THE UMTEI) STATES KN\ fROiX,MENTAL PROTECTION V<;ENCY
                   Statutes and Legislulire Historv
                                   Executive Orders
                                        Regulations
                            Guidelines and Reports
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Supplement II
Volume I
Noise
                   Statutes and Legislative History
                                 Executive Orders
                                      Regulations
                           Guidelines and Reports
JANUARY  1974
                                    RUSSELL E. TRAITS
                                        Administrator
          U.S.  Environmental Protection Agency.
          Region V, Library
          230 South Dearborn Street  ^      ^
          Chicago, Illinois  60604         ifl#$

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For sale by the Superintendent of Documents, U.S. Government Printing Office
                   Washington, D.C. 20402 - Price $1.15
                         Stock  Number 5500-00123

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                        FOREWORD
  America's  journey to environmental  awareness has  been  a
relatively recent one. Not so many years ago Americans were still
living1 under the illusion that a land as vast as ours was blessed
with indestructible natural resources and  beauty.
  We continued the exploitation of those resources and scattered
unplanned communities across  huge areas of  open space. Large
amounts of fuel were needed for the autos that took us to work
from distant  suburbs, and the air became laden with their dense
emissions. Pesticides were  used indiscriminantly  by persons  un-
aware of their effects  on the food  chain of plants and animals.
Our rivers became contaminated with waste from homes and indus-
tries. Our landscape was marred by litter.
  As  the environmentalist movement  gained  impetus, attention
was focused on these matters. Rachael Carson's book, Silent Spring,
in 1962  awakened Americans to the hazards of pesticides. The oil
spills of the Torrey Canyon in  1967 and  at Santa Barbara, Cali-
fornia  in 1969  dramatized  another environmental hazard.  The
first Earth Day on April 20, 1970, a coordinated program of teach-
ins across the nation, helped to focus Congressional attention on
the strength of the environmental movement.
  Congress responded by approving the President's Reorganization
Plan No. 3 which  expanded the federal commitment to environ-
mental concerns and consolidated 15 Federal organizations under
the Environmental Protection Agency.
  At the same time, Congress began enacting  far-reaching legis-
lation to  provide  EPA with specific  authority  for  controlling
pollution. These measures included the Clean Air Amendments in
1970, and the  Federal Water Pollution  Control Act Amendments,
Federal  Environmental Pesticide  Control Act,  the Noise  Control
Act, and the Marine Protection,  Research and Sanctuaries Act,
all in  1972. Congress also passed the Resource Recovery Act  in
1970 and extended the Solid Waste Disposal Act in 1973.
  As the Agency began taking action under these laws, Americans
gradually realized" that very real changes  were required in our
accustomed ways of  doing  business. We  realized  that our effort

                                                           iii

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iv                       FOREWORD

frequently conflicted  with powerful and legitimate interests  in
both the public and private sectors. Our administrative, judicial
and  political processes now have the  task  of resolving  these
conflicts. They must  do so by weighing all the interests which
are affected in  a sensitive and informed manner. Quick access  to
the legal dimensions of these problems is essential if conflicts are
to be efficiently and fairly resolved.
  The work of  the present day environmentalist is less glamorous
than that of four  or  five years ago, but it  is essential if we are
to face the continuing challenge  of protecting  our  fragile and
perishable  natural resources—and ultimately  ourselves—from
destruction. I hope you will find this manual helpful as we strive
to create a society where we can live and work in harmony  with
the natural world  surrounding us.
                        Russell E. Train
                        A dministrator
                        U.S. Environmental Protection Agency

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                         PREFACE
  Reorganization Plan No. 3 of 1970 transferred 15 governmental
units with their functions and legal authority to create the U.S.
Environmental Protection Agency. Since only the major laws were
cited in the Plan, it was decided that a compilation of EPA legal
authority be researched and published.
  The publication has the primary function of providing a working
document for the Agency itself. Secondarily, it  will serve as a
research tool for the public.
  It is the hope of EPA that this set will assist  in the awesome
task of developing a better environment.
                        LANE R. WARD, J.D.
                        Office of Executive Secretariat
                        Office of Administrator
                        U.S. Environmental Protection Agency

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                       INSTRUCTIONS

  The goal of this text is to create a useful compilation of the
legal authority under which the  U.S.  Environmental Protection
Agency operates. These documents are for the general use of per-
sonnel of the EPA in assisting them in attaining the purposes set
out by the President in  creating the Agency. This work is not
intended and should not be used for legal  citations or  any use
other than as reference of a general nature.  The author disclaims
all responsibility  for liabilities growing out of the use  of these
materials contrary to their intended purpose. Moreover, it should
be noted that portions of the Congressional Record from the 93rd
Congress were extracted from the  "unofficial" daily version and
are subject to subsequent modification.
  EPA Legal Compilation consists of the Statutes with their legis-
lative  history,  Executive  Orders,  Regulations,  Guidelines and
Reports. To facilitate the usefulness of this  composite, the Legal
Compilation is divided into the seven following chapters:

    A. General                         E. Pesticides
    B. Air                             F. Radiation
    C. Water                          G. Noise
    D. Solid Waste

                      SUPPLEMENT  II

  This edition, labelled "Supplement II," contains the additions to
and alterations of EPA legal authority not included in the original
set or Supplement I of the EPA Legal Compilation. Therefore, this
edition updates the Compilation through the 93rd Congress, First
Session.

                        SUBCHAPTERS

  Statutes and Legislative History
  For convenience, the Statutes are listed throughout the Compi-
lation by a one-point system, i.e., 1.1, 1.2, 1.3, etc., and Legislative
History begins wherever a letter follows the one-point system.
                                                           vn

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                        INSTRUCTIONS

Thus, any l.la, l.lb, 1.2a, etc., denotes the public laws compris-
ing the 1.1, 1.2 statute. Each public law is followed by its legisla-
tive history.  The legislative history in each case consists of the
House Report, Senate Report, Conference Report (where  applica-
ble), the Congressional Record beginning with the time  the bill
was reported from committee.

  Example:

   1.4  Amortization of Pollution Control Facilities, as amended,
        26U.S.C. §169 (1969).

        1.4a  Amortization of Pollution Control Facilities,  Decem-
             ber 30, 1969, P.L. 91-172, §704, 83 Stat. 667.
              (1) House Committee on  Ways and  Means, H.R.
                 REP. No. 91-413 (Part I), 91st Cong., 1st Sess.
                 (1969).
              (2) House Committee on  Ways and  Means, H.R.
                 REP. No. 91-413 (Part II), 91st Cong., 1st Sess.
                 (1969).
              (3) Senate  Committee on Finance;  S. REP. No.
                 91-552, 91st Cong., 1st Sess.  (1969).
              (4) Committee  of  Conference,  H.R.  REP.  No.
                 91-782, 91st Cong., 1st Sess. (1969).
              (5) Congressional Record,  Vol. 115 (1969):
                 (a) Aug. 7: Debated and  passed House, pp.
                     22746, 22774-22775;
                 (b) Nov. 24, Dec. 5, 8, 9: Debated and passed
                     Senate, pp. 35486,  37321-37322,  37631-
                     37633, 37884-37888;
                 (c) Dec. 22: Senate agrees to conference report,
                     p. 40718;*
                 (d) Dec. 22: House debates  and agrees to con-
                     ference report, pp. 40820, 40900.

This example not only demonstrates the pattern followed for legis-
lative history, but indicates the procedure where  only one section
of a public law appears. You will note that the Congressional Record
cited  pages  are  only those pages  dealing with the discussion
and/or action taken pertinent to the section of law  applicable  to
EPA. In the  event there is no discussion of the pertinent  section,
only action or passage, then the asterisk (*) is used to so indicate,
and no text is reprinted in the Compilation. In regard to the situa-

viii

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                        INSTRUCTIONS                      ix

tion where only one seciton of a public law is applicable, then only
the parts of the report dealing with that section are printed in the
Compilation.

  Secondary Statutes
  Many statutes  make reference to other laws and rather than
have this  manual serve only for major statutes, these secondary
statutes have been included where practical. These secondary stat-
utes are indicated in  the table  of contents to each  chapter by a
bracketed cite to the  particular section of the major Act which
made the reference.

  Citations
  The  United States Code, being the  official citation,  is used
throughout the Statute section  of the Compilation.  In four Stat-
utes, a parallel table to the Statutes at Large is provided for your
convenience.

                    EXECUTIVE  ORDERS

  The Executive Orders are listed by a two-point system  (2.1, 2.2,
etc.).

                       REGULATIONS

  The  Regulations are noted by a three-point system (3.1, 3.2,
etc.). Included in the Regulations are those not only promulgated
by the Environmental Protection Agency, but  those under which
the Agency has direct contact.

                GUIDELINES  AND  REPORTS

  This subchapter is noted by a four-point system (4.1, 4.2, etc.).
In this subchapter is found the statutorily required reports  of
EPA, published guidelines of EPA, selected  reports other than
EPA's and inter-departmental agreements of note.

                         UPDATING

  Periodically, a supplement will be sent to the interagency distri-
bution and made available through the U.S. Government  Printing
Office in order to provide a current and accurate  working set  of
EPA Legal Compilation.

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                           INSTRUCTIONS
                            CONTENTS


                              Volume I

                                                                Page
NOISE
1. Statutes and Legislative History	     3
  1.4 The Noise Control Act of 1972, 42 U.S.C. § 490 et seq  (1972).

4. Guidelines and Reports	    29
  4.3 EPA Report on Aircraft-Airport Noise, as required by
      42 U.S.C. § 4905.
       4.3a  Reports on Aircraft-Airport Noise Report of the
            Administrator of the Environmental  Protection
            Agency to the Committee on Public Works, U.S.
            Senate, August 1973.
                                                                  XI

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   Statutes
       and
Legislative
   History

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1.4 THE NOISE CONTROL ACT OF 1972, 42 U.S.C. 34001 et seq.
                                (1972).

              THE NOISE CONTROL ACT  OF 1972

Sec.
4901.  Congressional findings and statement of policy.
4902.  Definitions.
4903.  Federal programs.
        (a) Furtherance of Congressional policy.
        (b) Presidential authority to exempt activities  or facilities from
              compliance requirements.
        (c) Coordination of programs  of Federal  agencies; standards and
              regulations; status reports.
4904.  Identification of major noise sources.
        (a) Development of  publication of criteria.
        (b) Compilation and publication of reports on  noise sources and
              control technology.
        (c) Supplemental  criteria and reports.
        (d) Publication in Federal Register.
4905.  Noise emission standards for products distributed in commerce.
        (a) Proposed regulations.
        (b) Authority to publish regulations  not otherwise required.
        (c) Contents  of regulations;  appropriate  consideration of  other
              standards; participation  by interested persons; revision.
        (d) Warranty  by manufacturer  of  conformity  of  product with
              regulations; transfer of cost obligation from  manufacturer to
              dealer prohibited.
        (e) State and local regulations.
4906.  Aircraft noise standards.
4907.  Labeling.
        (a) Regulations.
        (b) Manner of notice;  form; methods  and units of  measurement.
        (c) State regulation of  product  labeling.
4908.  Imports.
4909.  Prohibited acts.
4910.  Enforcement.
        (a) Criminal penalties.
        (b) Separate violations.
        (c) Actions to restrain  violations.
        (d) Orders issued to protect the public health and welfare;  notice;
              opportunity for hearing.
        (e) "Person" defined.
4911.  Citizen  suits.
        (a) Authority to commence suits.                                '
        (b) Notice.
        (c) Intervention.
        (d) Litigation costs.

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4              LEGAL COMPILATION—SUPPLEMENT II

Sec.
        (e) Other common law or statutory rights of action.
        (f) "Notice control requirement" defined.
4912.  Records, reports, and information.
        (a) Duties of manufacturers of products.
        (b) Confidential information; disclosure.
        (c) Violations and penalties.
4913.   Keseareh, technical assistance, and public information.
4914.   Development of low-noise-emission products.
        (a) Definitions.
        (b) Certification of products; Low-Noise-Emission Product Advisory
              Committee.
        (c) Federal procurement of low-noise-emission products.
        (d) Product  selection.
        (e) Waiver of statutory price limitations.
        (f) Tests of noise emissions  from products  purchased by  Federal
              Government.
        (g) Authorization of appropriations.
        (h) Promulgation of procedures.
4915.   Judicial review.
        (a) Petition for review.
        (b) Additional evidence.
        (c) Stay of  agency action.
        (d) Subpenas.
4916.  Railroad noise emission standards.
        (a) Regulations; standards; consultation with Secretary of Trans-
              portation.
        (b) Regulations to insure compliance with noise emission standards.
        (c) State and local standards and controls.
        (d) Definitions.
4917.  Motor carrier noise emission standards.
        (a) Regulations; standards; consultation with Secretary of Trans-
              portation.
        (b) Regulations to insure compliance with noise emission standards.
        (c) State and local standards and controls.
        (d) Definitions.
4918.   Authorization of appropriations.


   § 4901. Congressional findings and statement of policy
   (a)  The Congress finds—
        (1) that inadequately controlled noise presents a growing
     danger to the health and welfare  of the Nation's population,
     particularly in urban areas;
        (2) that the major sources  of noise include transportation
     vehicles  and  equipment, machinery,  appliances,  and other
     products in commerce; and
        (3) that, while  primary responsibility for control of noise
     rests with State and local governments, Federal action is essen-

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              STATUTES AND LEGISLATIVE HISTORY             5

    tial 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 Americans free from
noise  that jeopardizes  their health or welfare. 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 information
to the public respecting the noise emission and noise  reduction
characteristics of such products.
Pub.L. 92-574, § 2, Oct. 27, 1972, 86 Stat. 1234.

  § 4902. Definitions
  For purposes of this chapter:
       (1) The term "Administrator" means the Administrator of
    the Environmental Protection Agency.
       (2) The term  "person" means an individual, corporation,
    partnership,  or association,  and  (except as provided in sec-
    tions  4910 (e) and 4911 (a) of this title) includes any officer,
    employee, department, agency,  or instrumentality  of the
    United States, a State, or any political subdivision of a State.
       (3) The term "product" means any manufactured article or
    goods or component thereof; except that such term does not
    include—
           (A) any aircraft, aircraft engine, propeller, or appli-
        ance, as such terms are defined in section 1301 of Title
        40; or
           (B) (i) any military weapons or equipment which are
        designed for combat use; (ii) any rockets or equipment
        which are designed for research, experimental, or devel-
        opmental work to be performed by the National Aero-
        nautics and Space Administration; or (iii) to the extent
        provided by regulations of the  Administrator, any other
        machinery or equipment designed for use  in experimen-
        tal work done by or for the Federal Government.
       (4) The term "ultimate purchaser" means the first person
    who in good faith purchases a product for purposes other than
    resale.
       (5) The term  "new product" means  (A)  a product the
    equitable or legal title of which has  never been transferred to
    an ultimate purchaser, or (B) a product which is imported or
    offered for importation into the United States and which is

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 6           LEGAL COMPILATION—SUPPLEMENT II

     manufactured after the effective date of a regulation under
     section 4905 or  4907 of this title which would have been
     applicable  to such product had it been manufactured in the
     United States.
       (6)  The term  "manufacturer" means any person engaged
     in the manufacturing or assembling of new products; or the
     importing  of new products for resale, or who acts for, and is
     controlled by any such person in connection with the distribu-
     tion of such products.
       (7)  The term  "commerce" means trade, traffic, commerce,
     or transportation—
           (A) between a place in a State and any place outside
         thereof, or
           (B) which affects trade, traffic, commerce, or transpor-
         tation described in subparagraph (A).
       (8)  The term "distribute in commerce" means sell in, offer
     for sale in, or introduce or deliver for introduction into, com-
     merce.
       (9)  The term "State" includes the District of Columbia, the
     Commonwealth of Puerto Rico, the Virgin Islands, American
     Samoa, Guam, and the Trust Territory of the Pacific Islands.
       (10) The term  "Federal  agency"  means  an  executive
     agency (as defined in section 105 of Title 5) and includes the
     United States Postal Service.
       (11) The term "environmental noise" means the intensity,
     duration, and the character of sounds from all  sources.
Pub.L. 92-574,  § 3, Oct. 27, 1972, 86 Stat. 1234.

  § 4903. Federal programs—Furtherance of Congressional policy
  (a) 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.
       Presidential authority to exempt activities or facilities from
                     compliance requirements
  (b) Each department,  agency, or instrumentality of the execu-
tive,  legislative, and  judicial branches  of  the Federal Govern-
ment—
       (1)  having jurisdiction over any property or facility, or
       (2)  engaged in any activity resulting, or which may result,
     in the emission of noise,

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              STATUTES AND LEGISLATIVE HISTORY             7

shall  comply with  Federal, State,  interstate, and local require-
ments respecting control and abatement of environmental noise to
the same extent that any person is subject to such requirements.
The President may exempt any single activity or facility,  includ-
ing noise emission sources or classes thereof, of any department,
agency, or instrumentality in the executive branch  from compli-
ance 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 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
available 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 determination.  The President shall re-
port each January  to the Congress all exemptions from the re-
quirements of this  section granted  during the preceding calendar
year,  together with his reason for granting  such  exemption.
  Coordination of programs of Federal agencies; standards and regulations;
                          status reports
   (c) (1)  The Administrator shall coordinate the programs 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
programs 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 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

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8            LEGAL COMPILATION—SUPPLEMENT II

request was made. The report shall be  published  in the Federal
Register and shall be accompanied by a  detailed statement of the
findings and conclusions of the agency respecting  the revision  of
its standard or regulation. With respect to the Federal Aviation
Administration, section 1431 of Title 40  shall apply in lieu of this
paragraph.
  (3) On the basis of regular consultation with appropriate Fed-
eral agencies, the Administrator shall compile and publish, from
time to time, a report on the status and progress of Federal activi-
ties 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.
Pub.L. 92-574, § 4, Oct. 27,1972, 86 Stat. 1235.

  § 4904. Identification of major noise sources—Development and
publication of criteria
  (a)  (1) The Administrator shall, after consultation with appro-
priate Federal  agencies  and within nine months  of October 27,
1972, develop and publish criteria with  respect  to noise. Such
criteria shall reflect the scientific knowledge  most useful  in indi-
cating the kind and extent of all identifiable  effects on the public
health or welfare which may be expected from differing quantities
and qualities of noise.
  (2) The Administrator shall, after consultation with appropri-
ate Federal agencies and  within twelve months  of October 27,
1972, publish information on the levels of environmental noise the
attainment and maintenance of which in defined areas under var-
ious conditions are requisite to protect the public health and wel-
fare with an adequate margin of safety.
     Compilation and publication of reports on  noise sources and control
                           technology
  (b)  The Administrator  shall, after consultation with appropri-
ate Federal agencies, compile  and publish a report or series  of
reports (1) identifying products  (or classes of products) which in
his judgment are major sources of noise, and (2) giving informa-
tion on techniques for control of noise from such products, includ-
ing available data on the technology, costs, and alternative meth-
ods of noise control. The first such report shall be published not
later than eighteen months after October 27,  1972.
                  Supplemental criteria and reports
  (c) The Administrator shall from time to time review and, as

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              STATUTES AND LEGISLATIVE HISTORY             9

appropriate, revise or supplement any criteria or reports published
under this section.
                   Publication in Federal Register
  (d) Any report (or revision thereof) under subsection (b)  (1)
of this section identifying major noise sources shall be published
in the Federal Register. The publication or revision  under this
section of any criteria or information on control techniques shall
be announced in  the Federal Register, and  copies shall be made
available to the general public.
Pub.L. 92-574, § 5, Oct. 27,1972, 86 Stat. 1236.

  § 4905. Noise  emission standards for products distributed in
commerce—Proposed regulations
  (a)  (1) The Administrator shall publish  proposed regulations,
meeting the  requirements of subsection  (c) of this section, for
each product—
       (A) which is identified  (or is part of a class  identified) in
    any report published under section 4904 (b) (1) of this title
    as a major source of noise,
       (B) for which, in his judgment, noise  emission standards
    are feasible, and
       (C) which falls in one of the following categories:
           (i) Construction equipment.
           (ii) Transportation equipment (including recreational
        vehicles and related equipment).
           (iii) Any motor or engine (including any  equipment of
        which an engine or motor is an integral part).
           (iv) Electrical or electronic  equipment.
  (2)  (A) Initial proposed regulations  under paragraph (1) shall
be published  not later than eighteen  months after October 27,
1972, and shall apply to any product described in  paragraph  (1)
which is identified  (or is a part of a class identified) as a major
source of noise in any report published under section 4904 (b)  (1)
of this title  on or  before the  date  of  publication  of such initial
proposed regulations.
  (B) In the case  of  any product described  in paragraph  (1)
which is identified (or is part of a class identified) as a major
source of noise in a report published under section 4904 (b)  (1) of
this title  after  publication  of the initial  proposed regulations
under subparagraph (A) of this paragraph,  regulations under

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10           LEGAL COMPILATION—SUPPLEMENT II

paragraph (1)  for such product shall be proposed and published
by the Administrator not later than eighteen months after such
report is published.
  (3) After proposed regulations respecting a product have been
published under paragraph (2), the Administrator shall, unless in
his judgment noise emission standards  are not  feasible for such
product, prescribe regulations, meeting  the requirements of sub-
section (c) of this section, for such product—
       (A) not earlier than six months after publication  of such
    proposed regulations, and
       (B) not later than—
           (i) twenty-four months after October 27, 1972, in the
        case of  a product  subject to proposed regulations pub-
        lished under paragraph (2)  (A), or
           (ii) in  the case of  any other product, twenty-four
        months  after the publication of the report under section
        4904 (b)  (1)  of this title  identifying it  (or  a  class of
        products of  which it is a part) as a  major  source of
        noise.
          Authority to publish regulations not otherwise required
  (b)  The Administrator may publish proposed regulations, meet-
ing the requirements of subsection  (c) of this section,  for  any
product for which he is not  required by subsection (a)  of this
section to prescribe regulations  but for which,  in his judgment,
noise emission standards are feasible and are requisite  to protect
the public health and welfare. Not earlier than  six months after
the date  of publication  of  such proposed regulations respecting
such product, he may prescribe regulations, meeting the  require-
ments of subsection (c)  of this section, for such  product.

    Contents of regulations;  appropriate consideration of other standards;
              participation by interested persons; revision
  (c) (1) Any regulation prescribed under subsection  (a) or (b)
of this section (and  any revision  thereof) respecting  a  product
shall include a noise  emission standard  which shall set limits on
noise emissions from  such product and shall be a  standard which
in the  Administrator's  judgment, based  on criteria  published
under section 4904 of this title,  is requisite to protect the public
health and welfare, taking into  account the magnitude and condi-
tions of use of such product (alone or in combination with other
noise sources), the degree of noise reduction achievable  through
the application of the best  available technology, and the cost of

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              STATUTES AND LEGISLATIVE HISTORY            11

compliance. In establishing such a standard for any product, the
Administrator shall give 'appropriate consideration to standards
under other laws designed to safeguard the health and welfare of
persons including any standards  under the National Traffic and
Motor Vehicle Safety Act  of 1966, the Clean  Air Act,  and the
Federal Water Pollution Control Act. Any such  noise emission
standards shall be a performance standard. In addition, any regu-
lation under subsection (a) or (b) of this section  (and any revi-
sion thereof)  may contain testing procedures necessary to  assure
compliance  with  the emission standard in  such regulation, and
may  contain provisions  respecting instructions  of the manufac-
turer for the maintenance, use, or repair of the product.
   (2) After publication of any proposed  regulations under  this
section, the Administrator shall allow interested persons an  oppor-
tunity to participate in rulemaking1 in accordance with the first
sentence of section 553 (c) of Title 5.
   (3) The Administrator may revise any regulation prescribed by
him under  this  section  by  (A)  publication of  proposed revised
regulations, and (B) the promulgation, not earlier than six months
after the date of such publication, of regulations making the revi-
sion ; except that a revision which makes only technical or clerical
corrections in a regulation under this section may be promulgated
earlier than six months after such date if the Administrator finds
that such earlier promulgation is in the public interest.

    Warranty by manufacturer of conformity of product with regulations;
            transfer of cost obligation from manufacturer to
                         dealer prohibited
   (d) (1) On and after the effective date of any regulation pre-
scribed  under subsection (a) or  (b) of this section, the manufac-
turer of each  new product to which such regulation applies shall
warrant to the ultimate purchaser and each subsequent purchaser
that such product is designed, built, and equipped so as to conform
at the time  of sale with such regulation.
   (2) Any cost obligation of any dealer incurred as a result  of any
requirement imposed  by paragraph (1) of this subsection shall be
borne by the manufacturer. The transfer of any such cost obliga-
tion from a manufacturer to any dealer through franchise or other
agreement is prohibited.
   (3) If a manufacturer includes in  any advertisement a  state-
ment respecting the cost or value of noise emission  control devices
or systems, such manufacturer shall  set forth in such statement
the cost or value attributed to  such devices or systems by the

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12           LEGAL COMPILATION—SUPPLEMENT II

Secretary of Labor  (through the Bureau of Labor Statistics). The
Secretary of Labor, and his representatives, shall have the same
access for this purpose to the books, documents, papers, and rec-
ords of a manufacturer as the Comptroller General has to those of
a recipient of assistance for purposes of section 1857J of this title.
                    State and local regulations
  (e) (1) No State or political subdivision thereof may adopt or
enforce—
       (A)  with respect to any new product for which a regula-
    tion has been  prescribed by the Administrator under this
    section, any law or regulation which sets a limit  on noise
    emissions from such  new product and which is not identical
    to such regulation of the Administrator; or
       (B)  with respect to any component incorporated into such
    new product by the manufacturer of such product, any law or
    regulation  setting a limit on noise  emissions from such com-
    ponent when so incorporated.
  (2) Subject to section  4916 and 4917 of this title, nothing in
this section precludes or denies the right of any State or political
subdivision thereof to establish  and enforce controls on environ-
mental noise  (or one or more sources thereof) through the licens-
ing, regulation, or restriction of the use, operation,  or movement
of any product or combination of products.
Pub.L. 92-574,  § 6, Oct. 27, 1972, 86 Stat. 1237.
  § 4906. Aircraft noise standards
  The Administrator, after consultation with appropriate Federal,
State, and  local agencies  and interested persons,  shall conduct a
study of the  (1)  adequacy of Federal Aviation Administration
flight and operational noise controls;  (2) adequacy of noise emis-
sion standards on new and existing aircraft, together with  recom-
mendations on  the retrofitting and phaseout of existing aircraft;
(3) implications of identifying and achieving levels  of cumulative
noise exposure  around  airports; and  (4)  additional measures
available to airport operators and local governments to  control
aircraft noise. He shall report on such study to the  Committee on
Interstate and Foreign Commerce of the House of Representatives
and the Committees on Commerce and Public Works of the Senate
within nine months after October 27, 1972.
Pub.L. 92-574, § 7(a), Oct. 27, 1972, 86 Stat. 1239.

  § 4907. Labeling—Regulations
   (a) The Administrator shall by regulation designate any prod-
uct (or class thereof)—

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              STATUTES AND LEGISLATIVE HISTORY            13

       (1)  which emits noise capable of adversely affecting  the
    public health or welfare; or
       (2)  which is sold wholly or in part  on the basis of its
    effectiveness in reducing noise.
        Manner of notice; form; methods and units of measurement
  (b) For each product  (or  class thereof)  designated under sub-
section  (a) of this section the Administrator shall by regulation
require that  notice be given to the prospective user of the level
of the noise the product emits, or of its effectiveness in reducing
noise, as  the case may be. Such regulations  shall specify  (1)
whether such notice shall be affixed to the product or to the outside
of its container, or to both, at the time of its sale to the ultimate
purchaser or whether such notice shall be given to the prospective
user in some other manner,  (2)  the form of the notice, and  (3)
the methods and units of measurement to be used. Section 4905 (c)
(2) of this title shall apply  to the prescribing of  any regulation
under this section.
                 State regulation of product labeling
  (c) This section does not prevent any State or political subdivi-
sion  thereof from regulating  product labeling or information
respecting products in any way not in conflict with regulations
prescribed by the Administrator under this section.
Pub.L. 92-574, § 8, Oct. 27, 1972, 86 Stat. 1241.

  § 4908. Imports
  The Secretary of the  Treasury shall, in consultation with  the
Administrator, issue  regulations  to carry  out  the provisions of
this chapter with respect to  new products imported or offered for
importation.
Pub.L. 92-574, § 9, Oct. 27, 1972, 86 Stat. 1242.

  § 4909. Prohibited acts
  (a)  Except as  otherwise  provided in subsection (b)  of this
section, the following acts or the causing thereof are prohibited :
       (1)  In the case of  a manufacturer, to distribute in com-
    merce any new product manufactured after the effective date
    of  a  regulation prescribed under  section  4905  of  this  title
    which is applicable to such product, except in conformity with
    such regulation.
       (2)  (A) the removal  or rendering inoperative by any per-
    son, other than for purposes of maintenance, repair, or replace-
    ment, of any device or element of design incorporated into any
    product  in  compliance with regulations  under  section 4905

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14           LEGAL COMPILATION—SUPPLEMENT II

    of this title,  prior to  its sale or delivery to  the ultimate
    purchaser or while it is in use, or (B) the use of a product
    after such device  or element of design has been removed or
    rendered inoperative by any  person.
       (3)  In the  case of a manufacturer, to distribute in com-
    merce any new product manufactured after the effective date
    of a regulation prescribed under section 4907 (b) of this title
    (requiring information respecting noise) which is applicable
    to such product, except in conformity with such regulation.
       (4)  The removal by  any person of  any notice affixed to a
    product or container pursuant to regulations prescribed under
    section 4907 (b) of this title, prior to sale of the product to the
    ultimate purchaser.
       (5)  The importation into the United States by any person
    of any new product in violation  of a regulation prescribed
    under Section 4908 of  this title which is applicable to such
    product.
       (6)  The failure or refusal by any person to comply with
    any requirement of section 4910 (d) or 4912 (a) of this title or
    regulations  prescribed  under section 4912(a), 4916, or 4917
    of this title.
  (b)  (1)  For the purpose of research, investigations, studies,
demonstrations,  or training, or  for reasons of  national security,
the Administrator may exempt for a specified period of time any
product, or class thereof, from paragraphs  (1),  (2), (3), and (5)
of subsection (a) of this section, upon such terms and conditions
as he may find necessary to protect the public health or welfare.
  (2) Paragraphs (1), (2),  (3), and (4) of subsection (a) of this
section shall not apply  with  respect to any product which is manu-
factured  solely for use outside  any State and which  (and the
container of which) is labeled or otherwise marked to show that it
is manufactured solely for use outside any State; except that such
paragraphs shall apply to such product if it is in fact distributed
in commerce for use in any State.
Pub.L. 92-574, § 10, Oct. 27, 1972,  86 Stat. 1242.

  § 4910. Enforcement—Criminal  penalties
  (a)  Any person who willfully  or knowingly violates paragraph
(1), (3), (5), or (6) of subsection (a)  of section 4909 of this title
shall be punished by a fine of not  more than $25,000 per day of
violation,  or by imprisonment for not  more than one year, or by
both.  If the conviction is for a violation committed after a first
conviction of such person under this subsection, punishment shall

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              STATUTES AND LEGISLATIVE HISTORY            15

be by a fine of not more than $50,000 per day of violation, or by
imprisonment for not more than two years, or by both.
                        Separate violations
  (b) For the purpose of this section, each day of violation of any
paragraph  of section 4900 (a)  of this section shall constitute  a
separate violation of that section.
                    Actions to restrain violations
  (c) The district courts of the United States shall have jurisdic-
tion of actions brought by and in the name of the United States to
restrain any violations of section 4909 (a) of this title.
       Orders issued to protect the public health and welfare; notice;
                      opportunity for hearing
  (d) (1) Whenever any person is in violation of section 4909 (a)
of this title, the Administrator may issue an order specifying such
relief as he determines is  necessary to protect the public health
and welfare.
  (2) Any order under this subsection shall be issued only after
notice and opportunity for a hearing  in accordance with section
554 of Title 5.
                        "Person" defined
  (e) The term "person," as used in this section, does not include
a department, agency, or instrumentality of the United States.
Pub.L. 92-574, § 11, Oct. 27, 1972, 86 Stat. 1242.
  § 4911. Citizen suits—Authority to commence suits
  (a) Except as provided  in subsection  (b)  of this section, any
person  (other  than the United States) may commence a  civil
action on his own behalf—
       (1) against any person  (including (A) the United States,
    and (B)  any other governmental instrumentality or agency to
    the extent permitted by the eleventh amendment to  the Con-
    stitution) who is alleged to be in violation of any noise con-
    trol requirement (as defined in subsection (e)  of this  section),
    or
       (2)  against—
           (A) the Administrator of the Environmental Protection
         Agency where there is alleged a failure of such Adminis-
         trator  to perform any act or duty under this  chapter
         which is not discretionary with such Administrator,  or
           (B) the Administrator of the Federal Aviation Admin-
         istration where there is alleged a failure of such Admin-
         istrator to perform any act or duty under section 1431 of

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16           LEGAL COMPILATION—SUPPLEMENT II

        Title 49 which is not discretionary with such Adminis-
        trator.
The district courts of the United States shall have jurisdiction,
without regard to  the amount in controversy, to restrain  such
person from violating such noise control requirement or to order
such Administrator to perform such act or duty, as  the case may
be.
                             Notice
  (b) No action may be commenced—
       (1) under subsection (a) (1)  of this section—
           (A) prior to sixty days  after the plaintiff  has given
        notice of the violation (i)  to  the Administrator of the
        Environmental Protection Agency  (and to the Federal
        Aviation Administrator in  the case of  a violation of a
        noise  control requirement  under such  section  1431 of
        Title 49) and (ii) to any alleged violator of such require-
        ment, or
           (B)  if an  Administrator has  commenced and is  dili-
        gently prosecuting a civil  action to require compliance
        with  the  noise  control requirement, but  in  any  such
        action in a court of  the United States  any person may
        intervene as a matter of right, or
       (2) under subsection (a) (2)  of this section prior to sixty
     days after the plaintiff has given notice to the defendant that
     he will commence such action.
Notice under this subsection shall be given in such manner as the
Administrator of the Environmental Protection Agency shall  pre-
scribe by regulation.
                          Intervention
  (c) In an  action under this section, the  Administrator of the
Environmental Protection Agency, if not a party, may intervene
as a matter of right. In an action under this section respecting a
noise control requirement under section 1431  of  Title 49, the
Administrator of the Federal Aviation Administration,  if not a
party, may also intervene as a matter of right.
                         Litigation costs
   (d) The court, in issuing any final order in any action brought
pursuant  to  subsection (a) of this  section,  may award  costs of
litigation (including reasonable attorney and expert witness fees)
to  any party,  whenever the court determines such an award is
appropriate.

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              STATUTES AND LEGISLATIVE HISTORY            17

             Other common law or statutory rights of action
   (e) Nothing in this section shall restrict any right which any
person  (or  class of  persons)  may have  under  any statute or
common law to seek enforcement of any noise control requirement
or to seek any other  relief (including relief against an Adminis-
trator) .
                 "Noise control requirement" defined
   (f) For purposes of this section, the term "noise control require-
ment" means paragraph (1),  (2),  (3),  (4), or (5) of  section
4909 (a) of this title, or a standard, rule, or regulation issued under
section 4916 or 4917 of this title or under section 1431 of Title 49.
Pub.L. 92-574, § 12, Oct. 27, 1972, 86  Stat. 1243.
   § 4912. Records,  reports, and information—Duties of  manufac-
turers of products
   (a) Each  manufacturer of a product to which regulations under
section 4905 or 4907 of this title apply shall—
       (1) establish and maintain such records, make such reports,
    provide such information, and make such tests, as the Admin-
    istrator may reasonably require  to enable  him to determine
    whether such manufacturer has acted or is acting in com-
    pliance  with this chapter,
       (2) upon request of  an officer  or employee duly designated
    by the Administrator, permit such  officer or employee at rea-
    sonable times  to have access to such information and the
    results  of such tests  and to copy such records,  and
       (3) to the extent required by  regulations of the  Adminis-
    trator, make products coming off the assembly  line or other-
    wise in  the hands of the manufacturer available for testing by
    the Administrator.
                 Confidential information; disclosure
   (b)  (1) All information  obtained by the Administrator  or his
representatives pursuant to subsection  (a) of this section, which
information contains  or relates to a trade  secret or other  matter
referred to  in section 1905 of Title 18, shall  be  considered confi-
dential for the purpose of that section, except that such informa-
tion may be disclosed to other  Federal officers or employees, in
whose possession it shall remain confidential, or when relevant to
the matter in controversy in any proceeding under this chapter.
   (2) Nothing in this subsection shall  authorize the withholding
of information by the Administrator, or by any officers or employ-
ees under his control, from the duly authorized committees  of the
Congress.

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18           LEGAL COMPILATION—SUPPLEMENT II

                     Violations and penalties
  (c) Any person who knowingly makes any false statement, rep-
resentation, or certification in any application, record, report, plan,
or other document filed or required to be maintained under this
chapter or who falsifies, tampers with, or knowingly renders inac-
curate any monitoring device or method required to be maintained
under this chapter, shall  upon conviction be punished by a fine
of not more than $10,000, or by imprisonment for not more than
six months, or by both.
Pub.L. 92-574, § 13, Oct. 27,1972, 86 Stat. 1244.

  § 4913. Research, technical assistance, and public information
  In furtherance of his  responsibilities under this  chapter and to
complement, as necessary, the noise-research programs  of other
Federal agencies, the Administrator is authorized  to:
      (1)  conduct research, and finance research by contract with
    any person, on the effects, measurement,  and control of noise,
    including but not limited to—
           (A) investigation of the psychological and physiologi-
         cal effects of noise on humans and the effects of noise on
         domestic animals, wildlife, and property, and determina-
         tion of acceptable levels  of  noise on the basis of such
         effects;
           (B) development of improved methods  and standards
         for measurement and monitoring of noise, in cooperation
         with the National Bureau of Standards,  Department of
         Commerce; and
           (C)  determination of the most effective and practicable
         means of controlling noise emission.
      (2)  Provide technical assistance to State and local govern-
    ments to facilitate their development and enforcement of am-
    bient noise standards, including but not limited to—
           (A) advice on training of noise-control personnel and
         on selection and operation  of noise-abatement  equip-
         ment ; and
           (B) Preparation of model  State or local legislation for
         noise control.
      (3)  Disseminate to the public information on the effects of
    noise, acceptable noise levels, and techniques  for noise mea-
    surement and control.
Pub.L. 92-574, § 14, Oct. 27,1972, 86 Stat. 1244.

  § 4914. Development of low-noise-emission products—Definitions
  (a) For the purpose of this section:

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              STATUTES AND LEGISLATIVE HISTORY           19

      (1) The term "Committee" means the Low-Noise-Emission
    Product Advisory Committee.
      (2) The term "Federal Government" includes the legisla-
    tive, executive, and judicial branches of the Government of
    the United  States, and the government of  the District of
    Columbia.
      (3) The term  "low-noise-emission  product"  means  any
    product which emits noise in amounts significantly below the
    levels specified in noise emission standards under regulations
    applicable under section 4905 of this title at the time of pro-
    curement to that type of product.
      (4) The term "retail price" means (A) the maximum statu-
    tory price applicable to any type of product; or (B)  in  any
    case where there is no  applicable maximum  statutory price,
    the most recent procurement price paid for any type of product.
      Certification of products; Low-Noise-Emission Product Advisory
                           Committee
  (b) (1) The  Administrator  shall  determine  which  products
qualify as low-noise-emission products in accordance with the pro-
visions of this section.
  (2) The Administrator shall certify any product—
      (A) for which a certification application has been filed in
    accordance with paragraph (5)  (A) of this subsection;
      (B) which is a low-noise-emission  product as determined
    by the Administrator; and
      (C) which he determines is suitable for use as a substitute
    for a type of product at that time in use by agencies of the
    Federal Government.
  (3) The Administrator may  establish  a Low-Noise-Emission
Product Advisory Committee to assist him in determining  which
products qualify as low-noise-emission products  for  purposes of
this section. The Committee shall include the Administrator or his
designee, a representative of the National Bureau of  Standards
and representatives of such other  Federal agencies  and private
individuals as the Administrator may deem necessary from time
to time. Any member of the Committee not employed on a full-
time basis by the United States may receive the daily equivalent of
the annual rate of basic  pay in effect for grade GS-18  of the
General Schedule for each day such member is engaged upon work
of the Committee. Each member of the  Committee shall be reim-
bursed for travel expenses,  including  per  diem in lieu  of  subsis-
tence as authorized by section 5703 of Title 5 for persons in the
Government service employed intermittently.

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20           LEGAL COMPILATION—SUPPLEMENT II

  (4) Certification under this section shall be effective for a pe-
riod of one year from the date of issuance.
  (5)  (A) Any person seeking to have a class or model of product
certified under  this section shall file a certification application in
accordance with regulations prescribed by the Administrator.
  (B)  The Administrator shall  publish in the Federal Register a
notice of each application received.
  (C)  The Administrator shall make determinations for the pur-
pose of this section in accordance with procedures prescribed  by
him by regulation.
  (D)  The Administrator shall  conduct whatever investigation is
necessary,  including actual  inspection of the product at a place
designated in regulations prescribed under subparagraph (A).
  (E)  The Administrator shall receive and  evaluate written com-
ments and documents from interested persons in support of, or in
opposition to, certification of the class or model of product under
consideration.
  (F)  Within ninety days  after the receipt of a properly filed
certification application the Administrator shall determine whether
such product is a low-noise-emission product for purposes of this
section. If the  Administrator determines that such product is a
low-noise-emission product,  then within one hundred  and eighty
days of such determination  the  Administrator shall  reach a deci-
sion as to whether such product is a suitable substitute for any
class or  classes of  products presently being purchased by  the
Federal Government for use by its agencies.
  (G)  Immediately  upon making any determination  or  decision
under subparagraph (F), the Administrator shall publish in the
Federal Register notice of such  determination or decision, includ-
ing reasons therefor.

           Federal procurement of low-noise-emission products
  (c)  (1)  Certified  low-noise-emission products shall be acquired
by purchase or lease by the Federal Government for  use by the
Federal Government in lieu of other products if the Administrator
of General Services  determines  that such certified products have
procurement costs which are no more than 125 per centum of the
retail price of the  least expensive type of product for  which they
are certified substitutes.
  (2) Data relied  upon by the Administrator in determining that
a product is a certified low-noise-emission product shall be incor-
porated in any contract for the procurement of such product.

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              STATUTES AND LEGISLATIVE HISTORY             21

                         Product selection
   (d)  The procuring agency shall be required to purchase avail-
able certified low-noise-emission products which are eligible for
purchase to the extent they are available before purchasing any
other products for which any low-noise-emission product is a cer-
tified substitute. In making purchasing selections between compet-
ing eligible certified low-noise-emission  products, the  procuring
agency shall give priority to any class or model which does not
require extensive periodic  maintenance  to  retain  its  low-noise-
emission qualities or which does not involve operating costs signifi-
cantly in excess of those products for which it is a certified substi-
tute.

                 Waiver of statutory price limitations
   (e)  For the purpose of  procuring certified  low-noise-emission
products any statutory price limitations shall be waived.

           Tests of noise emissions from products purchased by
                        Federal Government
   (f)  The Administrator shall,  from time to time  as  he deems
appropriate,  test the emissions of noise  from certified  low-noise-
emission products purchased by the Federal Government. If at any
time he finds that the noise-emission levels exceed  the levels  on
which certification under this section was based, the Administra-
tor shall give the supplier of such product written  notice of this
finding, issue public notice of it, and give the  supplier an opportu-
nity to make necessary repairs,  adjustments, or replacements. If
no such repairs, adjustments, or replacements are made within a
period to be  set by the Administrator, he may order the supplier
to show cause why the product involved should be eligible for
recertification.

                   Authorization of appropriations
   (g)  There are authorized to be appropriated for  paying addi-
tional amounts for products pursuant to,  and for carrying out the
provisions  of, this section,  $1,000,000  for the fiscal year  ending
June 30,1973, and $2,000,000 for each of the two succeeding fiscal
years.

                    Promulgation of procedures
   (h)  The Administrator shall promulgate  the procedures  re-
quired to  implement this section within  one hundred and eighty
days after October 27,1972.
Pub.L. 92-574, § 15, Oct. 27, 1972, 86  Stat. 1245.

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22           LEGAL COMPILATION—SUPPLEMENT II

  § 4915. Judicial review—Petition for review
  (a) A petition for review of action of the Administrator of the
Environmental Protection Agency in promulgating any  standard
or regulation under section 4905, 4916, or 4917 of this title or any
labeling regulation under section 4907  of this title may be filed
only in the United States Court of Appeals for the District  of
Columbia Circuit,  and a  petition  for review of action of the Ad-
ministrator of the Federal Aviation Administration in promulgat-
ing any standard or regulation under section 1431 of Title 49 may
be filed only in such court. Any such petition shall be filed within
ninety days from the date of such promulgation, or after such date
if such petition is based solely on grounds arising after such nine-
tieth  day. Action  of either Administrator with respect  to which
review could have  been obtained under this subsection shall not  be
subject to judicial review in civil  or  criminal proceedings for
enforcement.
                        Additional evidence
  (b)  If a party seeking review under this chapter applies to the
court for leave to adduce additional  evidence, and shows to the
satisfaction of the court  that the information is material and was
not available at the time of the proceeding before the Administra-
tor of such Agency or Administration (as the case may be), the
court may order such additional evidence (and evidence  in rebut-
tal  thereof)  to be taken before  such Administrator, and  to  be
adduced  upon the  hearing, in such manner and upon such terms
and conditions as the  court may deem proper. Such  Administrator
may modify his findings  as to the facts, or make new findings,  by
reason of the additional  evidence so taken, and he  shall file with
the court such modified or new findings, and his recommendation,
if any, for the modification or setting aside of his  original order,
with the return of such additional evidence.
                      Stay of agency action
  (c)  With respect to relief pending review of an action  by either
Administrator, no stay of an agency action may be granted unless
the reviewing court determines that the party seeking such stay is
(1) likely to prevail on the merits in the review proceeding and
(2) will suffer irreparable harm pending such proceeding.

                            Subpenas
  (d) For the purpose of obtaining information to carry out this
chapter, the  Administrator  of  the  Environmental  Protection
Agency may issue subpenas  for the attendance and testimony of
witnesses and the production of relevant papers, books, and docu-

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              STATUTES AND LEGISLATIVE HISTORY            23

ments, and he may administer oaths. Witnesses summoned shall be
paid the same  fees  and mileage that are paid witnesses in the
courts of the United States. In cases of contumacy or refusal to
obey a subpena served upon any person under this subsection, the
district court of the United States  for any district in which such
person is found or resides or transacts business, upon application
by the United States and after notice to such person, shall have
jurisdiction to issue  an order requiring such person to appear and
give testimony before the Administrator, to appear and produce
papers, books, and documents before the Administrator, or  both,
and any failure to obey such order of the court may be punished
by such court as a contempt thereof.
Pub.L. 92—574, § 16, Oct. 27, 1972, 86 Stat. 1247.

  § 4916. Railroad noise emission  standard—Regulations; stand-
ards; consultation with Secretary of Transportation
  (a)  (1)  Within nine months after October 27, 1972, the Admin-
istrator shall publish proposed noise emission regulations for sur-
face carriers engaged in interstate commerce by railroad.  Such
proposed regulations shall include noise emission standards setting
such  limits on noise emissions resulting from operation  of the
equipment and facilities of surface carriers engaged in interstate
commerce by railroad which reflect the degree of noise  reduction
achievable  through the application of the best available technol-
ogy, 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 Adminis-
trator 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 Transportation in order to assure  appropri-
ate 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 the Secretary of Transpor-
tation, to permit the development and application of the requisite
technology, giving appropriate consideration to the cost of compli-
ance within such period.

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24           LEGAL COMPILATION—SUPPLEMENT II

       Regulations to insure compliance with noise emission standards
   (b)  The Secretary  of Transportation, after consultation  with
the Administrator, shall promulgate regulations to insure compli-
ance with all  standards  promulgated by the Administrator under
this section. The Secretary of Transportation shall carry out  such
regulations through the use of his powers  and duties of enforce-
ment and inspection authorized by the Safety Appliance Acts, the
Interstate Commerce Act,  and the  Department of Transportation
Act. Regulations promulgated  under this section shall be subject
to the provisions of sections 4909,  4910, 4911,  and 4915 of this
title.
                 State and local standards and controls
   (c)  (1) Subject to paragraph  (2) but  notwithstanding  any
other provision of this chapter, after the effective date of a regula-
tion under this section applicable to noise emissions resulting from
the operation of any  equipment or facility of a surface  carrier
engaged in interstate commerce by  railroad, no State or political
subdivision thereof may adopt or enforce any standard  applicable
to noise emissions resulting from the operation of the same equip-
ment or facility of such carrier unless  such standard is identical to
a standard applicable to noise emissions resulting from such oper-
ation prescribed by any regulation under this section.
   (2)  Nothing in this section shall diminish or enhance the rights
of any State or political subdivision thereof to  establish and en-
force standards or controls on levels of environmental noise, or to
control, license, regulate, or restrict the use, operation, or movement
of any product if the  Administrator,  after consultation with the
Secretary of Transportation, determines that such standard,  con-
trol, license, regulation, or restriction is necessitated by  special
local conditions and is not in conflict with regulations promulgated
under this section.

                           Definitions
   (d)  The terms "carrier" and "railroad" as used in this section
shall have the same meaning as such terms have under section 23
of Title 45.
Pub.L. 92-574, § 17, Oct. 27,1972, 86 Stat. 1248.

  § 4917. Motor carrier noise  emission standards—Regulations;
standards; consultation with Secretary of Transportation
   (a)  (1) Within nine months after October 27,1972, the Admin-
istrator shall publish proposed noise emission regulations for motor
carriers engaged in interstate commerce. Such proposed regulations

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              STATUTES AND LEGISLATIVE HISTORY            25

shall include noise emission standards setting such limits on noise
emissions resulting from operation of motor carriers engaged in
interstate commerce  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 Adminis-
trator 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 Transportation in order to assure appropri-
ate 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 the Secretary of Transpor-
tation, to permit the  development and application of the requisite
technology,  giving appropriate consideration to the cost of compli-
ance within such period.
      Regulations to insure compliance with noise emission standards
   (b) The  Secretary of Transportation, after  consultation with
the Administrator shall promulgate regulations to insure compli-
ance with all standards promulgated by the Administrator under
this section. The Secretary of Transportation shall carry out such
regulations  through the use of his powers and duties of enforce-
ment and inspection authorized by the Interstate Commerce Act
and  the Department  of Transportation Act. Regulations promul-
gated under this section shall be subject to the provisions of sec-
tions 4909, 4910, 4911, and 4915 of this title.
                 State and local standards and controls
   (c) (1) Subject to paragraph  (2)  of this subsection but not-
withstanding any other provision of this chapter, after the  effec-
tive date of a regulation  under  this  section applicable  to  noise
emissions resulting from  the operation of any motor carrier  en-
gaged in  interstate commerce, no State or political subdivision
thereof may adopt or enforce any standard applicable to the same
operation of such motor carrier,  unless such standard is identical
to a standard applicable to  noise emissions resulting  from such
operation prescribed by any regulation under this section.

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26           LEGAL COMPILATION—SUPPLEMENT II

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

                           Definitions
  (d) For purposes of this section, the term "motor carrier" in-
cludes a common carrier by  motor vehicle, a contract carrier by
motor vehicle,  and a private  carrier of property by motor vehicle
as those terms are defined by paragraphs  (14), (15), and (17) of
section 303 (a)  of Title 49.
Pub.L. 92-574, § 18, Oct. 27, 1972, 86  Stat. 1249.

  § 4918.  Authorization of appropriations
  There is authorized to be appropriated to carry out this chapter
(other than section 4914 of this title)  $3,000,000 for the fiscal year
ending June 30, 1973; $6,000,000 for the  fiscal year ending June
30, 1974; and $12,000,000 for the fiscal year ending June 30, 1975.
Pub.L. 92-574, § 19, Oct. 27, 1972, 86  Stat. 1250.

       [Legislative history is located in Supp. I—Noise]

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Guidelines
      and
   Reports

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                 GUIDELINES AND REPORTS                 29

4.3 EPA REPORT ON AIRCRAFT-AIRPORT NOISE, AS  RE-
               QUIRED BY 42 U.S.C.  §4905.

4.3a Report on Aircraft-Airport Noise,  Report of  the Adminis-
  trator of the Environmental  Protection Agency  to the Com-
  mittee on Public Works, U.S.  Senate, August 1973.


                  TABLE  OF CONTENTS
                                                     Page

INTRODUCTION	  1

SECTION 1

    Adequacy of Federal Aviation Administration
    Flight and Operational Noise Controls	 14

SECTION 2

    Adequacy of Noise Emission Standards on New and
    Existing Aircraft; Recommendations on the
    Retrofitting and Phaseout of Existing Aircraft	30

SECTION 3

    Implications of Identifying and Achieving Levels
    of Cumulative Noise Exposure Around Airports	 46

SECTION 4

    Additional Measures Available to Airport Operators
    and Local Governments to Control Aircraft Noise	100

SUMMARY 	108

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30           LEGAL COMPILATION—SUPPLEMENT II

                       INTRODUCTION

  Noise, "unwanted sound," has been  a problem throughout the
history of the human race. The increasing use of noise producing
machinery  concurrent with vastly  greater magnitudes of sound
generated therefrom (of which aviation systems are a classic case)
has resulted in the noise problem increasing to a  point of major
environmental concern. The relations between noise and man with
respect to  his health (well being)  and welfare (in its broadest
sense) are  extremely complex. These are discussed in considerable
detail in the EPA document, "Public Health and Welfare Criteria
for Noise," issued by the EPA under Section 5 of the Noise Control
Act of 1972. As discussed in that document the effects  of noise
cover a wide range of human  response, including that (the most
severe) of permanent impairment of hearing; interference with the
ability to communicate or undertake desired hearing tasks; annoy-
ance of varying degree,  and other vague  and difficult to define
reactions.  A major consideration  with regard to  noise  as  an
environmental problem, and one having considerable importance in
regard to aviation  noise,  is that hearing is one  of man's main
sensory contacts with his environment (being second only to vision
in that regard). A  part of the reaction to  aircraft noise may be
(and by many authorities is so considered) attributed to a number
of connotations, such as fear, or social antagonism, in the "mes-
sage" interpreted by its listener.
  Aircraft/airport noise is not a new problem for the United States.

                                                        [p.l]
Virtually from the  dawn of aviation, there have been  complaints
regarding aircraft noise. It was recognized early that noise from
aircraft engines could affect the hearing of pilots and ground crew
personnel, as evidenced by the fact that one of the earliest investi-
gations conducted by the  Aero Medical Laboratory of the Army
Air Corps,  during World War I, related to aviators' hearing  (1).
One of the earliest recorded official noise  complaints, related to
aircraft operations, occurred in 1928 at which time a farmer wrote
to the Postmaster  General stating  that low flying aircraft were
disrupting  egg production (2).
  Until World War II, air transportation in the civil sector devel-
oped  at a  very slow  rate. During  World War II, the extensive
utilization  of military aircraft for  passenger and freight trans-
portation provided an impetus to the aviation industry which laid

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                   GUIDELINES AND REPORTS                  31

the basis for the spectacular postwar growth of commercial trans-
portation which has continued until the present time.
  In  1946,  the National Advisory  Committee for  Aeronautics
(NACA—now enfolded into the National Aeronautics and Space
Administration—NASA), the Air Transport Association and the
Aerospace Industries Associated were invited by the Civil Aero-
nautics Administration (CAA) to participate  in a joint approach
to the noise problem which  "threatens  to undermine aviation
progress" (2).
  Noise from reciprocating engine, propeller driven aircraft was

                                                        [p. 2]
of major concern to the military in the World  War II time period.
Numerous studies were conducted by the U.S. Air Force on this
problem in the period 1948 to 1951.  Of considerable significance
were those relating to noise levels resulting from the operation of
B-36 aircraft. These studies showed that levels between 70dB to
120 dB (overall sound pressure levels) were experienced through-
out an area of 144 square miles,  under the takeoff and approach
zones, when these large aircraft operated.
  In apparent anticipation of the  seriousness of jet aircraft noise,
as compared with the already recognized propeller noise problem, the
Port of New York Authority issued a regulation in 1951 forbidding
landing or takeoff of jets, without permission from the Authority
(3). Early in 1952, the problem of noise resulted in action within
the air transport industry to  develop a "National Air Transport
Coordinating Committee" to consider problems of aircraft noise in
the New York area.
  The introduction of high performance,  jet engine powered air-
craft into military use preceded their entry into civil aviation  by a
considerable period of time (approximately 12 years). By 1952, the
noise problem associated with military  jet aircraft had grown to
such proportions in regard to the reactions of civilian communities
that the U.S. Air  Force issued  a special pamphlet "Air Force
Pamphlet 32-2-1, Noise Guide for Air Base Commanders." Various
elements of the Department of Defense had instituted comprehen-

                                                        [p-3]
give research programs aimed at trying to develop both noise sup-
pression techniques associated with the engines  as well as protective
measures for military personnel and  civilian communities directly
adjacent to military installations.
  There have been many additional studies over the past 25 years

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32           LEGAL COMPILATION—SUPPLEMENT II

that have echoed the  foregoing concern.  These included the 1965
studies of the Office of Science and Technology Jet Aircraft Noise
Panel, the 1970 joint DOT/NASA Civil Aviation Research and
Development Study—CARD, the 1971 Environmental Protection
Agency Report to the  President and Congress on Noise under Title
IV, P.L. 91-604 and the report of the Aviation Advisory Commis-
sion, established by Congress under P.L. 91-258.
  Against this background of intensive inquiry and concern about
noise, since 1946, civil  aviation has indeed grown in a most remark-
able manner. There are presently  approximately 2000 large  jet
propelled aircraft operating in the U.S. fleet, compared with none
in 1957 (4). In 1972, these aircraft served an average of almost 500
individual major terminals and carried approximately 190,000,000
passengers. In 1946, by comparison, there were only 65 airports at
which jet aircraft were operating, with a then "optimistic estimate"
that by 1969 jet service would be available at a total of 134 locations.
Information available from the  Federal  Aviation Administration
(FAA) indicates that in addition to the  current  air carrier fleet,
there are  approximately 130,000 other aircraft  of all types in use

                                                        [p. 4]
by  air taxi  services,  corporations, personal business  and private
use, which provide transportation annually for  another 50 million
or so persons. Even better  appreciation of the order of magnitude
of the growth of air travel can perhaps be  obtained by a comparison
of the commercial airlines revenue growth  in revenue passenger
miles. In 1950, there were approximately  8 billion revenue passen-
ger miles  provided by the domestic commercial air carriers, repre-
senting travel by some 17 million passengers.  In 1972, the total
had grown to 152 billion revenue passenger miles  with the growth
in numbers of passengers to 190 million.
   The impact of this  sharp increase in air traffic in terms of take-
offs and landings is also highly significant. In 1972, as an example,
according to preliminary data of  the FAA, there were  approxi-
mately 660,000 takeoffs and landings at O'Hare Airport in Chicago,
the Nation's busiest terminal. The faster, more comfortable mode
of  transportation represented  by high  performance commercial
jets has undoubtedly contributed to the growth in utilization of the
Air Transportation System both for passengers and freight. The
economic  competition of this mode of transportation with others
has also resulted in a  high utilization by  ever increasing segments
of  the public. The concurrent increase  in  the size  of the noise
impact, in terms of numbers of people exposed and  its  severity,

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                  GUIDELINES AND REPORTS                  33

occurred at a greater rate than the apparent ability of either gov-
ernmental entities or the industry to anticipate and then cope with

                                                         [p. 5]
the problem in an effective sense. This situation led to the enact-
ment of Section 7 of the Noise Control Act of  1972.
  It should also be noted that the growth of aviation in the United
States  (and worldwide) has coincided with the major expansion of
metropolitan areas served by air transportation both  in size and
population. This expansion has resulted in an increase in types and
severity  of many other environmental problems  (a situation not
restricted to noise alone) such as air and  water pollution. Concur-
rent expansion of problems has resulted, in many  instances, from
a lack of exercise, by the many governmental jurisdictions, of their
authorities such as zoning, or other powers. This has all too often
resulted  in sharp increases in residential populations immediately
adjacent to the major air terminals. It is fruitless at this late date
to attempt to find "culprits" but it is likewise significant to high-
light the fact that as early as 1964,  there were warnings regarding
the need for local community or state actions  with regard to  this
issue (5).
  In spite of the recurring forecasts  of increasing aviation noise
impact, and a substantial investment  in aviation  noise control
research and development in the Federal and private sector, the
aviation  noise problem had, because of a combination of the wide
variety of influences, grown to major proportions by the time of
the 1971, Title IV, EPA Report on Noise. Approximately 16 million
persons are presently  impacted by aviation noise in  the United
States, and in spite of the introduction of quieter new aircraft, the
number will continue to be of major proportion until the mid 1980's
unless aggressive action is taken. The adverse effects of this noise
range from annoyance  to the possibility of hearing damage. These
effects have resulted in  numerous  law  suits and, in some cases,
have prevented expansion of existing airports or  construction of
new ones.
  It is evident  that there is a need to mobilize available resources
and  technology, including those of providing newer and quieter
aircraft for the future, to deal with this problem in a coordinated
time-phased fashion. By enacting the Noise Control Act of 1972,
Congress provided the Administrator of  EPA with authority to
coordinate  Federal noise control activities,  Federal research  and
development related  to noise, and  to provide  technical assistance
to States in the area of model codes and laws. Congress has thus

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34           LEGAL COMPILATION—SUPPLEMENT II

established a means to integrate the activities of the Administrator
under the Noise Control Act, those of the FAA under the Federal
Aviation Act,  and of other  Federal Agencies, such as NASA,  to
accelerate a coordinated program of correction.
  However, if noise levels  protective of the public health and
welfare are to  be achieved around the Nation's airports in the near
future, it will  be necessary to  establish a Federal regulatory pro-
gram which effectively combines Federal controls on aircraft flight
procedures, technology, and  noise control options available  to air-
port operators and local jurisdictions.
  The present study is part of that action, and results from the
requirements of the Noise Control Act of  1972 (Public Law 92-
574) in Section 7(a), which  directs the Environmental Protection
Agency as follows:
  "The Administrator,  after  consultation with appropriate Federal,
  State, and local agencies and interested persons,  shall conduct a
  study of the (1)  adequacy of Federal  Aviation  Administration
  flight and operational noise controls;  (2)  adequacy  of noise
  emission standards on new and existing aircraft, together with
  recommendations on the  retrofitting and phaseout of existing
  aircraft; (3) implications  of identifying and achieving levels  of
  cumulative noise exposure around airports; and  (4) additional
  measures available to airport operators and local governments to
  control aircraft noise. He shall report on such study to the Com-
  mittee on Interstate and  Foreign Commerce of the House  of
  Representatives and the  Committee on  Commerce and  Public
  Works of the Senate within nine months after the date  of the
  enactment of this Act."
  Under Section 7 (c) of  the Act, not earlier than the date of sub-
mission of the  report to Congress, EPA  is to submit  to FAA
"proposed regulations to provide such control and abatement of air-
craft noise and sonic boom (including control and abatement through
the exercise of  any of the  FAA's regulatory authority over  air
commerce or transportation  or over aircraft or airport operations)
as EPA determines is  necessary to protect the public health and
welfare."
  The descriptive material on  health and welfare contained in the
Criteria Document and the Environmental Noise Effects Document
required by Section 5 of the Noise Control Act will be considered
by the Agency in developing  such proposals. This present  report
on the studies undertaken by  the Agency is the first step  in the
regulation process established  in the Noise Control Act.
  The  study to  develop the  Section 7 (a) report has been carried

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                  GUIDELINES AND REPORTS                 35

out through  a participatory and consultive process  involving a
Task Force made up of six task groups. The membership of the
six task groups was formed by sending invitations to organizations
representing  the various sectors of interest. These included other
Federal agencies, organizations representing State and local govern-
ments, environmental  and consumer action groups,  professional
societies, air  traffic controllers, pilots, airport proprietors, airlines,
users of general aviation aircraft, and aircraft and engine manu-
facturers. A  press release  was distributed concerning the study,
and additional individuals  and organizations  expressing  interest
were asked to participate.  Written  inputs from others, including
all citizen aircraft noise complaint letters received during the
period of the  study, were called to the attention of appropriate task
group leaders and placed in the public master file for  reference.
  A plenary  session of the Task Force was held on February 15,
1973. Each of the task groups then held 4 to 6 working meetings
for the duration of the study. As a result  of these meetings and
a final plenary session on June 21 and 22, 1973, reports were devel-
oped which represent the consolidated, but not unanimous, opinions,
suggestions and specific  data inputs from  the participating task
group members.
  Each report includes the membership list for the task group
and a list of  the master file documents collected during the study
effort. The file was maintained throughout the study for  the use
of task group members and other interested persons, and will
continue to be maintained for public reference at the Office of Noise
Control Programs, Environmental Protection Agency,  Washington
B.C. 20460.
  The reports of the six task groups are entitled:

    • "Legal and Institutional Analysis of Aircraft  and  Airport
      Noise  and Apportionment of Authority  between Federal,
      State and Local Governments"
    •  "Operations  Analysis Including Monitoring, Enforcement,
      Safety, and Costs"
    • "Impact Characterization of Noise  Including  Implications
      of  Identifying and Achieving Levels of Cumulative Noise
      Exposure"
    •  "Noise Source  Abatement Technology and Cost Analysis
      Including Eetrofitting"
    •  "Review and Analysis of Present and Planned FAA Noise
      Regulatory Actions and their Consequences Regarding Air-
      craft and Airport Operations"

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36           LEGAL COMPILATION—SUPPLEMENT II

     • "Military Aircraft and Airport Noise and Opportunities for
       Reduction without Inhibition of Military Missions"

  The reports of the task groups' studies are the results of the
efforts of a unique gathering of interested persons, experts and
concerned citizens, representing a wide spectrum of interest in the
development of an expeditious and effective resolution of the air-
craft/airport noise problem. The reports of the task groups do not
reflect official policy statements of the Environmental Protection
Agency,  but should be  viewed as an  effort  to  obtain  as much
information on all aspects and views on the subject as was possible
within the time  period available. They have provided most of the
basic information for the  analysis of  the aircraft/airport  noise
problem. They will be considered by the Agency, together  with
other data such  as that developed for the EPA Title IV Report to
the President and Congress  on Noise  and in  the public hearings
held by the Agency associated with that report, the Report of the
Aviation Advisory  Commission, and such additional information
as becomes available, in preparing the  detail support for the
proposed  regulations to be  submitted to the  Federal  Aviation
Administration under Section 7 (c) of the Act. Copies of the individ-
ual  Task Group Study  Reports will  be available at the  EPA
Regional Offices  and in the public master file of the Office of Noise
Abatement and  Control. They will become available for purchase
later in 1973 from the Superintendent of Documents, U.S. Govern-
ment Printing Office, Washington, B.C. 20402.
  In the following four sections, the essentials of the information
relevant to the four specific areas called for in Section 7 (a) of the
Noise Control Act of 1972 are discussed. In effect, the Agency has
conducted, for the  Congress, a technological reassessment of the
areas of concern stated in the Act.  The final Section of this report
provides a summary of the principal findings  of the study and of
the plans for regulatory proposals to satisfy the further continuing
requirements of the Act, not only with reference to Section 7 but
as they relate to the larger responsibilities of dealing  with the
problems  of aviation and airport noise in accordance with  other
authorities of the Act.

                         REFERENCES

1. "Doctors in the  Sky," Benf ord,  Robert L., Editor.
2. FAA Historic Fact Book, 1966.
3. Goldstein, S. and Odell,  A., "Comments  on  the Problem of Jet Noise,"
     Port Authority of New York.

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                      GUIDELINES AND REPORTS                      37

4. ATA Annual Report, "Air Transport 1973."
5. "Land Use Planning with Respect to Aircraft Noise," Joint Publication
      U.S. Air Force and United States Federal Aviation Agency, Washington,
      D.C., October, 1964.

                               SECTION  1

   ADEQUACY  OF FEDERAL AVIATION  ADMINISTRATION
        FLIGHT  AND OPERATIONAL NOISE  CONTROLS

   Based on this Agency's studies, it appears that existing FAA
flight and operational controls* do not adequately protect the public
health and welfare from  aircraft noise, since the existing controls
do not consider the levels of noise to which people are  exposed or
the  number of people so exposed. Although  existing regulations
have been useful, insofar as they accomplish some noise reduction
without having  to  change  the air  traffic control  system,  the
information available to  EPA indicates  that  there are additional
flight and  operational procedures which could contribute to  the
protection of the public health and welfare.
   Flight  and operational noise controls alone,  however,  cannot
be expected to totally resolve the noise problem. At best, they must
be considered as only one element of what must  be a  more com-
prehensive plan which also includes controls on the source of  the
noise, the  number and time of day of flights,  and the  location of
people exposed to noise.
   Implicit  in  this discussion  is the fact that flight  safety  is of
paramount importance  in developing  flight and operational  noise
  * The FAA has adopted two Federal Aviation Regulations (FAR's) and two Advisory Circulars
(AC's) related to flight and operational noise controls. (Advisory Circulars inform the aviation
public of nonregulatory material of interest. They are not binding as are regulations.)
   These are:
•  FAR 91.55 prohibits flight at speeds in excess of Mach 1 and thereby prevents the occurrence
of sonic  booms unless a specific authorization is  given.
•  FAR 91.87 regulates operation at  airports  with operating control  towers. FAR 91.87(d)
and (f) specify that the minimum altitude for turbine powered or large aircraft is 1500 feet
above the surface of the  airport  except when lower altitudes are  necessary for takeoff or
landing. FAR 97.87(d) further requires that such aircraft when approaching to land remain on
or above the glide slope  (if available). In addition FAR 91.87(g) requires pilots of these
aircraft to use, whenever possible, the preferential noise abatement runways designated by
FAA.
•  AC 90-59 describes the FAA "Keep-em-High" program wherein controllers issue clearances
to keep high performance aircraft as  high as possible as long as possible (1). This program
was initially introduced  for the purpose of collision avoidance, but it also provides some noise
relief by preventing unnecessary low altitude flight. The program is  not regulatory in nature,
although pilots must  follow clearances once accepted. The Keep-em-High program does not
require the use of any specific noise abatement takeoff  or approach procedure.
•  AC 91-36 encourages pilots flying in visual weather  conditions to maintain at least  2000
feet altitude above noise sensitive areas (2).
   In addition to the above system-wide controls, there are specific noise abatement procedures
in effect  at Washington National Airport, which is operated by the FAA. There the airlines
use a thrust reduction during climbout from a point 3 nautical miles  northbound or 4 nautical
miles southbound until reaching an altitude of 6,000 feet or a  distance of 10 nautical miles,
whichever occurs first. Aircraft on approach  must follow the Potomac River. A jet  curfew
is  in effect from 10 p.m. to 7 a.m. Only certain types  of aircraft are permitted to use the
airport  (the largest being Boeing 72.7's),  and trip lengths are  limited to 650 miles with
exceptions for nonstop nights to 7 cities within 1,000 miles (3, 4, 5).

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38           LEGAL COMPILATION—SUPPLEMENT II

controls. It is the FAA's legal responsibility to ensure that flight
and operational procedures are consistent with the highest degree
of safety, and EPA, therefore, cannot conclude that specific flight
and  operational  noise  controls are  either  safe  or unsafe. This
Agency has,  however, studied a number of noise  abatement flight
procedures which the Agency believes merit consideration for rule-
making or implementation by the FAA.
  The discussion which  follows  is based primarily on the data
contained in  the EPA aircraft/airport noise study report (6).

Takeoff
  There are  at least two distinct  types of takeoff noise problems:
noise alongside the runway and noise under the climbout flight path.
They are distinct in that reducing one generally results in increas-
ing the  other.*  For  most airports, the climbout  noise is more
critical, but  there are some locations where sideline noise  is the
dominant departure problem** (7).
  At present there are no FAA  controls relating to noise  abate-
ment takeoff procedures. There are, however, several different noise
abatement takeoff procedures employed by various segments of the
aviation industry. Each of these procedures provides noise benefits
for different areas in relation  to  the departure runway. Unfortu-
nately, at the present time,  (except at Washington  National  Air-
port) , the actual location of noise sensitive areas  is not considered
in selecting the takeoff procedure.
  For  residential areas very  far from  the airport (more than
approximately 10 miles), the most beneficial procedure is generally
to climb at the steepest angle possible with nearly full power. Such
a procedure  is recommended  by the Air  Transport Association
(ATA)  and  is in use by American Airlines and United Airlines,
among others (8). Similar procedures are also recommended by the
National Business Aircraft Association (NBAA) (9).
  For  areas  approximately  2  to  10 miles from  the airport, the
most beneficial procedure is generally to climb steeply  and then,
at an altitude of approximately 1500 feet, reduce  power to not less
than that required to maintain safe flight in the event of an engine
failure.  Power  is  not  re-applied until  the aircraft reaches an
altitude  of  approximately 4000  feet. This procedure  is recom-
mended by the Airline Pilots Association (ALPA)  (10). It is similar
  * On takeoff, the factors of distance and power setting work against one another: lower power
settings mean less noise output but also lower altitudes, so the location of noise sensitive areas
must be carefully  considered in  determining whether any given procedure will provide a
noise benefit.
  ** Los Angeles and Boston are examples of airports where the critical departure noise problem
is sideline.

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                    GUIDELINES AND REPORTS                   39

to procedures currently in use by Northwest Air Lines at all air-
ports it serves  and by all  airlines using Washington National
Airport*  (11,5). Compared to the  maximum  angle (full  power)
climbout, this power  cutback procedure  reduces noise approxi-
mately 2 to 7 EPNdB** (depending on aircraft type and weight)
in the distance range of 2 to 10 miles from the airport. It causes a
noise increase, however, for approximately one mile prior to the
cutback (while flaps are being retracted)  and then again  after
power is reapplied (6,13).
   The procedure which is most beneficial for sideline noise reduc-
tion is to use reduced thrust from the start of the takeoff roll  when
the takeoff weight,  runway  length, and other conditions  permit.
Many FAA-approved aircraft flight manuals  allow this for the
purpose of reducing engine  wear.  This  procedure  can decrease
sideline noise by up to 2 EPNdB (6). The procedure results in lower
altitudes and higher noise levels under the climbout path, however,
so it is not  optimum when  near-downrange noise  is the  critical
problem.
   On a national basis, the maximum benefit  would be achieved
by having the takeoff procedure tailored to each specific runway/
community configuration. On the other hand, some pilot and indus-
try  groups feel that  a single, standard  procedure rather  than
multiple standards is necessary to insure safety  (14).  Countering
arguments suggest that every takeoff is different anyway because
of runway, wind, weight, and other factors rendering the concept
of a "single" standard meaningless  (15).
   Based on all of the above considerations there seems to be com-
pelling evidence that several noise  abatement takeoff procedures
could be standardized  for selective use at specific  airports.  This
Agency believes that this merits further  evaluation through the
FAA rule-making process and therefore intends to propose, to the
FA A, appropriate regulations as provided in Section 7(b) of the
Noise Control Act of 1972.

Approach
   At present, other than the glide  slope requirement of  FAR
91.87 (d), there are no FAA regulations or other controls relating
  * Although one can calculate that the noise impact at Washington National Airport could be
much greater without the noise abatement flight procedures, to EPA's knowledge there has been
no on-going program of noise monitoring to document the noise benefit. In spite of the noise
abatement procedures, National Airport noise has been the subject of recent litigation although
the court concluded that there was not actionable noise damage (12).
  *» Throughout this section, noise reductions will be stated in terms of single event Effective
Perceived Noise Level (EPNdB). A 10 EPNdB noise reduction would be perceived as a halving
of the noise. See Section 3  for additional discussions of single event  and cumulative noise
measures.  In general, the cumulative noise level at a given location will be reduced by the
same amount as the reduction in average single event noise level  (energy average).

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40           LEGAL COMPILATION—SUPPLEMENT II

to noise abatement approach procedures. There are, however, several
different noise abatement approach procedures currently employed
by various segments of the aviation industry or undergoing flight
tests.
  Most air carrier approaches  (under instrument weather condi-
tions) are made on an electronic Instrument Landing System (ILS)
glide slope.* The standard approach angle for new ILS installations
is 3  degrees. A few existing installations are at greater angles,**
but most (65%)  were installed before the  3 degree  standard was
adopted and  are  between 2.5 and 2.9 degrees  (16). The require-
ment of FAR 91.87 (d) to remain on or above  the  glide slope is
therefore less effective than it could be (a one-half degree increase
in approach angle reduces noise 2 to 3 EPNdB) (6).  The reason
that all glide slopes have not been  raised  to at least 3 degrees
appears to be one of economics: one FAA estimate indicates an
adjustment cost of $62,000 per installation  (17).
  The two segment approach seems to hold the most promise for
significant approach noise relief. In this procedure, the initial de-
scent is accomplished at a fairly steep angle (nominally 6 degrees)
and  at associated reduced power settings; then transition is made
to a normal glide slope at an altitude  (500 to 1,000 feet) sufficient
to safely reduce the  initial high descent  rates. Visual weather
versions of this procedure are currently in use at certain airports
with 727 and 737 aircraft by National Airlines, Pacific Southwest
Airlines, and Air California, and by all airlines (with aircraft
types as large as DC-8's) at the San Diego  Airport (the latter
because of high terrain)  (18,  19, 20, 21).  The National Business
Aircraft  Association  also  recommends   use  of  two-segment
approaches in visual conditions (9). Flight tests of two-segment
approaches have  been conducted during the  last  10 years by FAA,
NASA, and the airline industry, many using prototype instrumen-
tation for all weather operations (22, 23, 24, 25). Tests are cur-
rently being conducted in scheduled airline passenger  service by
United Airlines under contract to NASA (25). This further testing
should  result in suitable instrumentation and pilot  acceptance so
that all weather  use of two-segment approaches can be instituted
throughout the civil air carrier fleet.
  The noise benefit from two-segment approaches has been mea-
sured to be as  high as 17 EPNdB under the steep portion of the
flight profile (6). The noise reductions become smaller as the air-
  * The ILS glide slope is often followed in visual weather also, although considerably more
leeway exists for pilot or controller initiated deviations.
  ** These airports have glide slope angles above 3 degrees for the purpose of terrain clear-
ance:  San Diego.  California (3.22°); Fort Worth (Meacham Field), Texas  (3.33°); Annette
Island, Alaska (3.27°) ; Berlin (Tempe)hof) Germany (3.5°) (6).

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                   GUIDELINES AND REPORTS                  41

craft gets closer to the airport, becoming zero when the transition
to the final glide  slope is  complete (approximately 2 to 3 miles
from touchdown). Information available to this Agency indicates
that the two-segment visual approach used by Pacific Southwest
Airlines  has received favorable community support in California
(26,27).
  The main objectives  to two-segment  approaches come from
ALPA pilots and some  segments  of the  airline  industry. They
desire more testing to be certain that safety will not be degraded
by the higher descent rates in the steep segment (28).  They are
also concerned that introduction of a "visual conditions only" two-
segment approach would erode standardization and thereby safety
28,  29). Countering arguments suggest that adequate testing has
already been accomplished, and that "standardization"  does not
in fact exist at present, every landing being unique and  different.
Specific charts are published for every runway, and air traffic
control procedures  differ from visual to instrument weather con-
ditions (30). A further concern, expressed by the Aircraft Owners
and  Pilots Association  (AOPA) is that small aircraft without
two-segment instrumentation  may  experience wake turbulence if
following behind and below a large aircraft conducting a  two-
segment approach  (31). The FAA is  currently  planning  flight
tests to investigate this potential hazard.*
  It appears that  two-segment  approaches may  require either
ground based or airborne instrumentation, or both. Distance Mea-
suring Equipment  (DME), co-located with the glide  slope on the
airport, is likely to be a prerequisite. Only 10  such DME's had
been  commissioned by FAA  as  of December 31, 1972; 6 were
approved  but not commissioned,  and  FAA planning documents
indicate a slowdown in the installation rate for new DME's (32,33).
  Cost estimates for DME range from $26,400 to $60,000 per instal-
lation (1973 dollars) (34,17). Airborne equipment estimates range
from zero for visual procedures to $31,400 per aircraft for a glide
slope computer relying upon the airport DME (34,35).
  On any approach, noise reductions can  be achieved by using  a
flap management program where thrust  is minimized (provided
the runway length is sufficient to accommodate the increased land-
ing speeds). Noise  levels may be 3 to 5 EPNdB lower than on  a
full flap approach  (6). This flap management approach is recom-
mended by ATA and  is in  use by American Airlines, United Air-
lines, and Northwest Airlines, among others  (29).
 * The wake turbulence hazard can be minimized or eliminated by providing a sufficient
separation distance between the large and small aircraft, or by assigning  them to widely
separated runways. Such procedures are already in effect even for standard ILS approaches.

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42           LEGAL COMPILATION—SUPPLEMENT II

  At some airports, thrust reverse noise on landing contributes
to noise annoyance (7,36). In cases where the runway is long, it
is possible under certain weather conditions to  avoid the use of
thrust reversers  (36).  The pilots are concerned, however, that
limitations on the use  of  thrust  reversers for noise  abatement
purposes may erode safety margins (14). Environmental groups
believe, on the other hand, that pilot indoctrination in the proper
use of thrust reversers  and their noise effects could be beneficial
in minimizing their use where not necessary (15). Consideration
must be given to possible increases in aircraft ground taxi time
with resultant increase in air pollutant emissions.
  Based  on all of the preceding, there  seems to be compelling
evidence  that several noise abatement  approach procedures  could
be standardized for use under certain conditions and that existing
ILS glide slopes could be raised to at least 3 degrees. This Agency
believes these merit further evaluation,  and insofar as  this can
take place  through the  FAA rulemaking process intends to pro-
pose to the FAA appropriate regulations as provided  in Section
7(b) of the Noise Control Act of 1972.

Minimum Altitudes
  Turbine powered or large aircraft can make significant  amounts
of noise at the minimum altitude of 1,500 feet permitted by FAR
91.87 (105 EPNdB for a Boeing 707) (6). Increasing this altitude
to 3,000  feet would reduce the noise level by approximately 10
EPNdB (6). The FAA "Keep-em-High" program may help prevent
overflights at unnecessarily low altitudes but its primary applica-
tion  is for  altitudes between 5,000 and 10,000 feet (1). The EPA
does not  have documentation on the effectiveness of either FAR
91.87 or AC 91.36 related to visual flight rule (VFR) operations near
noise sensitive areas, but its staff has received some citizen com-
plaints regarding low flying aircraft (37,38).
  One potential disadvantage of  increasing the regulatory  mini-
mum altitudes is that it may cause some aircraft to travel farther
(on a circling approach) in order to intercept the glide slope at a
higher altitude. This could spread noise over a larger area (although
at lower  noise levels). The experience  at San Jose Airport, how-
ever, indicates that pilots may simply  elect to fly  a steeper
approach, in effect shortening the distance and  further  reducing
noise (39). Another potential disadvantage is that higher  mini-
mum altitudes may reduce the available maneuvering airspace and
thus contribute to increased air congestion. This problem may be
overcome by issuing specific clearances for reduced altitude opera-

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                    GUIDELINES AND REPORTS                    43

tions,  where  necessary, but doing so  may  increase controller
workloads.
  Because of the potential noise relief, increased minimum altitudes
seem to merit further  evaluation through the FAA  rulemaking
process and this agency therefore intends to propose  appropriate
regulations to the FAA.
  From the foregoing, it can be seen that a number of noise abate-
ment flight procedures are available for implementation. Although,
by themselves, they cannot totally resolve the noise problem, they
play an important part in any comprehensive plan for noise reduc-
tion.  EPA therefore intends  to propose  regulations  to  FAA  in
accordance with Section 7(b) of  the Noise Control Act  of 1972.
In the process of proposing such regulations, the Agency will fully
take into account the safety or other implications of adopting these
regulations  as  determined by the  FAA,  which  has the final
authority.

                          REFERENCES
 1.  FAA, Advisory Circular 90-59; "Arrival and Departure Handling of High
      Performance Aircraft," February 28, 1973.
 2.  FAA, Advisory Circular 9-36; "VFR Flight Near Noise Sensitive Areas,"
      August 7, 1972.
 3.  FAA, "Notices to Airmen," Airman's Information Manual, page 3A-2
      (District of Columbia), April 12, 1973.
 4.  FAA,  "Washington National Airport Noise Abatement  Procedures,"
      Effective June 1, 1970.
 5.  Air Transport Association,  "Takeoff Procedures for Washington National
      Airport,"  August 21,  1972.
 6.  EPA Aircraft/Airport  Noise  Study—Task Group 2 Report, Operations
      Analysis Including Monitoring, Enforcement, Safety, and Costs. July
      1973,  NTID 73.3.
 7.  Hurlburt, R. L.,  "A Survey of Noise Problems as Perceived by the Air-
      port Administration at 19 Large Hub Airports," EPA, June 30, 1973.
 8.  Flynn, Roger, paper presenting views on aircraft and airport operational
      procedures, received March 19,1973.
 9.  National Business Aircraft Association, NBA A Noise  Abatement Pro-
     gram, Report SR 67-12, June, 1967.
10.  Rockwell, R. N.,  and Stefanki, J. X., Letter "To All  Members," ALPA,
      January 27, 1970.
11.  Soderlind, Paul A., Letter to  Administrator of FAA regarding takeoff
      and approach noise, Northwest Airlines, November 24, 1970.
12.  Virginians For Dulles vs. Volpe, 344 F Supp. 573  (E.D. Va., 1972).
13.  Erzberger, Heinz, et al, "Technique for  Calculating  Optimum Noise
      Abatement Take-Off  Profiles," Progress of NASA  Research Relating
      to Noise Alleviation of Large Subsonic Jet Aircraft, NASA SP-189,
      October 8-10, 1968.
14.  Air Line Pilots Association, Comments on Position Questionnaire—Task
      Group 2, March 19, 1973.

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44            LEGAL COMPILATION—SUPPLEMENT II

15.  Tyler,  John and Hinton, Lloyd, Letter  to Randall L. Hurlburt Re:
      "Comments and Recommendations for  the  Report  to  the  Congress,"
      National Organization to  Insure  a Sound-Controlled Environment,
      June 6, 1973.
16.  FAA, "Glide Slope Angles at Airports," December, 1971.
17.  Skully, R. P., Letter to Alvin Meyer regarding the draft  EPA Report
      (Operational Procedures), FAA, May 21,1973.
18.  Hurlburt,  Randall L., Steep  Approaches  for Aircraft Noise  Abatement
      —A  Collection of Research Studies, City  of  Inglewood,  California,
      July, 1972.
19.  Carmichael, Robert  E. L., Letter to Randall Hurlburt regarding policies
      involving  noise abatement during arrivals and departures, Pacific
      Southwest Airlines, March  28, 1973.
20.  Tucker, John R., Letter to R. L. Hurlburt  regarding initial draft of Task
      Group 2 report to Congress, Air California, May 11,1973.
21.  Boettger, Wolfgang A.,  A Comparison  of Aircraft Approach Angles at
      Los Angeles and San Diego International Airports,  City of Inglewood,
      California, June, 1972.
22.  Tanner, Carole  S., Measurement and Analysis of Noise From Four Air-
      craft During  Approach and Departure  Operations (727, KC-135, 707-
      820B, and DC-9), FAA Report FAA-RD-71-84, September, 1971.
23.  NASA, Aircraft Noise Reduction Technology, March  30, 1973.
24.  Denery, D. G. et al., Flight Evaluation of  Three-Dimensional Area  Navi-
      gation for Jet Transport Noise Abatement, NASA, AIAA Paper 72-814,
      Aug. 7-9, 1972.
25.  Quigley, H. C., et al., Flight and Simulation Investigation of Methods for
      Implementing   Noise  Abatement Landing  Approaches,  NASA TN
      D-5781, May, 1970.
26.  Boettger, Wolfgang A.,  A Study of Steep Approaches for Noise Abate-
      ment Flown by Pacific Southwest Airlines, City of Inglewood,  Cali-
      fornia, November, 1972.
27.  Duffelmeyer, H. James, Letter  to R. L. Hurlburt concerning PSA two-
      segment approach, July 11, 1973.
28.  Marthinsen, Harold F., Letter to R. Hurlburt  regarding EPA's  Report—
      Draft No. 1 of Chapter 3, Air Line Pilots Association, May  18, 1973.
29.  Flynn, Roger, paper containing recommended steps for noise abatement
      approach, received March 6, 1973.
30.  Jeppesen & Company, Airway Manual, Denver, Colorado.
31.  Hartranft, J.  B., Jr.,  Letter to  FAA Administrator John  H.  Shaffer,
      AOPA,  November 27,  1972.
32. FAA,  The National Aviation System Plan, Ten Year  Plan 1973-1982,
      March 1972.
33. FAA,  The National Aviation System Plan, Ten Year  Plan 1973-1982,
      March 1973.
34. NASA, "Implementation of VFR/IFR 2-Segment  Approach Capability
      for Noise Abatement," received April 2,1973.
35. NASA, Chapter 3.  Operating Procedures for Aircraft Noise Reduction,
      received March 19, 1973.
36. The communities of El  Segundo, Inglewood, Lennox, Playa Del Rey, and
      Westchester,  California, Joint Policy  Statement  on  Airport Noise,
      Supporting Technical Data, December, 1972.

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                   GUIDELINES AND REPORTS                 45

37.  Kelly, M. P., Letter to Alvin F. Meyer regarding Opa Locka Airport,
      February 12, 1973.
38.  Plumlee, Lawrence A., Letter to Elizabeth Cuadra: "Police Helicopters,"
      Environmental Protection Agency, February 22, 1973.
39.  Nissen, J. M., "Program for Improving San Jose Municipal Airport
      Environmental Quality as Affected by Aircraft," San Jose Municipal
      Airport, received March 6, 1973.

                          SECTION 2

  ADEQUACY OF NOISE EMISSION STANDARDS  ON NEW
 AND EXISTING  AIRCRAFT; RECOMMENDATIONS ON THE
 RETROFITTING  AND PHASEOUT OF EXISTING AIRCRAFT

  Existing FAA noise emission regulations did not utilize public
health and welfare considerations as a basic constraint in their
development, since this was not required by the Federal Aviation
Act of  1958, until  its amendment by the Noise Control Act of
1972. Based upon the EPA studies under the Noise Control Act,
the present aircraft noise emission standards do not provide ade-
quately for such needs, as shown in the analyses of the extensive
data considered and cited in this report.

Technology
  The Report of the Aviation Advisory Commission and the present
EPA Aircraft/Airport Noise Study clearly indicate that currently
available technology is capable of being translated into equipment
that, together with employment of noise abatement flight proce-
dures, can significantly decrease the noise impact  from aircraft
(1,2.3). Current source noise abatement technology can be applied
as a retrofit option for existing aircraft, as a modification to newly
produced airplanes of older type designs, and also, be included in
the design and developmnt of new aircraft  systems. The latter
application provides the most effective use of technology to achieve
maximum source noise control. Continued source noise abatement
research and development is required,  therefore, if civil aviation
systems are to evolve with effective noise emission controls (4.5).
  The combined research, design, and development  efforts of the
National Aeronautics and  Space Administration, Department of
Transportation, Department of Defense, and industrial members
of the aviation community have provided a demonstrated  tech-
nology base which, if fully exploited, can provide a family of new
aircraft for both the commercial and business jet fleets starting in
the 1978-1980 time frame  (4). The noise characteristics of these
new aircraft  (depending  upon  aircraft  type and  measurement

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46           LEGAL COMPILATION—SUPPLEMENT II

point) could be 5-10 decibels below the present values in Appendix
C of FAR 36 and thus, significantly quieter and more acceptable
than the current narrow-body jets (3, 6).
  These more favorable conditions are the result of approximately
$138 million of Federal research and development (R&D)  funds
invested  in noise  control in the period 1969 to date which is in
addition  to the large military and industry expenditure prior to
and during this time. However, even if the decision to proceed with
their development were to  be  made today, the noise from  the
narrow-body jets would dominate until  the  late 1980's  (7) due to
the relatively  long  structural and  probable economic life of  the
equipment which would encourage their retention in  the  fleet.
  For instance, in 1972, the U.S. jet powered air carrier fleet was
comprised of approximately  2,000 aircraft of which more than
90% did not meet the current noise  standards for newly certified
aircraft  (FAR Part 36, Appendix  C) (7, 8). The  fleet has been
projected to increase by 30% over the next  10 years.  This growth
will be accomplished by new procurement of current aircraft (747,
DC-10, L-1011, 707, advanced 727,  737 and DC-9), the majority
of which will comply with the current FAR 36 noise criteria. How-
ever, during this period, and possibly beyond, there will still remain
1100-1500 operational  aircraft  that will  not meet  the  above
limits (7).
  Therefore it follows,  that if  there are to be significant  reduc-
tions in the impact of  aircraft/airport noise prior to the 1980's,
quieting  or replacing current aircraft will be required.

Noise Emission Regulations
  The FAA, in its fifteen years of existence, has  devoted substan-
tial effort to the technological, economic,  and legal background
necessary to propose seven noise emission regulations capable of
effecting significant noise reductions in  a safe and  economically
reasonable manner  (9).
  As of this writing, the FAA has issued two regulations:

  1. "Federal  Aviation  Regulation  (FAR) Part 36: Noise Stand-
     ards : Aircraft type Certification,"  effective 1 December 1969.
  2. "Federal  Aviation Regulation  (FAR)  Part 91.55:  General
     Operating and Flight Rules: Civil Aircraft Sonic Boom,"
     effective 27 April 1973.
In addition  to these two  regulations,  the  FAA has issued  two
Notices of Proposed Rule Making (NPRM) and three Advanced
Notices of Proposed Rule Making  (ANPRM)  that have not yet

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                   GUIDELINES AND REPORTS                 47

resulted in regulations as proposed. The notices, the general titles,
and the dates of issue are:

   1. ANPRM 70-33; Civil Supersonic Aircraft Noise Type  Cer-
     tification Standards, 4 August 1970.
   2. ANPRM  70-44; Civil  Airplane Noise  Reduction  Retrofit
     Requirements, 30 October 1970.
   3. NPRM 71-26; Noise Type Certification and Acoustical Change
     Approvals, 13 September 1971.
   4. NPRM  72-19; Newly Produced Airplanes of  Older Type
     Design;  Proposed Application of Noise Standards,  7  July
     1972.
   5. ANPRM 73-3; Civil Airplane Fleet Noise (FNL)  Require-
     ments, 24 January 1973.

   FAR 36, issued as a new part to the Federal Aviation Regula-
tions, prescribed noise standards for the issue of type certificates,
and changes to those certificates, for subsonic transport category
airplanes, and for subsonic turbojet powered airplanes regardless
of category. This regulation initiated the noise abatement regula-
tory program of the FAA  under the  statutory authority of
PL-90-411.
   FAR 36 made  a significant contribution in the form of three
appendixes that have come to be used as standards or recommended
practices  in the measurement and evaluation of  aircraft noise.
Appendix A of the regulation prescribes the conditions under which
noise type certification tests for aircraft must be conducted and the
noise measurement procedures that must be used. Appendix B of the
regulation prescribes the computational procedures that must be
used to  determine the noise  evaluation  quantity designated as
effective perceived noise level (EPNL). Appendix C of the regula-
tion provides the noise criteria levels,  noise measuring points, and
airplane flight test conditions for which compliance must be shown
with noise levels measured  and evaluated as prescribed, respec-
tively,  by Appendixes A and B.
  The  criteria levels  of  Appendix C provide  an "umbrella" for
aircraft propelled  by the new high-bypass ratio engines  in the
sense that the noise from such aircraft can be controlled to levels
below that criteria (3).  However, these  criteria levels  are tech-
nologically practical for aircraft that are propelled by the existing
turbojet and low-bypass ratio turbofan engines which can comply
with the criteria  only with  the  aid of some sort of  retrofit
modification.

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48           LEGAL COMPILATION—SUPPLEMENT II

  The Appendix C levels if applied to the existing turbojet and
low- and high-bypass ratio turbofan fleet at this time would result
in an improvement in the airport noise situation. Future types of
FAR 36 category aircraft and possibly the current widebody, high
bypass ratio jet aircraft should be regulated by the FAA to levels
more protective of health and  welfare as more specific data is
developed.  Consideration must be  given for  the approach condi-
tion, however, to ensure that such  levels are not lower than those
that can be achieved by available technology for control of  the
airframe aerodynamic  noise  (4).* It would be  appropriate  to
include, in any revised FAR 36 regulation, the "Acoustical Change"
adjustments proposed in NPRM 71-26 as determined necessary to
make the rule clearer and more effective. Also, a revised FAR 36
should contain requirements to produce certified noise and flight
performance data sufficient to compute noise contours for a wide
range  of noise levels associated with both the take-off and  the
approach procedures which represent normal modes of operations,
and  the requested health and welfare requirements in the form
of new limits.
  The FAR Part  91.55, sonic boom rule, is adequate and  will be
effective in protecting the public from routine sonic boom exposure
created by civil supersonic aircraft (9).
  The five proposed regulations  had evidently satisfied  (at least
under preliminary examination by the FAA or they would  not
have been  proposed) the four basic requirements  of  PL  90-411
(10), that  is:
  •  consistent with the highest  degree of safety in air transpor-
     tation in the  public interest,
  •  economically  reasonable,
  •  technologically practicable,  and
  •  appropriate for the particular type of aircraft, aircraft engine,
     appliance, or certificate to which it will apply.

As stated earlier in this section, the studies of the Aviation Advi-
sory Commission  and the EPA clearly indicate that practical  and
appropriate technology is available for applications to current  and
future aircraft types (1, 3).
  Aircraft safety as a regulatory  constraint is  the  responsibility
of the FAA solely and the EPA has no responsibility in that area.
However, if the major impediment to the issuance of any or all of
the five proposed noise regulations is the inability to determine
  * There is available information which shows that such technology is available for significant
reductions in these levels, which must be considered by EPA and FAA in the proposed rule
making to follow this study.

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                  GUIDELINES AND REPORTS                  49

the economic reasonableness of noise control  in  the  absence of
health and welfare criteria, such  an obstruction  will  be avoided
with  the  publication of the health  and welfare documentation
called for by Section 5 of the Noise Control Act.
  The Aircraft/Airport Noise Study  included a cost-effectiveness
analysis that compared the costs of source noise control  (tech-
nology) with the costs of  compatible land  use noise  control for
several zones of noise exposure (11).  The results clearly indicated
that technology alone was capable of complete noise control (no
residential exposure)  only  for the highest noise level  zone. How-
ever,  the combined costs of source and land use noise  control for
all other zones were reduced by a significant amount with applica-
tions  of the available technology options.
  A  regulation being  considered for civil supersonic  aircraft
(ANPRM 70-33) solicits public comment on a number  of issues
and problems and does not include  suggestions or  recommenda-
tions  (9).  Consequently, if SST noise is to be  adequately con-
trolled, a regulatory plan must be developed and implemented  (12).
In this regard, the following discussion related  the findings of the
EPA study.
  The noise of existing SST aircraft types (Concorde and TU-144)
is not capable of being controlled by available technology to levels
as low as the criteria of FAR 36 (4). Therefore, the Agency will
take this into account in proposing regulations to the FAA regard-
ing SST noise control to protect public health and  welfare. Future
SST aircraft types should at least  be regulated  to noise  levels
conforming to the original FAR 36 levels. As more advanced noise
control technology becomes available, limits should be reduced
accordingly.
  The regulation being considered for newly produced  airplanes
of older design (NPRM 72-19) would require that these aircraft
meet the noise criteria of FAR 36.  Such a regulation would require
the use of  available technology to ensure that  all  new production
aircraft either by design, retrofit, or both can comply.

Retrofit and Phaseout of Existing Aircraft
  There are two retrofit options that can reduce the noise of the
existing turbofan aircraft to levels equal to or below those specified
in FAR 36. These retrofit options can be accomplished at less cost
and elapsed time than is predicted for fleet replacement  (phaseout)
(1,3,7).
(1) Application of sound absorption material (SAM) in the engine
    nacelle and bypass duct. This concept has been in development

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50           LEGAL COMPILATION—SUPPLEMENT II

    since  the early  1960s under the  sponsorship of  FAA and
    NASA. The results of the NASA program established con-
    ceptual validity  for JT3D engines by a series of  successful
    flight demonstrations of 707 and DC-8  aircraft  with exper-
    imental  ("boiler  plate") hardware. Subsequently, the results
    of the FAA program established conceptual and feasible valid-
    ity for JT3D and JT8D engines by a series of successful flight
    demonstrations of 707 and 727 aircraft with practical (flight
    weight, flightworthy, and capable of being certified)  hardware.
      Boeing is currently in production on SAM-treated  727 and
    737 aircraft which  have been certified in conformance with
    the requirements of FAR 36, Appendix C (3). McDonnell-
    Douglas has contracted to sell SAM-configured DC-9  aircraft
    as well. The  aircraft industry has demonstrated that these
    retrofit  options  are technologically feasible. A  program  to
    retrofit the existing fleet of  JT3D  and JT8D engine powered
    aircraft can be initiated immediately.
      In discussions with the Agency during the course of this
    study, some members of the aviation community asserted that
    the application of SAM treatment will not produce any dis-
    cernible relief, in terms of  public awareness. However,  the
    EPA Studies  indicate that for the 707 and DC-8 aircraft pow-
    ered by the JT3D engine, (currently the worst noise offender),
    the reductions would be significant, both for the takeoff and
    approach modes  (3). For the JT8D powered  aircraft (727,
    DC-9 and 737), the assertion is correct for those airports that
    are takeoff-sensitive. At approach-sensitive airports, however,
    the SAM treatment for the  JT8D  would result in  significant
    reductions in community noise impact (3).
(2) Modification of the existing JT3D and JT8D engines (Refan).
    By replacing  the  present low-bypass ratio fan with a slightly
    higher bypass, larger diameter fan, in conjunction with some
    degree of SAM treatment, noise reductions in excess  of those
    achievable with  only SAM treatment are predicted (3). The
    fan modifications and  change in engine airflow bypass ratio
    are the primary design parameters that influence the source
    noise characteristics. However, other components of the engine
     (e.g., turbine, fan duct, and nacelle) and possibly the airframe
     (e.g., pylon  and landing gear)  also require modifications.
    The refan program is considered to be  technologically prac-
    ticable. However, the modified  engine designs for the JT3D
    and JT8D engines  have yet to  be ground and  flight  tested

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                   GUIDELINES AND REPORTS                  51

     to confirm their predicted noise and aerodynamic performance
     characteristics.
       Source noise control for the smaller business jet aircraft
     fleet presents a somewhat different problem. Eighty percent
     (80%) of the aircraft in this fleet are powered by turbojet or
     very low bypass turbofan engines  (with noise characteristics
     similar to that of the turbojet)  (7). The noise problem is
     primarily associated with the jet exhaust characteristics. The
     options available to reduce this noise are installation of exhaust
     suppressor kits with weight increase and some performance
     loss, or by re-engining the aircraft with moderate bypass ratio
     turbofan engines which may improve performance.
       Both of these options are being tested and evaluated by the
     business jet aircraft manufacturers at this time with substan-
     tial  indication  that  satisfactory  noise  reduction programs
     are technologically feasible for this category of aircraft (3).

  Two of the previously identified proposed regulations have essen-
tially the  same objective,  that is,  retrofit of  the currently  type-
certificated subsonic low bypass ratio  turbofan powered aircraft.
The earlier "straight retrofit" notice (ANPRM 70-44) merely dis-
cusses the  need for noise reduction and emphasizes that current
technology is available for a feasible retrofit  program. The  later
notice (ANPRM 73-3)  on fleet noise level (FNL) was published
after consideration of  comments received in response to the first
notice and presents a detailed methodology and  implementation
procedure that permits and encourages other  alternatives as well
as retrofit. The FNL proposal is well developed and could be con-
verted to a regulation  in a short time,  while the straight retrofit
proposal might require considerable additional development before
it could be structured as a regulation.

  The concept and structure of the FNL proposal is adequate to
effectively  exploit  the  current  technology (nacelle  retrofit), to
encourage the use of near future technology (refan retrofit)  as it
becomes operable, to provide incentives for the phaseout of aircraft
not amenable to retrofit by the introduction of new quieter wide-
body aircraft, and to require full implementation  of future  tech-
nology as  it becomes feasible (12). In addition, the FNL concept
would periodically provide a great deal of useful information to the
Government on air carrier fleet size, mix, and utilization. However,
there are several features in the proposal that weaken its effective-
ness and should be removed, and there are several that would add
strength if included. They are:

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52           LEGAL COMPILATION—SUPPLEMENT II

  • Omit exemption for airplanes engaged in foreign air commerce.
  • Omit exemption for airplanes engaged in overseas air  com-
    merce.
  • Omit expiration date of 1 July 1978  and continue the  FNL
    concept indefinitely to permit  the implementation of techno-
    logical advancements (e.g., refan) as they become available.
  • Include airplanes engaged in intrastate air commerce.
  • Include FNL requirements for sideline noise as well as takeoff
    and approach.

  The FNL proposal  (ANPRM 73-3) with the above exceptions
could be prescribed as a regulation that would be an effective retro-
fit rule for the immediate noise problem and also be an effective
rule for insuring that future technology is adequately exploited.
A fleet noise level rule would be superior to and obviate the  need
for a  straight retrofit rule such as considered in ANPRM 70-44.
  Differences in opinion  exist on most of the above subjects, as
reflected  in the EPA Aircraft/Airport  Noise Study  master file
documents and task group reports.
  A primary question, not addressed by the Agency in any of its
Task  Group's studies because of its policy rather than technical
nature, is that of the degree of implementation of the Adminis-
trator's responsibilities for coordination of aviation noise research
under the responsibilities and  authorities established  for the
Administrator in Section  4(c) of the Act. Following  the recom-
mendations  of the Office of Science and Technology (OST)  "Jet
Aircraft Noise Panel" discussed in the Introduction of this present
report, an "Inter-Agency Aircraft Noise Abatement Program" has
been  conducted  under the combined  overview and coordination
within the Executive Branch of the Office of Science and Technol-
ogy,   the  Office  of  Management and  Budget, and the National
Aeronautics and Space Council. This latter entity has perhaps had
the most  direct influence in the coordination  of  R&D efforts of
NASA and of the Department of Transportation and FAA. It also
has undertaken  in its latter existence, recommendations relating
to the application of military technology to civilian aviation use.
  The Administrator recognizes that with the abolition of the Office
of Science and Technology, and the National Aeronautics and Space
Council, his coordinating role established in the Noise Control Act
will have vastly  important implications regarding major decisions
yet to be made as to the degree and allocation of investments of
Federal funds in apparently competing,  but in fact perhaps  com-
patible (if dealt with in a comprehensive time sequence), programs

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                    GUIDELINES AND REPORTS                    53

for retrofit and development of new and quieter air transport sys-
tems. Because of the magnitude of the questions involved, and the
evolving situation with regard to the assumption by the  National
Science Foundation of some  of  the advisory functions formerly
conducted by OST, additional time  is needed by the Agency to
develop a complete protocol  as to how these important responsibil-
ities will be undertaken. In the interim, communications have been
established among the  responsible level  officials  of  DOT,  FAA,
NASA and EPA,  to  provide for continuing necessary exchanges
of information and, as appropriate, action by EPA. These informal
arrangements will be translated into an effective formalized proce-
dure before the end of FY 1974. They will be  reported to the Con-
gress in a  periodic report on  Federal activities as called for  by
Section 4(c) (3)  of the Act.

                           REFERENCES
 1.  Aviation Advisory Commission Report, Advance Copy, January 1973.
 2.  Aircraft/Airport Noise Study;  Task Group 2 Report, "Operations Analysis
      Including Monitoring,  Enforcement, Safety and  Costs." July 1973.
      Section 2, Flight and Operational Noise Controls. (NTID 73.3).
 3.  Aircraft/Airport  Noise  Study, Task Group  4  Report, "Noise Source
      Abatement Technology and Cost Analysis  Including Retrofitting," July
      1973, Section 2, Current Technology Options. (NTID 73.5).
 4.  Aircraft/Airport  Noise  Study, Task Group  4  Report, "Noise Source
      Abatement Technology and Cost Analysis  Including Retrofitting," July
      1973. Section 3, Future Technology Options and  Restraints. (NTID
      73.5).
 5.  Aircraft/Airport  Noise  Study, Task Group  4  Report, "Noise Source
      Abatement  Technology and  Cost Analysis Including  Retrofitting,"
      July  1973.  Section 6, Research and Development  Recommendations.
      (NTID 73.5).
 6.  Noise Standards: Aircraft  Type Certification—Federal Aviation Regu-
      lation Part 36.
 7.  Aircraft/Airport  Noise  Study, Task  Group  4  Report, "Noise Source
      Abatement  Technology and  Cost Analysis Including  Retrofitting,"
      July 1973. Section 1, Aircraft Fleet Size Forecasts. (NTID  73.5).
 8.  Aircraft/Airport  Noise  Study, Task  Group  4  Report, "Noise Source
      Abatement  Technology and  Cost Analysis Including  Retrofitting,"
      July 1973. Section 1,  Technology  Evolution  and Development. (NTID
      73.5).
 9.  Aircraft/Airport  Noise  Study,  Task Group  5 Report,  "Review  and
      Analysis of Present and Planned  FAA Noise Regulatory Actions  and
      Their  Consequences Regarding  Aircraft and Airport  Operations."
      July 1973. Section 3, Review of FAA Regulatory Status.  (NTID 73.6).
10.  Aircraft/Airport  Noise  Study, Task Group  5 Report,  "Review  and
      Analysis of Present and Planned  FAA Noise Regulatory Actions  and
      Their  Consequences Regarding  Aircraft and Airport  Operations."
      July 1973. Section 1,  Legislative Evolution  and Development. (NTID
      73.6).

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54           LEGAL COMPILATION—SUPPLEMENT II

11.  Aircraft/Airport Noise  Study, Task Group 4 Report, "Noise  Source
     Abatement Technology and  Cost Analysis  Including Retrofitting,"
     July 1973. Section 4, Cost and Economic Analysis. (NTID 73.5).
12.  Aircraft/Airport Noise Study,  Task  Group  5 Eeport, "Review and
     Analysis of Present and Planned FAA Noise Regulatory Actions and
     Their Consequences  Regarding Aircraft and  Airport  Operations,"
     July 1973. Section 6, Recommendations. (NTID 73.6).

                         SECTION  3

 IMPLICATIONS  OF IDENTIFYING  AND ACHIEVING LEVELS
 OF CUMULATIVE NOISE  EXPOSURE AROUND AIRPORTS

Measure of Environmental Noise Exposure
  Section 7 (a) of the Noise Control Act of 1972 directs the Environ-
mental Protection Agency to study the "... implications of identi-
fying and achieving levels of  cumulative noise exposure around
airports." This section discusses selection of a method of measure-
ment of cumulative noise exposure appropriate to public health and
welfare effects,  and considers the principal  legal and economic
implications resulting from its  use.
  These implications are discussed  in terms of  the  day-night
average  sound level adopted for this report as the measure of
cumulative noise  exposure. However,  the implications are insensi-
tive to minor variations in the definition of the measure selected,
and would be essentially unchanged if discussed in terms of other
possible measures of cumulative noise exposure.

Measure of Cumulative Noise Exposure
  A physical measure of cumulative  noise exposure applicable to
evaluation of airport noise should be based on consideration  of the
following requirements:

  1. The measure  should correlate  with the  human responses
     regarding hearing loss, speech  interference, and annoyance
     due to noise exposure.
  2. The measure should be  capable of assessing the accumulated
     effect of all noises over a specified time period.
  3. The measure should be  simple enough that it can be obtained
     by  direct measurement without  extensive instrumentation
     or elaborate analysis equipment.
  4. The required measurement equipment,  with standardized
     characteristics, should be commercially available.
  5. The measure for airport noise  should  be closely related to
     measures currently used for noise from other sources.

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                   GUIDELINES AND REPORTS                  55

   6. The single measure of noise at a given location should be
     predictable, within  an acceptable tolerance, from knowledge
     of the physical events producing the noise.
   Every  scientific investigation  of airport/community noise, re-
gardless of the country of origin, shows that the impact of aircraft/
airport noise is a function not only of the noise intensity of a single
event  (i.e., each takeoff or landing), but also  a function  of its
duration  and the number of events occurring throughout the day
and night* (1). This fact is recognized in the  documents of the
International Standards Organization, the International Civil Avia-
tion Organization, and the Organization for Economic Cooperation
and Development relating aircraft  noise to community response
(2,3,4).
   A number of methodologies for combining the noise from individ-
ual events into measures of cumulative noise exposure have been
developed in this country and in other developed nations, e.g., Noise
Exposure Forecast,  Composite  Noise Rating, Community  Noise
Equivalent Level, Noise and Number Index, Noise Pollution Level.
These methodologies,  while differing in technical detail (primarily
in the unit of measure for individual noise events), are conceptually
very similar and are  highly correlated with each other. Further,
using  any one of these methodologies, the relationships between
cumulative noise and community annoyance  (5, 6) are also highly
correlated.
   The day-night average sound level (Ldn) adopted for use in the
present EPA studies is consistent with existing methodologies and
meets the previously stated requirements for a measure of cumula-
tive noise exposure. It has been defined for this study as the average
A weighted** sound level during a 24-hour time period with a lOdB
penalty applied to nighttime (2200-0700 hours)  sound levels.
   The day-night average sound level especially excels, as a measure
of cumulative noise among the several available  measures, in that
it can be easily  measured with  simple, relatively  inexpensive
equipment,  and because  it is  appropriate to the wide variety of
sources which create community  noise environments. As has been
shown in Reference 1, it can be  used  for interpreting cumulative
noise exposure in terms of known health and welfare effects.
  * Other factors have been considered in some studies to be relevant to particular effects, for
example: attitude and prior experience with the intruding noise, residual or background noise,
season (windows open or closed).
  ** The use of an A weighted sound level precludes the assessment of penalties for the existence
of tones in the noise in the interest of simplifying the measure procedure. When appropriate,
penalties for tones  and other subjective attributes should be made in source regulations such
as in FAB 36.

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56            LEGAL COMPILATION—SUPPLEMENT II

Health and Welfare Effects of Cumulative Noise Exposure
  The currently established specific effects of noise on the health
and  environmental welfare of  humans were considered for the
purposes of this report* to provide the best ways of identifying
and  evaluating the impact of noise around airports.  The primary
effects of noise, identified at this time, on public health and welfare
are the potential for producing a permanent loss of hearing, inter-
ference with  speech and the generation of annoyance. Although
the possibility of indirect effects of noise on health and well-being
exists, there  is insufficient evidence at this time  to include any
such indirect  effects in noise impact analyses.
  The documented scientific data available** were considered suffi-
cient to establish  the potential for  hearing damage  in various
proportions of the population exposed  to different values of the
day-night  average sound level.  The  hearing threshold for  an
individual  at a specific frequency  is determined by measuring the
level of the quietest sound that can  be heard by  the individual.
The amount of hearing loss at any frequency is measured by the
amount by which the hearing threshold has shifted  upward from
a previous value, or from the population norm.
  Noise can interfere with  one of the chief distinctions of the
human species—speech communication—thereby disturbing normal
domestic activities, creating  a  less desirable  living  environment,
and  therefore acting as  a source  of extreme annoyance. Of chief
concern in this study is the effect of noise on speech communication
in the home,  for  face-to-face conversation indoors  or  outdoors,
telephone use, and radio or television  enjoyment. Research over a
number of years since the late 1920's has made great progress in
quantifying the effects  of  noise  on speech communication, data
from which has been used in this study  to relate the quality of
listening conditions for speech in the  presence of noise to various
values of the day-night average sound level. Finally, the proportion
of a population expected to be highly  annoyed when exposed to
various noise environments was related to the day-night average
sound level. The word annoyance is used in this report as  a general
term for reported adverse responses of people to environmental
noise.  Studies of annoyance  are  largely based  on the results of
  * The analyses on the effects of noise performed were in direct response to the requirements
of the aircraft/airport noise study. Concurrent with this analysis, the Environmental Protection
Agency is preparing a genal document of criteria for the effects of noise on people, as required
by Section 5 (1) (1) of the Noise Control Act. While it is believed that the conclusions on the
effect of noise reached in this study will be consistent  with the criteria report, the position of
the Environmental Protection Agency on noise criteria, and any regulatory action proposed
for noise, will be based on the criteria report and not  on the Task Group report generated in
this study.
  ** Citations for  the scientific data utilized in the Task Group analyses are contained in
Reference 1.

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                   GUIDELINES AND REPORTS                57

sociological surveys.  Such surveys have been conducted among
residents in the vicinity of airports of a number of countries includ-
ing the United States (7, 8, 9, 10).
   The results of these surveys are generally related to the percent-
age of respondents expressing differing degrees of disturbance or
dissatisfaction due to the noisiness of their environments. Some of
the surveys involve a complex procedure to construct a scale of
annoyance, some report responses to the direct question of "how
annoying is the noise."  Each social survey is related to some kind
of measurement of the noise levels (mostly from aircraft opera-
tions) to which the survey respondents are exposed. Correlation
between annoyance and noise level can then be obtained.
  The results of the social surveys  show that individual responses
vary widely for the same noise level. Borsky (11)  has shown that
these variances are reduced substantially when groups of individ-
uals having similar attitudes about "fear" of aircraft crashes and
"misfeasance" of authorities  are considered. Moreover, by averag-
ing responses  over entire surveys, almost identical functional rela-
tionships between human response and noise levels are obtained
for the entire surveyed population as for the groups of individuals
having  neutral attitudinal responses. In deriving a  generalized
relationship between  reported annoyance and day-night average
sound level, the average  overall group responses were used, recog-
nizing that individuals may vary considerably, both positively and
negatively compared to the average depending upon their particular
attitudinal biases. The table on the following page summarizes the
effects expected for different noise  environments.

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58
LEGAL COMPILATION—SUPPLEMENT II
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                    GUIDELINES AND REPORTS                 59

   An important consideration in assessing the relative impact of
 airport noise is its contribution to the national noise environment,
 considering the contributions of other sources of noise. The follow-
 ing Table,  developed  in Reference 1, provides an estimate of the
 population  presently exposed  to  different  levels of  cumulative
 exposure from different major sources of urban noise:
                    Number of People (In Millions) Exposed to
                 Day-Night Average Sound Levels Above the Stated Value
Day-Night Average
Sound Level
Decibels
60 dB and above
65 dB and above
70 dB and above
75 dB and above
80 dB and above
Freeway
Traffic
3.1
25
1.9
09
0.3
Aircraft
Operations
16.0
7.5
3.4
1.5
0.2
Urban *
Traffic
18.0
7.5
3.2
0.6
0.1
Total "
37.1
17.5
85
3 0
0.6
  * Cities with population in excess of 25,000 used in this estimate—total population at 92
 million.
  ** Some duplication may exist in this  total.
   These estimates indicate that, of those 92 million people included
 in this calculation living within moderate to high levels of environ-
 mental noise,  aircraft are  a major  cause of the  noise exposure
 received by approximately  30 to 40  percent  of these people. The
 estimates  further indicate, however,  that complete elimination
 of aircraft noise  in  the urban community will  still leave a large
 proportion of  the population exposed  to  high  levels of environ-
 mental noise unless  control of these non-aircraft noise sources  is
 also obtained.

 Public Health and Welfare
   Cumulative  noise  exposure  levels  as denned by such method-
 ologies as day-night  average sound level, NEF etc.  are believed to
 be the best available means of identifying and evaluating the impact
 of noise around airports. Cumulative noise exposure levels can also
 serve as the basis for generally applicable environmental standards
 designed to control the noise exposure of members of the general
 population, as  well as the most critically exposed  individuals,  to
 levels that will protect their health and welfare with an adequate
 margin of safety.**
  Finally, establishing values for cumulative noise  exposure must
 be contingent  on  an appropriate balance between  desirable noise
levels  and varying  economic capability, and sociological effects
among communities. The study reported in a following subsection
 (economic implications) estimated the approximate  economic costs
to achieve various values of the  day-night  average sound, and
  ** With regard to "welfare" effects, there is a wide range of degree of human response to
noise; and thus there may be a range of such levels taking this into account.

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60           LEGAL COMPILATION—SUPPLEMENT II

considered aircraft activity as the  only source of noise. However,
as inferred from the preceding table this may not be the case for
selected levels at specific airports. Identifying the broader socio-
logical implications of achieving various levels of cumulative noise
exposure was not possible during the time period available for this
study. These implications include such questions  as:

    What is the effect of possible residential relocation to achieve
  compatible land use  on neighborhood social structures?
    What are the contributions of the other potential noise sources
  in the community?
    What, if any, are  the long-term effects on the social structure
  of residential  neighborhoods if  they  remain in a high noise
  environment?
    Can conversion of noise impacted,  lower density residential
  housing into renewal, high density residential areas be acceptable
  if adequate noise control is incorporated in the new structures, as
  contrasted with conversion to possibly higher value commercial
  and residential uses?

  Consideration of these and other social costs and benefits will be
made by the EPA in  its  preparation of  proposed regulations for
airport noise.
  There are several main "implications"* of adopting mechanisms
for identifying and then  achieving cumulative noise  measures as
a means of controlling aircraft noise. The most important, beyond
those of public health and welfare, are discussed in the following
subsections, and include those relating to legal, economic and funda-
mental policy considerations. In examining these, others have been
noted which require further study  and which will be addressed by
the agency in greater depth in developing details  of proposals on
this measure.

Legal Implications
  This discussion deals with the legal implications of identifying
and achieving levels of cumulative noise  around  airports adequate
to protect the public  health and welfare.  Although  the  nuances
of the governing case law are extremely complex, the following legal
implications must be kept in mind:

   • Identification of cumulative noise levels at airports to protect
    public health and welfare could be used to support additional

  * As used here, "implications" applies to the relationship of the proposal to possible conse-
quence of its adoption.

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                   GUIDELINES AND REPORTS                 61

     liability against  airport owners. This could  follow from the
     mere act of "identification."
   • Under the Burbank decision, achievement can be accomplished
     to great extent only by overall Federal regulation.
   • Identification of  Federal  regulations and establishment of
     cumulative noise levels may shift liability from airport owners
     to the Federal Government; but achievement should reduce air-
     port noise liability.
   • Any  shift in liability  to the Federal Government will create
     a problem during the period between Federal identification and
     the achievement  of noise levels requisite to protect the public
     health and welfare.
   • If the Court were to hold that liability had shifted by reason
     of preemption, a legislative solution for the interim period
     is unlikely, because liability is largely based  on the constitu-
     tional requirement that just compensation must be paid for
     the taking of property.

   Three decisions  of the Supreme Court of the United States are
 in point. These cases are:  United States v. Causby, 328 U.S. 256
 (1946); Griggs  v. Allegheny County, 369 U.S.  84, (1962);  and
 City of Burbank V. Lockheed Air Terminal, Inc.	
 U.S	(1973). The rule in the Causby case was that
 the Federal Government (either as the partial lessor of the Winston
 Salem, North Carolina, Airport or as the operator of the military
 aircraft in question) had "taken" in the constitutional sense of the
 Fifth Amendment, a property interest or "aviation easement" in
 the land the  military aircraft overflew. The United States was
 required to pay just compensation for the diminution of the  value
 of the overflown property.  In practical effect the result was that
 compensation was paid for the right to continue the damaging noise.
  In the Griggs case  the  Supreme Court had before  it  another
 overflight damage/taking case. The airport was owned by a political
 subdivision  of Pennsylvania. The aircraft generating the  over-
 flight noise  were those of  commercial scheduled  air carriers, the
 flight patterns and paths  of which were regulated by the FAA.
 It was clear that there could be no Fourteenth Amendment taking
 by the commercial carriers (analogous  to the  Fifth Amendment
 taking of  Causby) since the carriers who used  the airport and
 generated the noise were not state bodies.  The  majority of the
 Court, per Mr. Justice Douglas, held that the local government, as
 owner of the airport,  has  responsibility and authority  to  acquire
adequate approach land to the  airport   (using the analogy  of a
governmental bridge builder  who must  acquire by condemnation

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62           LEGAL COMPILATION—SUPPLEMENT II

sufficient land to build approaches to the bridge) and was therefore
in the position of having taken property consisting of an aviation
easement from Mr. Griggs whose property had been directly over-
flown by the air carriers' aircraft. The Court  thus held that the
local governmental  owner  of the  airport must compensate the
property owner for the taking. In  the dissent, Mr. Justice Black
noted that the airport construction including landing layouts and
approach ways had been supervised and approved and in large part
paid for by the FAA under its Federal Aid to  Airports Program;
and that since the airport approaches were both placed and limited
by the Federal Government  rather than the  airport owner, the
former should be liable for the resulting just compensation under
the Fifth Amendment.
  In Burbank, the Court had before it a municipal ordinance that
made it unlawful for a privately owned airport located within the
jurisdiction  of  the  municipality to permit  the operation  of jet
aircraft between 11 p.m. and 7 a.m. The Court held that curfew was
an unconstitutional exercise  of  the municipalities' police  power
because the "pervasive nature of the scheme of Federal regulation
of aircraft noise ... leads  us to conclude there  is Federal pre-
emption." This was based  on the  Court's analysis of the Noise
Control Act of 1972 which determined "that FAA, now in conjunc-
tion with EPA, has full control over aircraft noise,  preempting
state and local control."
  The holding in Burbank means that a state, or any political sub-
division thereof, cannot use its police power  to protect its citizens
from aircraft noise because the Federal government has preempted
the power to do so. However, more than 99% of the noise impacted
airports used by scheduled air carrier aircraft are in fact  owned
by the states, or political subdivisions thereof. Can these govern-
mental owners exercise their own property rights  to achieve noise
abatement? This question is  a very real one. Would, or could, the
FAA permit one of  the large international or hub  airports to
curfew operations at night as a matter of proprietary right? The
Court in Burbank cited action by the FAA in 1960 which "rejected
a proposed restriction on jet operations at the Los Angeles airport
between 10 p.m. and 7 a.m. because such restrictions could create
critically serious problems  to all air transportation." However, in
a footnote, the  Burbank opinion declines to  determine  whether
"proprietary" rights  such  as  curfews  and  non-discriminatory
quotas would either stand or fall under the preemption doctrine.

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                   GUIDELINES AND REPORTS                 63

   The footnote in question deals with the legislative history of the
 1968 Act (PL 90-411). The text of the footnote is as follows:

   "The letter from the Secretary  of Transportation . . .  expressed
   the view that 'the proposed legislation will not affect the rights
   of a State or local public agency, as the proprietor of an airport,
   from issuing regulations or establishing requirements as to the
   permissible level of noise which can be created by aircraft using
   the airport. Airport owners acting as proprietors can presently
   deny the use of their airports on the basis of noise considerations
   so long as such exclusion is non-discriminatory'." (Emphasis in
   opinion.) "Appellants and The Solicitor General submit that this
   indicates that a municipality with jurisdiction  over an airport
   has the power to impose a curfew on the airport, notwithstand-
   ing Federal  responsibility in the area. But, we are concerned
   here not with an ordinance imposed by the City of Burbank as
   'proprietor' of the airport, but with the exercise of police power.
   While the Hollywood-Burbank Airport may be the only major
   airport which is privately owned, many airports are owned by
   one municipality yet physically located in another. For example,
   the principal airport serving Cincinnati is located in Kentucky.
   Thus,  authority that a municipality may have as a landlord is
   not necessarily congruent with its police power. We do not  con-
   sider here what limits if  any  apply  to  a municipality  as a
   proprietor."
   As discussed earlier, the "identification" of a noise level stand-
 ard requisite to protect the public health and welfare may generate
 Griggs type litigation against airports. For example, assume EPA
 were to  identify "X units" of some cumulative measure of noise
 as completely unacceptable to public health and welfare.  Without
 further Federal action, such identification could be used by lawyers
 to attempt to define a cause of action based on the health damage
 to their  clients which  would, of course,  then be subject to proof
 on an individual basis.  Without more, the sole act of identifying a
 Federal noise level would not necessarily shift Griggs type liability
 to the Federal government. However, if in addition to identification,
 the airport owner is denied the right unilaterally to limit the use
 of its airport to defend itself from litigation based on the Federally
 identified noise level, the possibility of a shift in liability cannot be
 ruled out.
  In short, achievement would appear to EPA to be most feasible
through noise certification of airports which would enable the FAA
to work out a national system of noise abatement options for each

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64           LEGAL COMPILATION—SUPPLEMENT II

airport to achieve the identified levels locally and prevent local
action inconsistent  with the national  air transportation  system.
To the extent the airport owner would be required to, and did, com-
ply with the Federal noise certification system, the owner might be
immune from  noise nuisance litigation because of the defense of
legalized nuisance. It will also mean that in taking litigation,  the
defendant might be the Federal Government, since  the airport
operator  would be acting in compliance with and under the man-
date of a Federal regulation.
  The above legal implications have been summarized and then dis-
cussed in the context of the  governing  case law. The  acts of
identification, airport certification for noise, and the statutory goal
of achievement are all presently mandated by Congress (12). Thus,
Section 5 of the Noise Control Act of 1972 directed EPA to  (1)
develop and publish by July 27,1973, "criteria with respect to noise.
Such criteria shall reflect the scientific knowledge most useful in
indicating the kind and extent of  all identifiable effects on  the
public health  or welfare which may be expected from differing
quantities and qualities of noise;" and  (2) by October 27,  1973, to
"publish  information on the levels of environmental  noise  the
attainment and maintenance of which in defined areas under various
conditions are requisite to  protect the public health and welfare
with an adequate margin of  safety."
  Next, EPA was directed by Section 7 of the Noise  Control Act
of 1972 to "submit to the FAA proposed  regulations to provide
such  control and abatement of aircraft  noise and  sonic  boom
(including control and abatement through  the exercise of any of
the FAA's regulatory authority over air commerce or transporta-
tion  or over aircraft or airport operations)  as EPA determines is
necessary to protect the  public  health and welfare."
  In summary, the  EPA has the duties to define noise criteria, to
publish and thus identify levels of environmental noise requisite
to protect the public health  and welfare with an adequate margin
of safety, and, after reporting to Congress, to propose regulations
to the FAA for the abatement and control of aircraft noise as EPA
deems necessary to  protect the public health and welfare.
  With  respect to the authority to  achieve FAA's explicit regu-
latory authority over airport operations, Section 611 added noise
to the criteria that must be taken into account  in  issuing any
certificate under Title  VI. More specifically, the new Section  611
directed the FAA, after consultation with DOT, to prescribe:

  "Standards  for the measurement of aircraft noise . . . and pre-
  scribe  and amend such rules and  regulations as the FAA may

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                   GUIDELINES  AND REPORTS                65

  find necessary to provide for the control and abatement of air-
  craft noise ... including the application of such standards, rules
  and regulations in the issuance of any certificate authorized by
  ... (Title VI)."

  In 1970, the Airport and Airway Development Act (AADA), also
by way of amendment to the Federal Aviation Act, required that
every airport serving  civil air carriers  operating  under a CAB
certificate of public convenience and necessity must obtain an air-
port operating certificate under Section 612. Then, as noted earlier
in this report, the Noise Control Act of 1972 amended Section 611
to require the FAA after  consultation with DOT  and  EPA,  "in
order to  afford present  and  future relief and protection to the
public health and welfare from aircraft noise . . .  (to)  prescribe
and amend standards for the measurement  of aircraft  noise and
sonic boom and shall prescribe and amend such regulations as the
FAA may find necessary to provide for the control and abatement
of aircraft noise . . . including the application of such  standards
and regulations in the  issuance, amendment, modification, suspen-
sion, or revocation of any certificate authorized by this title."
  The Agency has concluded that the timely adoption and imple-
mentation of an airport noise certification regulation is the keystone
of a comprehensive program to diminish aircraft noise in  communi-
ties to a  level adequate to protect public health and welfare.
  The FAA's airport certification process appears to EPA to be
the proper mechanism  for administering the airport noise regula-
tion, and no new legislation is needed. The  process envisioned is
as follows:
  After the promulgation of  the Federal airport noise regulation,
the existing airports with jet aircraft operations would be reviewed,
and those not in compliance with the regulation identified. A num-
ber of large air carrier airports could be so identified immediately
after promulgation of  the regulation. Proprietors of  identified
airports would be given a specified amount of time to develop, and
submit to the FAA, their  implementation plans. Development of
implementation plans for each airport should be done by a consul-
tive  local process, involving governments and  concerned  persons
in the airport vicinity. Testing the  effectiveness of various alter-
native operational modes for the airport should be carried out as
part of the local development of the implementation plan.
  The agreed-upon implementation plan for the airport would then
be submitted to the FAA for approval. Any final adjustments of the
plan required during the approval process would be incorporated,
and the implementation plan adopted as a Federal regulation for

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66           LEGAL COMPILATION—SUPPLEMENT II

the airport. Elements of the plan dealing with aircraft operations
would be promulgated as FA A regulations and thus become subject
to FAA enforcement. Airport proprietors that fail to propose an
implementation plan by the specified deadline would have imple-
mentation plans imposed  upon them  at the Federal level.  This
would follow  FAA development of a plan, including participation
by all concerned persons. Progress in implementing approved plans
would be reviewed on a periodic basis.
  Two additional legal implications deserve comment. They arise
under different authority  and therefore are discussed separately.
The first concerns the application to airport and airline employees
(as well as other employed persons whose work place noise environ-
ment may be dominated by aircraft noise) of the occupational noise
exposure standards as promulgated by  the  Secretary  of Labor
pursuant to the Occupational Safety and Health Act of 1970 (29
CFR  Section 1910.95). The OSHA occupational noise exposure
standards require protection against the effects of noise when sound
levels exceed  a limit value, e.g. 90 dBA for an 8 hour work day.
This is a hearing impairment standard not geared to "public health
and welfare." Rather, the OSHA  standard is derived  from the
replacement of the old common law concepts of master-servant
and assumption  of  risk, which denied  all work-incurred liability
with the concept of  workman's compensation, which while limiting
recovery, made recovery easy.
  The only area of conflict that could arise would be  where the
airport employee, for example, were to work at the maximum OSHA
standard for an 8 hour day and reside in a maximum noise impacted
area under an EPA identified level. It is possible that this could lead
to additional liability, particularly if  hearing impairment were
proven.
  The second implication  concerns the identification by EPA of
levels of noise requisite to protect the public health and welfare and
the application of such levels to noise impacted areas adjacent to
military airports. As noted earlier in discussion of the Causby case,
the Federal government is liable under the Fifth Amendment for
takings of property by military aircraft overflight noise.  Such
liability might be extended by identification of a public health and
welfare level in a particular case since it could be used to assert that
the overflown property was damaged to the extent it could not be
safely used as a residence. However, the cause of action would
have to remain one for a constitutional taking, because the Federal
government is subject to suit in tort only by reason of the Federal
Tort Claims Act. The act bars  suits arising out of actions taken

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                   GUIDELINES AND REPORTS                67

under the "discretionary function" of the Federal  government.
Thus a litigant would have to prove that the flights of the military
aircraft  were pursuant  to a negligent decision  of  the Federal
government and not pursuant to a responsible decision. Such proof
would be difficult, if not impossible, under the prevailing case law.
  The extension of Federal noise liability at military airports is
also countered by the present DOD compatible use programs, "Air
Installations  Compatible Use Zones  (AICUZ). AICUZ seeks to
assure that the use of privately owned real property near military
airports  is used in a manner compatible with both mission accom-
plishment and protection of the public. As is set forth in Reference
13, AICUZ uses  a  cumulative noise criterion to determine noise
impacted property, and if  local zoning or other desired action is
not forthcoming appropriate Federal action would be required.

Economic Implications
  The objective of this discussion is to delineate the economic costs
and problems of identifying and achieving several specified levels
of cumulative noise exposure, by various methods of noise control
and  abatement.  In  analyzing the implications of identifying and
achieving such levels of noise exposure, the following  issues are
examined:

  •  economic implications  of identifying cumulative average day-
     night noise exposure levels (Ldn used in this study),
  •  the  costs of achieving such levels for each  of  the entities
     contributing to the airport environmental noise problem,
  •  cost allocation and financing options.
  (a)  Economic Implications of  Identifying  Cumulative  Noise
       Exposure Levels
  Identification  of cumulative  noise exposure levels  embodies
several implications with the potential for  economic costs apart
from the costs required to achieve such levels through noise abate-
mnet and control strategies. The implications arise in  two areas
of interest: (1) the cost of monitoring airport noise and measuring
noise exposure levels around airports and (2)  the cost or liability
which might  be incurred by responsible institutions if cumulative
noise exposure levels  are used to define causes of  action for per-
sonal or property damages resulting from aircraft/airport noise.

                      Costs of Monitoring
  With the identification  of cumulative  noise  levels  and their
statistically expected  population effects, responsible local govern-

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68           LEGAL COMPILATION—SUPPLEMENT II

ment organizations can be expected to attempt to determine the
extent of  their respective airport noise environment problems.
Necessarily, such actions will require resources. Based on current
information  (15),  the cost of  establishing and maintaining  a
monitoring program for  approximately 500 commercial airports,
representing 99 percent of all commercial aviation operations, is
estimated  at 5 million dollars per year*. This estimate does not
cover the cost of monitoring, if desired, at smaller general aviation
airports which do not serve commercial carriers.

                Possible Compensation Liability
  As indicated in the discussion of legal implications of identifying
airport noise exposure levels, it is possible that any cumulative noise
exposure measure, and the statistically expected population health
and welfare effects identified by the Federal Government, will be
used by private litigants to define causes of action for the recovery
of personal or property damages resulting from aircraft noise.
  Any discussion of potential liability or litigation recovery result-
ing from identification of noise exposure levels is highly speculative.
Past  experience regarding compensation  suits against airports
indicates that  the threat of litigation is much greater than the
actual judgments resulting  therefrom.  To date, several billion
dollars of  airport litigation  has  been  filed against  just one air
terminal (LAX). Recoveries, nationally, for noise related damages
have  amounted to approximately one tenth of  one percent of the
claims.
  Identification of cumulative noise exposure levels  is  not a new
concept.  The  Noise Exposure  Forecast  methodology, developed
by the FAA, was introduced in the late 1960's,  and although later
withdrawn by FAA, has  continued to be used by HUD and other
state and federal agencies. Only in one state, California, were such
NEF forecasts used  as  evidence of the  extent of airport noise
impact. Thus, it is uncertain, at  best,  whether  mere identification
of cumulative noise exposure levels will in fact result in substantial
airport noise compensation recoveries (12).
  Assuming,  however,  that such noise exposure  levels  were
adopted by the Courts as means for defining a cause of action for
noise related damages, the most  likely use would come in personal
damage suits. If it were determined that a given level of cumulative
noise exposure resulted in a potential risk of hearing loss to those
exposed for long durations to such levels, a new type of airport
  * This figure (in 1973 dollars) includes the cost of purchase or lease of monitoring equipment
and labor, calculated on the basis of four man days and one 24-hour monitoring period per
1000 annual operations.

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                    GUIDELINES AND REPORTS                  69

litigation might evolve.  Such suits would be brought by airport
neighbors asserting damages resulting from anticipated impaired
hearing and/or substantial diminution of property value in areas
made "unhealthy" by aircraft noise.
  Approximately four percent of the persons living for long periods
in areas subject to cumulative noise levels equivalent to the Ldn 80
used in the EPA study are subject to a potential risk of hearing
loss above that which would normally be expected (1). If this level
were the ultimate  standard, and assuming these individuals sued
for damages for hearing loss caused by airport noise, the upward
bound of possible litigation can be estimated from experience in
workman's  compensation cases  arising out of occupational noise
related deafness.
  If each litigant recovered the average amount ($2500) paid to
workmen suffering occupational caused hearing loss (16), airport,
airlines or  the United States government might be subject to
liability on  the order of 20 millions of 1973 dollars.
  A bound on the possible recovery for property value losses which
might be claimed if cumulative noise exposure criteria are adopted
by the courts in inverse condemnation litigation may be calculated
from the costs of soundproofing or relocating noise-sensitive land
uses subject  to the Ldn levels  used as  examples  in this  study.
Table I below sets forth such estimates, indicating that, for exam-
ple, if 60 Ldn were  held to define a right  to compensation for
property value diminution,  recoveries might total as  much  as 33
billion dollars.*
          TABLE 1.—ESTIMATES OF THE NATIONAL EXTENT OF THE CURRENT AIRPORT
                       ENVIRONMENTAL NOISE PROBLEM
Day-Night Avg
Noise Level
ddn)
Greater Than
80
70
60
1972 Population Exposed (1)
(Millions of people)
0.2
34
16.0
Compatible Land Use
Costs (17) *«
(Billions of 1973 dollars)
2.0
19.0
330
  ** In the re-development of incompatible land uses, public investment recoveries from high
density commercial and industrial land uses can result in off-setting, if not exceeding, the
total costs of such land use conversion, given the demand for such uses ; but note, the Federal
Government has no police power or other direct authorities in this regard.
  These figures assume (1)  that every  court adopts such levels
as defining proper causes of  action for compensation;  (2)  that
every person living in such noise impacted areas sues for damages;
(3) that every litigant could show substantial diminution of prop-
erty value to the maximum amount—e.g., that their land was not
 * It should be noted that with noise conditions such as that described by the Ldn 60 value—
other sources of noise may be of equal or more importance.

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70           LEGAL COMPILATION—SUPPLEMENT II

more valuable for other purposes; and that no obstacles to litigation,
such as statutes of limitation, exist to bar recovery.
  Furthermore, it is rare that compensation litigation is the first
step taken by aggrieved airport neighbors. Rather, law suits often
appear as a reaction to frustrated  efforts to lessen noise impacts
via other methods. The compensation implications discussed here
therefore should not be expected to be realized immediately upon
identification of cumulative noise exposure levels requisite to pro-
tect public health and welfare. When identification of  such  levels
is not followed by a viable program to achieve necessary noise
control and abatement, however, airport neighbors and  courts may
be inclined to  take more precipitous action as  discussed herein.
When and if such actions can be taken, local governments should
be expected to try to minimize the  extent of their respective noise
environment problems with the methods available to them. Among
the set available, if they are the owners of the airport, are curfews
on operations and aircraft  type restrictions, which, if instituted,
can affect the levels of air and mail service to a community  and
increase the cost of operations to the civil aviation industry.* Note
that such local actions could severely distort  the  operations  and
costs of the national transportation system. Thus, if  cumulative
noise exposure levels are identified,  expeditious development  and
implementation of a  coordinated program to  achieve  such  levels
must be pursued. Such a program should include a complementary
effort relative to populations adjacent to large  military airports.
   (b)  Costs of Achieving Cumulative Noise Exposure Limits
  The Noise Control Act of 1972 establishes the ultimate goal of
reducing noise exposure—f rom aircraft  as well as other sources—
to levels which adequately protect the public health and welfare. In
terms of aircraft/airport noise, achievement of this goal will require
action to:
(1)  Reduce source noise impact—through application of  aircraft
    and engine noise abatement takeoff and approach  procedures.
    In  addition,  possible  airport  operational  controls may be
     applied, such as the selection of approach and departure routes;
     realignment of airport runways; limitation  in the use of cer-
    tain aircraft types at some airports; imposition of partial or
     total curfews; restrictions  on  flight frequency, etc., and/or
(2)  Protect noise-sensitive receivers—through the soundproofing
     of  residential and other sensitive structures  or through the
     relocation of existing incompatible land uses.
  * As is discussed earlier, there is a question as to whether such proprietary acts would not
adversely affect interstate air commerce.

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                   GUIDELINES AND REPORTS                71

  Achievement of a desired cumulative day-night  noise exposure
level, for the purposes  of this  discussion,  infers  separation of
incompatible,  noise-sensitive  land  uses from specified levels of
noise impact. This may be done  by reducing the noise impact at
the noise-sensitive receiver and/or  by insulating or relocating the
receiver. Often achievement of a given Ldn level will require a com-
bination of these actions, which will result in  a  change in the
shape of, or diminish, the area around an airport which is subject
to the given cumulative noise exposure. Similarly, modifications of
flight routes around airports may  be used to shift noise impact
zones to areas containing fewer or no noise-sensitive receivers.
Yet, actions to reduce sound levels through such aircraft source
abatement and operational options may not totally  solve the prob-
lem at a given Ldn level. These options alone may  not be  capable
of separating all noise sensitive land uses from incompatible noise
impacts as defined by the given  cumulative noise  exposure level.
In such cases, additional actions  must be taken to soundproof the
structures in  the noise-sensitive areas, or relocate incompatible
land uses which remain, after other options have been implemented.
  However, there is a limit to the effectiveness of structural treat-
ment or  (soundproofing)  technology.  For  those  noise-sensitive
receivers exposed to noise which cannot be effectively reduced to
compatible levels by soundproofing  the only remaining alternative
is relocation  (17). Furthermore,  the application of soundproofing
does not address the problem of outdoor noise levels. For purposes
of this  discussion,  it  has been  assumed that all  noise-sensitive
receivers which  involve outdoor  as well as  indoor  activities,  e.g.,
all residential uses,  must  be  relocated from  the area subject to
cumulative noise levels which would result in eventual hearing loss.
The  cost of achieving any given Ldn level, therefore,  will be the
cost  of implementing noise  source abatement technology  and
airport/aircraft  operational  options plus the expense of sound-
proofing or relocating those noise-sensitive receivers which remain
impacted  by such noise exposure  levels  after  technological  and
operational options have been employed. Clearly, the more exten-
sive  the implementation of source  and path noise  reduction,  and
airport operational options, the lower the requirements  for receiver
or land  use controls  to "achieve" a given Ldn goal.  The economic
question raised by the discussion here is what combination of these
options form the most efficient, or cost-effective and timely resolu-
tion of the civil airport noise exposure problem. There do not exist
sufficient data at this time to estimate the extent and costs of
achievement for impacted areas around military airports.

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72           LEGAL COMPILATION—SUPPLEMENT II

  Source noise reductions, requiring retrofit into the existing fleet,
necessitate time to fabricate, demonstrate, certify and install such
kits on the aircraft.  This time element plays an important role in
the dynamics of noise level achievement in that the fleet mix, levels
of operations, and cost of  achievement will vary with time. For
example, future production versions of the current narrow body
commercial aircraft  will most likely  be in  compliance  with cur-
rent FAR 36 standards; new wide body aircraft will be even quieter.
Consequently, by 1980  the expected  trend  is towards  a gradual
reduction in  airport  environmental noise as  these  relatively
quieter aircraft constitute  an increasing portion of the operating
fleet. Note also that the retrofit candidate set of noisy aircraft will
decrease with time which means that lower abatement cost may
obtain.  The timing  of the retrofit implementation  then has  a
significant impact on when a level of achievement can be realized
and the costs of achieving a particular day-night average noise
level.
  For the situation where no source abatement options are imple-
mented, there will be reductions with time  in the constant dollar
costs of achieving average  day-night  noise environments using as
examples the values 60, 70, and 80 decibels for the 1978-1980 time
period as compared to those for achieving the same results in 1972
(Option A, Table 2 and Table 1). Essentially, the gradual retire-
ment of noisy narrow body jet aircraft and their replacement with
new quieter aircraft results in a reduction of the 1972 impacted
areas to the extent that the impacted 1972 populations for the 60,
70, and 80 example levels of day-night  average  noise are reduced
by 19, 17 and 50 percent respectively.*
  Various flight path and source noise reduction options have been
investigated (15, 17). Table 2 reflects the preliminary results of a
complementary  DOT study  (18)  which included representative
technology options as indicated in column 1 of this Table. Table 2
also contains derived data  from the EPA Task Force study (17).
Some of the data in this Table may  be revised in the final DOT
study report  but the  relative  relationships shown  are expected
to obtain.
  One noise reduction option not investigated  in detail was the
complete replacement of the commercial aviation fleet with quieter
current technology  aircraft. Implementation of this  option was
found to be impractical since there does  not  currently exist a
replacement  alternative for the  JT8D powered portion  of the
fleet (17). If a replacement alternative were available, the cost of
  * This assumes no change in population distributions with time in the impacted areas.

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                GUIDELINES AND REPORTS
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74           LEGAL COMPILATION—SUPPLEMENT II

total fleet replacement has been estimated to  be  in  excess of 8
billions of 1973 dollars (19).
  Before discussing the  effectiveness  and environmental  noise
level achievement cost estimates, two basic shortcomings in the
data must be outlined. Briefly, the  set of airport noise reduction
options, which minimize the population exposed, is unique at each
airport  due  to the local topography,  demography, runway orien-
tation, flight frequencies,  etc. This uniqueness  precludes  a  quan-
titative extrapolation to a national  estimate at this time  because
sufficient data on the effectiveness of  each option for  an adequate
number of airports are not available.  The "best estimate" of the
combined national effectiveness of these airport options is that as
much as a 50 percent reduction in the remaining impacted land
area can be expected (15); the remaining impacted land area is
that residual remaining  after adjustments for source and path
alternatives have been made. Implementing  these  options will
incur additional  costs which are  not  estimated  here, such as
increased operating costs resulting from possible curfews or flight
frequency limitations.
  The second shortcoming in  the data was the inability to locate
or develop data  on the extent to which general aviation  aircraft
activity contributes to the national and/or individual airport noise
environment problem. There are several types of business jet air-
craft whose noise output  exceeds the current FAR 36  levels and
for which there exists source noise reduction technology. To insure
consistency in the alternative  effectiveness estimation and in com-
puting the costs of achievement, the assumption was made that
these aircraft would have the appropriate technologies  retrofitted
into the respective airframes  by 1978. The total investment costs
under this assumption are estimated to be on the  order of 300
millions of 1973 dollars  (17). Downtime and lost productivity cost
estimates for retrofitting this  portion  of the civil aviation fleet are
not available at this time.
  One final point, land use cost, as  used in the  subsequent discus-
sion, includes the costs associated  with local government action,
in the remaining impacted area, of zoning, relocations, redevelop-
ment and/or some degree of structure treatment.
  To implement a national,   all weather,  two-segment approach
 (option B of Table 2) the aircraft must be retrofitted with the
requisite instrumentation and the airports must also adjust and/or
install attendant  instrumentation.  These requirements are esti-
mated to cost some 67 millions of 1973 dollars to implement (shown
as  100  million in Table  2 due to rounding) (15). Implementing

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                   GUIDELINES AND REPORTS                 75

this option will reduce the number of people exposed to the Ldn
levels of 60,  70, and 80 decibels by 22, 23 and 50 percent respec-
tively in 1978 as compared with 1972 estimates. The cost to achieve
outdoor environments of Ldn 60, 70 and 80 decibels for those people
still impacted are estimated to be 22.3, 13.2, and 1 billion dollars
respectively. Note the achievement costs for a 70 Ldn environment
have dropped from 15.5  billions  to 13.3 billions of 1973 dollars.
Thus, if 70 Ldn was the level to be  achieved, implementing  a two
segment approach would be desirable since the savings in achieve-
ment costs more than offsets the  implementation costs of the two
segment approach.
  Retrofitting the entire commercial fleet with SAM kits and imple-
menting the two segment approach, all  of which can be accom-
plished by 1978, will reduce even further the levels of 1972 impacted
population and  the achievement costs.  The combined costs of
implementing the  requisite  hardware and instrumentation, plus
the resulting increase in operating expenses and lost productivity
to the  airlines, are  estimated to be some 600 millions of 1973 dol-
lars. To realize the impacted population  estimates, some portions
of the  business jet fleet will also have been retrofit with available
technology as was discussed earlier. For these technology transfer
costs, the 1978 impacted population at 60, 70 and 80 Ldn reflect a
reduction of 25, 35,  and 100 precent*,  when  compared to  1972
estimates respectively. Costs of  achieving the Ldn levels for the
remaining population are  estimated to be 20.1, 10.8 and 0.6 bil-
lions of 1973 dollars. Again it should be noted that these achieve-
ment costs can be significantly reduced by the effective implemen-
tation  of airport operator options.
  Retrofittiing Refan kits into aircraft will require a longer period
to implement. In addition, the investment and operating costs of
this technology  option  are significantly higher than those of the
previous options discussed. Offsetting these costs is their increased
effectiveness in reducing the  1978 impacted  population estimates.
Consequently, the total implementation costs (including residual
land use costs)  of achieving various outdoor noise levels decreases.
In every case, the  savings in achievement cost  exceeds  the  costs
of aircraft modifications. These data may also be found in Table 2.
  These decision data on the effectiveness and cost effects of the
various noise reduction options can be used as a base to design an
effective airport environment noise reduction program.  Different
design strategies can be developed taking into account technology
  * Due to the estimating procedure it is acknowledged that particular airport problems will
result in residual population remaining. For 80 Ldn it is estimated that less than 50,000 people
will be exposed to such levels where the percent reduction is stated as 100.

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76           LEGAL COMPILATION—SUPPLEMENT II

transfer and total achievement costs plus various degrees of risk.
Table 2 indicates that there are potentially greater reductions in
impacted population with Refan retrofits than with SAM retrofit
options. However, the SAM technology can be implemented earlier
at lower cost and the resulting noise reductions are more reliably
known. A decision to rely  entirely  upon Refan retrofit will result
in a minimum two-year delay of relief for some of the population.
In addition, if the Refan's performance is less than predicted then
the final population results and costs of achievement will be less
favorable than expected. The benefits of a decision to SAM retrofit
are earlier relief via demonstrable technology but higher land  use
costs  to achieve a compatible noise level. However, reliance only
on the SAM retrofit may preclude the possibility of a more effective
and financially  equitable solution by  not  allowing for  the  tech-
nological potential of the Refan program. There is an intermediate
strategy which  would accommodate  a continuous  program  of
further  noise relief via technology.  This is to  initiate prompt
actions to retrofit the fleet with SAM.  If the current phase of  the
Refan research  program is  successful, then  that  portion of  the
fleet which has  not already been retrofitted  with SAM could  be
retrofitted  with  the Refan technology.* The Refan research pro-
gram should be  accelerated, if evaluation of the present research
program indicates that this will  maximize in an efficient manner
reduction in airport noise exposure.
  To  achieve any cumulative noise  level, the more rapid the tech-
nology and airport options are implemented, the  smaller will  be
the land use option financial requirements.  This result suggests
that as soon as a level of public noise exposure is selected, then to
minimize the costs of achieving  this level, the timing for imple-
mentation  of the various options of a noise reduction program is
such that an action program must  shortly follow.
  In  terms of the economic question  of which combinations of
options are the  most efficient to achieve a desired cumulative out-
door noise environment level, the following findings can be stated:

   • The costs  of  transferring aircraft source  noise  abatement
    technology  into the civil aviation fleet are  always less than
     the costs of achieving cumulative noise without such transfers.
   • Transferring the  aircraft source noise  reduction  technology
     into the civil aviation fleet alone cannot eliminate the outdoor
     noise  environment problem around the nation's airports.
   • Source technology cannot be fully implemented into the civil
  * It may be economically reasonable, and desirable, to subsequently refan the entire JT8D
portion of the fleet.

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                    GUIDELINES AND REPORTS                 77

     aviation fleet until 1977 at the earliest, and path technology
     by 1978; however, intermediate  relief can occur before this
     period by the effective exercising of fleet operational proce-
     dures, airport operator options and local government land use
     options.  Such intermediate relief must occur, especially the
     curtailment  of  further  encroachment  of  population around
     airports,  if  the  costs of achievement are to be kept  at a
     minimum.
   •  The problem of  equitable treatment of populations residing
     near large military airports cannot be ignored and appropriate
     remedies and costs will have to be developed.

   Finally, the achievement of cumulative noise levels around the
nation's airports will require international cooperation due to the
high level of foreign flag air carrier  activity at a number of
domestic airports. Questions as to whether, and how, these nations
can  comply with the domestically developed schedule of achieve-
ment, how requisite investment and operating  expense enter into
their cost functions, and whether such increased achievement costs
will  be passed through or  used as a competitive advantage, must
and  will be addressed in the subsequent rulemaking study effort.
   (c) Cost Allocation and Financing Options
   In order to completely evaluate the implications of identifying
and  achieving given  levels  of cumulative noise exposure, two
additional issues must be addressed:  (1) who should pay for the
costs of civil noise abatement programs, and (2) how should such
programs be funded or financed ?
   There are a number of cost allocation alternatives which can be
determined by various legal/institutional  plans. The first  is to
"let  the costs fall where they may." Under  such a system, the air-
port neighbor would continue to bear the economic and social costs
of aircraft noise pollution; the aircraft operator along with the pas-
senger and shipper would absorb the cost of noise control devices;
and  the  general  taxpayer would, for example, bear the noise-
related losses in delivery  of public service efficiency. A second
possible allocation plan would shift the cost of both noise  damages
and noise abatement to the general taxpayer through governmental,
as opposed to airport proprietor or airline, liability for noise dam-
age compensation and through subsidies to airlines and airports
for the implementation of  noise control technology and  land  use
options. A third alternative would shift the cost of damages and
noise abatement  to  the air  transport  consumer,  by means  of
increased landing fees, taxes on air transport use, increased tariffs,

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78           LEGAL COMPILATION—SUPPLEMENT II

etc. Due to market or institutional imperfections, the cost alloca-
tion method selected may never exist in pure form. For example,
attempts to shift cost to general taxpayers or air transport con-
sumers may not be wholly successful, due to the legal inability in
either the short or long term to adjust landing fees, tax rates, or
government subsidies.
  Furthermore, the distinction must be made between short term
financing  problems  vs.  the issues of long-term  cost allocations.
To  install noise abatement equipment creates serious short-term
capital finance problems for the airlines. Solution  of this problem
is a separate though related matter from the question of how such
noise abatement cost will ultimately be allocated. Both issues must
be addressed and solved.

                      Allocation of Costs
  In  economic terms, aircraft noise is a "technological  exter-
nality." That is, the public costs of noise are not included  in the
price of air transportation services. Because of this price system
defect, these costs therefore fall on economic activities other than
those which produce the cost. Economic "welfare" doctrines hold
that if the beneficiaries of a given level of air transportation could
fully compensate those persons subject to the noise impacts thereof,
and still acquire some net benefit, then that level of aviation  which
produces the noise externality would be economically  justifiable
(20).
  In  order to promote the most efficient and rational  use  of air
transportation, economic "efficiency" criteria dictate that air trans-
port beneficiaries must pay the full cost of providing air service,
including secondary costs such as those  of abating pollution.
Economic principles suggest that where such costs are fully inter-
nalized, i.e., are included in  the price of the service,  consumers
can more rationally choose among different modes of transporta-
tion (21). Only if all costs, including those engendered by noise,
are internalized into the aviation industry, will users, beneficiaries
and operators of air transport be able to adequately balance all
factors in making the most  efficient investment and operational
decisions. However, in the case of aviation, a large measure of the
research and development has already  been accepted  as proper
expenditure on the part of the Federal government, and thus that
portion of the cost of control is being borne by the public at large,
as  a public benefit charge.  Likewise,  since  financing of  major
projects such as airport land redevelopment may involve the use
of traditional measures of financing, the cost of interest and bond

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                   GUIDELINES AND REPORTS                 79

retirement may be broadly spread beyond a purely classic inter-
nalization of costs. The following discussion highlights the prac-
tical side of this complex issue.

                      Financing of Costs
  Information available at this point indicates  that  development
and  implementation of noise  control and  abatement  strategies
necessary to achieve specific noise exposure levels  will require
substantial financial resources. While a few strategies,  such as
new operating procedures, would not incur large capital investment
or increased operating costs, a  comprehensive noise abatement
program—including research and  development of  engine noise
control  technology, retrofit,  insulation  of residential structures,
and relocation of persons within  zones of remaining incompatible
land uses—will necessitate  a major  commitment  of financial
resources  and  the development  of financing methods. Without
adequate financing mechanisms,  expeditious implementation of a
comprehensive  program to alleviate even the most severe airport
noise impact problems will be impossible.
  Implementatiion  of such  a comprehensive program will entail
commitment of financial resources in a  number of public and  pri-
vate sector expenditure  areas. For these areas of  expenditure,
financing methods must be found if the contemplated comprehen-
sive  noise reduction program is to be successful (22).  A variety
of mechanisms have  been suggested to  fund these expenditure
areas. The basic alternative is private market funding of the pro-
gram elements. However, depending upon the degree of noise reduc-
tion  requirements,  private funding capability  could  be exceeded
(17, 22). In this case, other financing alternatives must be employed.
Examples of such alternatives are:

  • A passenger head tax and freight tax, of a set amount (e.g.,
    per person and per pound)  imposed on all commercial air
    transport, either "at the gate," or  as a surcharge  on tickets
    and freight invoices.*
  • Head and freight tax imposed only at noise-impacted airports.
  • Expanded  use  of the Airport  and  Airway  Development  Act
    Trust Fund, for use in grants to airports and airlines for noise
    abatement.
  • A surcharge on the aircraft fuel tax.
  • A "dollars for decibels" landing fee.

 * The head tax "at the gate" scheme has just been prohibited by Congress in the recent  (P.L.
93-44) AADA two-year appropriation act.

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80           LEGAL COMPILATION—SUPPLEMENT II

  • A general fare increase, either by a fixed amount (e.g. $1 a
    ticket) or, on a percentage basis (e.g. 1 percent per ticket).
  • Grants  to aircraft manufacturers, airlines and airports fi-
    nanced by general tax revenues.
  • Increased airport concession  (e.g.  parking and restaurant)
    rentals or fees.
  • Government-guaranteed loans  to airlines and airports.
  • Interest-bearing loans directly to local governments to finance
    their options.
  Different financing methods may be chosen to fund various noise
abatement options  and thus a matrix  of possible expenditure/
financing alternatives must  be analyzed, and appropriate choices
made therefrom.
  To choose  the  best financing arrangements or combination of
options several questions need to be addressed:
  • Who has authority to adopt the plan ?
  • How could it be designed and administered?
  • What would  be the cost incidence—that is, if adopted, who
    would  ultimately pay for  the cost of the noise  abatement
    expenditures so financed?
  • How appropriate  is the plan for financing the various expen-
    ditures  required  for the achievement of specific  cumulative
    noise levels ?
  Answers to these questions for  feasible financing methods will
be developed during the rule making process. However, from the
options delineated it appears that  Federal legislation  and/or
administrative action might be required to: (1) establish a loan
or grant fund, prescribing the uses, designating the agency respon-
sible for disbursement, setting the  amount of the charge, identify-
ing methods  of collection, and determining the life or time period
of the fund (12); or (2) authorize airports and carriers,  (with CAB
approval) to  impose various tariffs or charges to finance the noise
control options for which they are responsible.
  In the course of proposing regulations under Section 7(b) of
the Noise Control Act of 1972, EPA will carefully explore  these
questions, and make appropriate recommendations thereon.

Noise and Overall Environmental Policy Implications
  A major implication  of adopting a cumulative  noise exposure
system, from the overall environmental policy  viewpoint, is the
relative impact, if any, on other environmental requirements  (such

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                   GUIDELINES AND REPORTS                 81

as air quality) arising from the institution of measures to achieve
such levels. As an example, if the required  procedure  for opera-
tional flight control to meet a cumulative noise health and welfare
limit results in increases in air pollution such that primary (health)
air quality standards are jeopardized,  the question arises as to
what balance is to be struck between these requirements, and how.
The Administrator recognizes these practical questions, and will
take them into account in any proposals relating to noise regula-
tions as well as to actions regarding air quality requirements.
  Adoption of a measure of cumulative noise exposures for  iden-
tifying and then achieving adequate levels of  noise in communities
adjacent to airports represents a major environmental policy deci-
sion. This arises from the situation that it is inconsistent to utilize
one such plan for a particular set of noise sources when those per-
sons exposed thereto  are also exposed to noise from a  variety of
other sources; either in their homes, work, or other life  situations.
  Congress, in the Noise Control Act of 1972, moreover, has estab-
lished a division of powers in regard to noise control which assigns
to the Federal government those relating to control of noise emis-
sions from specific sources, but at the same  time  reserves to the
States and their political subdivisions the  power to establish and
control  ambient cumulative noise  levels,  with  the exception of
aviation noise which is subject to Federal preemption and domain.
The Congress has charged the Administrator with  the  respon-
sibility of prescribing recommended noise levels  (Section 5 of the
Act) to be utilized by State and local governments and also has
given him authority to provide advice and assistance to the State
and cities in controlling noise through the use of such ambient
(and thus cumulative) noise levels. In fact, the one considered in
the Aircraft/Airport Noise Study has many advantages over exist-
ing plans, due to its simplicity and ease of use  for the vast majority
of situations. One of the major implications of use of such cumula-
tive noise  levels  for  airports is that such  action may make it
necessary to adopt such an approach for use in characterizing other
noise environments. The  impact of adoption of any one system for
use for all environmental situations requires further study by EPA.
  Keeping in mind the divisions  of power established in the Noise
Control  Act discussed above, there are a number of implications
that arise from use of cumulative  noise levels for airports; these
include:

(1) Under Section 4(c)(2)  the  EPA has  a  responsibility to see
    that standards or regulations with respect to noise  regardless
    of which Federal agency is the origin of such rules, are con-

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82           LEGAL COMPILATION—SUPPLEMENT II

    sistent with protection of the public health and welfare. The
    use of a common measure for assessing  such effects would
    provide a uniform  approach by EPA in  dealing  with such
    standards.
(2) A major consideration of the implications  of adopting a com-
    mon measure of cumulative noise exposure  relates to the
    apportionment of responsibility for regulating aircraft noise
    between the FAA and EPA. By adopting a common measure
    of cumulative noise exposure it becomes possible to establish
    goals and schedules for reducing airport noise  which are con-
    sistent  with  those  for other major noise systems, thereby
    making  possible a coordinated overall program  to reduce
    environmental noise. Furthermore, it would become possible
    to evaluate regulations proposed  by either agency in terms
    of the beneficial results to public health and welfare since their
    relationships to cumulative noise exposure will  have been
    established. In summary, the arrangement between the FAA
    and EPA envisioned by the Noise Control  Act  of 1972, which
    allows for exercise of judgments on safety exclusively by the
    FAA while expecting both agencies to work cooperatively in
    reducing the impact of aircraft/airport noise, based on cumula-
    tive noise exposure, alleviates possible problems and facilitates
    communication between the agencies and is a  viable arrange-
    ment.
(3) The provisions of the Noise Control Act requires that the EPA
    establish noise emission performance standards for new prod-
    ucts "necessary to protect public health and welfare with an
    adequate margin of safety." It  is clear from a  scientific view-
    point that such "performance  standards" must somehow or
    other relate  to a  general overall  environmental health and
    welfare requirement, or else the Congressional mandate cannot
    be met. In devoting attention to the principal sources of noise
    in a specific situation such as noise from  aircraft, considera-
    tion must be given to the other contributing sources of noise
    even though the predominate source may be the major offend-
    er. The use of cumulative noise levels affords  a planning tool
    which, with some limitations, takes into account the relative
    contribution of various sources. Thus if intelligently used, it
    can  be  a major aid in the overall  product regulation process
    the Agency is required to undertake. Use of this methodology,
    however, also presents some difficulty in that there are possible
    over-simplifications of interpretation of the relation between
    source  emission  control  (the Federal  responsibility)  and

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                     GUIDELINES AND REPORTS                   83

     restrictions on use  or other  limitations  (a State and local
     matter).

  Lastly, adoption of a cumulative noise level represents a  major
policy decision for the Federal  government  in that this will con-
stitute its  acceptance of full responsibility for  establishing the
limits within which aircraft noise  is to be controlled. In so  doing,
as the Administrator now contemplates recommending, there will
result preemption of the  State and Local levels of government, as
envisioned in the Supreme Court Burbank decision, with attendant
possible Federal liabilities. At the  same time,  those lesser powers
still must be brought to  bear, in  juxtaposition with the  Federal
authority, on those elements of action needed  to meet such  limits
for  which, as  described  in the following  section,  there are no
Federal police powers.

                           REFERENCES
 1.  Aircraft/Airport Noise Study—Task Group 3  Report, "Impact Charac-
      terization of Noise Including Implications of Identifying and Achieving
      Levels of Cumulative  Noise Exposure," July 1973. NTID 73.4.
 2.  "Procedure for Describing Noise Around an Airport," R-507, Second Ed.,
      International Standards Organization, Geneva, 1970.
 3.  "Aircraft Noise—Annex  16 to  the Convention  on  International Civil
      Aviation," International Civil Aviation Organization, Montreal,  August
      1971.
 4.  "Social and Economic Impact of Aircraft Noise,"  Technical Annex  to
      U/ENV/73.4, Organization for Economic Cooperation and Development,
      Paris, April 1973.
 5.  Galloway, W. J., "Review of Aircraft Noise Land Use Planning Proce-
      dures," Interim Technical Report, USAF Aerospace Medical  Research
      Laboratory, Wright-Patterson Air Force Base, March 1972.
 6.  Alexandre, A., "Decision Criteria based on Spatio-Temporal  Comparisons
      of Surveys on Aircraft," presented at the International Conference on
      Noise as a Public Health Problem, Dubrovnik (Yugoslavia), May 1973.
 7.  "Noise—Final Report," Cmnd. 2056, H.M.S.O. London, July 1963.
 8.  "Second Survey of Aircraft Noise Annoyance around London (Heathrow)
      Airport," H.M.S.O., London, 1971.
 9.  "Community Reaction to Airport Noise—Vol. 1,"  Tracor  Inc.,  NASA
      CR-1761, July 1971.
10.  C. Bitter, "Noise Nuisance Due to  Aircraft,"  Collogue sur la definition
      des exigences human a 1'egard du bruit, Paris,  November  1968.
11.  P. N. Borsky, "A New Field-Laboratory Methodology for Assess-Human
      Response to Noise," NASA CR-2221, March 1973.
12.  Aircraft/Airport Noise Study—Task Group 1 Report, "Legal and Insti-
      tutional Analysis of Aircraft and Airport Noise and Apportionment of
      Authority Between Federal,  State and Local  Governments," July 1973.
      NTID 73.2.

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84             LEGAL COMPILATION—SUPPLEMENT II

 13.  Aircraft/Airport Noise Study—Task Group 6 Report, "Military Aircraft
       and Airport Noise and Opportunities for Reduction without Inhibition
       of Military Missions," July 1973 NTID 73.7.
 14.  "The Economc Impact of Noise," NTID 300.14, U.S. Environmental Pro-
       tection Agency, 31 December, 1971.
 15.  Aircraft/Airport  Noise  Study—Task  Group  2  Report, "Operations
       Analysis  Including  Monitoring, Enforcement,  Safety, and  Costs,"
       July 1973.
 16.  Committee of Environmental Quality, Federal Council  for Science and
       Technology, "Noise—Sound Without Value," p. 34-35 (1968) and
       sources cited therein.
 17.  Aircraft/Airport  Noise Study—Task Group 4  Report, "Noise  Source
       Abatement  Technology and  Cost  Analysis  Including Retrofitting,"
       July 1973.
 18.  H. Safeer,  "Aircraft Retrofit—A Cost Effectiveness Analysis," Technical
       Memo, DOT/ONA, 18 May, 1973. (The  methodology for extrapolating
       these results from a six airport  sample to a national estimate and how
       the costs of public protection were estimated may be found in Chapter IV
       of Reference 6 herein.
 19.  "Airline Industry  Financial  Analysis with Respect to  Aircraft Noise
       Retrofit  Programs,  1972-1978," R.  Dixon  Speas Associates,  U.S.
       Department of Transportation No.  OST-ONA-73-1, January 1973.
 20.  For a detailed discussion of welfare criteria, see William Baumol, "Wel-
       fare Economics  and the Theory of the State," Harvard University
       Press, 1962.
 21.  Paul K. Dygert, "Allocating the Costs of Alleviating Subsonic Jet Air-
       craft Noise," Special Report, Institute  of Transportation and Traffic
       Engineering, University of California, Berkeley, February 1967.
 22.  "The Long Range Needs of Aviation," Report of the Aviation Advisory
       Commission, Advance Copy, 1 January, 1973.

                            SECTION 4

      ADDITIONAL  MEASURES  AVAILABLE TO AIRPORT
         OPERATORS  AND LOCAL GOVERNMENTS TO
                   CONTROL  AIRCRAFT  NOISE

   The types  of actions which may be taken at or near individual
 airports, to limit exposure of people to aircraft noise, fall into two
 main categories: (1) actions to limit the noise environment gen-
 erated by operations at the airport; (2) actions to prevent incom-
 patible land uses from  building up around the airport, thus placing
 people within the airport's noise environment.
   The noise environment generated by activity  at an  airport
 results from a progression  of  actions,  some  of which are under
 the airport proprietor's control,  except to the extent that there
 is funding and approval from the FAA. These include, for example,
 the initial site selection for the airport,  the layout of the runways

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                    GUIDELINES AND REPORTS                 85

as related to surrounding land uses, the location of engine main-
tenance runup areas, the amount and location of land purchased
for airport purposes, and  the progressive  additions  to  airport
facilities which allow entry of new types of aircraft  or greater
numbers of aircraft.  It is not clear from the Burbank  decision if
the airport proprietor may or may not in leases and contracts with
airport tenants (including airlines, fixed base operators and others)
place conditions upon the use of the airport property; e.g., restric-
tions on the types of aircraft which may use the airport, number
of operations per day per lessee, hours of operation of the airport,
noise limits to be complied with,  etc. Beyond actions of this type,
actions which the airport operator may devise to control the noise
environment generated at the airport require either (a) the volun-
tary cooperation of  others  or (b)  the imposition of a higher
authority not available to the airport proprietor itself. As explained
above,  since the enactment  of the Noise Control Act of 1972 and
the decision in Burbank, it is not at all clear  what further legal
authority remains with the airport proprietor and what has been
or will be assumed by the Federal Government. It is quite clear,
however, that local governments acting in any capacity  other than
airport proprietor have  no  authority by which they can control
noise environments at airports. Further detail on this subject, and
the history of attempts by both State and local governments to
control airport noise by a variety of  legal means, are contained
in the report of the EPA  Aircraft/Airport  Noise  Study  Task
Force  (1).
  On the other hand, the legal authority of  local governments to
control the development of land use around airports  is inherent
in the land use planning, zoning, building code and building permit
authority which States have traditionally  delegated to local gov-
ernment. With reference to new construction, these authorities
are adequate, if applied, to permit cities and counties in the vicinity
of an airport to coordinate their zoning and  building codes with the
projected noise environment of the airport.  Thus, open space or
other noise compatible uses  (e.g., industrial, commercial)  can be
required  in zones of severe noise impact  and  the quieter areas
reserved for residential use. In the case of a new airport, the extent
of land area to be so controlled may be reduced by fee purchase of
the projected  impact area or a large fraction  thereof, with the
potential for  subsequent lease or  resale with  deed  restrictions.
Building construction providing a high degree  of noise insulation
can be  required by performance standards in building codes, where

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86           LEGAL COMPILATION—SUPPLEMENT II

exterior noise levels are high but only the interior building uses
are of importance.
  Major air carrier airports typically generate noise environments
of such extent and scale that the land for which  uses  should be
controlled often falls  within  the jurisdiction of several separate
local governments. In many cases the airport property boundary
itself may adjoin  several municipalities or the airport property
may be entirely within a jurisdiction separate from that which
owns the  airport.  The coordinative role of regional government,
local councils  of governments, or some  special purpose regional
commission or airport development district created by the State
may then be applied to guide  development of airport-noise-affected
land. Examples of such mechanisms in action are provided by the
Dallas-Fort Worth Regional Airport; the Kansas City International
Airport; the California Airport Land Use Commissions, and the
Minnesota Airport Zoning Act (the latter two being in very early
stages of implementation).
  Zoning, however, like every exercise of police power, is limited
by applicable  constitutional  requirements.  This means at least
three things. First, the restrictions imposed on property may not
be so severe as to deprive the owner of all, or substantially all, of
its beneficial use.  Applied more  particularly, this rule prohibits
legislation  that limits the use of property  to purposes  for which
there is no reasonable economic demand. Second, a zoning enact-
ment cannot be arbitrary, capricious or unreasonable as applied to
any  particular land owner,  or  group of  owners; hence, noise-
related zoning should be part  of a comprehensive plan for the area.
And third, zoning may not be employed as  a substitute  for use of
the condemnation power when an analysis of the governmental
action involved discloses that the government is, for its own pur-
poses acquiring, using, or in the words of the courts, "taking" the
zoned property. The second  and third limitations have thus far
been the principal impediments to effective airport land use plan-
ning based upon the zoning power.
  In spite  of the foregoing restrictions,  zoning and building con-
struction controls  offer major potential for prevention  of airport
noise problems. Nevertheless, zoning and  building control tech-
niques generally have  been infrequently used and continue to be
ignored in  most localities. This has been  one of the major factors
in the development of the severe noise impact problems which exist
around many airports today.
  When the problem to be resolved is an existing impact situation,
the measures  available to both airport proprietors and local gov-

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ernments  (in land use  conversion, retroactive soundproofing of
homes, etc.) are  most  expensive, compared with  the situation
where new construction is involved. Also, most airport proprietors
do  not have authority to condemn and  acquire land except for
direct airport purposes or as a result of an inverse  condemnation
action. More importantly, local governments cannot  use zoning to
change a preexisting, nonconforming use, but instead must apply
eminent domain powers and compensate the landowner for the
taking involved.
  To put the existing impact situation in its proper perspective,
it must be emphasized that conversion to compatible land use can
be very expensive. It requires condemnation in the form of "down-
ward zoning" or outright taking, both of which require just com-
pensation. In other cases, it will require sound insulation, which
may cost between $3,000 and $15,000 a  dwelling unit, and which
provides a solution only for those indoors. But the authority exists
and the subsequent conversion of the taken property to commercial
or industrial use may well result in economic gain.
  A discussion of  the legal aspects of land use control for airport
compatibility purposes is contained in Reference 1 and in greater
detail  in Reference 2. Attention is also invited  to HUD's recently
published report, "Aircraft Noise Impact: Planning Guidelines for
Local Agencies." Noise compatible land use as well as noise source
control costs are included in cost effectiveness analyses contained
in Reference 3.
  It is quite evident that the actual ability of airport proprietors
and State and local  governmental agencies to control  aircraft
noise at existing airports is relatively limited.  For  new airports
they  have  some  additional capabilities,  but   again, these  are
extremely circumscribed in their  effectiveness.  In both cases, the
limitations are especially acute when there are numerous political
jurisdictions involved (as is often the situation), even where they
have  been  organized  into  a  regional  council of  governments
structure.
  The exercise of the police powers of the State and local govern-
ments and the proprietary rights of the airport  operators have to
date not been successful  in preventing residential encroachment
into aircraft noise impacted areas. Only the indirect  consideration
of noise as a factor in approval of Federally insured mortgages for
residential development, has been  shown to be of value in this
regard (1).
  Taking all of the above, together with the Burbank decision, it
would  appear that the States,  local governments and airport pro-

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88            LEGAL COMPILATION—SUPPLEMENT II

prietors are severely limited in ability to act and that there is an
implication that the full burden of controlling aircraft noise rests
on the Federal Government. The fact is, however, that the effective
application of such powers and authorities, as  are available out-
side the Federal Government, is a necessary component of a com-
prehensive aircraft  noise  control  program.  This is of critical
importance with regard to new airport siting and construction; a
major factor in relation to proposed expansion of existing facilities,
and absolutely vital to any planned, orderly redevelopment of exist-
ing impacted areas.
  A Federal implementation procedure is necessary for the Con-
gressional  assignment to provide  technical  assistance  to local
governments and to prepare model State and  local legislation and
model codes for noise control.  The Agency already has  initiated
action, with the Council of State  Governments,  to  develop recom-
mended overall state noise legislation. It has plans for continuation
of this activity; and is presently engaged in  the  development of
an aggressive program of expansion of this responsibility. Like-
wise, under Section 14(3) of the Noise Control Act, the Adminis-
trator has the authority to disseminate to the public (and this
would include airport proprietors) information  on techniques for
noise measurement and control. As a result of the findings of the
present study, we are presently developing  proposals  for joint
efforts  with  the  Department of  Transportation and  Federal
Aviation Administration and the affected interests  such as the
Airport  Operators  Council International for  a  more  compre-
hensive approach to education and guidance of proprietors  in this
area of responsibility.

                         REFERENCES
1.  Aircraft/Airport Noise Study—Task Group 1 Report, "Legal  and Insti-
     tutional Analysis of Aircraft and Airport Noise and Apportionment of
     Authority  Between Federal,  State and  Local Governments," July 1973.
     NTID  73.2
2.  Aircraft/Airport Noise Study—Task Group 6 Report,  "Military Aircraft
     and Airport Noise and  Opportunities for Reduction  without Inhibition
     of Military Missions," July 1973. NTID 73.7
3.  Aircraft/Air port  Noise Study—Task  Group  4  Report, "Noise Source
     Abatement Technology and Cost Analysis Including  Retrofitting," July
     1973, NTID 73.5

SUMMARY
  In compliance with Section 7 (a)  of the Noise Control Act of
1972, the Agency has examined:

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                    GUIDELINES AND REPORTS                 89

(1) The adequacy of Federal Aviation Administration flight and
    operational noise controls;
(2) The adequacy of noise emission standards on new and existing
    aircraft, together with recommendations on the retrofitting
    and phaseout of existing aircraft;
(3) The implications of identifying and achieving levels of cumula-
    tive noise exposure around airports;
(4) Additional measures  available to  airport operators and local
    governments to control aircraft noise.
The Agency has considered the effects of noise, the magnitude of
the noise problem, noise reduction by source technology and other
alternatives.

                  Our Principal Findings Are:
• High levels of noise cause widespread annoyance and disturbance
of speech and may in some cases cause hearing damage. An esti-
mated 16 million people are presently  subjected to a wide range
of aircraft noise effects varying from very severe to moderate.
• A comprehensive national program for aircraft/airport noise
abatement is needed to  insure that the noise control options avail-
able to the aircraft manufacturers and operators, the  airport
operators, the Federal  Government and other public authorities
are implemented to the extent necessary to protect the public
health and welfare.
• Aircraft noise around airports is presently a principal constraint
on the future growth of the air transportation system.
• Currently available  technology  is capable of being  translated
into flight worthy hardware that, together with employment of
noise  abatement flight procedures, can significantly decrease the
noise  impact  from aircraft.
• While new aircraft types are presently required to meet FAR
Part 36 Appendix C noise levels, only about 10% of  approximately
2000 existing U.S. aircraft meet these standards. Except for the
Concorde  and TU 144  supersonic transports, currently available
technology can permit the existing aircraft to at least meet FAR
36 noise levels and also allow for significant reductions below these
levels for new aircraft (depending upon the aircraft type and the
measuring point).
• With respect to retrofitting the existing air carrier  fleet, the
prime  technological  contenders  are the nacelle acoustical treat-
ment retrofit and the refan retrofit. Nacelle treatment is a demon-
strated technology that can reduce aircraft noise to  FAR 36 levels
in the  shortest time and at least cost. Refan has the potential fof

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90           LEGAL COMPILATION—SUPPLEMENT II

greater noise reduction but it has not been sound or flight tested,
so the time required is longer, the risk greater, and the cost higher.
• Business jet aircraft manufacturers are developing modification
kits and re-engine alternatives to enable these aircraft to meet the
noise standards of FAR 36.
• A  number of noise abatement flight procedures are currently in
use in scattered parts of the air transportation system. These
include: maximum  angle  (full power) climbouts, power cutback
climbouts, reduced thrust takeoffs, higher approach glide slopes,
flap management approaches, two segment approaches, and higher
minimum  altitudes. If implemented at additional airports, where
appropriate, use of these procedures would provide meaningful
noise relief.
• The most effective use of technology to achieve maximum noise
control is in the design and development of new aircraft systems.
Consequently, noise abatement research and  development  (both
for source control and flight procedures) must continue to be ade-
quately funded to  insure that these new aircraft systems evolve
with the capability for substantially less noise impact than exists
for current aircraft.
• The only realistic way of adequately assessing the impact  of
aircraft noise at and around airports is to use a measure of cumula-
tive noise level. Such a measure has been developed for  use in this
study,  based on the currently established specific and direct effects
of noise on the health  and environmental welfare of humans.  For a
range of values of this measure (called "day-night average sound
level"  and abbreviated Ldn) the  statistical probability of occur-
rence,  for an exposed population, of the following specific effects
have been presented: risk of permanent hearing impairment, direct
interference with  speech communications,  and  annoyance. The
implications for public  health and  welfare protection,  through
achievement of the most protective level of cumulative noise con-
sidered here,  amounts  to approximately  16 million  people,  or
approximately 40 percent of the persons presently impacted by
transportation noise in urban communities.
• Achieving  progressively lower levels of cumulative  noise near
airports  has specific economic implications.  Implementation  of
flight procedures, nacelle retrofit of a portion of  the commercial
jet fleet and sound suppression kit retrofit of business jets, where
necessary, are the least expensive approaches and most expeditious
to nearly eliminate public health  and welfare impacts around air-
port environs. Complete implementation can possibly occur in five
years at an estimated total investment and operational cost of less

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                    GUIDELINES AND REPORTS                 91

than one billion dollars.  Achievement of lower cumulative noise
levels around airports will require, in addition to retrofitting more
effective noise  reduction  technology into the existing fleet, intro-
duction of quieter aircraft, land use conversion, residential sound-
proofing and airport related operations control. It is estimated to
cost in the range of 5-13 billion dollars to achieve levels of noise
indicative  of speech interference  (Ldn  70)* and  of  6-22  billion
dollars to achieve levels of the threshold of community annoyance
(Ldn 60). These 1973 constant dollar costs move toward the lower
values cited, the earlier the more effective source noise.
control hardware becomes available  and is retrofit into the com-
mercial fleet. Some forms of financial assistance may be needed by
those affected  by an expeditious  implementation of a cumulative
noise reduction program.**
•  Maximum cumulative noise levels around airports could be speci-
fied by the Federal Government as modifications to the FAA Air-
port Certification Regulation.
•  Separate legal implications are associated with "identifying"
and with "achieving" levels  of cumulative noise adequate to pro-
tect the public health and welfare from aircraft/airport noise:
   1.  Identification of cumulative noise levels at particular airports
     to protect public health and welfare could be  used to support
     additional litigation  against airport owners. This could follow
     from the mere act of "identification."
   2.  Under the Burbank decision,  overall Federal regulation is
     necessary.
   3.  Federal regulation, including Federal airport noise certifica-
     tion, may shift liability from airport  owners to the Federal
     Government; but "achievement" should reduce airport noise
     liability. There are  also  possible liabilities for  the Federal
     Government as the proprietor of military airports.
   4.  Any shift in liability to the Federal Government  may be a
     problem during the period between Federal identification and
     the achievement of noise levels requisite to protect the public
     health and welfare. If the court were to hold that liability had
     shifted by reason of preemption, a legislative solution for the
    solution for the interim period is  unlikely because  liability
    would probably be based on the constitutional requirement
    that just compensation must be paid for the taking of property.
   Airport  proprietors may under some  conditions and depending
upon  in  some  situations  interpretation by the  courts  either  by
 * These values are not to be considered indicative of a specific EPA recommended value.
 ** Ed. Note—Text printed as in original.

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92           LEGAL COMPILATION—SUPPLEMENT II

airport rule or in leases with airport tenants, place conditions upon
the use of the airport property, such as restrictions on the types
of aircraft which may use the airport,  number of operations per
day per lessee, hours of operation of the airport, noise limits to be
complied with, or a schedule of landing fees based on noise  gen-
erated. However, it must be emphasized that the proprietary right
to write noise conditions into leases  or adopt airport rules  may
well be denied if they result in a substantial burden on interstate
air commerce.

• Local governments can and must develop  compatible land use
controls  around  airports using  appropriate cumulative  noise
criteria.
  Based on these findings, and on the noise criteria document and
environmental noise document to be published pursuant to Section
5 of the Noise Control Act of 1972, EPA intends to take the follow-
ing actions as authorized by Section 7 (b)  of the Act:
• In order to obtain an environment consistent with public health
and welfare needs with respect to noise,  the Environmental  Pro-
tection Agency will propose to the Federal Aviation Administration:

  —Regulations concerning flight and  operational noise controls.
    The regulations will include options for takeoff procedures,
    approach and landing procedures, and minimum flight altitudes.
  —Amendments to FAR Part 36 to specify lower noise levels for
    future aircraft.
  —Regulations to control and reduce the noise emissions from
    existing aircraft. The FAA's  proposed Fleet Noise  Level
     (FNL) methodology will be considered as a flexible means of
    promoting any of the sources  technology  options (nacelle
    treatment, refan, or aircraft replacement.)
  —Cooperative actions to develop an airport noise certification
    regulation that will  assure control over cumulative noise near
    airports.

  EPA recognizes  that the implementation of a national airport
noise certification program encompasses a number of interrelated
aspects requiring thorough and careful review. The acquisition of
substantial  information, in addition to that already available to
EPA, is required from all parties—governmental, public interest
groups, industry, private citizens—to permit  evaluation and inter-
pretation of the benefits and costs associated with the noise levels
requiring certification.  Of particular interest  for further study
for example, are the impact  of various noise  levels relative to:

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                    GUIDELINES AND REPORTS                  93

  interference with interstate commerce;
  cost of implementation and methods of financing;
  airport operator control over non-airport noise contributing to
     the cumulative noise level around airports;
  effect on existing international air-transport agreements on air-
     port use;
  enforcement with respect  to  (1) existing land uses and future
     zoning actions around airports which are beyond the control
     of the airport operator;  and (2) pilot flexibility necessary for
     aircraft operation;
  time-phasing for airports to achieve standards; and
  sensitivity to total population  impact and benefits to be achieved.
  EPA will vigorously undertake the responsibilities for coordinat-
ing Federal noise control  and Federal  noise research and develop-
ment activities, as provided for in Section 4 of the Act. It will also
amplify the present activities relating to assistance to State and
local government model legislation, and  in providing advice and
information to the public.
  The cumulative noise level concept  is useful;  not only  because
it summarizes the  total contribution  of individual  noise sources,
but because it also allows decision makers to take into account the
total benefits associated with the achievement of a particular level.
  Taking all of the above actions as a whole, the Agency will in
effect be establishing a comprehensive set of national aviation noise
reduction objectives. These will be critically viewed against the
health and welfare criteria and environmental effects goals now
being  prepared, along  with  further information on technology,
economics and other factors, and revised accordingly. In so doing
the Agency will continue  its  present practice of consultation with
the various affected interests, and with  other Federal Agencies.
The periodic Reports to the  Congress, called for in  the Act, will
provide information as to an evaluation of  the effectiveness of
progress toward  achieving a comprehensive national pattern of
action to meet the objectives of the Act.
                       S GOVERNMENT PRINTING OFFICE- 1974 O	S48-493

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