cutters, compactors, concrete

mixers, cranes and derricks, earth boring machines, elec-

tric welding machines, grinders, grouters, pile drivers,

rail heaters, rail layers, sandblasters, snow plows, spike

drivers, sprayers and other types of such maintenance-of-

way equipment.

(ee) “Special Track Work” means track other than

normal tie and ballast bolted or welded rail or containing

devices such as retarders or switching mechanisms.

(ff) “Statistical Sound Level” means the level in

decibels that is exceeded in a stated percentage (x) of the

App. 73

duration of the measurement period. It is abbreviated as

L subx.

(gg) “Switcher Locomotive” means any locomotive

designated as a switcher by the builder or reported to the

ICC as a switcher by the operator-owning-railroad and

including, but not limited to, all locomotives of the

builder/model designations listed in Appendix A to this

subpart.

(hh) “Warning Device” means a sound emitting

device used to alert and warn people of the presence of

railroad equipment.

(ii) “Slow Meter Response” means that the slow

response of the sound level meter shall be used. The slow

dynamic response shall comply with the meter dynamic

characteristics in paragraph 5.4 of the American National

Standard Specification for Sound Level Meters. ANSI

$1.4-1971. This publication is available from the American

National Standards Institute Inc., 1430 Broadway, New

York, New York 10018.

40 C.F.R. § 201.11 Standard for locomotive operation

under stationary conditions.

(a) Commencing December 31, 1976, no carrier sub-

ject to this regulation shall operate any locomotive to

which this regulation is applicable, and of which manu-

facture is completed on or before December 31, 1979,

which produces A-weighted sound levels in excess of 93

App. 74

dB at any throttle setting except idle, when operated

singly and when connected to a load cell, or in excess of

73 dB at idle when operated singly, and when measured

in accordance with the criteria specified in Subpart C of

this part with slow meter response at a point 30 meters

(100 feet) from the geometric center of the locomotive

along a line that is both perpendicular to the centerline of

the track and originates at the locomotive geometric cen-

ter.

(b) No carrier subject to this regulation shall oper-

ate any locomotive to which this regulation is applicable,

and of which manufacture is completed after December

31, 1979, which produces A-weighted sound levels in

excess of 87 dB at any throttle setting except idle, when

operated singly and when connected to a load cell, or in

excess of 70 dB at idle when operated singly, and when

measured in accordance with the criteria specified in

Subpart C of this part with slow meter response at a point

30 meters (100 feet) from the geometric center of the

locomotive along a line that is both perpendicular to the

centerline of the track and originates at the locomotive

geometric center.

to this regulation may operate any switcher locomotive to

which this regulation is applicable, and of which manu-

facture is completed on or before December 31, 1979,

which produces A-weighted sound levels in excess of 87

dB at any throttle setting except idle, when operated

singly and when connected to a load cell, or in excess of

70 dB at idle, and when measured in accordance with the

criteria specified in Subpart C of this part with slow

meter response at a point 30 meters (100 feet) from the

App. 75

geometric center of the locomotive along a line that is —

both perpendicular to the centerline of the track and

originates at the locomotive geometric center. All

switcher locomotives that operate in a particular railroad

facility are deemed to be in compliance with this standard

if the A-weighted sound level from stationary switcher

locomotives, singly or in combination with other station-

ary locomotives, does not exceed 65 dB when measured

with fast meter response at any receiving property mea-

surement location near that particular railyard facility

and when measured in accordance with Subpart C of this

regulation.

40 C.F.R. § 201.12 Standard for locomotive operation

under moving conditions.

(a) Commencing December 31, 1976, no carrier sub-

ject to this regulation may operate any locomotive or

combination of locomotives to which this regulation is

applicable, and of which manufacture is completed on or

before December 31, 1979, which produces A-weighted

sound levels in excess of 96 dB when moving at any time

or under any condition of grade, load, acceleration, or

deceleration, when measured in accordance with the cri-

teria specified in Subpart C of this regulation with fast

meter response at 30 meters (100 feet) from the centerline

of any section of track having less than a two (2) degree

curve (or a radius of curvature greater than 873 meters

(2865 feet)).

App. 76

(b) No carrier subject to this regulation may operate

any locomotive or combination of locomotives to which

this regulation is applicable, and of which manufacture is

completed after December 31, 1979, which produce

A-weighted sound levels in excess of 90 dB when moving

at any time or under any condition of grade, load, accel-

eration, or deceleration, when measured in accordance

with the criteria specified in Subpart C of this part with

fast meter response at 30 meters (100 feet) from the

centerline of any section of track having less than a two

(2) degree curve (or a radius of curvature greater than 873

meters (2,865 feet)).

to this regulation may operate any switcher locomotive or

a combination of switcher locomotives to which this regu-

lation is applicable, and of which manufacture is com-

pleted on or before December 31, 1979 which produce

A-weighted sound levels in excess of 90 dB when moving

at any time or under any condition of grade, load, accel-

eration or deceleration, and when measured in accor-

dance with the criteria in Subpart C of this part with fast

meter response at 30 meters (100 feet) from the centerline

of any section of track having less than a two (2) degree

curve (or a radius of curvature greater than 873 meters

(2,865 feet)). All switcher locomotives that operate in a

particular railroad facility are deemed to be in compli-

ance with this standard if the A-weighted sound level

from stationary switcher locomotives, singly or in combi-

nation with other stationary locomotives, does not exceed

65 dB when measured with fast meter response at any

App. 77

receiving property measurement location near that partic-

ular railyard facility and when measured in accordance

with Subpart C of this regulation.

40 C.F.R. § 201.15 Standard for car coupling operations.

Effective January 15, 1984, no carrier subject to this

regulation shall conduct car coupling operations that

exceed an adjusted average maximum A-weighted sound

level of 92 dB at any receiving property measurement

location, when measured with fast meter response in

accordance with Subpart C of this part, except, such

coupling will be found in compliance with this standard

and the carrier will be considered in compliance, if the

railroad demonstrates that the standard is exceeded at the

receiving property measurement locations (where the

standard was previously exceeded) when cars representa-

tive of those found to exceed the standard are coupled at

similar locations at coupling speeds of eight miles per

hour or less.

40 C.F.R. § 201.25 Measurement location and weather

conditions for measurement on receiving property of the

noise of retarders, car coupling, locomotive load cell test

stands, and stationary locomotives.

(a) Measurements must be conducted only at

receiving property measurement locations.

(b) Measurement locations on receiving property

must be selected such that no substantially vertical plane

App. 78

surface, other than a residential or commercial unit wall

or facility boundary noise barrier, that exceeds 1.2 meters

(4 feet) in height is located within 10 meters (33.3 feet) of

the microphone and that no exterior wall of a residential

or commercial structure is located within 2.0 meters (6.6

feet) of the microphone. If the residential structure is a

farm home, measurements must be made 2.0 to 10.0

meters (6.6 to 33.3 feet) from any exterior wall.

age wind velocity during the period of measurement

exceeds 19.3 km/hr (12 mph) or when the maximum

wind gust velocity exceeds 32.2 km/hr (20 mph).

(d) No measurement may be taken when precipita-

tion, e.g., rain, snow, sleet, or hail, is occurring.

40 C.F.R. § 201.26 Procedures for the measurement on

receiving property of retarder and car coupling noise.

(a) Retarders.

(1) Microphone. The microphone must be located

on the receiving property and positioned at a height

between 1.2 and 1.5 meters (4 to 5 feet) above the ground.

The microphone must be positioned with respect to the

equipment in accordance with the manufacturers’ recom-

mendations for Type 1 or 2 performance as appropriate.

No person may stand between the microphone and the

equipment being measured or be otherwise positioned

App. 79

relative to the microphone at variance with the manufac-

turers’ recommendations for Type 1 or 2 performance as

appropriate.

(2) Data. The maximum A-weighted sound levels

(FAST) for every retarder sound observed during the

measurement period must be read from the indicator and

recorded. At least 30 consecutive retarder sounds must be

measured. The measurement period must be at least 60

minutes and not more than 240 minutes.

(3) Adjusted average maximum A-weighted sound

level. The energy average level for the measured retarder

sounds must be calculated to determine the value of the

average maximum A-weighted sound level (L sub-

avemax/INF). This value is then adjusted by adding the

adjustment (C) from Table 2 appropriate to the number of

measurements divided by the duration of the measure-

ment period (n/T), to obtain the adjusted average maxi-

mum A-weighted sound level (L subadj ave max) for

retarders.

(b) Car coupling impact.

(i) Microphone. The microphone must be located

on the receiving property and at a distance of at least 30

meters (100 feet) from the centerline of the nearest track

on which car coupling occurs and its sound is measured

(that is, either the microphone is located 30 meters (100

feet) from the nearest track on which couplings occur, or

all sounds resulting from car coupling impacts that occur

on tracks with centerlines located less than 30 meters (100

feet) from the microphone are disregarded). The micro-

phone shall be positioned at a height between 1.2 and 1.5

meters (4 and 5 feet) above the ground, and it must be

App. 80

positioned with respect to the equipment in accordance

with the manufacturers’ recommendations for Type 1 or 2

performance as appropriate. No person may stand

between the microphone and the equipment being mea-

sured or be otherwise positioned relative to the micro-

phone at variance with the manufacturers’ recommenda-

tions for Type 1 or 2 performance as appropriate.

(2) Data. The maximum A-weighted sound levels

(FAST) for every car coupling impact sound observed

during the measurement period must be read from the

indicator and recorded. At least 30 consecutive car coup-

ling impact sounds must be measured. The measurement

period must be at least 60 minutes and not more than 240

minutes, and must be reported.

(3) Adjusted average maximum A-weighted sound

level. The energy average level for the measured car

coupling sounds is calculated to determine the average

maximum sound level (L subave max). It is then adjusted

by adding the adjustment (C) from Table 2 appropriate to

the number of measurements divided by the duration of

the measurement period (n/T), to obtain the adjusted

average maximum A-weighted sound level (L subadj ave

max) for car coupling impacts.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.