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                                  NTID300.4
     LAWS AND REGULATORY SCHEMES FOR
              NOISE ABATEMENT
                DECEMBER 31, 1971
          U.S. Environmental Protection Agency

               Washington, D.C. 20460

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                                                                   NTID300.4
  LAWS AND REGULATORY SCHEMES  FOR
              NOISE ABATEMENT
                 DECEMBER 31, 1971
                     Prepared by

    THE GEORGE  WASHINGTON UNIVERSITY
                        under
              CONTRACT 68-04-0032
                       for the
        U.S. Environmental Protection Agency
       Office of Noise Abatement and Control
               Washington, D.C. 20460
This report has been approved for general availability. The contents of this
report reflect the views of the contractor, who is responsible for the facts
and the accuracy of 'the data presented herein, and do not necessarily
reflect the official views or policy of EPA. This report does not constitute
a standard, specification, or regulation.
             For sale by the Superintendent of Documents
          U.S. Government Printing Office, Washington, D.C. 20402
           Price: $6.05, domestic postpaid; $5.50, GPO Bookstore

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                           iii
           SURVEY OF REGULATORY SCHEMES FOR
            ENVIRONMENTAL NOISE ABATEMENT
                      ABSTRACT



I - Among the more significant findings and conclusions

    of this Report are the following:
       The existing Environmental Noise Regulatory
       Structure is fragmented in organization and
       ad hoc in operation.  Abatement functions
       are distributed among Federal, State, and
       local governmental levels but are largely
       uncoordinated.

       The environmental noise problem context is
       composed of a wide variety of discrete noise
       sources and noise environments.  Numerous
       partial efforts have been made to regulate
       "excessive" or "unnecessary" noise through
       regulatory schemes directed to abatement at
       the source, reduction of the effects of
       noise, and to remedies (by private action)
       to abate the source or to reduce the effects.

       Regulation by the Federal government has
       been slight.  Even with respect to aircraft
       noise the pace of abatement at the source
       has been gradual with no short term prospects
       for substantial relief.

       Regulation by the states has for the most part
       been limited to selected noise sources
       although some states are now in process of
       enacting comprehensive noise abatement sta-
       tutes .

       Most noise abatement regulation has taken
       place at the local level by means of general
       noise ordinances or ordinances directed to
       specific noise sources or by the creation of
       "quiet zones."

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                    iv
Both State and local governmental levels are
handicapped in police power regulation of
some of the more critical noise sources as
a result of preemptive Federal legislation
(aircraft noise) or by the threat of imping-
ing upon a strong national interest in main-
taining the free flow of interstate commerce.

Very little attention has been given to con-
struction equipment or site noise, or to
domestic noise sources.

Enforcement of noise abatement State statutes
and municipal noise ordinances has been notor-
iously spasmodic and uniformly weak; in
general, noise control enforcement has been
placed on already overburdened State highway
patrols or local police officers.

While both the Federal government and State
governments have been slow to intervene in the
noise regulatory area, certain trends point
to a substantially increased level of effort:
Federal level:
Noise abatement (occupational)
  of all businesses operating
  in interstate commerce

Construction site noise abatement
  under the Construction Safety Act

Highway design to reduce noise
  effects
State level:
Local level;
Enactment of comprehensive
  environmental quality sta-
  tutes, including environ-
  mental noise abatement
  codes

Enactment of specific legisla-
  tion designed to control the
  total noise emissions of
  vehicles and to regulate the
  noise level operations of
  vehicles

Initial efforts by a few cities
  to enact comprehensive Environ-
  mental Noise Codes covering
  all or most of the serious
  noise sources and noise environ-
  ments subject to municipal
  regulation

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                            V
       Growing sophistication at all governmental
       levels in noise abatement and control tech-
       niques, including the establishment of
       decibel levels to replace or supplement
       verbal-subjective standards

       Increasing disposition to broaden coverage
       of noise sources and noise environments by
       regulatory schemes and to disseminate
       through labelling or by other means useful
       information on noise dangers and abatement
       techniques to the general public
II - Among the more significant continuing problems in the

     regulation of environmental noise identified by the

     Report are the following:

        Lack of official and organized public interest
        in aggressive noise abatement programs.

        Conflict of the social interest in noise abate-
        ment with other social values such as safety
        or free expression which are accorded higher
        priority in the scheme of social interests.

        Intensification of the stress between Federal
        efforts and State/local noise abatement
        efforts, especially in those regulatory con-
        texts where Federal preemptive legislation
        is involved.

        Continuing difficulty by State or local
        authorities to regulate noise to the satis-
        faction of local conditions and needs where
        such regulation requires control over the
        noise source or effects of vehicles, equip-
        ment, and appliances regularly moving in or
        operating in interstate commerce.

        Continuing difficulty, due to the multipli-
        city of noise sources and noise environments,
        of determining what noise sources or effects
        are to be controlled by what level of govern-
        ment with respect to the setting of standards
        or to operating procedures, having appropriate
        regard for the need of uniformity of regula-
        tion in some areas and the need for diversity
        of regulation to suit unique local conditions
        in others.

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                          vi
           SURVEY OF REGULATORY SCHEMES FOR
            ENVIRONMENTAL NOISE ABATEMENT
                      The Report


     The Program of Policy Studies in Science and
Technology of The George Washington University undertook
the general assignment of surveying the existing Federal,
State,  and local laws, ordinances, and regulations gov-
erning the abatement and control of environmental noise.

     This basic assignment was divided into four
sub-tasks for purposes of organizing the study report
and performing the necessary research and evaluative
functions:

     Sub-Task 1. (Section 1)

  •  CURRENT GOVERNMENTAL NOISE REGULATORY SCHEMES

     Sub-Task 2. (Section 2)

  •  ANALYSIS OF EXISTING LEGAL REGULATORY STRUCTURE
       FOR NOISE ABATEMENT AND CONTROL

     Sub-Task 3.   (Section 3)

  «  THE EFFECTIVENESS OF EXISTING NOISE CONTROL
       REGULATION

     Sub-Task 4.   (Section 4)

  •  PROPOSALS AND PROBLEMS IN THE REGULATION AND
       ABATEMENT OF NOISE

     While the primary task of  the PPS/GWU Study Group
was to survey the  existing  environmental noise  regulatory
structure, we found it useful to  place this  task in  an
analytical framework  which  would  enable the  interested
policymaker to develop new  or modified regulatory  schemes
for introducing more  effective  noise abatement  procedures
into the  public decision process.  Aspects of this analyt-
ical approach are  discussed below.

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                         VI1
     In order to gain a confident grasp of the so-called
 "environmental noise problem," it is necessary to recog-
 nize that the noise abatement task can be represented by
 a multiplicity of problem formulations and that there are
 a variety of modes of control.  Noise can, of course, be
 drastically reduced by the elimination or prohibition of
 various noise source activities.  But this is hardly a
 satisfactory solution since such action would, in most
 instances, involve social costs far greater than the soc-
 ial gain in "tranquility."  Noise abatement must therefore
 be Considered in terms of the full spectrum of social values
 and the optimum distribution of social benefits and social
 costs among those affected.  Air transportation, for example,
 involves undesirable noise, air pollution, and often, vehic-
 ular congestion.  But air transportation obviously serves
 highly preferred social values such as general mobility,
 emergency services, technological innovation, and an increase
 in available social options to large segments of society.
 Aircraft noise, therefore, is only one aspect of the air
 transportation system.  Excessive noise is only one of many
 social problems incident to the operation of the air trans-
 portation system.  Further, the "problem of aircraft noise"
 can be approached from various perspectives and formulated
 in a variety of ways.  The "problem of environmental noise"
 is clearly much broader than aircraft noise and the approaches
 to problem context definition are necessarily multiplied.

     The essential import of the foregoing considerations
 is that the abatement of certain noise sources or effects
may require the adaptation of the noise regulatory scheme
 to the prime social context of which the noise factor is
only one adverse effect of a much larger activity having
numerous social benefits as well as detriments.  In more
 simplistic terms,  the significance attached to noise abate-
ment may depend upon the social values considered to be in
conflict with this objective.  The urban vehicular traffic
context represents strong social values (such as autonomy
of movement)  which tend to subordinate the need for relief
from the attendant noise.   But noise abatement may prevail
where the competing interest is simply the recreational
use of firecrackers.

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                       viii


     For purposes of providing an analytical framework
which would assure this report a satisfactory degree of
coherence as well as systematically suggest alternative
modes of abating and controlling excessive environmental
noise, the PPS/GWU Study Group developed and applied to
the extent feasible a provisional Illustrative Regulatory
Matrix for Environmental Noise Abatement and Control exemp-
lified by the following components:

        1971 Baseline Conditions;

             Col. 1     Noise Sources
             Col. 2     Noise Effects
             Col. 3     Social Impact Evaluation
                          of Noise Effects

        Regulatory Configuration Elements;

             Col. 4     Objectives and Functions
             Col. 5     Formal Authority and Level of
                          Governmental Control
             Col. 6     Modes of Control and Implementa-
                          tion Techniques
             Col. 7     Criteria: Units of Measurement
                          of Noise
             Col. 8     Alternative Standards
             Col. 9     Enforcement - Remedies
                          and Penalties
             Col. 10    Affected Participants

        Appraisal;  An analytical approach to the analysis
                    of existing schemes of environmental
                    noise regulation

        Evaluation; An analytical approach for the evalua-
                    tion of the preemptive implications of
                    proposed Federal and State noise
                    regulatory legislation

     This Regulatory Matrix suggests relevant questions
which need to be addressed with respect to environmental
noise abatement.  For example, Col. 2 and Col. 3 stimulate
inquiry as to what effects from what noise sources have
sufficiently serious social consequences to justify a delib-
erate governmental effort to reduce noise at the source or
to reduce the magnitude of the effects.  Appraisal envisages

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                          ix-

the appraisal of the effectiveness of existing regulatory
schemes or programs of noise abatement and the assessment
of alternative combinations of configuration elements (from
Col. 4 through Col. 10) for the proposed abatement and con-
trol of non-regulated or inadequately regulated noise sources
or effects.  Evaluation raises certain questions such as
whether the adequate regulation of qiven noise sources or
effects is compatible with an optimum achievement of all soc-
ial values involved in the given noise problem context and
whether the resources required to be allocated for an ade-
quate noise abatement program are justified relative to the
need for allocation of resources to other public programs.  Ans-
wers to such questions will depend largely on how the environ-
mental noise problem is defined and the cost of alternative
means for adequately coping with this social problem context.

     The Environmental Noise Regulatory Matrix, by providing
a means of analyzing the environmental noise problem, also
protects against an overly simplistic approach to noise abate-
ment.  It is sometimes said that noise is a "local problem."
This can be somewhat misleading.  No doubt, noise is primar-
ily a local problem with respect to the Effects of noise.  It
is not necessarily a local problem with respect to the Control
over the abatement of noise at the source or over the reduc-
tion of the magnitude of noise effects.  The "noise context"
selected for control purposes will ordinarily be defined in
terms of noise effects emitted from particular discrete noise
sources or noise environments.

     Having selected the social problem (noise) contexts to
be abated and controlled,  one should move through all of the
elements of the Environmental Noise Regulatory Configuration
(ENRC) in order to determine what combination of elements will
provide the most effective means of abatement and control for
particular noise contexts.  While there will be numerous com-
binations or alternative configurations which may appear appli-
cable, some elements will obviously apply and others may be
precluded as a result of recognized divisions of formal auth-
ority among Federal, State, and local jurisdictions.  Regula-
tory schemes should therefore be selected with a number of
considerations in mind of which the following are illustrative:

        What noise can best be abated at the source?

        What noise can best be regulated through the
          reduction of effects?

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        What noise is so infrequent or unique or
          marginal in terms of social costs that
          it is best left to judicial or administra-
          tive techniques of compensation for harm
          done?

        How can functions for certain noise control
          contexts be best apportioned among govern-
          mental levels or among entities at the same
          level?

        How can regulatory configurations be designed
          for controlling specified noise contexts so
          as to minimize conflict in functions,  includ-
          ing standards setting,  administration  and
          enforcement, i.e., minimization of "preemption"
          cases?

        In view of the above considerations with respect
          to what noise sources,  or effects of noise
          sources can a given locality be permitted to
          set noise standards at more stringent levels
          than required by either Federal or State stand-
          ards?  What are the principal considerations?
          What are the precedents in other areas of
          environmental quality control?

     The foregoing questions and other relevant inquiries
must, of course, be analyzed and evaluated in the context of
certain influential conditions and trends which are, in
effect, constraints on effective noise abatement programs:

        To date, environmental noise as a social problem
          has been given relatively little organized
          attention.  This area has not been considered
          high in the priority of public concerns and,
          for the most part, abatement efforts have been
          ad hoc and spasmodic.  Noise abatement has come
          into conflict with other social values which
          have traditionally been given great weight in
          our overall social value scheme:  need for
          transportation and private mobility, technolog-
          ical progress, and economic expansion.

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                      XI
This general observation can be expressed in
  more specific social value and institutional
  terms, as for example:

  Just in the last few years have organized
    constituencies of noise-abused citizens
    come into being.

  Government, at all levels, has been slow
    to take effective noise abatement action
    although the growing seriousness of the
    problem has been recognized for many years.

  Industrial and commercial interests have
    been even more lax than the public sector
    in taking an aggressive stance toward
    environmental noise reduction.

  Past emphasis on the economic value (increas-
    ing production and indiscriminate consump-
    tion) with little concern for environmental
    amenities has encouraged industry to "extern-
    alize" social costs of detrimental "side-
    effects" such as excessive and unnecessary
    noise.

  There has existed an almost crass indifference
    to the detrimental effects of noise on neigh-
    borhood, family, educational, and health care
    environments.

  Overall, the research effort directed to the
    study of the effects of noise, alternative
    means of abating noise at the source and the
    effects of noise, and into various regulatory
    configurations which would provide adequate
    means of coping with excessive and unnecessary
    noise has been modest.

  Concomitant to the point immediately above, there
    is a lack of public understanding of the noise
    problem and of personnel skilled in the admini-
    stration and enforcement of noise abatement pro-
    grams .

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                         Xll
     As previously noted, the primary task of the PPS/GWU
Study Group was to conduct a survey of the existing regula-
tory structure and to make a tentative assessment of the
effectiveness with which such regulations are administered
and enforced.  However, in sections 2, 3, and 4 certain
provisional suggestions are made which should provide
guidance in the further development of environmental noise
abatement programs at the Federal, State, and local levels.

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                                   xiii
                    PPS/GWU NOISE STUDY STAFF
NAME

Bolgar, Marianne

Coates, Vary T.

Graae, Steffen W.

Graham, Philip A.

Mayo, Louis H.

Neel, William B.

Shay, Edward F.

Somerstein, Stephen A.

von Kaenel, Margo W.

Ware, Robert C.

Zimmerman, John J.
DISCIPLINE/TASK

Psychology

Polit. Sc.

Law

Aero. Engrg.

Public Law

Law

Law

Law
ASSOCIATION

PPS Research Assistant

PPS Research Scientist

PPS Research Assistant

PPS Research Associate

PPS Director

PPS Research Assistant

PPS Research Assistant

PPS Research Assistant

PPS Secretary

PPS Research Assistant

PPS Research Assistant


  CONSULTANTS

Crotti, Joseph

Kramon, James M.

Reilly, J. Donald

Wright, James M.

Yost, Nicholas

  SUPPORT STAFF
                        Sue Bachtel      Jackie Howard
                        Pamela Brown     Bebita Reasoner
                        Vicky Bumpas     Tina Toliver
                        Deborah Cooper   Mary Vest
                        Christina Olson
(Sec.  3)

(Sec.  3)

(Sec.  1)

(Editor)

(Sec.  2)

(Sec.  2)

(Sec.  4)

(Sec.  2)
Support Staff Coord.

Law              (Sec. 1)

Environmental Law(Sec. 1)

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                        XIV
     For purposes of cross reference from Sections 3.1 -



3.4 of the Environmental Protection Agency's report to



the United States Congress on environmental noise to George



Washington University's expanded report, Survey of Regulatory



Schemes for Environmental Noise Abatement, deletion of the



initial number "3" from the section of the Congressional



report will produce the number of the corresponding section of



the expanded report. As an example 3.1.1 of the Congressional



report corresponds to 1.1 of the expanded report.

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                           XV

                      TABLE OF CONTENTS
                                                       Page
1      CURRENT GOVERNMENTAL NOISE REGULATORY
       SCHEMES	    1-1

1.1    PRESENT NOISE ABATEMENT REGULATION AT
       THE FEDERAL LEVEL	    1-1

1.1.1  General Policy for Federal Noise Abatement
       and Control	    1-1

          National Environmental Policy Act
          Department of Defense

1.1.2  Transportation Noise Abatement and
       Control	    1-7

          Department of Transportation

    A.  Highway Noise Abatement 	    1-8

          Federal Highway Administration

    B.  Aviation Noise Abatement  	    1-10

          Federal Aviation Administration
          Air Force

1.1.3  Occupational Noise Abatement and Control  .  .    1-28

          Department of Labor
          Department of Interior
          Atomic Energy Commission
          Air Force
          Department of the Navy

1.1.4  Construction Noise Abatement and Control  .  .    1-39

    A.  Construction Site Noise Abatement 	    1-39

          Department of Labor
          General Services Administration
          Department of the Army

    B.  Acoustical Characteristics of Buildings . .  .    1-44

          Department of Housing and Urban Development
          General Services Administration

1.1.5  Other Federal Legislation to Abate Noise  .  .    1-53

          Federal Power Commission

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                            XVI
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1.1.6  Trends in Federal Noise Abatement
       Activities	    1-53

1.1.7  Gaps in Federal Noise Abatement Activities.  .    1-57
1.2    NOISE SOURCES REGULATED AT THE STATE LEVEL.  .    1-60

1.2.1  General	    1-60

          California
          Colorado
          Florida
          Hawaii
          Illinois
          New York
          North Dakota
          Pennsylvania

1.2.2  Transportation	    1-71

    A.  Engine Noises	    1-71

          Aircraft

             California
             Minnesota

          Automobile and Truck

             Connecticut, Kentucky, Massachusetts,
             Missouri, Oregon
             New York
             Idaho
             California
             Colorado
             Minnesota

          Motorcycles
          Boats
          Snowmobiles

    B.  Vehicle Operation Procedures  	    1-84

          Horns
       •  Bells
          Carrying Metals

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                              xvii


                                                       Page

1.2.3  Commercial	   1-86

1.2.4  Construction	   1-87

1.2.5  Occupational	   1-89

1.2.6  Miscellaneous	   1-90

    A.  Disturbers of the Peace	   1-90
    B.  Hunting Noise	   1-92

1.2.7  Trends in State Regulation  	   1-93

1.2.8  Gaps in State Regulation	   1-95


1.3    NOISE SOURCES REGULATED AT THE REGIONAL
       LEVEL	   1-96
1.4    NOISE SOURCES REGULATED AT THE LOCAL LEVEL. .   1-97

1.4.1  General	   1-97

    A.  NIMLO Type Laws	   1-99
    B.  Other Laws with Subjective Standards  ....   1-103
    C.  Laws with Objective Standards	   1-104
    D.  Public Nuisance Law	   1-104
    E.  Zoning Laws	   1-105

1.4.2  Transportation	   1-107

    A.  Engine Noise	   1-107

          Aircraft
          Automobiles and Trucks
          Motorcycles
          Boats
          Snowmobiles

    B.  Vehicle Operating Procedures  	   1-115

          Horns and Warning Devices
          Other Operation Procedures

1.4.3  Commercial	   1-117

    A.  Commercial Noise Other Than Advertising .  . .   1-117
    B.  Advertising	   1-121

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                           XVI11
                                                       Paqe
1.4.4  Construction	    1-123

    A.  Construction Site Noise	    1-123

          Building Codes

1.4.5  Occupational	    1-127

1.4.6  Miscellaneous	    1-127

    A.  Disturbers of the Peace	    1-127
    B.  Domestic	    1-128
    C.  Sound Producing and Amplifying Equipment  .  .    1-130
    D.  Noisy Animals	    1-131

1.4.7  Trends in Local Noise Regulation  	    1-132

1.4.8  Gaps in Local Noise Regulation	    1-136

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                           XIX
                      TABLE OF CONTENTS
                                                       Paqe
2      ANALYSIS OF EXISTING LEGAL REGULATORY
       STRUCTURE FOR NOISE ABATEMENT AND CONTROL .  .    2-1

2.1    LEGAL BASIS FOR NOISE ABATEMENT AND
       CONTROL THROUGH PRIVATE ACTIONS 	    2-1

2.1.1  Private Actions:  Private Sector Noise
       Sources	    2-1

2.1.2  Private Actions:  Government Sector or
       Government Authorized Noise Sources 	    2-10
2.2    FORMAL AUTHORITY FOR GOVERNMENTAL CONTROL
       OVER NOISE SOURCES AND NOISE EFFECTS  ....   2-19
2.3    DISTRIBUTION OF FORMAL AUTHORITY AMONG
       FEDERAL, STATE AND LOCAL JURISDICTIONS  ...   2-23

2.3.1  Illustrative Cases and Materials Relevant to
       the Commerce Clause and the Police Power  . .   2-23

2.3.2  Illustrative Federal Environmental Quality
       Control Legislation 	   2-31
2.4    DISTRIBUTION OF POWER AMONG FEDERAL-STATE-
       LOCAL JURISDICTIONS WITH RESPECT TO ENVIRON-
       MENTAL NOISE ABATEMENT AND CONTROL	   2-41

2.4.1  Regulatory Scheme for Aircraft Noise
       Abatement	   2-41

    A.  Federal Aircraft Noise Abatement Policy
       and Regulation	   2-41
    B.  State Aircraft Noise Regulation (Including
       Authorities)  	   2-54
    C.  Regulation of Aircraft Noise by Private
       Actions and Local Ordinances  	   2-62
    D.  Implications of the Griggs Doctrine:
       Federal, State, Local and Private 	   2-77
    E.  The Proprietorship Doctrine of Control  . .  .   2-84
    F.  Scope of Aircraft Noise Problem and
       Alternative Abatement Techniques  	   2-96

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                            XX

                                                       Page

2.4.2  Regulatory Schemes for Abatement and Control
       of Environmental Noise Sources  and Effects
       other than Aircraft Noise	    2-107

    A.  Analytical Framework  	    2-107
    B.  Private Actions: Suits Grounded in Nuisance,
       Trespass,  and Compensable Taking or
       Damaging	    2-111
    C.  Noise Regulation Through Municipal
       Ordinances	    2-131
    D.  State Environmental Noise Regulatory
       Schemes	    2-144
    E.  Federal Environmental Noise Regulatory
       Schemes	    2-156

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                             XXI
                      TABLE OF CONTENTS
3      THE EFFECTIVENESS OF EXISTING NOISE
       CONTROL REGULATION  	    3-1

3.1    THE EFFECTIVENESS OF EXISTING FEDERAL
       REGULATION	    3-1

3.1.1  Aircraft Noise	    3-1

    A.  Enforcement of Part 36 of the Federal
       Aviation Regulations  	    3-1
    B.  The Effectiveness of the National Environ-
       mental Policy Act and the Airport and
       Airways Development Act in Reducing
       Airport Noise 	    3-3

3.1.2  Highway Noise	    3-5

3.1.3  Occupational Noise  	    3-7

    A.  Regulations Pursuant to the Walsh-Healey
       Public Contracts Act	    3-7
    B.  Enforcement Procedures Adopted for the
       Occupational Safety and Health Act of 1970. .    3-11
    C.  Regulations Pursuant to the Federal Coal
       Mine Health and Safety Act of 1969	    3-12


3.2    THE EFFECTIVENESS OF STATE LEGISLATION  ...    3-17

3.2.1  State Attempts to Regulate Airport Noise  . .    3-17

    A.  California Airport Statute	    3-17
    B.  Monitoring and Enforcement of the California
       Aircraft Noise Law	    3-18
    C.  Other Means of Regulation by States of
       Aircraft Noise  	    3-21

3.2.2  Vehicle Noise Programs  	    3-24

    A.  Level of Enforcement	    3-25
    B.  Limitations on Effective Enforcement  ....    3-27

3.2.3  Other Anti-Noise Programs in States 	    3-31

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                             xxii
                                                       Paqe
3.3    THE EFFECTIVENESS OF LOCAL NOISE CONTROL
       ORDINANCES	 .    3-33

3.3.1  Transportation Noise  	    3-33

    A.  Aircraft Noise	    3-33
    B.  Vehicle Noise	    3-33

3.3.2  General Noise Laws	    3-39

    A.  The Nuisance of Noise	    3-39
    B.  Comprehensive Noise Ordinances and Offices
       of Noise Abatement	    3-44

3.3.3  Zoning Ordinances and Building Codas  ....    3-49

3.3.4  Construction Noise  	    3-53

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                           xxiii


                      TABLE OF CONTENTS
4      PROPOSALS AND PROBLEMS IN THE REGULATION
       AND ABATEMENT OF NOISE	   4-1

4.1    AIRCRAFT NOISE:  PROBLEMS AND POTENTIAL
       AVENUES FOR CONTROL	   4-1

4.1.1  Continuing Crititical Problem Areas 	   4-1

    A.  Retrofit	   4-1
    B.  Land Use Control Option	   4-2
    C.  Production Models and Compatibility of
       Surrounding Structures  	   4-4
    D.  Night Curfews	   4-6
    E.  Airport Development 	   4-6

4.1.2  Problems and Perspectives:  Intergovern-
       mental Regulatory Relationships 	   4-10

    A.  Federal Government Relationships to Local
       Governments Not Owning or Operating
       An Airport	   4-11
    B.  Federal and State Regulatory Relationships. .   4-15

       1. Alternative Perspective Number One
       2. Alternative Perspective Number Two

    C.  Proprietary Powers and the Control of
       Aircraft Noise  	   4-19
4.2    PROPOSED REGULATION OF VEHICULAR NOISE  ...   4-24

4.2.1  Sources of Vehicular Noise  	   4-24

4.2.2  The Negative Effects of Vehicular Noise .  .  .   4-25

4.2.3  Existing Major Deficiencies 	   4-25

    A. Technological and Economic Deficiencies .  .  .   4-25
    B. Deficiencies in the Existing Regulatory
       Effort at the Federal Level	   4-26
    C. Deficiencies in the Existing Regulatory
       Effort at the State and Local Level	   4-27

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                            XXIV

                                                       Page

4.2.4  Proposals to Remedy Major Deficiencies  .  .  .    4-29

    A.  Proposals to Remedy Deficiencies at the
       Federal Level of Regulation 	    4-30

       1.  Possible Sources of  Authority and
          Related Problems
       2.  Proposals to Assist  Development of
          Uniformity and Clarification of
          Noise Measurement Criteria
       3.  Proposals for the Promulgation of
          Standards by the Federal Government
       4.  Alternative Enforcement Proposals for
          Federal Regulation of Vehicular Noise
       5.  Proposed Implementation Techniques for
          Federal Regulation of Vehicular Noise

    B.  Proposals to Remedy Deficiencies in Regulation
       of Vehicular Noise by the States	    4-41

       1.  Sources of Authority for State Action
          and Related Problems
       2.  Proposed Criteria and Standards for
          State and Local Regulation of
          Vehicular Noise
       3.  Possible Implementation Techniques in
          State and Local Regulation of Noise
       4.  Proposed Remedies to Enforcement Deficien-
          cies in State and Local Regulation of
          Vehicular Noise

    C.  Proposals for Citizen Participation in the
       Regulation of Vehicular Noise 	    4-46
4.3    PROPOSED REGULATION OF NOISE CAUSED BY
       CONSTRUCTION  	   4-50

4.3.1  Sources of Noise Caused by Construction .  . .   4-50

4.3.2  Negative Effects of Noise Caused by
       Construction Equipment  	   4-50

4.3.3  Existing Major Deficiencies in the Abatement
       of Construction Noise	 .   4-50

    A. Technological and Economic Problems 	   4-50
    B. Regulatory Deficiencies on the Federal
       Level	   4-52
    C. Regulatory Deficiencies on the State and
       Local Level	   4-52

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                             XXV


                                                       Page
4.3.4  Proposals to Remedy Major Deficiencies in the
       Regulation of Noise Caused by Construction. .   4-54

    A. Proposals for Introduction of Federal
       Regulation of Construction Noise  	   4-54
    B. Prospects for Improved State Regulation
       of Construction Noise 	   4-56
4.4    REGULATORY PATTERNS FOR THE ABATEMENT AND
       CONTROL OF DOMESTIC NOISE 	   4-59

4.4.1  Domestic Noise Sources  	   4-59

4.4.2  The Negative Effects of Domestic Noise  . . .   4-59

4.4.3  Existing Major Deficiencies in the
       Regulation of Domestic Noise  	   4-60

    A.  Technological and Economic Deficiencies . . .   4-60
    B.  Regulatory Deficiencies at the Federal
       and State Levels	   4-62

4.4.4  Proposals to Regulate Domestic Noise  ....   4-62

    A.  Proposed Federal Regulatory Schemes 	   4-62
    B.  Appropriate Implementation Techniques ....   4-64
    C.  Enforcement Alternatives  ..........   4-64

Appendix A   FEDERAL-REGIONAL-STATE-AND-LOCAL
             NOISE CHART

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                               1-1





         1  CURRENT GOVERNMENTAL NOISE REGULATORY SCHEMES





  1.1  PRESENT NOISE ABATEMENT REGULATION AT THE FEDERAL LEVEL





  1.1.1  General Policy for Federal Noise Abatement and Control



     From the colonial period until the mid-20th century the Fed-



eral government, as well as the general populace, was unconcerned



with the noise levels in the American environment.  The urbaniza-



tion of our society coupled with an increased mobility due to the



new technological advances in transportation and industry brought



people into closer contact with noise-producing machines.  Mount-



ing citizen dissatisfaction with the noisy conditions pervading



both working and leisure environments essentially forced the Fed-



eral government into legislative action.



     Prior to its initial forays into noise abatement legislation,



the Federal government had consistently taken the position that



the matter of noise abatement was a local concern.1  Yet there are



areas, most notably those in which interstate commerce may be



affected, where the Federal government was not and is not willing



to allow local regulations to curb the noise of these activities.^



With the advent of court decisions against local regulation in the



presence of an activity affecting interstate commerce or the national



defense, the Federal government came under increasing pressure to



abate the noise from these interstate activities.



     Prior to 1970 the Federal government's activities in noise



abatement had no central focus.  The emphasis was on specific



activities regulated separately by individual agencies.  This pre-



1970 situation tended to foster consideration of each noise problem

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                              1-2


in isolation, rather than in the context of the noise problem as

a whole.

     During 1970, the Congress drafted and eventually enacted

amendments to the Clean Air Act  (42 USC 1857 et. seq.).  Title IV

of these amendments was the "Noise Pollution and Abatement Act of

1970."3  This act set up the Office of Noise Abatement and Control

(ONAC)  within the Environmental Protection Agency  (EPA) and thus

gave a central focus to the Federal government's activities in

noise abatement.  It nevertheless did not go far enough, in the

estimation of many, toward giving this new office  the authority to

abate noise.  The ONAC was primarily directed to:

       carry out ... a full and complete investigation
       and study of noise and its effect on the public
       health and welfare in order to:

       1)  identify and classify causes and sources of
           noise, and
       2)  determine

           a)  effects at various levels;
           b)  projected growth of noise levels in urban
               areas through the year 2000;
           c)  the psychological and physiological effect
               on humans;
           d)  effects of sporadic extreme noise  (such as
               jet noise near airports) as compared with
               constant noise;
           e)  effect on wildlife and property  (including
               values)
           f)  effect of sonic booms on property  (includ-
               ing values); and
           g)  such other matters as may be of  interest
               in the public welfare.

A minor  authority for actual abatement activities  was granted by

Section  402(c) wherein, following a determination  by the Adminis-

trator of EPA that an activity of "any Federal  department or

agency  .  .  . amounts to a public nuisance or is otherwise

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                               1-3






objectionable," that department or agency must "consult with the




Administrator to determine possible means of abating such noise."




     Primarily the act directed study of the noise problem rather



than action by the Federal government.  This was commented upon




by several of the people testifying before the joint hearings of



the Senate Commerce Committee and the Subcommittee on Air and



Water Pollution of the Senate Committee on Public Works.  The



general suggestion was made that the time had come to stop study-



ing and start abating noise.



     In the First Annual Report of the Council on Environmental



Quality (CEQ) submitted to Congress in August of 1970 the CEQ



took a somewhat equivocal stand on the desirability of Federal



abatement activity in a general sense and suggested that Federal



standards should be developed only with regard to Federally sup-



ported or guaranteed construction.   Beyond this, research and




evaluation of choices for abatement were suggested but not actual



abatement activities.  Since that time the Administration's posi-



tion on noise abatement activities has changed substantially, as



reflected in the President's 1971 Environmental Program.   While



reiterating that noise abatement is essentially a local problem,



the President suggested that in three areas,  (transportation vehi-



cles, construction equipment, and machinery powered by internal



combustion engines) the Federal government should exercise control



and abatement through the mechanism of Federal noise emission



standards.  Further, the EPA was suggested to be charged with gen-



eral coordinating authority for all Federal abatement activities.

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                              1-4


National Environmental Policy Act

     At the Federal level the National Environmental Policy Act

of 1969 (NEPA) — while not directing noise abatement activities

by Federal agencies and departments in their actions -- does require

that noise, as an environmental factor, be taken into consideration

with regard to undertaking any proposed action.  The policy of the

Congress was expressed in that Act as a:

       . . . continuing policy ... to use all practicable
       means and measures ... in a manner calculated to
       foster and promote the general welfare, to create
       and maintain conditions under which man and nature
       can exist in productive harmony and fulfill the
       social, economic, and other requirements of pres-
       ent and future generations of Americans.9

This policy was carried forth by directing the Federal Government:

       to use all practicable means, consistent with other
       essential considerations of national policy, to
       improve and coordinate Federal plans, functions,
       programs, and resources to the end that the Nation
       may:   (1) fulfill the responsibilities of each gen-
       eration as trustee of the environment for succeed-
       ing generations;  (2) assure for all Americans safe
       healthful productive and aesthetically and cultur-
       ally pleasing surroundings;  (3) attain the widest
       range of beneficial uses of the environment with-
       out degradation, risk to health or safety, 01 other
       undesirable and unintended consequences; . . .   (5)
       achieve a balance between population and resource
       use which will permit high standards of living and
       a wide sharing of life's amenities; . . .

     Perhaps most importantly for purposes of discussing noise

abatement programs, the most vital sections of NEPA are 102(1) and

(2)(A) and  (B):

       Sec. 102.  The Congress authorizes and directs that,
       to the fullest extent possible:   (1) the policies,
       regulations, and public laws of the United States
       shall be interpreted and administered in accordance
       with the policies set forth  in this Act, and  (2)
       all agencies of the Federal  Government shall -

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                              1-5
           (A) utilize a systematic, interdisciplinary
       approach which will insure the integrated use of
       the natural and social sciences and the environ-
       mental design arts in planning and in decision-
       making which may have an impact on man's environ-
       ment;
           (B)  identify and develop methods and proce-
       dures, in consultation with the Council on Environ-
       mental Quality established by Title II of this Act,
       which will insure that presently unquantified envi-
       ronmental amenities and values may be given appro-
       priate consideration in decisionmaking along with
       economic and technical considerations; . . . ^

     These sections appear to have been overlooked to date; the

Federal government is responding primarily to Sections 102(2)(C)

        1 9
and 103. ^  Both of these sections require a specific written

product, while Sections 102(1) and  (2)(A) and (B) provide  for the

formulation of new departmental policy.   A requirement to  produce

a written document is far more concrete and its fulfillment more

tangible than is the case with a mandate to make sweeping  modifica-

tions in attitudes, procedures, and policies; furthermore, the

former is by no means as difficult as the latter.  Therefore, while

the relative neglect of such broad procedural changes in comparison

with the generation of written statements is lamentable, it is

hardly surprising.  The implications in terms of social impact of

Sections 102(1) and 102(2)(A) and (B) reach beyond those of Sections

102(2) (C)  and 103.  Sections 102(1)  and  (2) (A) and (B) will become

increasingly important as Federal environmental concern moves for-

ward in such areas as noise abatement where policy decisions must

be made from a firm reference point with a clearly defined policy

direction.

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                              1-6
Department of Defense




      In the area of general noise abatement regulation the



Department of Defense (DOD)  has issued a military standard, MIL-



STD-1472A, setting human design criteria which must be met for



all new military systems, facilities, and new equipment to be



installed.  To accomplish this noise abatement effort, the Stand-



ard adopts certain publications of the various branches of the



military service.  These are discussed at other points of this



paper under the noise source covered by the particular regulation.



In addition to incorporating these documents by reference, the



general specification of the Department of Defense places limits




on the allowable noise in areas where voice communication is



necessary. •"



      The DOD Standard incorporates some, though not all, of the



various publications concerning noise which have been issued by



the services individually.  These publications promulgate regu-



lations and policies with respect to particular noise sources



requiring abatement action,  as opposed to addressing the pro-



blem in general terms applicable to all noise sources.  The DOD



standard is intended to operate concurrently with the regulations



of the individual services.   This joint operation leaves open the



possibility of conflicting regulation; should there be such a




conflict, MIL-STD-1472A presumably would prevail.



      To facilitate reference to this document in individual areas



of noise generation and to maintain consistency with the discus-



sion of State and local laws on noise abatement, consideration of

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                              1-7






Federal activities in the discussion below will be in terms of



noise source.





  1.1.2  Transportation Noise Abatement and Control



Department of Transportation



     In 1966 the Congress created the Department of Transportation



(DOT) to develop national transportation policies and programs



required for the general welfare of the Nation.  Under the DOT Act



the Secretary of Transportation was directed to ". . . promote and



undertake research and development relating to transportation,



including noise abatement with particular attention to aircraft



noise; .  .  . "14  Pursuant to this directive the Secretary has



established two departmental entities to fulfill this R&D function.



These are the Office of Noise Abatement within DOT itself and the



DOT Noise Abatement Committee consisting of representation from




the various administrations under the DOT control umbrella.



     The Office of Noise Abatement is charged with developing and




recommending noise abatement policies and programs and conducting



"... such substantive work as clearly and significantly involves



more than one mode of transportation."  The Noise Abatement Commit-



tee, when appropriate, is to develop department-wide posture for



noise abatement activities.



     Further activities of DOT in nodse abatement exist, but not as



a primary responsibility of DOT.  The actual DOT connection with



these efforts is through its overseer function of the administra-



tions incorporated under DOT by the DOT Act of 1966.  The discus-



sion of these activities follows.

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                              1-8


A.   Highway Noise Abatement

Federal Highway Administration

     In 1956 the Congress passed the Federal-Aid Highways Act and

directed the Secretary of Commerce to carry out the declared policy

". .  .  to accelerate the construction of the Federal-Aid Highway

systems ... to meet the needs of local and interstate commerce,

for the national and civil defense."    While the Secretary was

allowed to set standards designed to accomplish the objectives of

meeting the existing and future traffic needs consistent with

safety and economy, he was not authorized to promulgate standards

for the protection of the environment or the abatement of noise.

In 1962 the Act was amended to add Section 134.  This section

directed the Secretary to:

       cooperate with the States ... in the development
       of long-range highway plans . . . which are formu-
       lated with due consideration to their probable effect
       on the future development of urban areas of more than
       fifty thousand population.

After July 1, 1965, the Secretary could not approve projects that

did not conform to these objectives.

     The Bureau of Public Roads, now under the Federal Highway

Administration after August 30, 1970, published Policy and

Procedures Memorandum 20-8 pursuant to this new Section 134.  This

set the policy of the Bureau with respect to all Federal-Aid High-

way projects that the State or local sponsor seeking aid must con-

sider social, economic, and environmental effects based upon the

information which comes to its attention in relationship to the

proposed project.-^  Social, economic and environmental effects

                                                          20
are defined to include, "noise, air, and water pollution."

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                              1-9


     Thus, at that point, the Federal-Aid Highways Act granted the

same type of regulatory authority to the Secretary of Commerce

(later to the Secretary of Transportation) which the National

Environmental Policy Act grants  to the council on Environmental

Quality today;   that is, both Acts essentially directed that the

environmental impact must be considered by those undertaking a

Federally supported project, but after such consideration both Acts

left the sponsors free to finish the project no matter what the

environmental impact.  Unlike the National Environmental Policy

Act the Federal-Aid Highways Act has had this situation corrected

so that the Secretary of Transportation now is directed to promul-

gate standards which will be applicable to all Federal-Aid highways

and to set maximum noise levels.  This was accomplished by a 1970

amendment to the standards section of the Act by P.L. 91-605. 2

Under this amendment the Secretary of Transportation is directed

to submit guidelines to Congress and thereafter promulgate these

guidelines:

       to assure that possible adverse economic, social,
       and environmental effects have been fully consid-
       ered in developing . . .   [any Federally aided
       highway] project. . . .

       . . . the final decisions on the project are  [to be]
       made in the best overall public interest taking into
       consideration the need for fast, safe and efficient
       transportation, public services, and the costs of
       eliminating or minimizing such adverse effects as
       . . .  (1) . . . noise. .   . .

In a much more specific context:

       (i) The Secretary . . . shall develop and promulgate
       standards for highway noise levels compatible with
       different land uses and after July 1, 1972, shall not
       approve plans . . . for any proposed project on any
       Federal-aid system for which location approval has

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                              1-10
       not yet been secured unless he determines that such

       plans and specifications include adequate measures

       to implement the appropriate noise level standards.



     Two groups within DOT and FHWA are working on these standards



presently and have issued a draft  (see Section 3.1, page 3-6, infra)




These groups are a Task Force within the Office of the Secretary



of Transportation chaired by the head of the Office of Noise Abate-



ment and an Ad Hoc Committee made up of people from DOT and FHWA



within DOT.  Activities to date have been devoted to measuring


             25
noise levels.    Between now and July 1, 1972, when the regulations



will be promulgated, the Secretary of Transportation is acting in



an advisory role with regard to abatement of highway related noise



by other governmental entities at Federal, State and local  levels..



Within DOT, noise abatement related to highways will be the prov-



ince of the individual administrations until these regulations go



into effect.  Presently some members of these committees feel that



the California highway statutes should be used as a model for the



Federal standards.2^  At the moment all indications are that the



standards will not appear in final form prior to the July 1, 1972,



deadline.



B.   Aviation Noise Abatement



Federal Aviation Administration



     This is by far the most regulated area of environmental noise



at the Federal level.  This is perhaps due to the rapid development



of the technology of flight in the last 20 years, combined with the



nature of aircraft as major noise producers.  This technological



development coupled with the course of litigation due to damage to

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                              1-11


private property from aircraft overflights has virtually forced

the Federal government into the regulatory field.

     The initial efforts to obtain relief from aircraft noise

developed at the local level.  Constitutional theories concerning

taking of property without compensation provided the first basis

upon which relief was sought, in lawsuits wherein it was charged

that aircraft noise had destroyed at least part of the beneficial

use of a plaintiff's property.  This approach is directed toward

payment for property damage, rather than any direct reduction of

the noise itself; the next step involved efforts of local govern-

ments to bring about such actual noise reductions.  In order to

accomplish this, a number of local governments enacted ordinances

which placed restrictions upon allowable aircraft noise levels in

various ways.

     It was at this point that the Federal government was brought

into the fray, through challenges to these ordinances based upon

the constitutional doctrines of Federal preemption and burden on

interstate commerce.  The Federal preemption position rested on

the statutory authority in the Federal Aviation Act of 1958, which

vested power in the Federal Aviation Administration (FAA) to:

       assign by rule regulation, or order the use of the
       navigable airspace under such terms, conditions and
       limitations as he may deem necessary in order to
       insure the safety of aircraft and the efficient
       utilization of such airspace.  '

     Since the Federal government considered that it had preempted

this field and could often obtain agreement from the courts, the

pressure for noise abatement legislation shifted to the national

level.  The first Federal aircraft noise abatement legislation

-------
                              1-12


appeared in the Department of Transportation Act of 1966.  Under

this Act the Secretary of Transportation was directed to ".  .  .

promote and undertake research and development relating to trans-

portation, including noise abatement with particular attention to

aircraft noise, .  .  . "28 but authority was not given to promulgate

rules to abate noise.

     When, in 1968,  the Congress began consideration of bills to

give the FAA specific noise abatement duties, the Secretary of

Transportation declared that, in his opinion, such rule-making

authority already existed.  In a letter to Congressman Tenzer, the

Secretary stated:

       In the event, however, that Congress does not grant
       certification authority for noise abatement purposes,
       the Department of Transportation can establish operat-
       ing rules under Section 307 of the Federal Aviation
       Act of 1958.   Although I feel that such action is a
       poor substitute for quiet operation which can be
       built into certification rules, the Department of
       Transportation will take whatever action is possible
       and practicable within existing authority and tech-
       nology.

Indeed, the Administrator of the FAA stated that he already pos-

sessed this regulatory authority.3"

     While both of these opinions express a claim to authority to

regulate aircraft any such authority had been used only  to the

extent that agreements had been reached on flight patterns to be

followed by the airplane pilot during takeoff and landing — agree-

ments alone, not rules.  These agreements were adhered to or ignored

at the discretion of the individual pilot.    What was needed was

the authority to require noise certification of the elements

involved -- the plane, the pilot, the carrier and the airport —

as Secretary Boyd points out in his letter.

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                              1-13


     This authority was provided, over the objections of the Air

Transport Association,32 among others, by P.L.  90-411 which added

Section 1431 to the FAA Act of 1958 and the DOT Act of 1966.

       §1431.  Control and abatement of aircraft noise and
       sonic boom — Consultations; standards;  rules and
       regulations

       (a) In order to afford present and future relief and
       protection to the public from unnecessary aircraft
       noise and sonic boom, the Administrator of the Fed-
       eral Aviation Administration, after consultation with
       the Secretary of Transportation, shall prescribe and
       amend standards for the measurement of aircraft noise
       and sonic boom and shall prescribe and amend such rules
       and regulations as he may find necessary to provide for
       the control and abatement of aircraft noise and sonic
       boom, including the application of such standards, rules,
       and regulations in the issuance, amendment, modification,
       suspension, or revocation of any certificate authorized
       by this subchapter.

       Considerations determinative of standards, rules, and
       regulations

       (b) In prescribing and amending standards, rules, and
       regulations under this section, the Administrator shall—

          (1) consider relevant available data relating to
       aircraft noise and sonic boom, including the results
       of research, development, testing, and evaluation
       activities conducted pursuant to this chapter and
       chapter 23 of this title;
          (2) consult with such Federal, State,  and inter-
       state agencies as he deems appropriate;
          (3) consider whether any proposed standard, rule,
       or regulation is consistent with the highest degree
       of safety in air commerce or air transportation in
       the public interest;
          (4) consider whether any proposed standard, rule,
       or regulation is economically reasonable, technolog-
       ically practicable, and appropriate for the particular
       type of aircraft, aircraft engine, appliance, or
       certificate to which it will apply; and
          (5) consider the extent to which such standard,
       rule, or regulation will contribute to carrying out
       the purposes of this section.

       Amendment, modifications, suspension, or revocation
       of certificate; notice and appeal rights

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                              1-14
       (c) In any action to amend, modify, suspend, or revoke
       a certificate in which violation of aircraft noise or
       sonic boom standards, rules, or regulations is at
       issue, the certificate holder shall have the same
       notice and appeal rights as are contained in section
       1429 of this title, and in any appeal to the National
       Transportation Safety Board, the Board may amend,
       modify, or reverse the order of the Administrator if
       it finds that control or abatement of aircraft noise
       or sonic boom and the public interest do not require
       the affirmation of such order, or that such order is
       not consistent with safety in air commerce or air
       transportation.33

     Under this section the Administrator of the FAA shall issue

certificates only if the applicant meets the standards of rules and

regulations applied for noise abatement purposes.  In promulgating

these standards, rules, and regulations, consideration of "the

duty resting upon air carriers to perform their services with the

highest possible degree of safety in the public interest"34 must

be given by the Administrator, "in a manner as will best tend to

reduce or eliminate the possibility of, or recurrence of, accidents

in air transportation."35  Under the type certification authority,

tests may be required which are "reasonably necessary in the inter-

est of safety,"36 and the Administrator may place an expiration

date on the type certificate "as required in the interest of

safety."37

     Type certificates apply to an entire type of airplane — e.g.,

Boeing 727, DC-9 — rather than to each individual plane.  One

craft of a type is used for testing purposes3** and then all sub-

sequent planes of that type must obtain an "airworthiness" certifi-

cate, which the Administrator issues when he is satisfied that the

craft meets the type certificate and is in a safe condition for

operation.3^  There is also provision for suspension, amendment,

-------
                              1-15
or revocation of these certificates when such is required in the



interests of safety and the public interest.    This action by the



Administrator is appealable to the National Transportation Safety



Board and from there to the U.S. Court of Appeals.



     Using this authority, the FAA promulgated noise standards to



be used in type certification procedures on November 17, 1969, which



now appear as 14 C.F.R. §36 with certain additions and references



to 14 C.F.R. §21.  This type certification is applied to domestic



and foreign aircraft (being imported into the United States) of



the subsonic transport or subsonic turbojet powered category.  Type



certification covers a new aircraft type or an existing type on



which an "acoustical change" is to be made.  An acoustical change



is ". .  . any voluntary change in the type design . . . that may



increase the noise levels created by the airplane. . . ."42  Anv



aircraft able, but not necessarily required to meet the Part 36



noise standards prior to the acoustical change must still be able



to satisfy these standards after the change; the requirement in



the case of aircraft not certificated under Part 36 is simply that



the aircraft not be noisier after the change than before it.



     Elaborate test procedures are established under this section



which amount to a measurement of the effective perceived noise



level (EPNL) in EPNdB corrected to sea level pressure, 77° F temper-



ature, 70% relative humidity and 0 mph wind velocity.  A series of



measurements are made at each of three points (six measurements



minimum) and these must yield at least three EPNL averages with a



range not to exceed JL 1.5 EPNdB with a 90% confidence level.  The


                                                       44
three measuring points describe a rectangle as follows: ,

-------
                    1-16
Effective Preceived Noise Level (EPNdB)
of 1
HO-i
108-
106-
104-
i n?-
100-
98-
96-
94-
92-
90-
Start of
NMl. T Tdkeuil Rull | 3.5 NMJ. ,
1 f I J
' '
LO 1 to
Oi j Ui
P P
Approach Sideline Takeoff
(at maximum
level point)
Using these measuring points, the aircraft type must be capable
imiting the noise generated according to the following graph:
(>600.0001bs)
108
_^ — — — l^--"1 108
(300,0001bsi^^^T^ (_600,0001bS)
(150,0001bsJxxX*"^ x ^
104X/^ x x
y^l02 x (3nn7onoibs)
(£75,0001bs) /X
X
/
/
' 98
/ (150,0001bs)
/
/
^ Approach and Sideline -•••• —
/
» 1 d.KcO3- r
* 	 ' 93
(£75,0001bs)
100      200      300      400      500      600
   Aircraft Weight  (Thousands of Pounds)

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                              1-17






     Many other factors such as weight of the aircraft, configura-




tion of the flaps, and glide path are specified for the purposes



of the testing.  Note in the chart that two sideline measuring




distances are shown.  The .25 NMi distance applies to aircraft of



less than four engines and the .35 NMi for the four or more engine



category.



     To date the regulation has not resulted in great reduction in



the noise from commercial aircraft in the aggregate.  The Boeing



747, which was in the final stages of development when the regula-



tions were promulgated, was given a two year period (to expire



December 1, 1971)   in which to meet the above noise standards.



This was on the basis of an agreement worked out with the FAA fol-




lowing the provisions of 14 C.F.R. §36.201(1) (which included the



Boeing 747) and 14 C.F.R. §36.201(d).  Recently other jet aircraft



have completed type certification under the standards of Part 36,




those being the Cessna Citation and the wide-body DC-10 commercial



transport. 6



     It must be noted that a large segment of the projected fleet



for the next several years is simply the fleet in existence today,



which is made up primarily of pre-wide-body jets such as the



Boeing 707-320 B/C, 727, 737, and DC-9.  These planes do not fall



under any existing FAA noise regulation unless acoustical changes



are made, and even then the only requirement is that the aircraft



not be made noisier, rather than that its noise be reduced.  Thus,



if the FAA regulatory program were to stop with the Part 36 noise



standards, then there would still be little early improvement in



the existing noise problem at major airports.  In the Washington,

-------
                              1-18


D.C. area, for example, the noise from jets over the downtown area

and nearby suburbs might be essentially unaffected for years, since

Washington National Airport is used primarily by the 727, 737, and DC-9

and such use is expected to continue.

     Fortunately the FAA noise abatement program addresses more

than the new type aircraft.  The schedule for rule-making (see,

infra., p. 1-21) includes regulations requiring retrofit of exist-

ing aircraft, type certification of civil supersonic aircraft,

prohibition of overland flight causing sonic boom from civil air-

craft, and regulation of the noise for STOL and VTOL type aircraft.47

     The most relevant with regard to an early rollback of exist-

ing noise and the most controversial proposal presently is that

which seeks to require retrofit of the existing type certified

subsonic turbofan engine powered airplanes as a condition to fur-

ther operation of these airplanes.  The authority to undertake such

rule-making clearly was intended as part of P.L. 90-411 (49 USC

1431).48  in the Advanced Notice of Proposed Rule Making for retro-

fit, the Administrator of the FAA notes:

       . . . the obvious public need for relief.  It was the
       noise of the current fleet of aircraft that, in large
       part, led to the enactment of PL 90-411 and with respect
       to which the public need for protection is clearly the
       most urgent. ^

     Apparently the FAA is deeply committed to these programs of

noise abatement at its source for this commitment is restated in

the retrofit advance notice to the extent that the FAA intends to

use "every legal regulatory technique."    The noise from the

existing fleet is seen as a "deterrent to the development of new

airports,"   as well as having been the motivation behind P.L. 90-

-------
                              1-19


411.  To achieve this retrofit noise reduction two alternative

approaches to regulation are touched upon:   (1) prescribe the

entire modification scheme and equipment so that the means of

compliance would be clear to the carriers; or  (2) set the con-

ditions which must be met by the retrofitted plane without setting

the means to achieve the reduction in noise thereby allowing

flexibility of technologies.^2

     Notably the Administrator requests comment on the meaning of

the phrase, "economically reasonable" which appears in 49 USC 1431:

       This assessment of economic and public relief fac-
       tors to determine whether an economic penalty should
       be imposed by regulation, and the determination of
       how great that penalty must be, are among the most
       difficult judgments to be made under PL 90-411, and
       are of particular importance under a retrofit pro-
       gram in which aircraft may be taken out of service
       or burdened with costs that were not factored into
       the original design and purchasing decisions con-
       cerning those aircraft."

At this time the comments from the public have not been made avail-

able but some of the response from the industry can be discovered

in other places, notably Congressional hearings on new legislation

in the noise abatement area.  Here the Air Transport Association

speaking for the scheduled airlines proposes more research and

development prior to such regulation. '  At the present time the

cost of retrofitting the existing U.S. fleet is estimated at

between $1-2 billion; however, this figure is an overestimate of

actual retrofit requirements since it considers all planes presently

in commercial operation rather than taking into account the partial

replacement which will have occurred in a few years. •*

     The two proposals for rule making in the SST/Sonic Boom area

have not raised the public controversy that the retrofit proposal
                                I

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                              1-20


has primarily because of the defeat of the SST development bill

by the Congress.  Nevertheless these proposed rules do exist and

the process of rule making is going forward.  The civil supersonic

aircraft type certification rule is in the Advance Notice stage so

no formal outline of the proposed rule language exists, but the FAA

has taken a definite stand that noise ceilings will be placed on

such aircraft.  Comment from the public was invited concerning the

application of the 14 C.F.R. §36 type certification procedures for

subsonic aircraft to supersonic transports.  A definition of "eco-

nomically reasonable, technologically practicable, and appropriate

for the particular type of aircraft" was requested as well as com-

ment on the role that such phraseology should play in the SST type

certification area. °

     FAA regulation in the sonic boom area is further advanced, a

notice of proposed rule making having been issued April 16, 1970.

Here the production of a sonic boom is prohibited without prior

permission of the FAA under a written permit.  This permit will

only be issued for research and development purposes for "necessary"

flights,   or for normal operations when the applicant:

       shows conservatively that the flight will not cause
       a sonic boom to reach the surface of the United
       States, excluding the territorial waters thereof, ...

It would seem that under this authority the FAA can effectively

do that which the Congress has not seen fit to do; eliminate sonic

boom from the environment and perhaps eliminate SST's, domestic

or foreign, from the United States.  Whether this will be the

effect and whether the courts will accept this activity of the

FAA is a question only time can answer.
                                  I

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                              1-21
     The activities of the FAA under the authority of 49 USC 1431

(P.L. 90-411) may be summarized by the schedule of rule making in

the noise abatement area:
                Advanced Notice
                Proposed Rule
                Making

Subsonic
Aircraft Type
Certification

Civil Aircraft
Sonic Boom

Supersonic      August 6, 1970
Aircraft Type
Certification

Civil Airplane  November 4, 1970
Retrofit

STOL Type       projected
Certification   4th Quarter 1971

VTOL Type       projected
Certification   1st Quarter 1972
Notice of
Proposed Rule
Making
April 16, 1970
projected
3rd Quarter 1971
projected
2nd Quarter 1972

projected
2nd Quarter 1972

projected
3rd Quarter 1972
Rule
Promulgated
                   December 1, 1969
projected
3rd Quarter 1971

projected
2nd Quarter 1972
projected
4th Quarter 1972

projected
4th Quarter 1972

projected
4th Quarter 1972
     In addition to the noise abatement scheme that is underway

pursuant to P.L. 90-411 (49 USC 1431), the FAA has a valuable tool

available to reduce noise impacts via the Airport and Airways

Development Act of 1970.    Under this Act the Secretary of Trans-

portation was required to formulate a "National Airport System

Plan,"   which is designed to aid the development of public air-

ports until at least June 30, 1980.  Factors of mandatory consider-

ation included:

       .  . . the relationship of each airport to the rest
       of the transportation system in the particular area,
       to the forecasted technological developments in aero-
       nautics, and to developments forecasted in other modes
       of intercity transportation.^^
                                  I

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                              1-22


While this has latent possibilities for introducing environmental

design arts into the formulation of the report, the Act more spe-

cifically directs that the Secretary consult with the Council on

Environmental Quality and the Secretaries of HEW, Agriculture, and

Interior and incorporate their recommendations "with regard to the

preservation of environmental quality ... to the extent . . .

feasible. . . . "°3 into the plan.

     Also in the area of recommendations and reports the Act

establishes the Aviation Advisory Commission to:

       . . . formulate recommendations concerning long-
       range needs of aviation . . . recommendations con-
       cerning surrounding land uses, ground access, air-
       ways, air service, and aircraft compatible with
       such  (National Airport System) plan.

These recommendations are to appear in a report to the President

due on January 1, 1972.

     A very important aspect of the Act concerns the granting of

Federal financial assistance to airport planning in much the same

manner that the Highway Trust Fund is used to grant monies to

states for building highways.  A trust fund is established from

which the Secretary of Transportation, "in order to promote the

effective location and development of airports and the development

of an adequate airport system plan . . ."65 may grant monies to

state public agencies according to a certain schedule of apportion-

ment.

     To initiate the grant process a public agency must submit an

application, but such application cannot be considered if it pro-

poses airport development not included in  the national airport

system plan.  The development applied for  must meet any standards

-------
                              1-23


promulgated by the Secretary of Transportation including those for

site location and airport layout, two factors which could be used

to reduce noise exposure in surrounding communities from operations

at the airport.

     In order to approve an application the Secretary must be

satisfied that the project is "reasonably consistent"   with plans

of planning agencies for the vicinity of the airport.

       No airport development project may be approved by
       the Secretary unless he is satisfied that fair
       consideration has been given to the interest of
       communities in or near which the project may be
       located.68

In this regard if the project is the selection of a new airport

site, if it is a non-metropolitan area, ° the communities in which

the airport is to be located have a de facto veto power over the

approval of the Secretary for a grant application.  That is, the

Secretary may not approve an application for such a new site if

the communities have not approved the site proposed.  In all such

site selection cases and situations where a new runway or a runway

extension is planned, the sponsors of the project must afford the

opportunity for public hearings which must include consideration

of the economic, social, and environmental effects of the project.

     Encompassing this entire process of application, hearing, and

approval at all levels is the declaration of a national policy:

       . . . that airport development projects authorized
       pursuant to this part shall provide for the protec-
       tion and enhancement of the natural resources and
       the quality of environment of the Nation.™

The Secretary may not approve a project found to have an adverse

environmental impact until he has issued a written statement that

there is ". . .no feasible and prudent alternative  . . . "71 and

-------
                              1-24


that all possible steps have been taken to minimize the environ-

              7 9
mental damage. "•

     But far and away the most significant portion of the Act in

terms of potential use to abate noise is a provision that requires

approval from the Governor of the state in which the project is

located if the project is either for a new airport, a new runway,

or an extension of an existing runway.  This certification by the

Governor is granted when he finds that:

       . . . there is reasonable assurance that the project
       will be located, designed, constructed, and operated
       so as to comply with applicable air and water quality
       standards.'^

This section gains importance for noise abatement purposes when

one notes that some states now consider noise as an air pollutant

and thus have air quality standards concerning noise.  One example

is New York.  On the other hand, several states have written noise

statutes separate from air quality laws, an example being Califor-

nia.  States in this category generally have written more sophisti-

cated laws, from a technological point of view.

     Under the section of the Act noted above these more sophisti-

cated State laws could not be incorporated into the Governor's

decision process since the noise standards would not be an "air

and water quality standard."  However, the less sophisticated

State laws, which have considered noise as an air pollutant, have

provided a perhaps fortuitous avenue for consideration of noise

with respect to new airports, new runways, or extensions of exist-

ing runways.

     However, for the Airport and Airways Development Act to be

helpful in noise abatement efforts there must first be increased

-------
                              1-25






intensity of rc^'se abatement effort by the Federal government,




particularly in t,he field offices which naturally have the great-




est contact with the local public agency sponsors of airport



development.  The Act alone will never be able to solve the air-



craft noise abatement problem, simply because it cannot deal with



the source of the noise, the aircraft itself.  This must be done



under the authority of P.L. 90-411.  But the Airport and Airways



Development Act can provide the Federal impetus for more sophisti-



cated approaches by State planners to the concepts of land use



planning and airport design for noise abatement purposes.  Neither



Act alone can accomplish the goal of an efficient airport that has



no noise problem, but the combination of the two Acts through



retrofit and meaningful land use planning could lead to an approxi-



mation of this result.



Air Force



     The Air Force has issued several regulations, specifications



and planning manuals related to noise.  Generally, these documents



take the directive thrust of insulating humans from the noise pro-



duced by an activity or device instead of trying to limit the noise



at the source.  In the area of aircraft-related noise, impingement



on humans is reduced within the aircraft by requirement in procure-



ment procedures that the noise exposure be limited according to a



set of Noise Criteria curves.    The permissabie noise level inside



the aircraft measured in dB is a function of the duration of the



exposure and the presence or absence of personnel protective gear



in the form of ear plugs, muffs or standard head gear.  The levels



vary from a high of 125 dB for a fifteen minute exposure with

-------
                              1-26






standard head gear to 68 dB (NCA 70 Curve) for special military



missions with no ear protection.



     In terms of the exposure of persons on the ground, aircraft



noise control activity has been directed toward land use control



to reduce the exposure.  In 1964 the three services jointly issued



a planning manual for civil engineering purposes, "Land Use Planning



with Respect to Aircraft Noise."^6  While this document was intended



to be used as a guide for land use planning rather than to estab-



lish noise standards for the aircraft operations of the military



services, the need for "uniform practices in assessing aircraft



noise problems"" was recognized.  The planning manual established



a procedure for determining the noise exposure in the areas sur-



rounding the airfield.  Measurements were not directed but rather



a set of noise contours were set out for each type of aircraft



that might be operating.  From these standard contours one could



determine the CNR exposure through the use of PNdB figures given



on the contour graphs for a given point.  By use of this procedure



it was expected to be possible to determine whether adverse com-



munity reaction to the operations would occur, correlating commun-



ity response to the value of CNR.  But the entire thrust of the



planning manual was in terms of stopping the encroachment of



communities on aircraft operations, not in terms of preventing



exposure to the noise in order to benefit the living situation of



the surrounding communities.^



     While the tri-service manual gave no directives in terms of



actions to be taken to abate noise or at least its impact on the



surrounding community, Air Force Regulation 55-34, of February 5,

-------
                              1-27






1971, established policy directives to Commanders in charge of air-




bases and outlines specific procedures that should be attempted



in order to "take every precaution to protect communities near




Air Force bases from the annoyances and risks associated with



flight operations."    The methods directed include takeoff and



landing techniques, traffic patterns, preferential runway use and



an extensive logging procedure for operations at supersonic speeds,



particularly in terms of sonic boom incidence.  It is important



to note here that the Air Force accepts responsibility for resti-



tution and payment of claims for damage to property from sonic


     80
boom.    Forms recording the occurance of supersonic flight must



be filed and retained for 30 months for cross-reference with com-



plaints about sonic boom damage.  Combat, combat support missions



or flight over water with no approach to land closer than 50 miles



are exempted.



     In one minor area the Air Force has attempted to reduce air-



craft noise at its source, but in terms of the impact of that noise



on the communities surrounding the air base there is little if any



significance to the abatement measure.  The regulation outlines



the characteristics of noise suppressors that must be used during


                                 Q O
engine runup tests on the ground."^  Such suppressors must cut the



near-field noise  (in the immediate vicinity where ground crews



would be working) to 117 dB in the 2000 Hz octave band  (essentially



an NC curve of 117 dB) and 70, 83, or 92 dB for far-field measure-



ments depending on the grade of the aircraft being tested.  Such



measurements must be taken at 36 points in a circle around the



test site and no single point may measure above these values.83

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                              1-28


  1.1.3  Occupational Noise Abatement and Control

Department of Labor

     The landmark legislation in the area of occupational noise

abatement was enacted in 1942 and is known as the Walsh-Healey

Public Contracts Act.  This Act establishes minimums for working

conditions of employees of contractors supplying the Federal govern-

ment with materials, supplies, articles, or equipment under con-

tracts in excess of $10,000.  The language under which the occupa-

tional noise limits are authorized appears at 41 USC §35(e), to wit:

       ... no part of such contract will be performed nor
       will any of the materials, supplies, articles, or
       equipment to be manufactured or furnished under said
       contract be manufactured or fabricated in any plants,
       factories, buildings, or surroundings or under working
       conditions which are unsanitary or hazardous or danger-
       ous to the health and safety of employees engaged in
       the performance of said contract.  Compliance with the
       safety, sanitary, and factory inspection laws of the
       State in which the work or part thereof is performed
       shall be prima-facie evidence of compliance with this
       subsection.

It was not until May 20, 1969 that this language was interpreted

by the Secretary of Labor to provide the impetus for occupational

noise regulations by that department.  These regulations provide

that, if the noise that employees are exposed to exceeds the values

in the chart below, then a "continuing, effective hearing conserva-
                                    Q A
tion program shall be administered."    That is to say, first,

"feasible administrative or engineering controls shall be utilized.

If such controls fail to reduce sound levels within the levels of

the table, personal protective equipment shall be provided and
                                                            p C
used to reduce sound levels within the levels of the table."

Finally, there is an absolute maximum of 140 dBA on all sounds, no

matter how short their duration.

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                              1-29



                            TABLE 1

                  Permis'sable Noise Exposures

           Duration per day, hours      Sound level dBA

                      8	90
                      6	92
                      4	95
                      3	97
                      2	100
                      11/2	102
                      1	105
                      1/2	110
                      1/4 or less	115

     Compliance with these standards does not release a contractor

from his responsibilities under any applicable State or local law;

the Walsh-Healey noise exposure standards do not preempt concurrent

noise abatement regulation on lower governmental levels.  The

specific language of the Walsh-Healey Act noted above in regard to

compliance with State law was interpreted by the Secretary of Labor

in Part 50-204 to mean that:

       Compliance with the standards expressed in this Part
       50-204 is not intended, and shall not be deemed to
       relieve anyone from any other obligation he may have
       to protect the health and safety of his employees,
       arising from sources other than the Walsh-Healey
       Public Contracts Act, such as State, local law or
       collective bargaining agreement. °

     If a contractor fails to comply with these standards he may

lose his position on the list of eligible bidders for Federal con-

tracts for a period of three years, thereby removing him from the
                                                     P "j
market for Federal contracts for that period of time.    (For fur-

ther discussion of the Walsh-Healey Act see Section 3.1, infra.,

p. 3-7).

     Note, however, that these regulations apply only to Federal

Supply Contracts and not to Construction Contracts.  While one

-------
                              1-30


cannot make a general prediction about the noise levels in opera-

tions under supply contracts, it is reasonable to expect that the

general construction contract for the Federal government would

always involve a noise exposure that would be close to if not

actually a violation of these regulations as conditions presently

exist on construction sites.  Federal construction contracts have

just recently come under the same standards as supply contracts

with the advent of 40 USC 333 and the regulations promulgated by

the Secretary of Labor pursuant to that section published in the

                 88
Federal Register.
                                                       QQ
     The new Occupational Safety and Health Act of 1970 * which

became effective April 28, 1971 authorizes the Secretary of Labor

to "set mandatory occupational safety and health standards applic-

able to businesses affecting interstate commerce. . . ."90  This

is a very wide grant of administrative authority in view of the

U.S. Supreme Court's definition of a business affecting interstate
         Q -I
commerce.    The Congress took this step because they found that:

       personal injuries and illnesses arising out of work
       situations impose a substantial burden upon, and a
       hindrance to, interstate commerce in terms of lost
       production, wage loss, medical expenses, and dis-
       ability compensation payments. ^

Very broad standard promulgating authority is granted including

the authority to issue emergency standards to deal with a parti-

cular situation that comes to the attention of the Secretary of

Labor.  In response to the directive to promulgate standards which

already are "national consensus standards" or "established Federal

standards"93 the Secretary of Labor carried over the Walsh-Healey

standards  at 41 C.F.R. §50-204.10 on May 29, 1971, to be now applic-

able  to all businesses affecting interstate commerce.

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                              1-31





     Walsh-Healey and the Occupational Safety and Health Act differ



in applicability in a way that has resulted in producing much more



meaningful noise abatement regulations under the new Occupational



Act.  Since the penalty of removal from a bidder's list is not



available outside the framework of government contracting, the



penalties under the Occupational Safety and Health Act utilize



civil and criminal sanctions against violators of the law to



ensure compliance.  The potential penalties include civil fines



up to $10,000 if the violations are willful or repeated, criminal



penalties up to $10,000 +/or imprisonment up to six months if the



violation caused the death of any employee ($20,000 +/or one year



if second conviction), criminal penalties for an unauthorized dis-



closure of an upcoming inspection of up to $10,000 +/or six months



imprisonment, and criminal penalties for false information or



failure to post required warnings of up to $1000 +/or six months



imprisonment.95  The determinations of civil liability are made



by the Occupational Safety and Health Review Commission, judicial



review being available to the U.S. Circuit Court of Appeals or the



U.S. Court of Appeals for the District of Columbia.96



     One very interesting feature of the Occupational Safety and



Health Act concerns the procedure by which a state can take over



the regulatory field with its own plan for providing for occupa-



tional safety and health.  This need not be done with respect to



all occupational safety and health issues at once but can be done



for an individual matter such as occupational noise.97  plans



for such a program are submitted at any time to the Secretary of



Labor who can approve any plan which in his judgment:98

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                              1-32
       1.   designates a State agency  .  .  .  for administer-
       ing the plan throughout the state,

       2.   provides for the development and enforcement of
       safety and health standards . .  . which .  .  .  are or
       will be at least as effective in providing safe and
       healthful employment and places  of  employment as the
       [Federal]  standards .  . .  and which standards, when
       applicable to products which are distributed for use
       in  interstate commerce, are required by compelling
       local conditions and do not unduly  burden interstate
       commerce.

       3.   provide for right of entry and  inspection  . . .
       at  least as effective as [the Federal structure] . . .
       and includes a prohibition on advance notice of
       inspections.

       4.   contains satisfactory assurances that such agency
       .  . . [has] or will have the legal  authority and
       qualified personnel necessary for the enforcement of
       such standards.

       5.   gives satisfactory assurances that such State
       will devote adequate funds to the administration
       and enforcement of such standards.

       6.   contains satisfactory assurances that such State
       will, to the extent permitted by law, establish and
       maintain an effective and comprehensive occupational
       safety and health program applicable to all employees
       of  public agencies and the State ... as effective
       as  the standards ... in an approved plan.

       7.   requires employers in the State to make reports
       to  the Secretary [of Labor] ...  as if the plan
       were not in effect, and

       8.   provides that the State agency  will make such
       reports ... as the Secretary shall . . . require.

     A state attempting to accomplish this takeover is afforded a

hearing.   Once the Secretary of Labor has  approved a plan he con-

tinues to  exercise authority over occupational safety and health

matters in that state for at least three years while he assures

himself that the  State plan which is also in operation is being

carried out effectively.  Once he relinquishes control over that

state with respect to the State plan the regulations and provisions

-------
                              1-33




under the Occupational Safety and Health Act cease to apply to the


extent supplanted by the State plan.  A method of this type assures


that a State program is working effectively prior to replacement


of the Federal program.  Although the burden of determining when


a standard is a burden on interstate commerce is placed on the


Secretary of Labor, at least State noise abatement programs are


not precluded before a chance is given such activities.


     This is the present extent of noise abatement activities by


the Secretary of Labor.  However, his lead has been followed by


many other agencies and departments, and the noise standards under


the Walsh-Healey Act are perhaps the most widely accepted noise


abatement tool within the Federal government and are adopted for-

                                                  qO
mally or informally by a number of other agencies.


Department of the Interior


     In a more explicit fashion the Walsh-Healey noise standards


have been adopted by statute for the Department of the Interior


through the Bureau of Mines for application to underground coal


mine operations.     In addition to applying these standards, the


Bureau of Mines went further and called on the Secretary of Health,


Education, and Welfare to establish test procedures for inspection


of the noise levels in coal mines, such tests to be conducted by


the operator of each mine with the aid of "a qualified person."


Such tests must be conducted each six months with the results


certified and reported to the Secretaries of HEW and Interior.  Any


protective device or system that the mine operator wishes to use


to protect the employees from noise in excess of the Walsh-Healey


standards must meet with the approval of the Secretary of the

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                              1-34




         10 2
Interior.     These standards appear in the Federal Register of



July 7, 1971,    and detail the methods and equipment that must



be used for tests.



     Going beyond the Walsh-Healey regulations, the Bureau of Mines



has promulgated a more specific framework for directing the cor-



rective actions of a mine operator found to be in violation of the



standards.     Under this framework, following a notice of viola-



tion issued by the Department of the Interior based on the results



of a noise survey of the mine, the operator of such mine has 60



days in which to submit a plan for a hearing conservation program



which must meet with the approval of a joint committee of the



Bureau of Mines and the Department of Health, Education, and



Welfare.



Atomic Energy Commission



     The Atomic Energy Commission has adopted a number of standards



relating to operational safety in AEC Manual 0550-01 OS.     The



Director of the Division of Operational Safety is charged with



providing health and safety guides.  To accomplish this task he



may adopt any applicable "nationally recognized health and safety



guides"    or may amend such or adopt new guides to provide for



operational safety.  Included in his authority is the power to



grant a variance, "when justified."  After the adoption of such



standards, these are applicable to "Headquarters, Field Offices,



AEC contractors  (and subcontractors)  (pursuant to appropriate con-



tract provisions), and military and civilian personnel of other



Government agencies assigned to the AEC," and the standards apply



to existing facilities "where changes, alterations and modifica-



tions are

-------
                              1-35


     The directors of the division of Naval Reactors, Space Nuclear

Systems, Technical Information, and Headquarters Services and the

managers of Field Offices are directed to apply these standards

that the Division of Operational Safety adopts.  Managers of Field

Offices and the Director of the Division of Headquarters Services

       may prescribe additional or more stringent standards
       based upon determination that such standards are essen-
       tial to safety and proper performance of these functions.

If any conflict between standards should arise, the more stringent

standards shall apply, that is, "the standard providing the greater

protection."  Further authority is granted to these managers and

the director of the Division of Headquarters Services in the area

of exemptions; temporary exemptions may be granted when:

       such actions will best serve the interests of the
       AEC, providing that the safety of employees, the
       public, and Government and private property can
       safely be maintained.-*-09

Communication with the Division of Operational Safety is required

with respect to variances issued by managers and the Headquarters

Services Director.  For temporary variances, notice must be given

within 30 days although no time limit is set on the duration of

such temporary variances.  Permanent variances may be initiated

at this level by request and justification in writing but such

permanent exemptions must issue from the Division of Operational

Safety.

     Under this procedural and structural umbrella the Director of

the Division of Operational Services has adopted the Walsh-Healey

regulations found at 41 C.F.R. §50-204 including §50-204.10 on

occupational noise exposure, and the Federal Aviation Regulations

including 14 C.F.R. §36.1^0  He has recommended to the managers of

-------
                              1-36






Field Offices and the Director of the Division of Headquarters



Services for adoption under their authority, "Rating Noise with




Respect to Hearing Conservation, Speech Communication, and Annoy-



ance," (International Standardization Organization), "Industrial




Noise Manual" (American Industrial Hygiene Association), and



"Guide for Conservation of Hearing and Noise" (American Academy



of Ophthalmology and Otolaryngology).



Air Force



     In addition to its aircraft noise reduction program, the Air




Force has issued regulations relating to exposure to hazardous



noise.m  These regulations establish test procedures, including



an initial reference hearing test for all employees, military or



civilian.  Maximum noise exposures are prescribed for short term



exposures up to eight hours and for life time exposures which



relate to the continuous noise level in a work situation.  For this



life time exposure limit 85 dB is the cutoff point at which ear



protection is recommended, 95 dB is the level at which such protec-



tion is required.  No measuring distance from a noise source is



specified clearly, but it appears that the noise is measured where



the person subject to the noise is located.



     For short term exposures of up to eight hours a Walsh-Healey



type measurement technique is established.  The standard, in terms



of Limiting Equivalent Exposure Time  (LEET), recommends ear protec-



tion for an 85 dB level over an eight hour period and requires such



protection for 95 dB or more over the eight hour period.  Both this



regulation and the Walsh-Healey standards set absolute maxima  (to



cover short duration noises) but the Air Force standard is 10 dB

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                              1-37






higher at 150 dB.  But AFR 160-3 goes further to set a maximum




level measured at a point in the ear canal of 135 dB, meaning that



even if the level is below 150 dB it must be lowered by use of ear



protective devices to 135 dB in the ear canal even for the shortest



duration sounds.  Ear protective devices in general must bring the



noise exposure within the allowable LEET levels.



     Hearing acuity tests must be made once a year for every


                                   11?
employee as long as he is employed,    whereby hearing damage may



be detected by means of shifts in sound perception thresholds.



When such damage is discovered, and if the loss of hearing is



severe enough, then the individual is reassigned to a noise-safe



job area or referred to a diagnostic hearing center for treatment.



Compensation for hearing loss is not mentioned in AFR 160-3.



Department of the Navy



     The Department of the Navy has adopted guidelines for permis-



sable noise exposure similar to those adopted by the Air Force at



AFR 160-3. l-^  There are some important differences, however.



     The Navy regulation (OPNAVINST 5100.14) which is part of the



Navy Shore Safety Program, delineates "hearing-hazardous areas"



determined on the advice of an industrial hygenist or Medical



Officer to the commanding officer of a naval installation.  This



advice is formulated on the basis of a noise survey directed by



the regulations and pursuant to this advice the commanding officer



makes the designation of the hazardous areas and must then proceed



to institute action to abate the noise to an acceptable level or,



in the event that this cannot be done, move to protect the hearing




of workers in the area.

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                              1-38
     The steps that the commanding officer may take to abate noise

are delineated:

       (1)   By engineering design .  .  .
       (2)   By dampening the noise by means of lamination,
            mufflers, . . .  insulation ... or application
            of acoustic materials
       (3)   By acoustical enclosure of the offending noise
            producer
       (4)   By isolation of the . .  .  noise producer . .  .
            to affect fewer personnel
       (5)   By substitution of lower noise-producing operations.

     After these steps have been followed the noise exposure is

then limited by adoption of the pertinent Walsh-Healey regula-

tion.  Reference Audiograms as in AFR 160-3 are to be taken

"to the extent feasible."  A program of education on noise hazards

is also directed to make personnel more aware of the noise danger

and acquaint them fully with the use of hearing protective devices

called for under the regulations.

     The above regulation is applicable only to shore activities.

Activities at sea are covered along with "all commands and activities

having high intensity noise levels and all military and civil ser-

vice personnel," by a hearing conservation program from the Navy

Bureau of Medicine and Surgery, BUMEDINST 6260.6B, 73-NER-bl,

5 March, 1970.     Again the responsibility for noise abatement is

placed on the commanding officer.  While the instructions under

this regulation are substantially the same as those just  discussed

under OPNAVINST 5100.14, differences do exist.  Notably a Criterion

Level is established above which a hearing conservation program  is

mandatory.  This level is 90 dBA measured as close as possible to

the ear position of personnel exposed to the noise.  Ear  protec-

tion requires ear plugs if the 90 dBA level is passed and both ear

-------
                               1-39




 plugs  and  circumaural  devices  such  as  ear muffs  are  required where


 the  level  exceeds  120  dBA.  Areas in which  protective  devices are


 to be  worn are  also  required under  this  regulation to  be  so marked.116


 Again  there are provisions  for audiometric  reference audiograms  and


 test procedures as in  APR 160-3  for periodic  checkups.  The Walsh-


 Healey standards are once again  incorporated  but most  notably the


 140 dBA limit on instantaneous noise is  excluded.  This is  quite


 obviously  because  of the impact noise  of gunnery operations, which


 are handled in the regulation  by making  the use  of ear protection


 devices mandatory at all times.


     In the area of aircraft noise  this  regulation has had  the


 effect of  generating NAVAIRINST  6260.1,  AIR-41623, 24  February 197


 1971.      The duties on the commanding officer direct  that  he appoint


 a Hearing  Conservation Officer who  may be either a military or


 civilian employee and who is charged with the duty of  conducting


 a semiannual survey to identify all excessive noise  sources.  The


 results of these surveys are to be  reported to the NAVAIR super-


 visor with authority and the Public Works Department.  The  actual


 noise  abatement duties on the  commanding officer are limited  to


 developing  "such minor construction, equipment installation or


military construction projects as may be deemed  necessary to  abate

                 i -i p
 excessive noise."




  1.1.4  Construction Noise Abatement and Control


 A.   Construction Site Noise Abatement


 Department of Labor


     Construction noise is  considered by the  Federal government


 under  the  Construction Safety  Act,  40 USC §327,  et.  seq. , which


 sets out at section  333:

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                              1-40


       It shall be a condition of each contract which is
       entered into . . . for construction, alteration,
       and/or repair, including painting and decorating,
       that no contractor or subcontractor . . . shall
       require any laborer or mechanic employed in the
       performance of the contract, to work in surround-
       ings or under working conditions which are unsani-
       tary, hazardous, or dangerous to his health or
       safety, as determined under construction safety
       and health standards promulgated by the Secretary
       [of Labor]....

Under this authority the Secretary of Labor carried over the Walsh-
                                                      IP n
Healey occupational noise standards on April 17, 1971.

General Services Administration

     The General Services Administration (GSA)  has adopted several

policy measures relative to noise abatement through the mechanism

of contractual directives and responsibilities of contractors on

buildings for the Federal government.   These policies address the

actual construction process noise and the acoustical characteris-

tics of completed buildings.   Acoustical characteristics specifica-

tions adopted by GSA are discussed at page 1-51, infra.

      By specific integration into the contract GSA is attempting

to carry out the wishes of Congress in the Construction Safety Act of

1969, which extended the Walsh-Healey noise regulations to Federal con-

struction contracts.  In the example furnished, the United States

Court House and Federal Office Building in Philadelphia, Pennsyl-

vania, the contractor was required, five times a day, to take

noise readings at the periphery of the construction site at the

noisiest place, except as directed by the Contracting Officer.

For these test purposes the General Radio Company's publication,

Handbook of Noise Measurement, Table 3-6 is taken as a standard

-------
                              1-41






to define what is to be considered as excessive noise.  The con-



tractor "shall take such action as may be appropriate and effec-



tive to reduce or eliminate unnecessary noise and to reduce noise



determined to be excessive."121  ^he Contractor is only to take



such actions after he has obtained a written change order from




the Contracting Officer so that he may recover his costs plus a




reasonable profit on those costs if the contract contains a stand-



ard changes clause.  Thus, the burden of reducing the excessive




noise on construction sites under Federal construction contracts



is borne by the Federal government, with the responsibility for



determining that such noise exists resting on the Contractor.



     Note that this entire noise reduction system is under the



conditions of the contract and represents a departmental policy



which could be changed at any moment and which is not enforcable



by those not in privity of contract.  Therefore, there is no mech-



anism whereby the public or the local public officials can attempt



to force the Contractor and the Contracting Officer to abate exces-



sive noise on Federal construction sites.  GSA can hardly be con-



demned for this, however, since the Philadelphia court house con-



tract is an experimental contract to implement the dictates of the



Construction Safety Act, 40 USC 333.  The clause was inserted to



obtain baseline data on the noise that construction workers are



subject to on the job, not only the aggregate noise level but the



coincidence noises from several phases of the work operating simul-



taneously.  The feelings of the Public Building Service are that



once this base line data is completed  (which will take perhaps two



more years, since the building was just recently started) then

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                              1-42


decisions can be made about timing the sequence of work on such

construction job so that multiple source exposure can be avoided.

This particular clause has been used only in this one GSA contract.

It :Ls_ available as required for further contracts, but its use is

not contemplated until the results from the construction of the

Philadelphia Court House are obtained and analyzed.

Department of the Army

     The Department of the Army has adopted a policy:

       . . . for use in all Civil Works construction con-
       tracts other than dredging to eliminate or reduce
       degradation of the environment during and result-
       ing from construction operations in consonance with
       the letter and the spirit of  (NEPA).... 122

The manner in which this protection of the environment will be

brought about is by incorporation into the technical provisions  of

construction contracts of a separate section dealing with the

environmental protection measures to be carried out during and

after the construction.

     The responsibility for writing these contract clauses is

placed on the District Engineers of the Corps of Engineers.  Each

District Engineer has the authority to provide payment to the con-

tractor as compensation for carrying out these specifications.

Noise is listed as a separate type of environmental pollutant in

the list of "common potential sources of environmental degrada-

tion." 123

       9.  Noise Pollution.  This area of pollution includes
       a wide range of causes, from faulty mufflers on equip-
       ment to use of explosives.  Noise is most serious in
       urban areas and in enclosed operations.  The proposed
       project should be studies for areas of possible noise
       pollution which should be covered specifically in the
       specifications.

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                              1-43

     In the actual body of the technical provisions suggested, envi-
ronmental pollution is given a broad definition to include chemical,
physical, or biological elements or agents, adversely affecting
human health or welfare, unfavorably altering ecological balances,
affecting other species of importance to man, or degrading the
utility of the environment for aesthetic and recreational purposes.125
     The specifications are made applicable to all contractors and
subcontractors.126  They must comply with specific directions in
the contract, the Engineers Manual, and all applicable Federal,
State and local laws and regulations.
     The Engineers Manual directs minimization or elimination of
"hazardous sound pressure levels in working areas" through planning
and design procedures which include alternatives such as muffling
devices, insulation, shock mounting, or replacement with a less
noisy device.127  jf the sound pressure level in a working area
surpasses 85 dB, then protective devices must be worn; if the level
exceeds 120 dB, both ear muffs and ear plugs must be worn.I28
     In order to insure the enforcement of this policy, the Corps
of Engineers has provided an incentive that is unequalled anywhere
in the legal world for its effectiveness:  a contractor who does
not comply as outlined above will not be paid for his construction
efforts until he has complied, quantum meruit and an abandonment
of the work aside.  That is, the contracting officer gives the con-
tractor written notice of non-compliance and the contractor must
then take corrective action.  If he does not, the contracting
officer may issue a stop work order pending such compliance.  The
stop work order is only reviewable through the legal mechanism of

-------
                              1-44


the Armed Services Board of Contract Appeals.  The contractor's

intentions in the entire affair are a matter of negotiated record

since prior to commencement of work the contractor meets with the

contracting officer and develops "mutual understandings"129 con-

cerning the contractor's written proposal for implementation of

CE-1300.  All in all the system is rather secure and laudable in

that :Lf meaningful steps are assured at the beginning, prior to

commencement of the work, and written into the contractual agree-

ment then it is quite certain that the procedures to abate noise

will be followed.

     CE-1300 also has made inroads into the area of military facil-

ities construction contracts.  In "Engineer Technical Letter 1110-

30141, 30 November 1970," The Acting Chief, Engineering Division

Military Construction explains:

       5.  Discussion.  Although CE-1300 is intended specif-
      ically for civil works projects, the guidance therein,
      particularly in the instructions, will be helpful in
      developing the specification provisions of military
      construction projects. -^O

B.   Acoustical Characteristics of Buildings

Department of Housing and Urban Development

     The Department of Housing and Urban Development  (HUD) has

established, both through its subordinate agency, the Federal Hous-

ing Administration (FHA), and more recently at the departmental

level, policies concerning noise characteristics of buildings and

conditions at building sites for which Federal assistance is sought.

The best known FHA policy concerns acceptability of residential

properties for FHA mortgage guarantees when such properties are

located near military or civil airports.131  Three zones are delin-

eated on the basis of expected response from the community ranging

-------
                               1-45


from none to vigorous and persistent protest with concerted group

action.  The three zones correspond to NEF ranges of greater than

40, between 30 and 40, and less than 30.  Such zones have been

carried over by HUD in its new noise policy discussed later in

this report.  The determination of the boundary locations of these

zones is the responsibility of the FAA or the military, depending

on the nature of the airport.

     With this informational input and FAA/military recommendations,

FHA Field Offices then make the final decision on the issuance of

mortgage guarantee commitments.  Decisions at this point are based

primarily on the economics of the situation, with marketability of

the property as the pivotal point:

       The determination of acceptability of new subdivision
       proposals must of necessity take the economics of a
       proposal into consideration.  Value may be affected
       to a degree that a new subdivision proposal would not
       be insured in amounts which would permit successful
       marketing of completed properties.  If the proposal
       is not considered feasible, the sponsor should be so
       apprised during the pre-application discussions.

       Existing Properties.  It has been administratively
       determined that existing properties otherwise accept-
       able are not to be rejected because of airport influ-
       ences if there is evidence of acceptance in the mar-
       ket.   FHA1s position is that since the dwellings are
       in use and are expected to continue so in the fore-
       seeable future, their marketability should be the
       strongest indicator of their acceptability.132

The marketability is determined by an FHA-conducted survey.

     FHA activities go beyond mortgage underwriting and include

programs to provide financial assistance for certain construction

activities.   The FHA has considered noise exposure in its minimum

                                                                  133
property standards for multifamily dwellings since November, 1963.

These standards were designed ". . .to encourage the provision of

-------
                              1-46






housing projects that meet the special needs of urban families and



to protect the interests of the Federal Housing Administration in



the projects."134  The fact that FHA is establishing minimum stand-



ards is important to note; that is to say, state and local govern-



ments are free to set standards stricter than FHA but for financial



assistance the FHA minimum must be met or the objective of the FHA



standards must be, "fully attained by the alternate means proposed."135



     Under these minimum property standards for multifamily dwell-



ings, two types of noise are considered, namely airborne noise and



impact noise from direct contact with the building structure.  At



its inception the standard was in terms of STC (Sound Transmission



Class)  and INK (Impact Noise Rating).  The STC and INK scales



unfortunately have opposite scalings, a high STC value indicating



good noise protection, while a high INR value indicates poor protec-



tion.  In the interests of consistency, therefore, it was proposed



in 1967 that INR be replaced by IIC (Impact Insulation Class) so



that both STC and the impact criteria would indicate greater degrees



of quietness in the measurement area as the numberical index


          1 "^ fi
increased.     As yet, this suggestion has not found its way into



the minimum property standards, where INR is still utilized.137



     The actual standards promulgated using these criteria are



themselves interesting in light of the findings of the Berendt,



Winzer, and Burroughs report, Airborne, Impact, and Structure



Borne Noise-Control in Multifamily Dwellings.  Noise reductions are



delineated for two classes of room separators: partitions!38 an(3



floors/ceilings.  For partitions the STC values range from a maxi-



mum of 55 dB loss to a minimum of 40 dB loss as a function of the



location of the partition in terms of the rooms it separates.139

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                              1-47






     One major shortcoming of the standards, as is pointed out in



the 1967 publication, is that two classes of dwelling areas are



recognized, areas with low background noise levels and areas with



high background noise level.  The standards in the high background



situation are typically 5 dB lower in STC than those for low back-



ground situations.  This practice adopts the curious policy that



those living with a high ambient noise level should be made to



suffer more exposure to noise than those with a lower ambient level,



a philosophy with a counterpart in economic matters, "the rich get




richer and the poor get poorer."



     While the 1967 Berendt Report recognizes some of the diffi-



culties with this philosophy, it nevertheless continues the prac-



tice in its recommended criteria.140  in fact, the recommended




criteria proliferate the ambient noise-class distinctions by delin-



eating three grades of background noise living situations, ranging



from the "quiet" suburban and peripheral location which requires



the greatest STC and thus insures the quietest dwelling interior,



to the "noisy" urban area, "where nighttime exterior noise levels



might be about 55 dBA or higher," where the lowest sound transmis-



sion losses are provided.  The present FHA floor/ceiling standards,



in which INR is considered along with STC, follow this approach as



well.141



     Considering this position by FHA the new policy of the parent



agency HUD is a welcome change.  This new HUD policy supplants, to




the extent it sets stricter standards, the existing FHA programs



and may eliminate the artificial distinction in the FHA minimum

-------
                              1-48
property standards on the relative need for quiet in suburban

versus urban locations.  This new policy is:

       to foster the creation of controls and standards for
       community noise abatement and control by general pur-
       pose agencies of State and local governments, and to
       support these activities by minimum national standards
       by which to protect citizens against the encroachment
       of noise into their communities and places of residence

In order to encourage the State and local activity:

       HUD extends such assistance to State and local govern-
       ments for the alleviation of community noise as may
       be provided for by the Congress and as appropriate.143

Three avenues for reducing noise exposure are taken:  1) financial

planning assistance programs require adequate consideration of

noise as an integral problem in an urban environment, 2) new con-

struction sites are not approved for financial support if the site

is acoustically unacceptable as defined by the standards promul-

gated, and 3) existing construction may not be rehabilitated (i.e.,

substantially increasing the life of the building) with HUD finan-

cial support unless it comes within the standards.  If the altera-

tion in the building is not going to increase the life expectancy

HUD "encourages" noise abatement actions in "noisy areas ,"144 t>ut

will not provide financial assistance for these actions.

     The standards promulgated at this time are interim standards,

with final standards to be developed as experience with the interim

standards indicates the need and direction to be taken.  The interim

standards are based on projected .noise exposures for five years

from the time of application for assistance.  It is the responsibil-

ity of the various Regional Administrators to see that "appropriate

means" are used in making these forecasts.  Coordination with other

departments and agencies is also the responsibility of the Regional

Administrator, particularly where transportation noise exposure is
                                 A

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                              1-49
likely to be a consideration in the forecast.  If transportation

noise is a consideration, consultation with field offices of DOT

is specifically directed.  The general overseer of this policy  is

the Deputy Under Secretary in the Office of the Secretary.  He

coordinates efforts of Assistant Secretaries who are charged to

incorporate the policy into HUD activities, evaluate compliance

and identify problem areas where more noise abatement is needed.

     Standards differ for exterior and interior regions of build-

ings.  The exterior standards classify building sites in four

categories:145
     UNACCEPTABLE

       80 dBA for 60 minutes
       per 24 hours

       75 dBA for 8 hours
       per 24 hours
CNR            NEF
(for airport environs only)
95 (runups)
115 (takeoffs)
    (landings)
40
       Exceptions strongly discouraged, require 102(2)(c) statement.

     DISCRETIONARY-NORMALLY UNACCEPTABLE
       65 dBA for 8 hours
       per 24 hours

       Loud repetitive sounds
       on site
80-95 (runups)
between 30
                 and 40
100-115 (takeoffs)
        (landings)
       Approval requires:  1.  Noise attenuation measures
                           2.  Regional Administrator's concurrence
                           3.  102(2)(c) statement
     DISCRETIONARY-NORMALLY ACCEPTABLE

       65 dBA for 8 hours
       per 24 hours
     ACCEPTABLE

       45 dBA for maximum
       30 minutes per
       24 hours
80-95 (runups!
between 30
                 and 40
                                        100-115  (takeoffs)
                                                 (landings)
80 (runups)       30

100 (takeoffs)
    (landings)

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                              1-50


The interior performance standards are similar in application to

the old FHA standards but may be more limited in that they are

applicable to new construction and rehabilitation of existing

residential buildings.  Specific limits as to acceptability are

set for sleeping quarters, measurements to be taken with the win-

dows open.  For other areas of the house discretion is left with

"HUD personnel" as to the acceptability of noise exposures.  Sleep-

ing areas are acceptable if the noise levels:

       do not exceed 55 dBA for more than ... 60 minutes
       in any 24-hour period and do not exceed 45 dBA for
       more than 30 minutes . . .  from 11 pm to 7 am and
       do not exceed 45 dBA for more than ... 8 hours in
       any 24-hour day.1^6

     To this point it would still appear that the FHA and HUD

standards could co-exist, but at the end of its new policy circular

HUD places a minimum STC value of 45 dB on all multifamily struc-

tures for both walls and ceiling/floor divisions.147  This para-

graph may act to replace the entire FHA Minimum Property Standards

system, a result which would certainly be acceptable in light of

the questionable features of the FHA standards with respect to

the noise levels that one should be expected to tolerate within

his home.

     The levels selected by HUD in this circular seem to reflect

a fair assessment of the present technology, but as is most often

the case there is a very short time horizon of thought with regard

to the technology of noise abatement.  The HUD circular adopts the

present state of the art but fails to anticipate or encourage a

continuing technological development in noise abatement.  This is

a criticism that can be made of every Federal-noise abatement pro-

gram and one area in which the Federal government could learn from

some states.

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                               1-51
Ggneral Services Administration



     As far as the  acoustical  characteristics  of  a  building  are



concerned, specifications  for  the materials  to be used  and the STC



and NC  (Noise Criteria)  curves ratings  that  must  be achieved are


                                              1 A R
set forth in two portions  of the GSA handbook^0  and in three Public




Building Service Guide Specifications covering acoustical ceilings,



relocatable partitions,  and vibration insulation.I49



     These acoustical specifications apply to all contracts  for



new buildings,  extensions, modifications, renovations, alterations,



etc.   The specific characteristics of the building are determined



on the basis of an STC reading or an NC reading.  Generally  the



NC curve is  chosen according to the type of room ranging from NC 30



for courtrooms  and auditoriums to NC 60 for gear rooms and shops .150



In office buildings permanent and relocatable partitions must



meet an STC of  40 and generally walls of such office buildings



should meet an  STC of 45.  Notably, the GSA is  concerned with the



low frequency impact of noise as well as the more common range



and such walls  must provide a sound transmission loss of 35  dB in



the 150-350  Hz  octave band.  Special rooms such as conference rooms,



libraries, and training rooms must have an STC  of 45 and a vesti-



bule if possible or, if not, a door with an STC of 40.  Reverbera-



tion is considered and dealt with to the extent that the reverbera-



tion time must be less than 0.8 seconds.  Also  notable are special



rules relative to the placement of mechanical and electrical rooms.



If such rooms need to provide access into interior office space a



door assembly of two doors is required with an  STC equal to  the



walls.  Finally, it should be mentioned that GSA has directed that

-------
                               1-52






all equipment externally connected with the building must not



exceed the specifications imposed on such equipment by any State



or local government with jurisdiction over the area of land that



the building occupies.




     In the area of existing Public  Building Service guide speci-



fications for construction contracts, mechanical and electrical



equipment rooms in buildings are covered by Guide Specification



PBS 4-1515-71 at subheading 4.  Here maximum sound pressure levels



in dBC are set for rooms housing equipment such as "mechanical,



fan, boiler, pump, steam pressure reducing value, engine, turbine,



transformer, refrigeration and air conditioning equipment."151



     The sound levels are taken at a point three feet from the



equipment surface in a horizontal direction and at points three



and five and one-half feet above the floor and the maximum levels



are from 80 dBC at the low frequency end to 73 dBC at the high



frequency end, with a 5 dBC reduction in any band where there is



a pure tone present.  If these levels are exceeded then either



the equipment must be altered or acoustical shielding provided to



bring the sound level at the measuring points within acceptable



levels.152

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                              1-53






  1.1.5  Other Federal Legislation to Abate Noise



Federal Power Commission



     There is one final context in which the Federal government



has acted to abate noise.  The Federal Power Commission under the



authority granted by'the Natural Gas Act of 1938 has promulgated



rules relating to siting of above ground pumping stations for gas



pipelines. -^  These regulations require that noise be a consider-



ation in site selection and direct that the facility should be



located ". . . in areas where sound resonation would be minimal.



Further "acoustical treatment1 should also be considered."15^



These pumping facilities are powered by internal combustion engines



operating on natural gas.  This is the only regulation of the



internal combustion engine at the Federal level other than as part



of a regulation concerning a transportation vehicle powered in such



a manner.   Much more extensive regulation of internal combustion



engines at the Federal level has been proposed.





  1.1.6  Trends in Federal Noise Abatement Activities



     Considering the relative paucity in Federal law dealing with



noise abatement up to now, the sheer amount of incipient legisla-



tion in this area is perhaps the first trend to note.  Beyond this,



perhaps the most significant factor to be seen as a trend concerns



the potential preemption of State and local activities in this area.



Pending legislation intends to preempt the emission standards set-



ting authority for the Federal government (specifically the Environ-



mental Protection Agency), but leave to state and local governments


                                                                 •I 155
the right to control the "... use, operation, or movement . . ."-•—'-'



of noise sources.   (See.discussion, infra, Section 4.)  Unfortunately,

-------
                              1-54






this language will present legal problems of semantics concerning




whether a particular law is actually one controlling use, opera-



tion or movement.



     The precedents for this approach at the Federal level are not



uniform -- that is, in the area of noise abatement there are some



existing Federal programs which do preempt state and local govern-



ment efforts and others which do not.  In the preemptive category



are the FAA regulations (14 C.F.R. 36 and the proposed program) and




legal authority under the FAA Act of 1958.   (See discussion of pre-




emption, infra, Section 2.4, page 2-41.)  In the non-preemptive cate-



gory there are examples both in the area of aircraft regulation



and the area of occupational noise control.  The first of these is



the Airport and Airways Development Act of 1970, which gives local



communities affected by airport developments (which seek financial



assistance under the Act) a de facto veto power over the approval



of the Secretary of Transportation concerning the granting of



Federal money.   (See, supra, page 1-23.)  In the occupational noise



area the Walsh-Healey Public Contracts Act specifically did not



preempt State and local governments.     This is also noted in the



regulations promulgated by the Secretary of Labor pursuant to this



statute.157



     There is one scheme that is of particular note which would



perhaps resolve the fears of the Federal government that noise



abatement at the State and local level will not be effective and



simultaneously satisfy states who wish to set standards stricter



than those of the Federal government.  This scheme appears in the



new Occupational Safety and Health Act of 1970, which establishes

-------
                              1-55






a procedure whereby a state can submit a plan to take over the



protection of the health and safety of workers affected by the



Federal program.  This plan must meet with the approval of the



Secretary of Labor, which is only given after the plan has proved



as effective as the Federal program over a three-year joint opera-



tion period.  Once the plan is approved it replaces the Federal



program completely.  Even this scheme is open to attack, though,



by those who fear 50 different standards requiring manufacturers




to provide 50 different machines from the standpoint of acoustical



characteristics.



     One ray of hope for those who fear such fragmentation is



found in the area of State vehicular noise limits.  Here California



has adopted standards that will reduce the noise level substantially



over the next 15 years; these standards have been adopted in iden-



tical form in Colorado and Minnesota recently, and New York has



set limits which are nearly the same.  Similarly on the local level,



the recently enacted Chicago noise ordinance is being considered



now by the Alburquerque, New Mexico city council.  The point of



these examples is that more and more state and local governments



are surveying the existing law prior to enactment of their own



laws with the result that a horizontal pattern of legislative



uniformity is developing.  This should be carefully considered by



those charged-with responsibility at the Federal level.



     Another trend in Federal programs for noise abatement concerns



the standards of measurement to be used.  These programs initially



used criteria that measured sound in decibels or A-weighted decibels,



which provides a standard that can be easily measured with relatively

-------
                              1-56






inexpensive equipment and produces data that needs no further treat-



ment.  This type of criterion has high utility for a situation in



which a government has limited funds for noise abatement and little



expertise in acoustical engineering.  However, such simplified




criteria fail to consider several factors concerning environmental



noise, and this fact has led to the development of more sophisti-



cated criteria such as the Perceived Noise Level measured in PNdB



and the Effective Perceived Noise Level measured in EPNdB.  The




latter is now in use by the FAA for aircraft noise certification.



But these criteria also have shortcomings since they refer to a



single event noise level and do not account for the number of



events over a period of time which all effect one area.  The trend



is to make such determinations and the new criteria of CNR, NEF,




and CNEL (See Section 1.2) have been developed, all with respect



to aircraft.



     These units themselves have the disadvantage that they are



not easily measured without the assistance of computational equip-



ment.  One of the above units, CNEL, to be used in California, has



attempted to deal with this problem by basing the unit on dBA which



can easily be measured with simple equipment;  (see discussion,



infra, page 1-71) then through the use of tables this measurement



can be converted into a rough approximation of the CNEL value.



     In any case, the trend at both the Federal and state levels



with respect to aircraft is to use these more sophisticated criteria,



At the Federal level the NEF unit is now moving beyond the airport



itself and being used for determination of acoustic acceptability



of housing  located near airports for which Federal financial

-------
                               1-57





assistance is sought.   (See discussion of new HUD policy,  supra,



page 1-44.)



     Sanctions  for violations  of noise abatement laws at the Federal



level are moving toward criminal and civil punishments to  supplant



such measures as revocation or suspension of permits.  The Occupa-



tional Safety and Health Act is an example of this.  At this point,



however, the majority of Federal programs still provide only the



revocation/suspension type sanction.






  1.1.7  Gaps in Federal Noise Abatement Activities



     Federal noise abatement legislation is currently most notable



for its limited coverage of the overall environmental noise problem.



The legislative process is slow and usually cautious but the increased



public concern about environmental matters coupled with political



expediency has nurtured the present proposed legislation.  When



considering gaps in regulation, it is perhaps most useful  to think



in prospective terms of what should be done to improve a situation.



     In the realm of noise sources to be regulated at the Federal



level, two opposing factors should be taken into consideration.



These are the advisability of national uniformity versus the desir-



ability of local regulation with enforcement activities in greater



proximity to the legislative process.  A tradeoff must be made



between these two opposing objectives.  Regarding noise abatement



other factors of the regulatory structure can help to strike this



balance, such as the criteria  and standards to be used, the manner



of implementing a law, and the penalties to be imposed on violators.



     There is a need for continued refinement of the noise measure-



ment criteria used at the Federal level, despite the very  significant

-------
                              1-58






strides made in this area in recent years.  Even the FAA Part 36




regulations, which are written in terms of EPNdB, may not be fully



adequate in terms of consideration of the noise problems of the



various airports in the National Airport System Plan.  As for



regulating the total noise environment produced by airports, it is



noted that currently the FAA is in the process of changing its



planning framework from operation in terms of CNR to NEF (see dis-




cussion, infra, Section 3.1, page 3-3); this constitutes an



advancement, but it should not be forgotten that even the NEF



criterion is based upon measures of overt citizen dissatisfaction



(e.g. complaints).  It is to be hoped that measurements of environ-



mental quality can be advanced beyond this rather negative emphasis.



     Notwithstanding the above problems, the single most serious



deficiency with respect to the standards and criteria used in



Federal regulation of noise does not concern the particular choice



of criteria but rather the actual standards established using these



criteria.  Criticisms are two fold:  1) the standards currently



in use are too lenient to effectively bring noise within tolerable



limits even for a "reasonable man," let alone a sensitive person.



The Walsh-Healey standards are most often attacked because minimal



protection at best is provided.  The same criticism is leveled



against the FAA Part 36 standards which are relatively new.  This



is a problem of reactive government, taking action at the minimum



level to satisfy complaints without anticipating increased sensi-




tivity in the future.  2) Standards presently fail to anticipate



technological advances in noise reduction, to say nothing of



encouraging advances in technology by directing levels of noise

-------
                              1-59






reduction which are not currently attainable under existing tech-



nologies.  In this regard the Federal government could have a



significant effect on noise abatement technology by using step-



down standards similar to those in use by many state and local




governments.  (See Section 1.2 and 1.4, particularly discussion



of California with respect to vehicles and aircraft and Chicago



regarding vehicle and construction noise, infra/ pages 1-71, 1-76



and 1-109, 1-123.)



     Implementation techniques at the Federal level are of the



license, certificate, noise allowance budget, or required accessory



type.  Techniques used at the State and local level include all



the above as well as property line spill-over limitation, zonal,



curfew, noise limits as a function of population density, and



anti-degradation or allowances above the ambient level techniques.



Many of the techniques used by State and local governments would



not suit Federal situations, such as zonal and property line stand-



ards, primarily because of the need to be familiar with local



problems and situations in order to effectively apply such tech-



niques.  Curfew, population density, and anti-degradation tech-



niques could be useful at the Federal level but at present are



not so used.



     Penalties for violations at the Federal level are not presently



framed in terms of criminal and civil punishments, for the most



part (see discussion, supra, page 1-31).  Such sanctions would



increase the value of Federal regulations from the standpoint of



providing meaningful compliance with environmental noise abate-



ment legislation.

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                              1-60






  1.2  NOISE SOURCES REGULATED AT THE STATE LEVEL






  1.2.1  General



     In the last several years, a number of states have passed acts



relating to the environment in response to growing public concern



in this area.  At the present time, most of this legislation is



limited to the establishment of State environmental commissions or



agencies, or to the delegation of authority in the area of the



environment to existing agencies with the power to set standards



and guidelines concerning the control and abatement of pollution



in various forms.  Since these statutes are an important factor



in the present or potential power of states to control environmental



noise, it is essential to consider them in a state-by-state manner.



     The states herein discussed have laws which fall into three



categories.  They are either general environmental laws which



specifically include noise as an environmental problem, laws deal-



ing only with noise, or environmental laws which make no mention



of noise but which may be used by the states to combat their noise



problems.



California



     California has been in the forefront of the states in the con-



trol of pollution.  In 1970 the State legislature passed the Envi-



ronmental Quality Act.158  Chapter 1433, section 21001 states that



the legislature finds and declares it the policy of the State to,



among other things, take all action necessary to provide the people



of California freedom from excessive noise and to require govern-



mental agencies to develop standards and procedures necessary to



protect environmental quality.  Other parts of the chapter establish

-------
                              1-61



an environmental impact statement program similar to the Federal


102 statement program under NEPA.  The Office of Planning and


Research is to coordinate the development of objectives, criteria


and procedures to assure the orderly preparation and evaluation of


environmental impact reports.

                                                •I CQ
     Chapter 1534 of the California Session Laws    establishes the


Office of Planning and Research and states its duties and powers.


This agency has primary responsibility for assuring orderly opera-


tional processes for environmental policy development and implementa-


tion within the State government.  The agency is 1) to assist in


the creation and assessment of goals and policies concerning fac-


tors which influence the State's environment, 2) to assist agencies


in plans to guide functions relating to protection and enhancement


of the State's environment and 3) to respond to emerging environ-


mental problems.


     In a separate act,    the legislature required the Resources


Agency to develop a plan for optimum location of power plants over


the next 20 years with the provision that site and fuel choices


should be made with environmental considerations in mind, consis-


tent with reasonable economy and efficiency of operation.


     In summary, California's general laws (as opposed to specific


laws dealing with vehicles and the like) governing noise and all


other environmental hazards set no limits on noise.  They do, how-


ever, establish the State policy to oppose excessive noise and


require that goals, plans, and policies concerning noise be formu-


lated by each agency dealing with matters which impinge on the


environment, with assistance from the Office of Planning and Research.

-------
                              1-62
They also assure that noise will be considered in establishing

power plants.

Colorado

     In 1970 the legislature of the State of Colorado enacted a

law establishing the post of Coordinator of Environmental Problems

in the Office of the Governor.  The duties of the Coordinator are

1) to study the problems of maintaining and enhancing the environ-

ment, including control of noise pollution, 2) to make reports and

recommendations on changes in existing laws and, 3) to propose new

measures.  On the recommendation of the Coordinator and after his

own investigation, the Governor may issue an emergency proclamation

or may order a limitation or prohibition of activity endangering

public health:

       provided, however, that no such order shall be
       effective for an initial period of longer than
       fifteen days and the effective period of such or
       order shall not be extended for more than fif-
       teen days beyond the initial period.162

The general law, therefore, does not set any standards or establish

any penalties for a polluter except in the case of the Governor's

order.  The law does set up an office with primary responsibility

in the environmental area which could lead to further legislation

and noise control.

     Colorado recently adopted another noise law which went into
                    I f o
effect July 1, 1971.  °  Unlike most State legislatures which del-

egate to state agencies the responsibility for setting noise limits,

the Colorado legislature sets many noise limits in the Act itself.

(See Section 1.2. 2.)

-------
                              1-63


     This new law sets noise limits on many activities measured at

25 feet from the line of the property on which the activity occurs.

Any noise above the limits set forth below constitutes a public

nuisance.  Each of the zones is defined in the law.

        Zone                 7:00 A.M. to          7:00 P.M. to
                             next 7:00 P.M.        next 7:00 A.M.

     Residential                55 dBA                50 dBA
     Commercial                 60 dBA                55 iBA
     Light Industrial           70 dBA                65 dBA
     Industrial                 80 dBA                75 dBA

Noise which is objectionable due to its intermittance, beat fre-

quency or shrillness is also prohibited; these sounds shall be

considered public nuisances when such noises are at a sound level

of 5 dBA less than those listed above.  In the hours 7:00 A.M. to

7:00 P.M. the noise levels permitted above may be increased by

10 dBA for a period not to exceed 15 minutes in any hours.  Con-

struction sites and railroad rights-of-way are considered industrial

zones and the operation of trains is subject to the maximum levels

for industrial zones.  Aircraft and "other activities which are

subject to Federal law with respect to noise control"165 are

exempted from the Act, as well as automobile race tracks during

authorized races.

     When there is reason to believe a nuisance exists, any resi-

dent of the State may maintain an action in equity to abate the

nuisance and enjoin any individual responsible from maintaining or

permitting it.  Any violation of the injunction is punishable as

a contempt of court by a fine of between $100 and $2,000 with each

day of violation as a separate offense.  The court is instructed,

however, to give due consideration to the practical difficulties

-------
                              1-64





involved in complying with the court order and the court may stay



the effect of the order for such time as may be necessary for the



defendent to come within the legal limits.



     The state does not preempt the field but allows any municipal-



ity to set stricter standards. °°



     Thus, by using a method which is usually exercised only by



local government — a zoning approach — Colorado has set specific



limits on the noise which any individual, group or business can



produce within any property.  This law is unique on the State



level in its wide applicability.



Florida



     In May, 1971, the Governor of Florida approved a law dealing



entirely with noise pollution.  The statute defined pollution as



contaminants or noise in quantities which are or may be potentially



harmful to human health or welfare, animal or plant life, or



property or which unreasonably interfere with enjoyment of life



and property including outdoor recreation.  The law gave to the



Department of Air and Water Pollution Control the power and duty



to control and prohibit pollution in accordance with the law and



with the rules and regulations promulgated by it.  The Department



is to establish standards for the abatement of excessive and unnec-



essary noise and, in cooperation with the Florida Department of



Transportation, establish maximum decibel limits of sound permis-


                         167
sible for motor vehicles.     The Department is now in the process



of preparing for hearings concerning these standards and expects



to promulgate them in the autumn of 1971.

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                              1-65





Hawaii



     In 1970 Hawaii adopted a far-reaching noise law.  The statute



requires the State Department of Health to adopt such rules and



regulations, including "standards of excessive noise relating to


                             1 f\ fi
the various sources thereof,"    for different areas of the state,



as are necessary to prohibit or control excessive noise.  The



Department was also given the authority to establish a county



advisory noise control committee in any county in which it deemed



such a committee to be advisable.  The committees are to study



noise problems in each county and advise the Department on them.



     The legislation provides for enforcement by declaring that all



county and state officers and employees are to enforce the rules.



Various penalties are also provided.  The Department may institute



a civil action for injunctive relief to prevent violation of the



law or any rule or regulation it has promulgated.  Violators of



this law or any of the Department's rules are guilty of a mis-



demeanor, and may be fined not more than $500, or imprisoned for



not more than six months, or both.  The State has preempted the


                                                               1 fiQ
field by disallowing any county laws relating to noise control. °^



     At the present time hearings are being held prior to the prom-



ulgation of any rules.  One advisory committee, for the island of



Oahu, has been created and appears to be functioning successfully.



     Hawaii also has legislation which declares nuisance to be an



offense.  "Nuisance" is defined in part as "making loud and trouble-



some noise by night."171  This legislation does not provide for



any enforcement or penalties, however.

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                             1-66





Illinois



     In 1970, the Illinois legislature enacted the Environmental


               172
Protection Act.     This law specifically mentioned noise as an



environmental pollutant and declared that the State must minimize



the environmental impact of its own activities and assist local



governments in protecting the environment.  The law established



the State Environmental Protection Agency in the Executive branch.



The duties of the EPA include collecting and disseminating infor-



mation, appearing before the Pollution Control Board in any hear-



ing to deny a permit or to determine the validity of the effect of



a rule, administering the permit and certification systems, making



recommendations concerning the adoption of regulations, and ad-



ministering any grants or loans for purposes of noise abatement.



The EPA was given authority, in accordance with constitutional



limitations, to enter at all reasonable times upon public or pri-



vate property for the purpose of inspection and investigation to



ascertain possible violations and to prepare and present enforce-



ment cases before the Pollution Control Board.



     The same legislation created the Pollution Control Board



whose duty is to define and implement environmental control stan-



dards.  The Board may also adopt rules and regulations.  The En-



vironmental Protection Act also created the Illinois Institute of



Environmental Quality which is to investigate practical problems



and to implement studies relating to technology and administration



of environmental projects.  The Institute is also to give guid-



ance to the Agency and the Board on the setting of standards.

-------
                              1-67
     Title VI, Section 24, of the Act specifies that:

       (n)o person shall emit beyond the boundaries of his
       property any noise that, unreasonably interferes with
       the enjoyment of life or with any lawful business
       or activity, so as to violate any regulation or
       standard adopted by the Board under this Act.

The Board may adopt regulations prescribing limits on noise emis-

sions beyond boundaries of the property of any person, requirements;

and standards for equipment, and procedures for monitoring noise.

In making its regulations, the Board has to consider the techno^

logical feasibility and the economic reasonableness of measuring

and reducing the particular type of pollution.  Any person may

make a written proposal for a change in a regulation.  If a pro-

posal is not plainly devoid of merit, is accompanied by a petition

signed by 200 or more people, has an adequate statement of reasons,

and does not deal with a subject on which there has been a hearing

within the last six months, the Board must schedule a public hear-

ing on the proposal.  If any proposal is made by the EPA or the

Institute, the Board must schedule a hearing.  It may have a hear-

ing upon any proposal without the above conditions.  The Act

specifies the hearing procedures.

     The agency is empowered to investigate possible violations of

standards and may bring violators before the Board.  Also, any

person may file a coiapiaint and the Board will schedule a hearing

unless it determines that the complaint is duplicitous or frivolous,

In the hearing, the EPA or the complainant has the burden of prov-

ing that the respondent has violated any provisions of the act or

any of the rules and regulations set up by the Board.  It is then

the burden of the respondent to prove that compliance would impose

-------
                              1-68






arbitrary and unreasonable hardship.  The Board may order violators



to cease and desist and/or may impose money penalties.  It may also



revoke a permit.  The Board is to set up standards for emergency



conditions, and if these conditions exist the EPA may seal any



vessel, aircraft, or other equipment in violation of regulations.



It is a misdemeanor to break a seal or to operate any sealed equip-



ment until the seal is removed.  The owner or operator of the sealed



equipment is entitled to a hearing to determine if the seal should



be removed.



     The Pollution Control Board may grant variances beyond the



limitations it has set.  The procedure for this is described in



the Act.  Any party aggrieved by a decision of the Board may appeal



the case to the Appellate Court of that district.



     The State legislature also made provision for the activities



of State agencies.  Each agency is required to report annually to



the EPA on the environmental problems created by its operations.



Each agency must also submit to the EPA plans and specifications,



for any proposed installation or facility which may cause a viola-



tion of the Act.



     The Environmental Protection Act also includes penalties for



violations.  A violator may be fined not more than $10,000 plus



$1,000 for each day during which the violation continues.



     At the present time, the Environmental Protection Agency is



formulating a set of rules and regulations to be presented to the



Pollution Control Board in the late summer of 1971.  The Board



will then hold hearings on these standards and either adopt or



modify them.  In any case it will be some time before any rules or

-------
                              1-69






regulations will be promulgated.  The State rules may well be




patterned after the noise ordinances of the city of Chicago, since



many of the same people are working on their formulation.



New York
     In 1970 New York enacted the Environmental Conservation Law.




The statute created the State Department of Environmental Conserva-



tion.  The Commissioner of the Department was given the power to



provide for the prevention and abatement of all water, land and



air pollution including but not limited to that caused by noise.



The Commissioner is also, with the approval of the Environmental



Board and after public hearing, to adopt, amend or repeal environ-



mental standards, criteria and rules and regulations having the




force and effect of standards to carry out the State's environ-



mental policy.  The Commissioner is further empowered to enter and



inspect any property for the purposes of investigating actual or



suspected sources of pollution or for ascertaining compliance or



noncompliance with any law, rule or regulation.     If the Commis-



sioner decides that a condition or activity results or is likely



to result in irreversible environmental damage he may order cessa-



tion of that activity until a hearing can be called concerning the



matter.



     The act also created the State Environmental Board made up



largely of department heads whose function is primarily to coordin-



ate State activities and act as a forum for the exchange of views



toward the achievement of the environmental policy.  The legislation



further created the Council of Environmental Advisors whose duties



include developing guidelines for weighing the interrelationship

-------
                              1-70
between environmental quality and economic development and acting



as an advisory body. 75



North Dakota



     In March, 1971, the North Dakota legislature passed a bill



authorizing the State Health Council to establish reasonable stand-



ards, rules and regulations to prevent and minimize hazards to



health and safety caused by excessive noise.  The rules are to



be applicable to farm machinery, tools, construction equipment,




motor-powered vehicles, musical instruments and groups, and other



devices and activities producing hazardous noise levels.  Hearings



on the rules are required.  An appeal from any standard may be



taken to the courts.  Violators of the standards are guilty of a



misdemeanor punishable by a fine of not more than $1000.  The



Health Council may also obtain an injunction to stop repeated



violations.  Actual flying operations of aircraft are exempted



from the law.176



     North Dakota thus has one of the most all-encompassing laws



of this kind in the nation.  The State Legislature began the pro-



cess which will result in standards on a wide variety of noise



polluting devices.



Pennsylvania



     Pennsylvania law empowers the Department of Environmental



Resources to abate and control nuisances.  Persons authorized by



the Department, who have the power and authority of constables,



may enter and inspect any vehicles, apartments, buildings and



places in order to examine nuisances.  Officials may order any



nuisances detrimental to health to be abated and, if the owner

-------
                              1-71






does not, may enter upon the premises to abate them.  The expenses



of such abatement may be recovered by the Department in an action



against the owner.



     Pennsylvania law, then, does provide a method for the abate-



ment of noise although noise is not mentioned in the environmental



law.  Whether or not noise is determined to be a nuisance against



which the Department can then take action, depends upon the inter-



pretation given to "nuisance" in Pennsylvania.






  1.2.2  Transportation




A.   Engine Noises



                            Aircraft



California



     On September 4, 1969, the Governor of California approved the



California law designed to decrease noise from aircraft around the



State's airports.  Under the law the Department of Aeronautics was



given the authority to set noise standards for aircraft and air-


              17 8
craft engines.    (See discussion 2.4.1.)  The regulations which


                                                              179
the department produced will go into effect in December, 1971.



     These regulations require first that every county government



determine whether or not the airports within the county have a



noise problem.  Various methods for determining this are given.



If there is a problem, the airport operator has one year in which



to establish monitoring stations in the communities around the



airport.  One year of monitoring the aircraft noise at the expense



of the airport operator follows.



     The next step is the establishment of the Noise Impact Bound-




ary around the airport.  This boundary is a locus of points in the

-------
                              1-72






surrounding area each of which has the same "criterion" noise impact



level.  The noise level is measured for these purposes in terms of



Community Noise Equivalent Level (CNEL);  this is a complex unit,



expressed in decibels (dB), which represents the average noise level



for a 24 hour period with adjustments to account for the lower




tolerance of people for noise during evening and night hours.



     The criterion CNEL is 65 dB for new airports, including those



converted from military use.  For existing airports, the criterion




CNEL is initially 80 dB for large airports (having four-engine turbo-



jet or turbofan air carrier aircraft operations and 25,000 or more



air carrier operations annually) and 70 dB for smaller airports.



The large-airport criterion CNEL decreases to 75 dB on January 1,



1976, to 70 dB on January 1, 1981, and finally to 65 dB on January 1,



1986, at which time the small-airport criterion also drops from



70 to 65 dB.  An anticipated result of this phased lowering of




permissible noise levels is that by 1986 the 80 dB CNEL line, which



presently lies in the communities around the large airports, will



have shrunk so as to be entirely within the boundaries of the



airport property.  It is worth noting that even this does not



necessarily correspond fully to the stated intent of the legisla-



tion, which is to reduce to zero the residential area affected by



noise  (in CNEL) greater than 70 dB, but it certainly represents a



great decrease in noise conditions nonetheless.



     The State does not prescribe how the lower noise levels are



to be attained,  It does suggest methods to the airport manager



such as encouraging the use of quieter aircraft, encouraging flight



paths designed to minimize noise to the community, decreasing the

-------
                              1-73





number of operations and planning runway utilization schedules to



account for residential areas.



     Another provision of the regulations requires that the airport



operator set Single Event Noise Exposure Limits  (SENEL) which may



be no higher than corresponding limits prescribed in the regula-



tions.180  The SENEL, which is different for different types of



aircraft, is the permissible limit of noise allowed a single take-



off or landing.



     Enforcement of the SENEL provision is the responsibility of



county officials with whom the airport manager is required to



cooperate.  In the case of a violation of the SENEL, the airport



manager must inform county officials who then will determine appro-



priate enforcement measures.  The penalty for a violation is a


              i P i
fine of $1000.      The State does have certain sanctions which can



be used to enforce the entire law.  An injunction may be obtained



restricting airport operations.  By an administrative proceeding



the airport could have its license revoked, suspended or reinstated



subject to certain conditions.



     The regulations provide for variances to be granted by the



Department of Aeronautics.  An airport operator may request



variances from any of the requirements of the regulations with the



exception of the provisions concerning the CNEL  limits and the



establishment of the Noise Impact Boundary.  The requested variances



may not extend for more than one year.  The airport proprietor



must state the reasons for the variance, the future date at which



he expects to achieve compliance with the regulation and an incre-



mental schedule of noise impact reductions for the intervening time.

-------
                              1-74
The Department may grant variances if the public interest "would be


                              182
satisfied by such a variance."     The Department is to consider the



economic and technological feasibility of the airport operator's



compliance with the regulations, the potential community noise



impact produced by the variance, the value to the public of the



services for which the variance is sought and the adequacy of the



airport operator's measures.  The regulations further provide that,



"on its own motion, or upon the request of an affected or interested



person, the department shall hold public hearings in connection with


                                               1 R3
the approval of an application for a variance."     The Department,



in granting a variance, may impose reasonable conditions on the


                 •I p A
airport operator. oy



     California officials are confident that this law will with-



stand a test in court.  One reason for this, they believe, is



that it controls the airports through the use of the licensing



power which the state already exercises.  It forces the regulation



of aircraft noise based on the proprietary authority of the airport



operator.      (See discussions in 2.4.1, page 2-55  and 3.2,



page 3-17.)



Minnesota



     Minnesota has taken a different approach to regulating the



effects of aircraft noise.  The State has enacted a statute which



allows State authorities exclusively to provide the zoning regula-



tions for  land within five miles of any newly constructed airport


                   1 pc

owned by the State. °°

-------
                              1-75
                      Automobile and Truck



     State governments have long been aware of the problem of motor



vehicle engine noise.  They have adopted several different approaches



for dealing with this source.  Ten states have enacted laws which



prohibit specified levels of total noise from the motor vehicle.



Many more states have enacted laws requiring the limitation of



noise from the vehicle exhaust by the use of a muffler.



Connecticut, Kentucky, Massachusetts, Missouri, Oregon


                                      187
     Five states have enacted statutes    which prohibit excessive



noise from motor vehicles and apply a subjective standard.  The



standards include "unnecessary" (Massachusetts and Connecticut),



"excessive and unnecessary"  (Missouri), "minimum" (Kentucky), and



no greater noise than is "reasonably necessary" (Oregon).   None



of these laws specify any enforcement procedures or set any penalty



for violation.  Kentucky, Missouri and Oregon also have muffler


             188
requirements.     Connecticut recently enacted a law which will



go into effect on January 1, 1973.  It empowers the Commissioner



of Motor Vehicles, with the advice of the Commissioner of Health,



to "establish by regulation the maximum decibel levels, which shall



not exceed 90 dBA, for noise emitted by vehicles and the procedure

                                  1 on
for checking such decibel levels."     A penalty of a fine of



between $25.00 and $100 is provided.190



New York



     New York's motor vehicle law prohibits the operation of any



motor vehicle which creates excessive or unusual noise.  A sound



level of 88 dBA at 50 feet is specified as being excessive.  This



statute governs all motor vehicles except authorized emergency

-------
                              1-76


vehicles or vehicles moving under a special permit.  The statute

provides procedures for measuring the noise in a suspected viola-

tion but does not specify who shall enforce the law.  No penalty

is specified. 91  In addition, New York law requires mufflers. ^

Idaho

     Idaho recently adopted a new law which requires that all motor

vehicles be equipped with a muffler in good working order which

will prevent excessive and unnecessary noise.  The law specifies

that noise in excess of 92 dBA measured at 20 feet is prima facie

                        193
evidence of a violation.

California

     California has one of the most detailed and sophisticated laws

                                           194
governing motor vehicle noise.  The statute    divides motor vehit-

cles into three different categories, specifies maximum noise levels

for the operation of each type of vehicle and specifies maximum

noise levels on motor vehicles to be sold.  The noise levels for

operation are given in the following table.     All measurements

are made at 50 feet from the center line of travel.

                                     Speed limit of   Speed limit of
                                     35 mph or less   more than 35 mph

     (1) Any motor vehicle with a
         manufacturer's gross vehi-
         cle weight rating of 6,000
         pounds or more and any com-
         bination of vehicles towed
         by such motor vehicle:

          (A) Before January 1, 1973       88 dBA            90 dBA
          (B) On or after
             January 1, 1973              86 dBA            90 dBA

-------
                              1-77
                                     Speed limit of  Speed limit of
                                     35 mph or less  more than 35 mph

      (3) Any other motor vehicle
         [except a motorcycle] and
         any combination of vehi-
         cles towed by such motor
         vehicle                          76 dBA           82 dBA

     A limit on noise from new vehicles is also specified.  No
                                                        1 Q c
vehicle which violates the following limits may be sold:x^°

     Any motor vehicle with a gross vehicle weight
     rating of 6,000 pounds or more manufactured on
     or after January 1, 1968 and before January 1, 1973 . . . 88 dBA

     Any motor vehicle with a gross vehicle weight
     rating of 6,000 pounds or more manufactured
     on or after January 1, 1973	86 dBA

     Any other motor vehicle  [except a motorcycle]
     manufactured on or after January 1, 1968 and
     before January 1, 1973	86 dBA

     Any other motor vehicle  [except a motorcycle]
     manufactured after January 1,1973  	 84 dBA

The statute leaves measurement procedures to the Department of the

California Highway Patrol.  A private cause of action is permitted

against a manufacturer if it can be proven that he violated the

                                                              19 7
specifications relating to manufacturers in the original sale.

No other penalty or remedy for a violation is specified.  Although

the Highway Patrol is to establish test procedures, it is not

specified as the enforcement agent.

Colorado
                                          •I Q Q
     Colorado's recent noise abatement act^0 includes standards

for motor vehicle noise patterned after the California limits.

The provision governing noise limits for new vehicle sales is iden-

tical to the California limits as far as automobiles are concerned.

It deviates from the standard for trucks with a gross vehicle

-------
                              1-78



weight rating of 6,000 pounds or more only in that it does not


apply to vehicles in this class manufactured before January 1, 1971.


The law exempts vehicles designed exclusively for racing purposes.


A violation of this provision invokes a penalty of between $50-$300.


     Colorado takes the unusual step of specifying minimum stand-


ards for vehicle operational noise limits which local communities


may, at their option, enact into law.  These standards are identical


to the California limits in the case of trucks.  The limits on all


other motor vehicles are identical to the California standards for


motorcycles; namely, 82 dBA at 50 feet in a zone with a speed limit


of 35 mph or less and 86 dBA in a zone with a speed limit over


35 mph.


     Colorado does not preempt the field but specifies that stricter

                                   1 q q
standards may be set in local laws. y


Minnesota


     As in the case of Colorado, Minnesota has recently adopted a


vehicle noise law similar to that of California.  The noise limits


on the operation of automobiles and trucks are exactly those of


the California law.  The provisions governing noise limits of new


motor vehicles differ from California's only in that they do not


regulate automobiles manufactured before January 1, 1972.  After


this date, the limit is identical to that set by California for


cars manufactured in the same time period.  The Minnesota law does


not provide for enforcement or set any penalties.^00


     One of the single most widely used means for regulating noise


is the requirement of a muffler on all automobiles in a state.  A


muffler is defined as:

-------
                              1-79
       (A) device consisting of a series of chambers or
       baffle plates or other mechanical design for the
       purpose of receiving exhaust gas from an internal
       combustion engine or turbine wheels for the pur-
       pose of receiving exhaust gas from a diesel engine,
       both of which are effective in reducing noise.

Forty-three states specifically require a muffler in good working

order at all times.  These states also specify that muffler cutouts,

bypasses and other devices which prevent the engine exhaust from

traveling through the muffler are prohibited.  Only five states

provide specific penalties for violations of this law.  In Alabama

a violation is deemed a misdemeanor.     In Pennsylvania violators

of the muffler statute are subject to a fine not exceeding $25 or
                                                      O A O
imprisonment for a term not exceeding 15 days or both.     In Texas

a violation may produce a fine as high as $100.20   Wisconsin pro-

hibits the operation of automobiles on the State fairgrounds with-

out a muffler from 10:00 P.M. - 8:00 A.M. except during State fairs.

A violation of any of Wisconsin's statutes concerning State fair-

grounds subjects the guilty party to a fine of as much as $200 or

                                       205
imprisonment for as long as six months.     Wisconsin also has a

law governing the use of mufflers during normal operation of an
                                        ? n ft
automobile which establishes no penalty.

     Nine states (Colorado, Illinois, Louisiana, Maine, New Hamp-

shire, New York, Oklahoma, Pennsylvania, and Wisconsin) further

provide that no one may alter or modify a muffler so that the auto-

mobile emits more noise than it did with the original muffler.207

Virginia specifies that an automobile which allows more noise than

                       208
is standard is illegal.     Maryland prohibits the use of cutouts

in tunnels.209  Georgia law prohibits the sale of a muffler which

                                         9 1 0
is not properly equipped to reduce noise. xu

-------
                             1-80
     Only four states do not have statutes requiring an automo-
bile noise limit.  They are Hawaii, Alaska, Nevada and Vermont.
           211
Vermont law    does not require a muffler but only prohibits use
of cutouts in thickly settled areas.  This law provides a fine
of $25.  California, Connecticut and Massachusetts, although
lacking a muffler statute, rely on their laws governing general
vehicular noise.
                          Motorcycles
     Eight states specifically provide for motorcycles in their
motor vehicle and general codes.  Nevada law requires mufflers on
                                                212
all power cycles operated on the public streets.     Michigan and
New York require mufflers and take the further step of prohib-
                                                    213
iting muffler cutouts, bypasses and similar devices.     Hawaii
provides laws requiring mufflers on all motor scooters and pro-
                                                    214
hibiting alterations which increase the noise level.     The Vir-
gin Islands also requires mufflers on motorcycles and prohibits
cutouts as well as unnecessary racing of the engine and unreason-
                                 215
able noise from the entire cycle.     Pennsylvania law demands
mufflers from which the baffles have not been removed.  It alone
provides a penalty  ($25 fine or 15 days imprisonment) for a vio-
       o ~\ fi
lation.     None of these laws specifies enforcement procedures.
     As in other areas, California has one of the most sophisti-
                         217
cated laws in this field.     The noise limit on all motorcycles
                              9 TO
other than motor-driven cycles    is 82 dBA in zones with speed
limits of 35 mph or below and 86 dBA in zones with speed limits
over 35 mph, all measurements taken at 50 feet.  No one may
sell or offer to sell any motorcycle manufactured before

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                              1-81





January 1, 1970, which emits noise above 92 dBA at 50 feet.  No one



may sell or offer to sell any motorcycle, other than a motor-driven



cycle, manufactured after January 1, 1970, but before January 1,



1973, which emits noise louder than 88 dBA or one manufactured



after January 1, 1973, which emits noise at a level above 86 dBA.



Although the distance of measurement is specified, other test pro-



cedures are left to the Department of the California Highway Patrol.



No penalty or specific enforcement procedures are established in



the law.219



     The provisions for motorcycles in Colorado's recent law are



similar to those of California.  One difference is that Colorado



includes motor-driven cycles in its provisions on motorcycles.



Although motorcycles are not specifically named in the standards



Colorado establishes for optional enactment by local communities,



the operational noise limit for all motor vehicles, except for



those with a gross vehicle weight of 6,000 pounds or more, are



identical to the California motorcycle noise limits. 2"  Colorado's



prohibitions on noise from new motorcycles sold or offered for



sale are also identical to California's limits with the exception



that California sets a limit for those manufactured before Janu-



ary 1, 1970, and those manufactured between January 1, 1970 and



January 1, 1973, whereas Colorado restricts those which were manu-



factured on or after January 1, 1973  (88 dBA measured at 50 feet,


                                                            9 2 ~\
the same as the California limits for the same time period) . ^^•L



Colorado provides a penalty of between $50 and $300 for a violation



of the provision on vehicle sales.  Colorado permits local govern-



ments to set stricter standards.

-------
                              1-82

     Minnesota's provisions governing motorcycles are very similar
to California law.  The noise limits for operation of the motor-
cycle are identical to California's levels.  The only difference
between the two laws is that motorcycles manufactured between
January 1, 1970 and January 1, 1973, must not exceed a noise limit
of 88 dBA at 50 feet in California whereas Minnesota gives manufac-
turers two more years to reach the same noise limit, prohibiting
noise of over 88 dBA from motorcycles manufactured between January 1,
1972 and January 1, 1973.223
                              Boats
     Six states have recognized the need for the control of noise
from waterborn vehicles as well as those which travel on land.
Illinois law provides that gas, gasoline or naphtha propelled
boats must be adequately muffled so as not to create excessive or
              994
unusual noise. ^*  Kansas also requires mufflers on a motorboat's
                           225
internal combustion engine.     Nebraska and New York require muf-
flers and prohibit cutouts or bypasses except on boats being used
in regattas.226  in NSW York, a violation of this law is a mis-
demeanor.  Pennsylvania requires mufflers on all motorboats and
all other boats must have either an underwater exhaust or a muf-
fler with at least two baffle plates.  The law provides for a
penalty of a fine of $10 to $50 or imprisonment of not more than
ten days.227  None of the laws dealing with noise from boats
establishes any specific enforcement agency.
     Wisconsin has adopted a different approach and specifically
delegates to municipal boards the power to regulate or prohibit
                                          9 9 R
the use, traffic, and noise of motorboats. ^°

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                              1-83





                           Snowmobiles



     The rapid rise in the popularity of snowmobiles in recent



years has created an increasingly significant noise source.  Six



states have enacted noise statutes with regard to this new source.



Wisconsin's law states that no person shall operate a snowmobile



in such a way that the exhaust makes an excessive or unusual noise.



No person may operate a snowmobile without a functioning muffler.



The penalty for a violation is $10 to $20 for the first offense



and $25 to $50 for the second and subsequent offenses.  No enforce-


                                       ??Q
ment procedure or agents are specified.  ^



         Maine's new snowmobile law will go into effect in October



of 1971.  It requires that every snowmobile be equipped with an



adequate muffler.  A penalty of a fine of between $10 and $100 is


                          9 "30
provided for each offense.



     Massachusetts also prohibits unusual and excessive noise from



snowmobiles but sets a standard of 73 dBA measured at 50 feet as



excessive.  The measurement procedures are set out in this law as



well.   Massachusetts further prohibits the sale, after January 1,



1971,  of any snowmobile unless it is certified by the manufacturer



as being able to conform to the noise level limit of 73 dBA.  Viola-



tors of the law are subject to a fine of between $20 and $200.



Again no enforcement procedures are described.231



     New York recently adopted a law which requires an adequate



muffler on all snowmobiles.  No snowmobile manufactured after



June 1, 1972 may be sold unless it is equipped with a muffler which



limits engine noise to not more than 82 dBA at 50 feet.  The limit



changes to 73 dBA for those snowmobiles manufactured after -June 1,

-------
                              1-84






1974.  The law also states that the Commissioner of Conservation



may adopt rules and regulations with respect to the inspection of



snowmobiles and the testing of snowmobile mufflers.232




     £ new Montana snowmobile law became effective July 1, 1971.



The statute authorizes the State Fish and Game Commission to estab-



lish regulations governing the noise from new snowmobiles, provided



that after June 30, 1972, no new snowmobile may be sold in the state



unless certified by the manufacturer that it will not exceed a



noise limit of 85 dBA measured at 15 feet.  Snowmobiles used in



competition are exempted.  Enforcement is to be the responsibility



of the State Department of Fish and Game as well as State and



local police.  A violation of the law is a misdemeanor. 33




     Colorado has the most sophisticated law in the field of noise



regulation of recreational vehicles.  No such vehicle manufactured



on or after January 1, 1971 may be sold if it produces more noise



than 86 dBA at 50 feet.  For those vehicles of this class manufac-



tured after January 1, 1973, the noise limit is 84 dBA at 50 feet.



Colorado sets minimum limits on the operation of these vehicles



which are left to be enacted into law by local legislation.  These



levels are 82 dBA measured at 50 feet for a speed  limit of 35 mph



or less and 86 dBA at 50 feet for a speed limit above 35 mph.



Lower governmental units are permitted to set stricter standards.234



B.   Vehicle Operation Procedures



                              Horns



     Many state legislatures, concluding that it is not sufficient



to control only noises from vehicle engines, have  adopted prohibi-



tions and requirements concerning the operation of the vehicle.

-------
                              1-85






The most common type of statute in this category is the one govern-




ing horns on motor vehicles.  Fifteen states have adopted horn



statutes.  They are Alabama, Arizona, Arkansas, Colorado, Georgia,



Kansas, Maine, Michigan, Maryland, Missouri, Oregon, South Dakota,



Tennessee, Texas and Wyoming.^35  Nearly all of these statutes con-



tain the same language.  They require horns but prohibit any that



emit unusually loud or harsh sounds.  Horns are to be used only



as a warning and only when reasonably necessary.  Sirens and whis-



tles are not permitted except on emergency or other authorized vehi-



cles.  None of the statutes specifies enforcement agents or pro-



cedures and none uses an objective standard such as a decibel limit.



The Texas law is unique in allowing bells, gongs or horns as warn-



ing devices.^36  only two states provide penalties for violation



of the law.  Alabama deems a violation to be a misdemeanor.237




Texas provides a fine of not more than $100 for a violation.238




In addition to the 15 horn statutes, those states which have gen-



eral vehicular noise regulations may use them to control horns,



sirens, and other signalling devices.



     The Minnesota state legislature has passed a law that forbids



aircraft to engage in advertising through the playing of music or



oral announcements or the making of any noise with any siren,



horn, whistle or other audible device.  Those noises necessary for



the normal operation of the aircraft are exempted.  Another excep-



tion exists for any aircraft used under authority of the State to


                                                                  239
give warnings.  No enforcement procedures or penalties are stated.

-------
                              1-86






                              Bells



     Maryland's legislature has enacted a statute governing the



use of bells on ice cream product trucks.  These bells may only be




operated manually and are prohibited between 10:00 P.M. and 8:00 A.M.



Apart from this single exception bells are dealt with in the same



laws governing horns which are described above.



                         Carrying Metals



     New Jersey has adopted a statute governing noise related to



metals loaded on vehicles.  The law provides that no one may load



a vehicle with iron or other material that may strike together



unless it is properly deadened so as to cause no unnecessary noise.



There is no objective standard, enforcement procedure or penalty



specified.     Those states which have laws governing general vehi-



cular noise may control the carrying of materials as part of their



authority to control all vehicle noise.






  1.2.3  Commercial



     A number of states have recognized the need to regulate noise



from commercial enterprises or individuals acting in a business



capacity.  While those states with general noise statutes can apply



them to commercial activity, some states prefer to provide specif-



ically for commercial noise control.  Mississippi, Nevada and New



Jersey each delegate the power to control noise in this category



to municipalities.  In Mississippi, municipalities may regulate



or prohibit any mill, laundry or manufacturing plant the unneces-



sary noise of which may do damage to, or interfere with use or


                                          74?
occupation of, public or private property.     In Nevada a city



council has the power to regulate the making of noises for the

-------
                              1-87





purposes of business, including the blowing of horns, the ringing



of bells and the shouting of auctioneers. ^  In New Jersey, a



municipal board may regulate and prohibit advertising, and other



noises in streets and public places.  New Jersey alone of the three


                                                             244
states provides a penalty which is a fine not exceeding $200.



None of these statutes state what enforcement procedures are to be



followed.



     Delaware and Texas have regulated the noise emanating from



establishments which sell alcoholic beverages.  In Delaware an



application for a liquor license may be denied or a license revoked



if the applicant or licensee has maintained a noisy establishment. "



In Texas any permit may be suspended or cancelled for a period not



exceeding 60 days if the permitee maintains a noisy place of busi-



ness.246





  1.2.4  Construction



     Several states have recognized the need for shielding individ-



uals from noise under certain circumstances and have provided laws



which attempt to serve this purpose.  This kind of legislation,



however, is not so much noise control as control of the effects of



noise on individuals.  (For the single exception, see the discus-



sion on Colorado's general law, p. 1-63.)  New York has adopted a



law empowering its Housing Department to adopt and promulgate



standards of sound retardation for the walls, partitions and floors



and ceilings between apartments and between apartments and public



places based on direct measurement of sound loss in decibels for



various frequencies.  Every multiple dwelling erected after January 1,



1970, must comply with these standards.247
                      I

-------
                              1-88

               \-



     In Hawaii the Department of Education is obligated to imple-



ment noise control of existing and new school facilities in areas



affected by aircraft, traffic and other noise.  Acoustic noise



control is to be given equal weight with all other factors in the



criteria used by the Department in setting priorities for school


                            94 P
construction and renovation. ^°



     In another law designed to shield individuals from the effects



of noise, Iowa has adopted a statute specifying that migrant camps



cannot be located near conditions likely to create offensive noise.



Certification is necessary to open a migrant camp and this certifi-



cation can be withheld or revoked for any violation of the law.



Violators are also guilty of a misdemeanor and will be fined not



less than $50 nor more than $100 for each offense.



     In 1970 California adopted a law limiting noise from new free-



ways being constructed near existing schools.  The act specified



that no freeway may be constructed so that during its first two



years of operation the noise level produced by its traffic will



measure in excess of 50 dBA within any public elementary or second-



ary school classroom, library or multipurpose room already in



existence and used for this purpose.  To conform to this standard



the Deparment of Public Works may undertake a noise abatement pro-



gram in the school to consist of installing acoustical materials,



eliminating windows or in some way insulating the facility from



the freeway noise.  If it is necessary to convert a room in a



school to a use more compatible with the noise level, the Depart-



ment must pay for this conversion.  If the sound level in a class-



room, library or multipurpose room exceeds 50 dBA before the freeway

-------
                              1-89
is built, the Department must take steps necessary to insure that

the level will ncr; be increased by the added freeway noise.

     As is the c ise with other state regulation in this area, the

purpose of the California law is not to lower the noise from the

source, the freeway, but to shield individuals from the effects

of that noise.


  1.2.5  Occupational

     Information concerning State occupational noise regulation is

difficult to obtain.  In virtually every case regulations in this

area are the result of administrative agencies setting limits pur-

suant to broad occupational safety and health legislation.

     Of the 23 states which have adopted regulations in this area

made available to this study, the great majority have established
                                                                  251
standards identical to the Walsh-Healey levels discussed in 1.1.3.

California, Oregon and Utah require that if a worker is subjected

to the following noise levels for more than five hours he must wear

                       252
ear protection devices:

       Frequency Band                    Octave Band
     (cycles per second)             Sound Pressure Level
                                          (Decibels)

      20-75                                  110
      75-150                                 102
      150-300                                 97
      300-600                                 95
      600-1,200                               95
      1,200-2,400                             95
      2,400-4,800                             95
      4,800-10,000                            95
     Four other states have adopted regulations setting objective
                                       O c o
standards varying from 85 dB to 100 dB.     Two states, Florida and

New Mexico have promulgated subjective standards.     Florida recommends

-------
                              1-90


that continuous noise levels be kept as low as possible in accor-
»
dance with good engineering practices.  This may be accomplished

by 1) reduction of noise at the source, 2) isolation of the noisy

operation, 3) reduction of noise by sound insulation and 4) the

use of personal protective devices against noise.  In New Mexico,

all feasible methods of preventing noise levels capable of causing

ear damage are to be used.

     Many of the regulations apply to all places of employment,

although domestic agricultural and very small places of business

are often exempt.  Generally, penalties for violations of the

limits are not specified.

     Virtually every state has adopted workmen's compensation

statutes which provide compensation for occupational injuries.

Included in these laws are sections related to hearing loss due

to noise from industrial machines and other sources.  Although

these regulations indirectly encourage the lowering of factory

noise levels, their primary purpose is to provide for the effects

of noise instead of attempting to deal with the control of noise.

For this reason a thorough study of these laws is not within the

scope of this report.


  1.2.6  Miscellaneous

A.   Disturbers of the Peace

     One of the most extensively regulated noise sources is man him-

self in his role of disturber of the peace and quiet of his neighbor-

hood or community.  Virtually every state has legislation dealing

with disturbances of the peace and disorderly conduct.  However, only

27 of the states specifically name noise as an element to be considered

as disturbing the peace.  Only these laws are discussed below.

-------
                               1-91
     Three distinct approaches are taken among the 27 states in the



regulation of noisy, disturbing individuals.  The first approach



is to enact legislation dealing with the scarce on the Stace level.



These laws specify standards and usually establish penalties for



violations.  The states which have adopted the first approach are



Alaska, California, Kansas, Louisiana, Maine, Massachusetts,



Missouri, Ohio, Rhode Island, Tennessee, Vermont, Wisconsin and


        255                                                    ? Rfi
Wyoming.     The Virgin Islands has also adopted this approach. -30



The second approach is to delegate to the municipalities the power



to regulate disturbers of the peace.  States following this approach



set no standards or penalties.  The states which have adopted the



second approach are Connecticut, Illinois, Iowa, Kentucky, Michigan,



Minnesota, and Pennsylvania.  ^  The third approach is a combina-



tion of the first two, enacting regulations governing disturbers



of the peace and also empowering municipalities to do likewise.



States adopting the third approach do not establish standards or



penalties with regard to municipally regulated disturbers of the



peace, with the exception of Washington which limits the maximum



penalty of its first class cities to $500 fine or six months impris-


               Q C O

onment or both.     Those states in the third category are Mississippi,



Nebraska, New York, Oklahoma, Texas, Utah, and Washington. "



     The states using the first and third approaches and enacting



specific laws are universal in their failure to specify any criteria.



The standards used are never exact but consist of such subjective



terms as "loud or unusual noise"  (California), "unreasonably



loud, disturbing, and unnecessary noise or noises of such a charac-



ter, intensity and duration as to disturb the peace and quiet"

-------
                              1-92





(Ohio), "violent, profane, indecent, offensive or boisterous con-



duct or language" (Tennessee), and "unnecessary and offensive



noise" (VernDr.t).



     The statutes are aimed at all noisy and boisterous individuals.



Some states specify certain places and either limit the offense to



disturbances in these places or provide different penalties for



different places.  The place most often protected is the church or



place of worship.  Others are the school and the library.



     Enforcement procedures are almost never specified.  Rhode



Island specifically empowers its railroad and steamboat police to



arrest disorderly persons on trains and boats. °^  No other state



law specifically mentions by whom it will be enforced.



     Penalties for disturbing the peace vary greatly.  Several



states (Massachusetts, Missouri, Nebraska, New York, Oklahoma,



Washington) do not set any penalty in their legislation.  Maine



prescribes a fine of a maximum $20 for disturbing or interrupting


                             ?fi 1
a teacher or pupil in school. Di  The average maximum fine for disturbing



the peace, however, is in the $100 to $300 range.  The average maximum



imprisonment specified is two to six months.  The highest imprison-



ment penalty is that of a possible one year for disturbing a worship


                              5fi")
service in the Virgin Islands.     The fine of $500 specified as



the maximum allowable in Tennessee, Texas, Louisiana and Mississippi



ranks  as the highest fine. °3



B.   Hunting Noise



     Pennsylvania, by itself, has adopted a law to deal with a



particular human source.  It is unlawful for anyone to hunt wild



turkeys by the use of recorded sounds.  No penalty or enforcement



procedures are specified.

-------
                              1-93






  1.2.7  Trends in State Regulation



     Any predictions concerning future State law in the area of



noise control must be predicated on the assumption that the Fed-



eral government will not preempt the field of noise regulation.



Such a move on the part of the Federal government would obviously



disrupt the development of State laws in this area.



     With this in mind, it is possible to make certain statements



concerning the directions in which the states seem to be moving.



More states are entering this area in earnest.  The large number of



states which passed noise laws during the first two quarters of



1971 demonstrates this. "^  States are setting up environmental



departments with authority in the noise area or adding noise control



as one of the environmental factors to which these departments should



give attention.



     The number of noise sources being covered by any one state is



expanding.  This is especially true in the area of recreational



vehicles, particularly snowmobiles and motorcycles.  Those sources



which have traditionally been dealt with, particularly automobiles,



are being dealt with in new ways.  The increase in the number of



laws setting forth overall vehicle noise limits in decibels is



the prime example.  Here, California has set the pace, some states



following her lead.



     This general trend does not seem to hold in the case of air-



craft noise, however.  The extreme complexity of this problem



from both the technological and the legal points of view seems to



discourage states from following California's lead in this area.



The other states may well be waiting for a court determination on



the California law before plunging into this field.

-------
                              1-94
     In general the laws on the State level are becoming more sophis-



ticated.  Instead of the traditional use of phrases such as "unrea-



sonable" and "unnecessary" more states are setting decibel limits.



They are also specifying more enforcement by particular agencies



such as environmental departments, rather than leaving enforcement


                                           ") fi fi
in the hands of the State and local police.  D  The laws also are



tending to set progressively stricter standards over specified



lengthy time periods.  This indicates the desire on the part of the



states to encourage a quieter environment consistent with technolog-



ical practicability and economic feasibility.  In short, the states



are requiring manufacturers of noise polluting devices to develop



new technology in order to comply with the stricter standards which



are inevi tab le.



     To a greater extent than ever before, states are directing



their laws at the manufacturer of noise-producing vehicles and



machinery.  The limited ability of the individual operator to



decrease noise from his device has caused the states to place the



burden of lowering noise from many noise sources with the producer.



It is probable that more laws will require that new products meet



certain standards for noise control before they may be sold within



the state.



     In conclusion, if the Federal government does not preempt the



field in this area it seems likely that states will continue to



expand and develop their expertise in the area of noise control.



Better standards and more meaningful enforcement procedures may



well be developed with the result that some impact may be made in



the area of noise control.  The effectiveness of State controls

-------
                              1-95





depends on enforcement of the laws, however.  Here, the states



must develop new programs and increase the amount of funds directed



toward the control of noise.  Without this, the growing expertise



in law-writing and standard-setting will be of little value in the



fight against offensive noise.





  1.2.8  Gaps in State Regulation



     Although state control of noise sources is expanding, many



gaps in state regulation are still apparent.  Only one state,



California, has taken significant steps to deal with the problem



of aircraft noise.  While this area is thought to be largely the



province of the Federal government, there are still many steps



available to states to lower the noise from aircraft or to deal



with the problems inherent in the effects of that noise.  Even



though the greatest advances in state control have been in the area



of transportation, no state other than Colorado has any regulations



concerning noise from railroads.



     The noise from industrial and commercial enterprises also is



not well regulated in the State level, again with the exception of



Colorado.  Construction site noise, one of the most irritating and



hazardous sources or unwanted sound in our society, is hardly dealt



with in State law.



     Perhaps the greatest gap is in the area of domestic noise.



The cacaphony produced by vacuum cleaners, garbage disposals, food



blenders, and other domestic sources has seemed of little concern



to State legislatures which surely have authority to set standards



in this area.

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                              1-96





  1.3  NOISE SOURCES REGULATED AT THE REGIONAL LEVEL



     The only regional body in the United States which controls



noise in any way is the Port of New York Authority, which was



created as a result of a compact between the States of New Jersey



and New York.  As a bi-state agency it is exempt from municipal and



State laws with the exception of bi-state amendment of its charter.



Although the Port Authority has considerable control over many



transportation facilities in and around the city of New York, it



has established noise standards only for the operation of the air-



ports within its jurisdiction.  These include Kennedy International,



La Guardia Airport, Newark Airport, and Teterboro Airport.



     The Port Authority has set up regulations governing noise on



take-offs from its airfields using an objective measurement system.



Take-offs are permitted only if they are so planned at the airport



that the noise level of 112 PNdB as measured on the ground in the



communities surrounding the airports at specified points will not


            ")f\ 7
be exceeded.     At Kennedy Airport take-offs may be made from only



three runways between 10:00 P.M. and 7:00 A.M.2^8  Airplanes may



only start and warm up their engines at places designated by the


                oc o
Airport Manager.     The only way in which the Port Authority can



enforce these regulations against the airlines is to threaten the



withholding of permission for planes to land.2^0

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                              1-97


  1.4  NOISE SOURCES REGULATED AT THE LOCAL LEVEL


  1.4.1  General

     Compiling the laws that exist on the local level presents a

unique problem.  Local laws are rarely published or made widely

available to law libraries.  In some small communities the local

laws are not even codified and the problem of finding the law is

a difficult one.

     In order to accumulate a wide range of laws passed by local

governments, 187 requests were sent out to local governments for

copies of their laws concerning all aspects of noise control.  The

largest cities in the nation were chosen as well as the largest

cities in each state.  Smaller communities with particular noise

problems were also contacted.  The study received 84 responses,

most of them from the larger cities of the United States with

some from smaller communities.  The following is a list of the

cities which responded with copies of their laws on- noise or in

a few cases with information on their regulations:

     Ann Arbor, Mich.                Decatur, 111.
     Aspen, Col.                     Denver, Col.
     Atlanta, Ga.                    Des Moines, Iowa
     Bangor, Me.                     Detroit, Mich.
     Beverly Hills, Cal.             Dillon, Col.
     Billings, Mt.                   Durango, Col.
     Binghamton, N.Y.                El Paso, Tex.
     Birmingham, Ala.                Evergreen, Col.
     Bismarck, N.D.                  Flagstaff, Ariz.
     Boston, Mass.                   Fort Lauderdale, Fla.
     Boulder, Col.                   Grand Junction, Col.
     Buffalo, N.Y.                   Greensboro, N.C.
     Cheyenne, Wyo.                  Hartford, Conn.
     Chicago, 111.                   Helena, Mt.
     Cincinnati, Ohio                Honolulu, Hawaii
     Cleveland, Ohio                 Houston, Tex.
     Columbia, S.C.                  Indianapolis, Ind.
     Dallas, Tex.                    Jacksonville, Fla.

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                             1-98


     Juneau, Alaska                    Phoenix,  Ariz.
     Kansas City,  Kan.                  Pittsburgh,  Pa.
     Killeen, Tex.                     Pocatello,  Idaho
     Las Vegas,  Nev.                    Portland, Ore.
     Little Rock,  Ark.                  Providence,  R.I.
     Los Angeles,  Cal.                  Richmond, Va.
     Madison, Wis.                     Rochester,  Minn.
     Manchester, N.H.                   Saint Louis, Mo.
     Medford, Ore.                     Salt Lake City,  Utah
     Memphis, Tenn.                    San Clemente,  Cal.
     Miami Beach,  Fla.                  Santa Barbara, Cal.
     Milwaukee,  Wis.                    San Francisco, Cal.
     Minneapolis,  Minn.                 Scranton, Pa.
     Missoula, Mt.                     Scottsbluff, Neb.
     Nashville,  Tenn.                   Seattle,  Wash.
     New Haven,  Conn.                   Sioux Falls, S.D.
     New Orleans,  La.                   Stowe, Vt.
     New York, N.Y.                    Toledo, Ohio
     Norfolk, Va.                       University Heights,  Ohio
     Ogden, Utah                       Washington,  B.C.
     Oklahoma City, Okla.               White Plains,  N.Y.
     Omaha, Neb.                       Wichita,  Kan.
     Park Ridge, 111.                   Wilmington,  Del.
     Philadelphia, Pa.

     Of these 83 responding cities, 57, or approximately  69%,  have

either no laws governing noise  pollution or some type of  general

law (meaning, for  the  purposes  of this study, one which attempts

to control all noise sources) .   The general laws include  those with

a subjective standard  with relation to noise, those with  an objec-

tive standard and  those  based on public nuisance or zoning laws.

     Twelve cities responded either that they had no  laws control-

ling noise and no  noise  program or that they had only a few laws

and were unable  to furnish them.  Those which specifically denied

the presence of  any laws or programs (concerning noise) in their
                              271             272                273
communities were Atlanta,  Ga. ,     Bangor, Me.,    Cheyenne, Wyo.,
Durango, Col.,    Evergreen, Col., ^ Grand Junction, Col.,

Honolulu, Hawaii,277 Omaha, Neb.,278 Pittsburgh, Pa.,279 and
          280
Stowe, Vt.     (With respect to Honolulu, it should be noted that

the State of Hawaii has preempted the field in the area of noise

-------
                                1-99


control  and has forbidden separate  local legislation.)   The Air

Pollution Control Officer of Columbia, S.C.,  responded that that

city has no noise laws except for some provision in the  zoning
                                281
ordinance which is never used.      The Director of the Providence,

R.I., Department of  Building Inspection wrote only that  there were
                                                                      O QO
no noise laws in the building and zoning regulations of  the city. °^

A.   NIMLO-Type Laws

     The National Institute of Municipal Law  Officers  (NIMLO) has

drafted  a model ordinance prohibiting unnecessary noises.   In

writing  this law, NIMLO officials used many existing ordinances

as guides.  A large  number of cities have adopted laws which are

exactly  the same as  the NIMLO ordinance, and  some additional cities

have enacted certain paragraphs while deleting others.   Quite a

few cities rely entirely on the NIMLO-type ordinance in  the area

of noise control, although most have enacted  supplemental  laws.

(Although the model  enumerates certain unlawful activities, the

prohibition on all loud and unnecessary noise establishes  this

model as a "general" law.)  Because of the widespread use  of this
                                                                   o o o
ordinance it is deemed relevant to  include it in its entirety.  J
              NIMLO MODEL ORDINANCE PROHIBITING
                       UNNECESSARY NOISES
             BE IT ORDAINED BY THE  CITY COUNCIL OF  THE  CITY  OF
             SECTION 8-301.  It is found and declared that:
               (a) The making and creation of loud, unnecessary or un-
             usual noises vriihin the limits of the City of	is
             a condition which has existed for some time and the extent
             and volume of such noises is increasing;
               (b) The making, creation or maintenance of such loud, un-
             necessary, unnatural or unusual noises which are prolonged,
             unusual and unnatural in their time, place and use affect
             and  are a detriment to public  health, comfort, convenience,
             eafety, welfare and prosperity of the residents of the City of
             	; and

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                           1-100

    (c) The necessity in the public interest for the provisions
  and  prohibitions hereinafter  contained  and enacted, is de-
  clared as a matter  of legislative determination and public
  policy, and it  is further declared that  the provisions and
  prohibitions hereinafter contained and enacted are iii pursu-
  ance of and for the purpose of securing and promoting the
  public health, comfort, convenience, safety, welfare and pros-
  perity and the peace and quiet of the City of		
  and its inhabitants.

  SECTION  8-302.   It shall be unlawful for any person to make,
continue, or cause to  be made or continued any loud, unneces-
sary or unusual noise or any noise which either annoys, disturbs,
injures or endangers the comfort, repose, health, peace or safety
of others, within  the limits of the city.
  SECTION  8-303.  The following acts, among others, are declared
to be loud,  disturbing and unnecessary noises in violation of this
ordinance,  but said enumeration shall not be deemed  to be ex-
clusive, namely:
   (1)  Ilorns, Signaling Devices, etc. The sounding of any horn
or signaling device on any automobile, motorcycle,  street car or
other vehicle on  any street or public place of the city, except
as a danger warning;  the creation  by  means of any such sig-
naling device of  any unreasonably  loud or harsh  sound;  and
the sounding of  any such  device for an unnecessary and unrea-
sonable period of time. The use of any signaling  device except
one  operated by hand or  electricity; the use  of any horn,
whistle or other device operated by engine exhaust;  and the
use of any such  signaling device when  traffic is for any reason
held up.
   (2)  Radios, Phonographs, etc.  The using, operating, or per-
mitting to be played, used or operated any radio receiving set,
musical instrument,  phonograph, or other machine  or device
for the producing or reproducing of sound in such manner as
to disturb  the peace, quiet  and comfort of the neighboring in-
habitants or at any time  with louder volume than is necessary
for convenient hearing for the person or persons who are in the
room,  vehicle or chamber in  which such machine or device is
operated and who are voluntary listeners thereto. The operation
of any such set,  instrument, phonograph, machine  or device be-
tween  the  hours  of eleven o'clock P.M. and seven o'clock A.M.
in such a manner as to be plainly audible at a distance of fifty
(50) feet from the building, structure or vehicle in which it is
located shall be prima, facie evidence of a violation of this sec-
tion.
   (3)  Loud Speakers, Amplifiers for Advertising. The using,
operating  or permitting to be played, used, or operated of any
radio  receiving  set,   musical  instrument,  phonograph,  loud-
speaker, sound amplifier, or other machine or device for the pro-
ducing or  reproducing oi sound which is  cast upon the public
streets for the purpose of commercial advertising or attracting
the attention of  the public  to any building or structure.
   (4)  Yelling, Shouting,  etc.  Yelling, shouting, hooting, whis-
tling, or singing  on the public streets, particularly between the
hours  of 11 P. M. and 7 A. M, or at any time  or place so as to
annoy or disturb the quiet, comfort, or repose of persons in any
office, or in any  dwelling, hotel or other type, of residence, or of
any persons in the vicinity.

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                           1-101

  (5) Animals. Birds, etc.  The keeping of any animal or bird
which by causing frequent or long continued noise shall disturb
the comfort or repose of any persons in the vicinity.
  (6) Steam Whistles.  The blowing  of any locomotive  steam
whistle  or  steam whistle  attached  to any  stationary boiler ex-
cept to give notice of the time to begin or stop work or as a warn-
ing of fire or danger, or upon request of proper city authorities.
  .(7) Exhausts.  The  discharge into the open air of the exhaust
of  any  steam engine,  stationary  internal combustion engine,
motor boat, or motor vehicle except through a muffler or other
device  which will effectively  prevent  loud or explosive  noises
therefrom.
  (8) Defect in  Vehicle or Load.' The use of any automobile,
motorcycle, or  vehicle so out of  repair, so  loaded or  in such
manner as  to create loud and  unnecessary grating, grinding,
rattling or other noise.
   (0)  Loading, Unloading, Opening Boxes.   The creation of a
loud and excessive noise  in connection with loading or unload-
ing any vehicle  or the opening and destruction of bales, boxes,
crates, and containers.
   (10)  Construction or Kcpairing of  Buildings.   The erection
(including excavating), demolition, alteration or  repair of any
building other  than between the hours of 7 A. M. and G P. M.
on  week days, except in case of urgent necessity in the interest
of  public health  and safety, and then  only with a permit from
the Building Inspector,  which  permit may  be  granted for a
period not to exceed three (3) days or  less while the emergency
continues and which permit may be renewed i'or-periods of three
days or less while the emergency continues.  If the Building
Inspector should  determine that  the  public  health and  safety
will not be impaired  by  the erection,  demolition,  alteration or
repair of any building or the excavation of streets and highways
within the hours of 6 P. M. and 7 A. M., and if  he shall further
determine  that loss or inconvenience would result  to any party
in  interest, he may  grant permission for such work to be done
within the hours of 6 P. II. and 7 A. M., upon application being
made at the time the permit for  the work  is awarded or during
the progress of the work.
   (11)  Schools,  Courts, Churches. Hospitals.   The creation of
any excessive noise  on any street adjacent to »™y c.^imol, insti-
tution of learning, church  or court while  the same are in use,
or  adjacent to any hospital, which unreasonably interferes with
the workings of  such  institution, or which disturbs or  unduly
annoys patients in the hospital, provided  conspicuous signs are
displayed  in such streets indicating that  the same is a school,
hospital or court street.
   (12)  Hawkers, Peddlers.  The shouting and crying of ped-
dlers, hawkers  and vendors which disturbs the  peace and quiet
of  the neighborhood.
   (13)  Drums.   The use of any drum or other instrument or de-
vice for the purpose of attracting attention by creation of noise
to  any performance, show or sale.
   (14)  Metal Rails, Pillars and Columns, Transportation  There-
of.  The transportation of rails, pillars or  columns of. iron, steel
or  other material, over and  along streets and other public places
upon carts, drays, cars, trucks, or  in any other  manner so load-
ed  as to cause  loud noises or as  to disturb the  peace and quiet
of  such streets or other public places.

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                                   1-102
                 (15) Street Railway Cars, Operation Thereof.  The causing,
               permitting or continuing any excessive, unnecessary and avoid-
               able noise in the operation of a street railway ear.
                 (1C) Pile Drivers, Hammers, etc. The operation between the
               hours of 10 P. M. and 7 A. M. of any pile driver, steam shovel,
               pneumatic hammer, derrick, steam or electric hoist or other ap-
               pliance, the use of which is attended by loud or unusual noise.
                 (17) Blowers. The operation of any noise-creating blower or
               power fan or any internal combustion engine, the operation of
               which causes  noise  due to the  explosion of operating gases or
               fluids, unless  the noise from such blower or fan is muffled and
               such engine is equipped with a muffler device sufficient to deaden
               such, noise.
                 SECTION 8-304. Penalties.  Any person who violates any pro-
               vision of this ordinance shall be deemed guilty of a misdemeanor
               and upon conviction thereof shall be fined not exceeding $	,
               or by imprisonment for not more than	days, or by  both
               said fine and said imprisonment.
                 SECTION 8-305. Separability.  It is the intention of the  City
               Council that each separate provision of this ordinance shall be
               deemed independent of all other provisions herein, and it is fur-
               ther the intention of the City Council that if any provision of
               this ordinance be declared to  be invalid, all other provisions
               thereof shall remain valid and  enforceable.
                 Adopted this	day of	19...


      The  following  list is  an  enumeration of the cities in this

study which have enacted  the NIMLO model or  ordinances very similar

to  it.284

      Ann  Arbor, Mich.                    Manchester,  N.H.
      Birmingham, Ala.                    Medford,  Ore.
      Bismarck, N.D.                      Memphis,  Tenn.
      Buffalo,  N.Y.                       Miami  Beach, Fla.
      Cleveland, Ohio                    New York,  N.Y.
      Dallas, Tex.                        Norfolk,  Va.
      El Paso,  Tex.                       Oklahoma  City,  Okla.
      Fort Lauderdale,  Fla.             Portland,  Ore.
      Greensboro, N.C.                    Phoenix,  Ariz.
      Hartford, Conn.                    Richmond,  Va.
      Houston,  Tex.                       Washington,  B.C.
      Indianapolis,  Ind.                 White  Plains, N.Y.
      Jacksonville,  Fla.                 Wichita,  Kan.
      Killeen,  Tex.                       Wilmington,  Del.
      Las  Vegas, Nev.

This is a total of  29 cities,  or  slightly over 1/3 of  the  cities

surveyed  in this study.

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                             1-103






     Although the model includes a provision for some penalty, most



cities do not specify any penalty or enforcement agent.  Many munic-



ipalities undoubtedly expect that their police forces will enforce



this law.  However, El Paso, Tex.,285 and Portland, Ore.,286 alone



of the cities included in this study specifically provide for police



enforcement.  Norfolk, Va., has an elaborate system of fines by



which the violator must pay $5-$25 for the first offense, $10-$50



for the second offense and $25-$100 for the third and subsequent



offenses. °7 Manchester, N.H. sets a penalty of $20 for each


        poo
offense.     Killeen, Tex., establishes the highest fine:  a maxi-



mum of $200.28^  Indianapolis, Ind., sets a fine of not more than


                                          290
$100 or imprisonment for ten days or both.     Of the cities surveyed,



these municipalities alone provide for a penalty for a violation of



a NIMLO-type ordinance.



B.   Other Laws with Subjective Standards



     In addition to those cities which have adopted NIMLO-type



ordinances, some municipalities have enacted ordinances which apply



a subjective standard but which bear no resemblance to the NIMLO



model.  Three of the cities in this survey fall into this category.



Beverly Hills, Cal., has a law which declares it unlawful to will-



fully make or cause loud, unnecessary or unreasonable noise which



disturbs the neighborhood or which causes discomfort to people of



ordinary sensitiveness.  The law then lists many criteria by



which to judge unnecessariness and unreasonableness such as the



volume of the noise and the background noise.  Violators of this



law are guilty of a misdemeanor and may be punished by a fine of



not more than $500 or imprisonment for not more than six months

-------
                            1-104


        pg I
or both.     Boston, Mass., has a law forbidding unreasonably loud


or disturbing noise in the city from any source or by any means.


Any noise plainly audible 300 feet from the source is presumed to

                       292
be loud and disturbing.     In Pocatello, Idaho, it is unlawful


to make, continue or cause any loud, unnecessary or unusual noise


or any noise which annoys, disturbs, injures or endangers the com-


fort, repose, health, peace or safety of others.  A violation is a


misdemeanor and is punishable by a fine of not more than $100 or

                                              OQ 7
imprisonment of not more than 30 days or both.


C.   Laws with Objective Standards


     Some communities have responded to growing noise problems by


passing general noise statutes which set specific decibel limits


for all activities.  Two of the municipalities surveyed have fol-

                                                     294
lowed this procedure.  These two cities, Aspen, Col.,    and

              on c
Boulder, Col.,    have very similar laws which prohibit unnecessary


or unusual noise and then specify that 80 dBA is considered to deter-


mine this category.  The measurements are iiade at 25 feet from the


noise source or at least 25 feet from the property line on which


the noise source is located.  Both laws provide a penalty of $300

                                                           oq c
and both allow permits for variances from the noise levels."0


D.   Public Nuisance Law


     Another approach taken by numerous municipalities is to con-


trol noise by means of a law declaring it to be a public nuisance.

                                                           097
Often provision for the abatement of nuisances is provided.


Some cities have laws which define a nuisance as anything detrimental


to the health or well-being of the population.  These laws may or


may not be applied to noise sources depending upon the interpretation

                                     oq o
given to them by community officials.

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                             1-105





E*   Zoning Laws



     Modi, cities have some sort of zoning ordinance which regulates



structures and uses within specified areas of the community.  These



are frequently used to regulate noi^e from industrial and other



sources.  Because of the general nature of these laws and the fact



that they do not always regulate industry alone, zoning laws may



be included in that category of noise controls which are general in



their regulation.




     Four of the cities surveyed have zoning ordinances which do



not set any objective standard but simply allow uses in certain




zones which are not objectionable due to noise, certain industries



which do not create more noise than the noise from other uses or



                                                        299
simply prohibit certain noisy uses in a particular zone.



     However, most municipalities seem to be more sophisticated in



their zoning ordinances, and objective decibel noise limits are




frequently stipulated.  These limits are varied and include decibel



limits that are so low as to be virtually unenforceable.  The



limits may be applied to all uses and activities or may be limited



to noise from industrial sources.



     Dallas, Tex., has a decibel-type zoning ordinance which includes



fairly low decibel levels.  In the table below, the column on the



extreme left is the octave band frequencies for different sounds in



Hertz.  Column II gives the decibel limits on noise from any use



measured at the property boundary line for any plant or operation



in the 1-1, 1-2 or Planned Development Districts.  Column III gives




the decibel limits for the same districts where the property line is



adjacent to a retail or commercial district and Column  IV gives the

-------
37-75
75-150
150-300
300-600
600-1200
1200-2400
2400-4800
4800-9600
A Scale
86
76
70
65
63
58
55
53
65
84
73
67
62
58
55
52
50
63
                             1-106
corresponding limits when the property line is adjacent to a resi-

dential district.301

     Column I      Column II      Column III      Column IV

                                                     80
                                                     68
                                                     61
                                                     55
                                                     51
                                                     48
                                                     45
                                                     43
                                                     56

     The zoning regulations of the city of Binghamton, N.Y. are

considerably stricter with much lower decibel limits.  The noise of

any activity may not exceed at any point on or beyond any lot line

the maximum decibel levels for the designated octave band as set

forth in the table below.  Where the lot lies within 200 feet of

a district permitting residences, the maximum permitted decibel
                                       •^n 9
limit shall be reduced by six decibels.

     Octave Band                     Sound Pressure Level
       (Hertz)                                (dB)

     0-74                                     60
     75-149                                   52
     150-299                                  50
     300-599                                  45
     600-1199                                 40
     1200-2399                                36
     2400-4799                                31
     4800-30000                               30

     The frequency range of the human voice is approximately 90-

800 Hz with the average human voice at approximately middle "C"

which is 262 Hz.  At this frequency, no noise at a property line

can be higher than 50 dB except in the case of property lines

bordering residential areas where the level becomes 44 dB, not a

very loud limit.  It is therefore unlawful for a person to talk

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                             1-107





across his property line to his neighbor in a normal conversational



voice which is normally 60 dB.  If this law is enforced, Binghamton



must surely be the quietest city in human history.






  1.4.2  Transportation



A.   Engine Noises



                            Aircraft



     Due to the preeminence of the Federal government in this area



of noise control, cities rarely thrust themselves into the complex



realm of aircraft noise regulation.  However, six cities surveyed



have passed some sort of legislation in this area.  Denver, Col.,



has an ordinance forbidding any unusual, unnecessary or disturbing



noises from aircraft.  A violation of this law is an offense.



Salt Lake City, Utah, restricts on-the-ground noise by requiring



that run-ups may only be made in areas designated by the airport



manager or the control tower and that these be chosen so that the



noise of the run-ups does not unreasonably inconvenience others.



In Scottsbluff, Neb., it is unlawful for the owner or operator of



any airplane, balloon, or other device used for aerial travel to



cause or permit the device to reach a point closer than 2000 feet



above the surface of the ground while it is passing over Scottsbluff.



A violation is a misdemeanor. ^



     Park Ridge, 111., which adjoins Chicago's O'Hare International



Airport, has a law providing for noise from aircraft.  The law



establishes runway extensions defined as areas 1,200 feet wide and



five miles long which adjoin existing runways at O'Hare, the center



line of the runway continuing as the center line of the extension.



Noise above 95 dBC measured within this area is prohibited.  However,

-------
                             1-108



if an easement over the land has been purchased or agreed on, the


noise is permitted.  Park Ridge sets a penalty of between $10 and


$200 for each offense, each separate day in which there is a viola-


tion constituting a separate offense.


     Officials in Santa Barbara, Cal., recently adopted a law^07


which restricts all nonflight activities of aircraft to the commun-


ity noise equivalent level (CNEL) of 80 dBA.   (See discussion of


California's law, page 1-71.)  The law also provides for run-up


areas, runway preference, and gives some provisions concerning take-


offs and landings.  This ordinance, the most extensive aircraft


noise regulation on the local level, has yet to be litigated.


     Portland, Ore., has considerable regulation of helicopters

              or> p
and heliports.     Helistops are prohibited in residential and


commercial zones if the noise from these facilities at landing or


takeoff exceeds 90 dB at the boundary of adjacent property in resi-


dential areas, or at the nearest occupied premises in commercial


zones.  If the city planning commissioner determines that a planned


heliport would disturb the use and enjoyment of neighboring property,


the heliport may not be built.


                     Automobiles and Trucks


     The importance of streets and highways to local transportation


and the consequent interest of communities in regulating these


thoroughfares accounts for the wide regulation of automobiles and


other street vehicles on the local level.  As with the states,


communities regulate automobiles more than perhaps any other noise


source.

-------
                             1-109
     Numerous municipalities have enacted ordinances controlling all


noise emanating from automobiles.  Twelve communities in this


study have such laws which apply a subjective standard, usually


"unreasonable" or "unnecessary."     Salt Lake City, Utah, has


such a law  ° as well as one which forbids excessive and unusual


noise from motor vehicles in quiet zones.     In Beverly Hills,


Cal., it is unlawful to repair, rebuild or test a vehicle in a


residential area so as to discomfort or annoy reasonable persons

            01 2
in the area.     Beverly Hills also forbids the operation of a


vehicle not on public streets so as to annoy a reasonable person

                        010
of normal sensitiveness.     A penalty or fine of not more than


$500, imprisonment of not more than six months, or both is provided.


The NIMLO model ordinance makes unlawful the use of any vehicle


so out of repair as to create loud and unnecessary grating, grind-


ing, rattling or other noise.  Thus, most cities with a NIMLO-type


law regulate vehicles in need of repair.


     Recently, a number of cities have enacted general vehicle


noise laws which set objective decibel limits on noise from the


entire vehicle.  Five of the cities in this survey have such laws.


Ann Arbor, Mich., sets a limit of 90 dBA measured at 25 feet with


the vehicle traveling at 20 mph.31->  Pocatello, Idaho, sets the


limit at 92 dBA at 20 feet,316 while Cincinnati, Ohio, forbids


noise over 95 dBA at 20 feet.     Of these three cities, only


Pocatello establishes a penalty in the law.  A fine of not more


than $100 or imprisonment for not more than 30 days or both is


provided.318

-------
                             1-110


     Chicago, 111., and Minneapolis, Minn., have the most exten-

sive vehicle noise laws of the major cities of the United States.

The charts below illustrate the various provisions of these two

laws.  All measurements are made at 50 feet from the center line

of travel.319

Type of Vehicle              35 mph or less       over 35 mph

Chicago
any motor vehicle of
a manufacturers GVW
rating of 8,000 Ibs
or more
   before Jan. 1, 1973           88 dBA               90 dBA
   after Jan. 1, 1973            86 dBA               90 dBA

Other motor vehicles
[except motorcycles]
   after Jan. 1, 1970            76 dBA               82 dBA
   after Jan. 1, 1978            70 dBA               79 dBA

Minneapolis
any motor vehicle with
a manufacturer's GVW
rating of 6,000 Ibs
or more
   before Jan. 1, 1975           88 dBA               90 dBA
   after Jan. 1, 1975            86 dBA               90 dBA

Other motor vehicles             82 dBA               86 dBA

     These two cities also prohibit the sale of automobiles which

exceed the noise limits set forth below.  "  Again all measurements

are at 50 feet.

Type of Vehicle              Date of Manufacture      Noise Limit

Chicago
Any laotor vehicle with a
manufacturer's GVW rating
of 8,000 Ibs. or more        after Jan. 1, 1968          88 dBA
                             after Jan. 1, 1973          86 dBA
                             after Jan. 1, 1975          84 dBA
                             after Jan. 1, 1980          75 dBA

-------
                            1-111
Type of Vehicle              Date of Manufacture      Noise Limit

Any other motor vehicle      before Jan. 1, 1973         86 dBA
[except motorcycles]         after Jan. 1, 1973          84 dBA
                             after Jan. 1, 1975          80 dBA
                             after Jan. 1, 1980          75 dBA

Minneapolis
Any motor vehicle with a
manufacturer's GVW of
6,000 Ibs. or more           after Jan. 1, 1972          88 dBA
                             after Jan. 1, 1975          86 dBA

Any other motor vehicle
[except motorcycles]         after Jan. 1, 1972          86 dBA
                             after Jan. 1, 1975          84 dBA

     Chicago provides for a penalty of $15-$300 for the first offense,

$50-$500 for the second offense and each subsequent offense or

incarceration for a term not to exceed six months or both fine and
             00 1
imprisonment.J

     Just as at the State level, one of the most commonly used

methods of noise control is the muffler statute.  Most of these

statutes simply state that a muffler is required and that cutouts,
                                            o p p
bypasses and similar devices are prohibited.     Many cities add

the provision that it is unlawful to modify exhaust systems in such

a way as to increase the volume of noise. ^23  Madison, Wis. , law

provides that a noise above 95 dBA measured at not less than 20

feet from rear of vehicle may be taken as evidence of a violation.

In Richmond, Va., it is illegal to sell a muffler without baffle
      "325
plates    and in Salt Lake City, Utah, it is unlawful to sell any
                                                 o 9 c
equipment designed to increase the exhaust noise.     The NIMLO

model ordinance also contains a requirement of a muffler on every

motor vehicle.

     Although muffler ordinances are enforced by local police,

enforcement provisions are almost never specified in the muffler

-------
                             1-112



laws.  Penalties too are rarely specified.  Decatur, 111., does


provide a fine of between $1 and $200 for a violation.     Cleve-

                                                       O p Q
land, Ohio, sets a fine of $10 to $50 for each offense.


     In summary, automobiles are widely regulated on the  local


level.  Seventeen (or approximately 20%) of the cities of our study


have some laws regulating noise from the entire vehicle.  Thirty-


three  (well over 1/3) of the cities have a muffler statute of some


kind.  When the large number of State vehicle and muffler laws


is added to this total it is apparent that the automobile is one


of the most heavily regulated noise sources in our society.


                           Motorcycles


     As motor vehicles, motorcycles are subject to most of the same


vehicle and muffler statutes discussed above.  Some NIMLO-type


ordinances actually specify that motorcycles are subject  to the


muffler requirement imposed on automobiles.  However,  some munic-


ipalities are not satisfied to leave the motorcycle to be regulated


by these vehicle statutes alone.  Missoula, Mt., requires that all


motorcycles be equipped with mufflers.     Detroit, Mich., also


requires mufflers and adds a prohibition against cutouts  as well  as


a fine of not less than $25 for a violation.330  jn their extensive


new  vehicle laws, Chicago and Minneapolis have provided  for motor-


cycle  regulation.  Chicago law forbids  the operation  of  any motor-


cycle  other than a motor-driven cycle ^  which emits  more than


82 dBA at  35 mph or  less or 86 dBA  at over 35 mph until  January 1,


1978.  On  that date  the limits change to  78 dBA at  35 mph or less


and  82 dBA above 35 mph.  All measurements are made at 50 feet.


Chicago forbids the  sale of motorcycles which violate the following


limits, measured at  50 feet:

-------
                             1-113
     Motorcycles manufactured:

          before January 1, 1970               92 dBA
          after January 1, 1970                88 dBA
          after January 1, 1973                86 dBA
          after January 1, 1975                84 dBA
          after January 1, 1980                75 dBA

Minneapolis sets the same noise limit on the operation of motor-

cycles as it does on automobiles:  82 dBA in zones with speed limits

of 35 mph or less and 86 dBA in zones with speed limits over 35 mph.

Minneapolis does provide specific noise limits on motorcycles being

sold, however.  No motorcycle manufactured before January 1, 1972,

may be sold which emits more than 90 dBA measured at 50 feet.  Motor-

cycles manufactured during 1972 may not be sold if the noise level

exceeds 88 dBA.  For motorcycles manufactured after January 1, 1973,
                          O O -D
the noise level is 86 dBA. J   Chicago provides a penalty of $15 to

$300 for the first offense, and $50 to $500 for the second and sub-
sequent offenses.
                              Boats
     A number of communities have found it necessary to regulate

the noise of the engines of motorboats and other watercraft.  Most

of these laws require -that the vessels be equipped with mufflers

and often prohibit cutouts except for boats participating in

regattas. ^35  As j_s true with other noise sources, Chicago has

the most extensive law.  It is unlawful to operate any engine-

driven pleasure vessel or motorboat in the Windy City or within

two miles of the city limits so as to exceed 85 dBA of noise mea-

sured at 50 feet.  After January 1, 1975, the noise limit drops

to 76 dBA.  The usual Chicago penalty of $15-$300 for the first

offense and $50-$500 for subsequent offenses applies.

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                             1-114




                           Snowmobiles


     Cities have been slow in responding to the new noise source


of snowmobiles and other recreational vehicles.  The most obvious


explanation for this is that one rarely sees a snowmobile being


driven through the streets of American cities.  However, Chicago,


through its recently enacted noise ordinance, provides for the


regulation of snowmobiles and other recreational vehicles such as


dune buggies and go-carts.  No one may operate one of these vehicles


if the noise emitted by it exceeds 86 dBA at 50 feet.  After Janu-


ary 1, 1973, the permissible limit will change to 82 dBA.  No snow-


mobile manufactured after January 1, 1971, may be sold if it creates


noise in excess of 86 dBA.  The limit changes to 82 dBA for snow-


mobiles manufactured after June 1, 1972 and to 73 dBA for snow-


mobiles manufactured after June 1, 1974.  For other recreational


vehicles, the permissible noise level is 86 dBA for those manu-


factured after January 1, 1971, 82 dBA for those manufactured after


January 1, 1973 and 73 dBA for those manufactured after January 1,


1975, all measurements being made at 50 feet.  The penalty of a


fine of $15-$300 for the first offense and $50-$500 for subsequent


offenses is provided.337


     The small mountain town of Dillon, Col. has a law which, if


enforced, would provide a more effective control of noise from


snowmobiles than even the Chicago ordinance.  Dillon allows snow-


mobile operations on marked trails only.  At this time there are

                           -D O O
no marked trails in Dillon. J0

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                            1-115
B.   Vehicle Operating Procedures


                    Horns and Warning Devices


     Many communities in the United States have reached the con-


clusion that it is not sufficient to regulate noise from vehicle


engines alone and have regulated other aspects of the operation


of the vehicle.  The most commonly regulated noise source in this


area is the horn, bell, whistle or other warning device.  Auto-


mobile horns are given more consideration than the horns of any


other vehicles.  First, the NIMLO model ordinance forbids unlimited


use of auto and other vehicle horns.  Many communities without a


NIMLO statute have passed laws similar to it.  The standard non-


NIMLO horn statute begins by requiring horns on all motor vehicles


but goes on to declare that it is illegal to operate a horn which


makes an unreasonably loud or harsh sound and that no horn may


be sounded except when reasonably necessary to warn others.  There


is also a prohibition of long, continuous sounding of the horn.


Often these laws state further that it is illegal for any vehicle


not authorized for emergency use to be equipped with a siren.


Twenty-two of the cities in this survey have enacted statutes simi-

                                                   o on
lar to this, not as part of a NIMLO-type ordinance. *y  Some com-


munities either restrict horn-blowing by vehicle operators only in


quiet zones34^ or add this further restriction to their general


horn-blowing ordinance.34^  Most cities do not establish a fine


for a violation in the law itself.  The fine for all unlawful noise


($15-$300 for the first offense, $50-$500 for subsequent offenses)


provided by the new Chicago noise ordinance applies to the new


horn statute.342  Seattle, Wash., sets a fine of no more than $300

-------
                             1-116


or imprisonment of not more than 90 days or both for a violation of

its provision on sirens. 43  Decatur, 111., law forbids taxi drivers

to blow their horns to attract passengers and sets a fine of $5 to

$200 for each violation.344

     Whistles, bells, and other devices on trains are also of con-

cern to many communities.  A restriction on their use appears in

the NIMLO model ordinance and has been enacted in that form by

many cities.  A number of cities enact some kind of restriction,

usually banning unnecessary blowing of a locomotive whistle, apart

from any NIMLO version.  5  Beverly Hills, Cal., alone of all the

municipalities in this survey, sets a decibel limit on train horns

or whistles operated from 10:00 P.M. to 7:00 A.M.  This limit is

89 dBA measured 300 feet or more from the source.

     Whistles and horns on steamships and other vessels are regu-

lated by two cities in this survey.  Detroit prohibits the sound-

ing of any steam whistle of any steamer while lying at any wharf

or when approaching or leaving such wharf except when absolutely

necessary or when prescribed by U.S. law.347  Portland, Ore., for-

bids the blowing of a whistle on any vessel for any purpose other

than required by law.348

                   Other Operation Procedures

     The NIMLO model ordinance has two provisions for the carrying

of materials in vehicles.  A vehicle may not be loaded in such a

manner as to create loud and unnecessary grating, grinding, rattling

or other noise.  Also,

       the transportation of rails, pillars or columns of
       iron, steel or other material, over and along streets
       and other public places upon carts, drays, cars, trucks,

-------
                             1-117
       or in any other manner so loaded as to cause loud

       noises or as to disturb the peace and quiet of such

       streets or other public places349


is forbidden.  Richmond, Va.,350 and Portland, Ore.,351 have laws


which similarly prohibit the transportation of iron and other mater


ials unless an effort has been made to deaden the noise from them.


     Chicago has a law forbidding the operation of motor vehicles


of a weight in excess of four tons for a consecutive period longer


than two minutes while such vehicle is standing on private property


and located within 150 feet of property zoned and used for resi-


dential purposes.  The law provides an exception for buses as well

                                                   ocO
as vehicles within a completely enclosed structure.


     A Nashville, Tenn., ordinance makes it unlawful to carry on


any public way any substance, animal or thing likely to become


a public nuisance or which shall imperil the life, health or


safety of any persons by giving off noises which become offensive.




  1.4.3  Commercial


A.   Commercial Noise Other Than Advertising


     Noise from commercial establishments or from persons acting


in business capacities is widely regulated on the local level.


There seems to be little consistency among municipalities in this


area with each city passing its own ordinances and taking its own


approach to the regulation of business noise.  Although this fact


makes the problem of describing regulation in this area difficult,


it is possible to divide the regulation into five categories:


1) regulation of noise from business establishments, 2) regulation


of some particular accessory or device used by the business or


some noisy aspect of the commercial operation, 3) regulation of

-------
                             1-118




musicians, 4) regulation of music producing machines, and 5)


regulation of sound equipment used for purposes other than adver-


tising.


     The control of noise from business establishments generally


can further be divided into two categories:  regulation of all


businesses and regulation of particular businesses.  Some cities


have laws restricting loud and unusual noise from buildings. ^54


These statutes may be applied to commercial establishments as well


as apartment houses and other buildings.  A number of cities,


though, specify that noise from businesses must be restricted,


usually to the extent that it is not audible outside the business


at certain times. ^   Salt Lake City, Utah, does permit soft music


to be directed at public streets from businesses 10:00 A.M. to 9:00


P.M. as long as it is not audible more than 50 feet away. 5°


     Many cities having experienced unwanted sound from specific


commercial establishments have taken steps to curtail this noise.


The particular businesses and activities regulated include rest-


aurants and hotels,    poolhalls,    machine shops,    foundries,


junk yards,    circuses and rodeos,    filling stations,363 drive-


in restaurants,    and automobile wash racks.     The noise from


tourist homes    and convalescent homes    is also restricted by


directing the operators of such places to endeavor to lower the


noise from their buildings.  Some communities have enacted laws


regulating the noise from places of public entertainment such


as theatres,    opera houses,    concerts    and dances. '   The

                                                    372
noise made by individual vendors is also restricted.

-------
                             1-119
     Cities rarely specify enforcement agents in these laws


although this responsibility undoubtedly falls to the local police.


Penalties are not usually prescribed and when they are the range


is great:  from a fine of $1 or one day imprisonment for the first


offense of the unlawful holding of a dance or other public enter-


tainment in Cleveland373 to the $100 per day fine for operating a


loud machine shop within 200 feet of any residence in Chicago3


and a maximum of a $200 per day fine for operating a noisy drive-in

                           •3-7 c
restaurant in Decatur, 111.


     The second category of nonadvertising commercial noise is the


noise from some particular accessory or some noisy aspect of the


business.  The NIMLO model ordinance has several provisions which


apply in this area.  They include restrictions on the noise from


steam whistles, power fans or blowers, the exhaust of stationary


steam boilers, the loading and unloading of any vehicle and the

                                                             •5 T £
opening and destruction of bales, boxes and other containers. /0


Many of these sources are regulated by similar laws by communities


which do not have a NIMLO-type ordinance.  For example, Chicago,


111., Detroit, Mich., New Orleans, La., and Seattle, Wash., place

                                              ^7 7
restrictions on the blowing of steam whistles. ''  The discharge


of noisy exhaust from steam engines is restricted by Nashville,

                         •3-70
Tenn., and Seattle, Wash.     The increased use of air-condition-


ing equipment by commercial establishments has caused several cities


surveyed to pass laws governing the units running this equipment.


New Haven, Conn., has declared that noise in excess of 55 dB on


the A, B or C scale measured at the property line or at least 15


feet from the air-conditioning unit is illegal.  If the operation

-------
                             1-120



of this equipment violates this standard it must be discontinued


immediately.380


     Some cities regulate musicians who make their living by play-


ing their instruments on public streets.  Most of these laws involve

                                           O Q 1
a curfew, often from 9:00 P.M. to 9:00 A.M., ^  while some prohibit

                                                 •3 DO
the playing of instruments within hospital zones.     There are some


laws, however, which completely ban private individuals from play-

                     383
ing in public places.     These laws are often directed at "itiner-
ant musicians"384 or organ grinders. 3^5  Some cities however, have

                                                            38fi
statutes directed against bands playing on the city streets.


     Devices used to produce music are also regulated at the local


level.  Often these ordinances prohibit noise which is audible


outside the premises in which the machine is located.  This pro-

                                      's Q7
hibition may be in effect at all times    or only during specific


hours, often in the evenings.388  A law in Minneapolis, Minn.,


specifically prohibits juke boxes which create sound audible more


than 25 feet from the premises. 38^  In Washington, D.C. , it is


necessary to have a permit from the Chief of Police before a music-

                             OQQ
producing device can be used. ^


     Sound equipment is widely regulated at the local level.  The


laws governing the use of this equipment which seem to be directed


at commercial noise sources other than advertisers will be discussed


here.  The regulation of advertising noise will be discussed in the


next subsection and chose laws regulating the general use of sound


equipment will be considered in Section 1.4.6.  Several cities


have laws governing the nonadvertising commercial use of amplify-


ing equipment.  On occasion this regulation takes the form of a

-------
                             1-121
curfew or zovi.il restriction.     The laws may also be directed at

                                      OQ O
sound equipment 3D airplanes or boats. "  Des Moines , Iowa, pro-


hibits all soun 3 equipment at its airport except when authorized. "


It must be remenbered that those laws which apply to the general


regulation of sound equipment apply to its commercial applications


as well.  A discussion of these laws will be found in Section 1,4. 6.


B.   Advertising


     Noises from advertisers is one of the most heavily regulated


sources of unwanted sound at the local level.  Unlike general


speech, guaranteed by the first amendment and given due respect by


municipalities, advertising is viewed as being of minimal social


value when compared with its capacity to disturb the peace and


annoy the citizenry.  For this reason the laws in this area seem


to run the gamut of coverage , from the individual peddler crying


his wares to complex sound amplification devices which are used to


advertise from aircraft.


     Although the existence of the simple itinerant peddler selling


various articles along the streets of American cities is largely


a thing of the past, many municipalities have laws governing this


type of individual.  Often these take the form of a prohibition on


vendors from shouting their goods on the public streets in certain


areas of the city    or at certain times™-* while others prohibit


all excess noise from peddlers. 39°  Some municipalities make


specific provisions for peddlers and vendors who would use ampli-


fiers, horns or other sound devices to attract attention.  Usually


this is a prohibition on the use of this type of equipment.


Most cities do not specify  any penalty in the laws governing

-------
                             1-122

peddlers.  The law of Cleveland, Ohio, does state that a violation
of its laws on this subject carries a fine of not more than $50
                                     OQ Q
or imprisonment for not over 30 days.     Decatur, 111., provides
                                             oqq
a fine of not less than $5 nor more than $200    while Beverly Hills,
Cal., deems violators guilty of a misdemeanor and subjects them to
a fine of not more than $500 or imprisonment for not over six months
or both.400
     The use of stationary sound amplification equipment for any
advertising, extending beyond peddlers and hawkers, is amply pro-
vided for in municipal codes.  In some cities it is completely
           401
prohibited.     In others use of this type of equipment is restricted
to certain times.402  Buffalo, New York, prohibits advertising
noise that unreasonably disturbs the public.  Noise distinctly
audible 50 feet from the building is deemed to be disturbing.40^
     Of note also is the fact that some cities provide for sound
equipment on vehicles and aircraft.  Buffalo, N.Y., and Greensboro,
N.C., prohibit sound amplification equipment on vehicles.
Detroit prohibits it in the loop area of the city.     Richmond,
Va., restricts its use to vehicles in parades and loudspeakers
used in auctions.     Chicago, 111., and Miami Beach, Fla., pro-
                                                             407
hibit all use of sound equipment for advertising by aircraft.
Houston, Tex., requires a permit for aircraft advertising and does
not allow it on Sundays or at any time within one-half mile of any
hospital.     Both Philadelphia, Pa., and Washington, D.C., restrict
                                        409
this equipment on vehicles and aircraft.
     Thus, commercial noise is restricted to some extent in many
cities.  However, although the total list of sources regulated is

-------
                             1-123
long, any one city usually enacts legislation to combat noise from
only one or two of these sources.  The legislation appears to be
done in piecemeal fashion and in response to particular community
problems.

  1.4.4  Construction
     Construction noise can be divided into two categories:  noise
from the construction site itself and requirements concerning
acoustical treatment of new buildings so as to limit noise experi-
enced by the occupants.
A.   Construction Site Noise
     Noise emanating from building and highway construction pro-
jects is some of the most irritating and dangerous noise in our
society.  Pile drivers, steam shovels, jack hammers and other
similar eqiupment produce a significant percentage of the noise
plaguing American cities.
     The NIMLO model ordinance has two provisions governing con-
struction noise.  The first restricts work on buildings to between
the hours of 7:00 A.M. and 6:00 P.M. weekdays, except in the case
of emergencies and then only with a permit from a city official.
The second provision outlaws the use of pile drivers, steam
shovels, pneumatic hammers and certain other equipment from 10:00 P.M.
to 7:00 A.M. if this use is attended by loud or unnusual noise.
Most of the cities which have enacted a NIMLO-type ordinance have
included the provision governing work on buildings while the enact-
ment of the provision concerning certain equipment is much less
wide-spread.

-------
                             1-124


     Many cities without a NIMLO ordinance have adopted laws simi-

lar to the first NIMLO provision discussed above.   Often there is

an added provision prohibiting construction,  excavation or other

building operations in or within a certain distance or residential

                                              411
zones at certain times, frequently on Sundays.

     The new Minneapolis, Minn., noise ordinance applies a decibel

limit on construction activities.  No construction equipment shall

be operated if sound levels from such operation exceeds 100 dB

along any property line.  In September, 1973  the new limit will

be 95 dB and in September, 1975 it will change to 90 dB.  In

addition, no internal combustion engine when operated with con-

struction or demolition equipment shall be operated if noise from

it exceeds 88 dB along any property lines.

     Chicago, 111., forbids the operation of equipment used in

building operations 9:30 P.M. to 8:00 A.M. within 600 feet of any

building used for residential or hospital purposes except for

work on public improvements and work of public utilities.  Chicago

takes the further step of limiting noise on new equipment.  No one

may sell or lease any equipment which produces more noise, mea-
                                            413
sured at 50 feet, than the following limits.

     Type:                                        Levels:

     Construction machinery such as dozers,
     loaders, power shovels, derricks, ditchers
     trenchers, pavement breakers, compressors,
     pneumatic powered equipment, but not
     including pile drivers, manufactured
     after:

       January 1, 1972                            94 dBA
       January 1, 1973                            88 dBA
       January 1, 1975                            86 dBA
       January 1, 1980                            80 dBA

-------
                             1-125






     Penalties for a violation are prescribed by several cities.




They are practically all in the $5-$500 category with a possible



imprisonment of 90 days or six months.




                         Building Codes



     In the fall of 1968 New York City adopted a new Building Code



to take effect December 6, 1969, although builders could choose to



bring themselves under the code prior to December 6.  Subarticle



1208.0 deals with noise control in multiple dwellings.  The law,



which only applies to residential structures for more than two



families, sets up standards for the construction of new multiple



dwellings using reference standards.  These reference standards



are standards adopted by associations such as the American Society



of Heating, Refrigerating and Air Conditioning Engineers and the



United States of America Standards Institute.



     Noise limits in terms of Sound Transmission Class (STC) and




Impact Noise Rating (INR), based on the reference standards, are



given.  (For a discussion of the meaning of these units see, supra,



page 1-46.)  Walls, partitions and floor-ceiling constructions



separating dwelling units from each other or from public halls,



corridors, or stairs must have a minimum STC rating of 45.  For



permits issued after January 1, 1972, the minimum STC rating changes



to 50.  Floor-ceiling constructions separating dwelling units from



each other or from public halls or corridors must have a minimum



INR rating of 0.  Provision is also made to limit acoustical



impact from mechanical equipment located within the structure.



These must be separated by constructions which provide a minimum



STC rating of 50.  In addition maximum standards are set for

-------
                             1-126





mechanical equipment, such levels varying as a function of the


                                                   415
position of the equipment relative to the building.



     Whether or not a building violates the noise standards can



not be determined until the building is constructed, of course.



After construction is completed, the builder is required to engage



an independent firm to conduct measurements to determine whether



or not the structure has violated the noise limits.  If the Depart-



ment of Buildings is not satisfied with the results or manner in



which the tests were conducted, it may conduct its own tests before



issuing the permit necessary for opening the building to occupants.



     The new code went into effect on December 6, 1969.  Before



this deadline building contractors rushed to acquire building per-



mits.  No building construction for multiple occupancy has been



completed since that time so no enforcement experience is available.



     The new code has been criticized.  First, it has no provision



for commercial and other types of buildings as well as no provision



for single and double occupancy dwellings.  Except for airborne



noises produced by certain mechanical equipment the new code does



not provide occupants with protection against exterior noises.



The Building Department has only four inspectors for the entire city,



and these inspectors have only been given a one week course in


                         418
how to measure the noise.



     Some of the other cities surveyed do have noise limits in



their building codes.  However, the material supplied by the New



York Department of Buildings was the only detailed code information


                             419
made available to this study.

-------
                             1-127




  1.4.5  Occupational


     Although control of occupational noise is generally considered


to be the province of Federal and State governments, two cities in


this survey have set standards concerning noise to which any worker


can be subjected.  These cities are Detroit and Philadelphia.  Both


have adopted limits similar to the Walsh-Healey Federal noise limits


described earlier.



  1.4.6  Miscellaneous


A.   Disturbers of the Peace


     Since individuals who disturb the peace and quiet of the com-


munity are a peculiarly local problem, it is not surprising to find


them restricted greatly at the local level.  Many of the cities in


this survey have enacted laws prohibiting noisy individuals who


annoy others.  Many of these laws simply state that it is unlawful


to create loud and unnecessary noise or noise which disturbs or


annoys persons of reasonable sensitiveness.  ^  In addition the


NIMLO model ordinance forbids yelling, shouting and similar con-


duct on public streets.     Cleveland has two provisions in its


code which cover noisy behavior.     Beverly Hills law forbids the


operation of any radio, television or other similar device from


10:00 P.M. to 7:00 A.M. so as to disturb the peace.  Any noise


exceeding the ambient noise level at the property line or in any


adjoining apartment by five decibels is deemed prima facie evidence


of a violation.     Many cities enact ordinances prohibiting


excessive noise in certain areas, often within quiet zones or near

                                A O EC
hospitals, schools and churches.     Chicago has a law stating


that no one owning or in possession of any building of premises

-------
                             1-128




may make such use of them as will destroy the peace of the neighbor-


     426
hood.     Sioux Falls, S.D., forbids any one in control of a pub-



lic place to allow any musical instrument, radio or other device



to be operated so as to disturb the peace. ^  Killeen, Tex., law

                                                                    AJ O
prohibits the disturbance of any public meeting by noise or tumult.



In Detroit, it is unlawful for anyone in any vehicle to make


unnecessarily loud noises which disturb the peace of the neighbor-


hood. 4"  Minneapolis has a law forbidding anyone from participat-



ing in any party or gathering from which noise emanates of a suf-


ficient volume to disturb others in the vicinity.



     The penalties for disturbance of the peace are often specified


in the legislation.  A fine of between $10 or $25 and $200 is a



common penalty.431  Chicago imposes a fine of $50,    Norfolk,


one of $25.433



     Thus, the earliest source of noise, the individual human



being unaided by sophisticated equipment is still one of the most



heavily regulated sources.



B.   Domestic


     Noise from domestic sources is just beginning to come under


serious regulation by American cities.  For this reason the laws


in this area are few but are more sophisticated and often set a


decibel standard for the noise.  Minneapolis recently adopted a


new  law specifying noise limits in decibels for various zones of


the  city.  If the sound of power lawn mowers, snowblowers and



other domestic equipment is within these noise levels, they can be


used at any time.  If the noise is not within these levels, its



use  is restricted to 7:30 A.M. to 9:00 P.M. weekdays and 9:00 A.M.

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                             1-129






to 9:00 PM. Saturdays, Sundays and holidays.     In Beverly Hills



it is unlawful to operate any machinery, equipment or air-condi-



tioning apparatus if the noise level at the property line is made



to exceed the ambient noise level by more than five decibels.



     Chicago's new noise ordinance contains a provision governing



noise limits of new equipment.  No one may sell or lease powered



equipment of 20 horsepower or less intended for infrequent use



in residential areas, such as chain saws, and powered hand tools,



manufactured after January 1, 1972, which produces more than 88 dBA



measured at 50 feet.  The limits for the same equipment manufac-



tured after January 1, 1973, and after January 1, 1980 are 84 dBA



and 80 dBA respectively.  Powered equipment manufactured after



January 1, 1972, intended for frequent use, such as lawn mowers



and snow removal equipment, must not be sold if it emits over 74 dBA.




The limits for the same equipment manufactured after January 1, 1975,



and January 1, 1978 are 70 dBA and 65 dBA respectively.436



     There are ordinances which apply a subjective standard.  For



example, it is unlawful to operate power tools and machinery result-



ing in loud and excessive noise between 10:00 P.M. and 7:00 A.M. in



residential areas of Seattle.     Appliances so out of repair as



to cause loud noises which disturb and annoy others are illegal in


                4 TQ
Greensboro, N.C.



     In Philadelphia, it is unlawful to make unnecessary noise in



the handling of ash, trash and garbage cans either in loading or


               439
unloading them.

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                             1-130





C.   Sound Producing and Amplifying Equipment



     The control of sound producing and amplifying equipment used



for commercial and advertising purposes has already been discussed



in Section 1.4.3.  This subsection will be devoted to those laws



which constrain the use of this equipment by private citizens or



nonprofit organizations.



     Some municipalities take the uncomplicated step of banning



all use of sound equipment which by producing loud and raucous



noise disturbs others.  Four of the cities in this survey take


              440
this approach.     Two cities further provide that if the sound



from electronic apparatus for sound producing or amplifying is



audible at a certain distance from the source between 10:00 P.M.



and 7:00 A.M. there is a violation.     Washington, D.C., prohibits



all use of these devices for any purpose.



     Numerous cities prohibit all use of sound equipment without



prior authorization in the form of a permit.  The laws then pro-



vide certain regulations of the permitted sound equipment, usually



prohibiting its use during given hours and in certain places, set-



ting a limit on the sound which can be produced  (usually by specifying



that it can not be audible at a certain distance), restricting the



sound amplified to human speech or music, and providing other



restrictions.  Twelve of the cities surveyed have laws which fall



into this category, two of them requiring a permit only for sound


       443
trucks.



     Des Moines, Iowa, has a complex ordinance governing this equip-



ment.  This city issues four types of permits and allows only cer-



tain permits for certain uses for sound equipment.  Each type of

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                             1-131






permit has separate restrictions.  Three of the permit types limit



the volume of the sound produced to 70 dBA measured at the closest



corner of the nearest residence and 100 dBA at 50 feet from the



source.  Sound trucks can produce no more than 80 dBA at 100 feet



and may only be used in nonresidential areas between 9:00 A.M. and



9:00 P.M.444



     Beverly Hills's law on the subject prohibits noise which



exceeds the ambient noise level by 15 dBA measured at the property



line.445



     A few cities make special provisions for sound trucks, either



forbidding them in residential areas44^ or placing some other



restrictions on their use.     Madison, Wis., limits the use of



sound equipment on aircraft over the city.



     A few cities provide specific penalties for violations of



these laws.  Salt Lake City, Utah, sets a fine of not more than



$299 or imprisonment of not more than six months or both.     The



penalty in Santa Barbara, Cal., is a fine not in excess of $500


                                                450
or imprisonment for not over six months or both.



D.   Noisy Animals



     There are three basic approaches used by local governments to



control the noise from animals owned by citizens of the community.



An approach used by many communities is to prohibit noise from



animals which disturbs the peace and quiet of other residents of



the community.  Many other localities extend the definition of such



a disturbance to cover a disturbance of any person,4   while the



more sensible legal approach applies only to disturbances of rea-



sonable persons of ordinary sensibilities.45^  The third category

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                             1-132





of regulation of noisy animals considers the noise as a nuisance.4-5"*



In both the nuisance situation and the disturbing the peace type



statute are instances where local governments have declared that



each day of violation shall constitute a separate offense.



Many of the communities that have not included these laws under



nuisance have not established, in the language of the section, the



manner of enforcement or the penalties that shall apply for viola-



tors.  A few have made specific provisions in this regard, con-



sidering violations as misdemeanors punishable by fine and/or



imprisonment ranging from a low of $10    to a high of $500^" and



imprisonment of up to six months.  A special 24 hour period of



grace is granted to a violator in at least one of the cities sur-



veyed during which time he may avoid liability by taking steps to


                                457
abate the noise from the animal.



     The amount of noise that must be produced by the animal to



constitute a violation ranges from a single event to prolonged



and continuous noise,  NIMLO's model ordinance has a provision for



abating noise from animals which  is of the type that requires,

                                   A C Q
"frequent or long-continued noise."





  1.4.7  Trends in Local Noise Regulation



     The most significant developments in noise control legislation



have come in the last two years, with several large cities and a



number of smaller urban communities leading the way.  Not surpris-



ingly, it is those communities with pervasive day-to-day noise



problems which have made the most persistent efforts to define



noise pollution, set decibel standards, and develop enforcement



machinery to control the problem.  Concurrently, seme cities,

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                             1-133






notably Chicago, Boston, and New York, have established noise abate-



ment offices as adjuncts to their environmental protection agencies,



thereby giving their planning and enforcement efforts a focus that



was lacking hitherto.  In short, as noise pollution has become



increasingly severe, cities most seriously affected have responded



by creating new governmental entities with specific responsibilities



for the study and control of noise.



     In large measure, these same cities have abandoned the vague



and subjective standards (such as "no unreasonable or excessive



noise") common elsewhere in the country, recognizing that unambigu-



ous, measurable standards are prerequisites to effective noise con-



trol.  However, standards-setting is both complex and difficult



since standards must reflect not only what is technically feasible,



and, thereby, practically enforceable, but also what is socially



desirable.  In short, striking a realistic balance between com-




peting considerations is easily the most formidable task faced in



setting standards, and failure to do so is likely to create



insuperable enforcement problems.  For example, the city of Bing-



hamton, New York, has set dBA noise standards that are so stringent



and arbitrary as to be virtually unenforceable.  Conversely, dBA



standards that are too permissive are equally valueless in control-



ling noise pollution.



     It is safe to say, however, that the cities which have made



serious attempts to deal with the noise problem have been acutely



aware of the need to strike an appropriate balance.  Boston's Air



Pollution and Control Commission, for example, has been soliciting



expert opinions for nearly a year in order to lay a foundation for

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                             1-134






the development and promulgation of realistic decibel standards.



Similarly, Chicago's Environmental Committee conducted extensive



hearings and obtained a wide range of expert recommendations dur-



ing 1970 and early 1971 — efforts which recently bore fruit in



what is probably the most comprehensive noise ordinance in the



nation.  After intensive study, New York City's Environmental Protec-




tion Administration submitted a new noise control plan in July of



1971 which, for the first time, sets strict noise standards and



provides tough enforcement powers for control of a wide range of



noise sources that have been hitherto unregulated in New York.



     To the extent that trends are discernible in the most advanced



noise control ordinances, it is clear that cities are seeking to



impose increasingly tough standards over time on manufacturers



and sellers of motor vehicles and other noisy machinery and equip-



ment.  Chicago's new noise ordinance, for example, covers all



motor vehicles and various machinery and equipment ranging from



bulldozers to lawnmowers, dune buggies, go-carts, snowmobiles, and



the like, and imposes graduated dBA standards to be met by sellers



and manufacturers within stated time periods.  For instance, no



one will be permitted to sell motorcycles manufactured after Janu-



ary 1, 1970, that are noisier than 88 dBA, noisier than 86 dBA



after January 1, 1973, 84 dBA after January 1, 1975, and 75 dBA



after 1980.  Similar provisions apply to owners and operators.



Although New York City's proposed code is far less ambitious than



Chicago's efforts to control motor vehicle noise, it has adopted



the same graduated approach with respect to reduction of noise



from air compressors used in construction.  These efforts clearly

-------
                             1-135
reflect a growing desire on the part of cities to force manufac-




turers to redesign products to meet stricter noise standards, but



it is a serious question, covered elsewhere in this report, as



to whether such standards will be unenforceable by virtue of pre-



emption of such authority by State and Federal governments.



     Beyond such standards-setting as described above, cities rely



on their traditional authority to impose curfews and establish




zoning laws for control of noise.  Here again, to the extent that



Chicago's noise ordinance is an indicator, the trend seems to be



one of developing increasingly complex and sophisticated dBA



standards in and near various residential, commercial, and manufac-



turing districts.  Given the recent enactment of Chicago's ordin-



ance, evidence is not yet available on its success in administer-



ing the new zoning standards.  (It should be noted, however, that



the more complex such zoning standards are, the greater the strain



will be on a city's enforcement resources.)



     Along with the growing recognition of the need for measurable



standards and centralization of authority for noise control, cities



with the most advanced noise control programs are developing, or



already have, a full range of enforcement procedures.  The proposed



New York City Code, for example, gives the Environmental Protection




Administration authority to test and certify any device for non-per-



sonal use that may be noisier than 40 dBA at ten feet from the source,



to seal any device that is in violation, to order forced repairs,



and to issue cease and desist orders.  In addition, civil and



criminal penalties can be severe, ranging from fines of $50 to



$5000 (assessed against corporations) for first and subsequent

-------
                             1-136
violations, and up to 45 days imprisonment for persons guilty of

a third offense.  The proposed New York City Code also has a pro-

vision awarding 25% of any fine assessed to persons giving informa-

tion leading to conviction, thus providing an added incentive to

enforcement.  Chicago's penalty structure is less severe, but it

too reflects a concern that penalties must be large enough to be

viable deterrents against violation.

     In conclusion, it should be noted that the establishment of

noise control offices with extensive enforcement powers places an

added strain on the already-burdened financial and human resources

of these cities.  Needless to say, enforcement cannot be made

effective without adequate resources.  As the Administrator of

New York City's Environmental Protection Administration recently

testified in a Senate Hearing:

       We estimate that this expense budget [$100,000 for
       FY 1972] should be as much as three times as large
       if we are to adequately implement our new noise
       code. . . .  These expenses will, of course, escalate
       in the following years. ^59

In short, the successful enforcement of new local noise ordinances

will probably hinge on the availability of funds from sources out-

side the cities themselves.


  1.4.8  Gaps in Local Noise Regulation

     Although there is wider regulation of noise on the local level

than on any other, there are still some noise sources which have

escaped restriction.  Railroad engine noise is not regulated by

any locality surveyed.  Certain types of equipment used in the

construction of either buildings or highways are not regulated.

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                             1-137






Domestic appliances some of which create considerable noise are



exempt as well.



     To a greater extent on the local level than on any of the



others, however, it is artificial to consider the noise regulated



by all cities and towns.  Although it can be said that most con-



struction equipment is regulated at the local level, this state-



ment loses much of its force when one realizes that the only entity



on the local level which regulates this with an objective standard



is Chicago.  Noise regulation at the local level has generally



been by the piecemeal enactment of certain restrictions in response



to particular community problems, instead of (as in the case of



Chicago) broadly applicable legislation coming after an in-depth



study of the noise problem of the municipality and a realization



on the part of its citizens that some steps are necessary to lower



the general noise level of the community.  However, as noise in



urban America continues to escalate, more cities will arrive at



the realization that the problem of noise must be met with widely



applicable laws which apply intelligent standards in an effort to



create quieter cities.

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                             1-138

1
 See, for example, "Noise, The Problem" in The President's 1971
Environmental Program Emerging Problems, pt. 3, at 7; and comments
by Senator Hart in Hearings on S. 3229, S. 3466, and S. 3546.  Be-
fore the Subcommittee on Air and Water Pollution of the Senate
Committee on Commerce, 91st Cong.,  2d Sess.  Air Pollution-1970.
pt. 3, at 925.

2
 For example the discussion in Section 2.3.1, especially that
concerning American Airlines, Inc., et aL v. City of Audubon Park,
Kentucky, at 2-28, infreu

3
 Pub. L. No. 91-604 (Dec. 31, 1970).

4
 Pub. L. No. 91-604, I 402(a)(Dec.  31, 1970).

5
 Pub. L. No. 91-604, § 402(c)(Dec.  31, 1970).

6
 Hearings on S, 3229, S. 3466, and S. 3546.  Before the Subcommittee
on Air and Water Pollution of the Senate Commission on Commerce,
91st Cong., 2d Sess., Air Pollution-1970, pt. 3, comments of
Cochairman Magnuson at 889.

7
 1970 CEQ Ann. Rep., Environmental Quality, at 130.

8
 President's 1971 Environmental Program at 7.

9
 42 U.S.C. § 4331  (a) (Supp. v, 1970).

10
  42 U.S.C. i 4331  (b)  (Supp. v, 1970).

11
  42 U.S.C. § 4332  (Supp. V, 1970).

12
  See for example the Hearings on Federal Agency Compliances with
Section 102(2)(c) and Section 103 of the National Environmental
Policy Act of 1969, before the Subcommittee on Fisheries and
Wildlife Conservation of the House Committee on Merchant Marine
and Fisheries, 91st Cong., 2d Sess., Sec. 41, pts. 1 and 2  (1970);
also see list of 102(2)  (c) Statements as published in  102 Monitor
by the CEQ.

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                             1-139

13
  In the case of proposed areas the acoustical acceptability of
the system plan is measured in terms of the Articulation Index
(AI).   The regulation defines this unit as, "A predictive mea-
sure of the intelligibility of speech in the presence of back-
ground noise."  If the AI value is 0.0 then the background noise
is just as loud as speech levels, while an AI value of 1.0 indi-
cates  that the background noise is 30 dB less than speech levels.
Thus,  as AI increases the relative acoustical supremacy of
speech increases.  For the new system plan the AI must be at
least  0.3.

  In areas where AI values only need to be 0.5 or less, the de-
sign can use the Speech Interference Level (SIL) for determining
acceptability.  This criterion is very much like the normal
sound  pressure level measured in decibels and in fact uses the
same units.  However, SIL measures just masking noise; only
background noise is present when SIL measurements are taken.
While  the AI procedure does not provide a point of measurement,
the SIL standard indicates that measurements are to be taken at
certain relative distances and compared accordingly for purposes
of determining acceptability.  The SIL maxima for acceptability
require that a normal voice level be adequate for effective
communications.  This means, in quantitative terms that, if
communications must be intelligible over a distance of six feet,
the maximum masking noise level permitted is 48 dB.  If the
communications distance is 12 feet the maximum permitted SIL is
43 dB; 18 feet corresponds to an SIL of 40 dB.  (Note that the
relationship is not linear over the whole range but is nearly so
beyond six feet from the source).

  A different unit, Noise Criterion (NC) is used for some spe-
cial areas and for equipment to be installed in existing systems.
NC relates sound pressure level in dB to the frequency of the
sound.  These curves look much like the SIL curves for voice
communications.  The permissable NC levels range from a high of
NC-70  for mechanical areas where voice communication is only
occasionally needed to a low of NC-30 for areas such as libraries
where  extreme quiet is necessary.  In order to better understand
the discussion, consider an NC value of a certain number of deci-
bels as indicating the pressure level of a sound centered on a
frequency of 2000 Hertz of any particular NC curve.

14          s
  49 U.S.C. s 1653(a) (Supp.iv, 1969).

15
  DOT  Order 1100.37, 9/2/69 and Office of Noise Abatement, DOT
Order  1100.23 chg. 2, 5/8/68; and DOT Noise Abatement Committee.

16
  DOT  Order 1100.23 Chg. 2, I 2(c), 5/8/68.

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                            1-140


17
  23 U.S.C. § 101(b)  (1964) .

18
  23 U.S.C. § 134 (1964) .

19
  Bureau of Public Roads,  PPM 20-8 "Public Hearing and Location
Approval"  (Jan. 14, 1969).

20
  Id., § 4(15) at 2.

21
   The CEQ authority to review activities of other Federal
agencies is set form at 42 U.S.C. § 4344 (3) (Supp. 1971).  The
duties of all Federal agencies are set out at 42 U.S.C. § 4332
(Supp. 1970).

22
  Federal-Aid Highway Act of 1970, § 136, amending 23 U.S.C.§109(g),
  84 Stat.  1713

23
  23 U.S.C.A. §109(h)  (Supp. 1971).

24
  23 U.S.C.A. § 109 (i)  (Supp. 1971).

25
  An example of the efforts underway is Interim Progress Report
of Research Activity;  Truck Tire Noise Investigation, National
Bureau of Standards Report 10 567, April, 1971.

26
  Harold Williams, Director of Civil Rights and Service Development,
Urban Mass Transportation Administration, and member of DOT Task
Force and Ad Hoc Committee, telephone interview 7/18/71.

27
  49 U.S.C. I 1348(a)  (Supp.  IV, 1969). Navigable airspace is defined
in the Federal Aviation Act of 1958 to mean:

     . . . airspace above the minimum altitudes of flight
     prescribed by regulations issued under this chapter,
     and shall include airspace needed to insure safety in
     take-off and landing of aircraft.

The minimum altitude of flight under the FAA regulations promulgated
under this section is 1200 feet  14 C.F.R. 71.5(c)(l)  .  The
navigable airspace also includes approach and takeoff airspace
around the nation's airports covered by the Act  (14 C.F.R. 91.13).
FAA authority is extended by legislation to set air traffic rules
governing the flight of aircraft:

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                            1-141


     . . . for the navigation, protection, and identification
     of aircraft for the protection of persons and property
     on the ground, and for the efficient utilization of the
     airspace, including rules as to safe altitudes of flight
     and rules for the prevention of collision between aircraft
     and (other objects).

28
  49 U.S.C. § 1653(a)  (Supp.IV, 1969).

29
  Letter from Alan S.  Boyd, Secretary of Transportation to
Hon. Herbert Teyer, Member of Congress, House of Representatives
appearing in Hearings  on H.R. 3400, H.R. 14146 before the Sub-
committee on Transportation and Aeronautics of the House Committee
on Interstate and Foreign Commerce, 90th Cong. 1st and 2d Sess.
at 19 (1968).

30
  Id. at 99.

31
  Such agreements are  in effect at Washington's National Airport
(WNA).  Residents under the flight path to WNA have complained
of violation of these  agreements as well as curfew violation of
these agreements as well as curfew violations for some years
now.  These complaints have crystalized recently into a lawsuit
now pending in Federal court, Virginians for Dulles, et al v.
Volpe, et al., Civil No. 507-70-A.

32
  Op. cit., Hearings on H.R. 3400 at 83.

33
  49 U.S.C. I 1431  (Supp. IV, 1969).

34
  49 U.S.C. § 1421(b)  (Supp. IV, 1969).
               >
35
  Id.

36
  49 U.S.C. § 1423(a)(2) (Supp. IV, 1969).

37
  Id.

38
  49 U.S.C. 1431(a)(2)  (Supp. IV,  1969).

39
  49 U.S.C. 1423(c) (Supp.  IV, 1969).

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                            1-142


40
  49 U.S.C. § 1429 (Supp.IV, 1969).

41
  Id.

42
  14 C.F.R. § 21.93(b)(1971).

43
  14 C.F.R. § 36.1(c) (1971).

44
  14 C.F.R. I C36.5  (1971).

45
  This special arrangement comes under 14 C.F.R. § 36.201(b)(l)  (1971)

46
  Dr. John Powers, Acting Director, Office of Environmental Quality,
F.A.A., telephone interview, August 1, 1971.

47
  Powers, John 0., The Federal Aviation Administration's Environ-
mental Activities at figure 9(March, 1971).

48
  49 U.S.C. § 1431(a) states, in part,

     "... the Administrator of the F.A.A. . . . shall prescribe
     and amend such rules and regulations  ... as necessary to
     provide for control and abatement of aircraft noise and sonic
     boom  ..."

49
  35 Fed. Reg. 16980, col. 3 (Nov. 4, 1970).

50
  Id.

51
  Id.

52
  Id. at IV, 16981.

53
  Id. at IV(3), 16982.

54
  Statement of Clifton F. Von Kann, Senior Vice President, Operations
and Airports, Air Transport Association of America in Hearings on
S. 1566 and S. 1016 before the Subcommittee on Aviation of the Senate
Committee on Commerce, 92d Cong., 1st Sess. at Attachment 2, page 2,
July 13, 1971.

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                            1-143

55
  Id., Table 1.

56
  35 Fed. Reg. 12555 (Aug. 6, 1970).

57
  35 Fed. Reg. 6189 (April 16, 1970).

58
  Proposed Federal Aviation Rule I 91.55(c) at 35 Fed. Reg. 6190
(April 16, 1970).

59
  Powers, FAA Environmental Activities at figure 9  (March, 1971)

60
  49 U.S.C.A. § 1701, et se^. (Supp. 1971).

61
  Id. § 1712; "Airport system planning" is defined as,

     "... the development for planning purposes of
     information and guidance to determine the extent,
     type, nature, location, and timing of airport
     development needed in a specific area to establish
     a viable and balanced system of public airports.  It
     includes identification of the specific aeronautical
     role of each airport within the system, development
     of estimates of system-wide costs, and the conduct
     of such studies, surveys, and other planning actions
     as may bo necessary to determine the short-, intermediate-,
     and long-range aeronautical demands required to be met by
     a particular system of airports."  §1711(5).

62
  Id. § 1712(b).

63
  Id. i 1712(f).

64
  Id. i 1712(h)(2)(A).

65
  Id. § 1713(a).

66
  Id. § 1716(a).

67
  Id. I 1716(c)(1)(A).

68
  Id. § 1716(c) (3) .

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                            1-144

69
  The term Metropolitan area as used in the Act refers to a
Standard Metropolitan Statistical Area, a term of art used
by the Bureau of the Budget.

70
  49 U.S.C. § 1716(c)(2) (Supp. 1971).

71
  Id.

72
  Id.

73
  49 U.S.C. I 1716(c)(l) (Supp. 1971).

74
  MIL-S-008806B (USAF).

75
  Id. figs. 1-3 at 3,5.

76
  AFM 86-5, TM 5-365, NAVDOCKS P-98 (10 Oct., 1964).

77
  Id., point 2 at page 1.

78
  Id.

79
  A.F. Reg. 55-34, "Reducing Flight Disturbances that Cause
Adverse Public Relations",  (5 Feb., 1971).

80
  Id., point 4 at page 3.

81
  Id., points 4(3) and 5(1) and 5(2).

82
  MIL-N-83155A (USAF),

     "Noise Suppression System, Aircraft Turbine Engine Ground
     Run-up, General  Specifications for,"   (25 March, 1970-
     amended 2 Sept., 1970).

83
  Id. , II 3.6.1.2, 3.6.1.3. at 6.

84
  41 C.F.R. § 50-204.10(d)(1971).

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                            1-145
85
  Id.  § 50-204.10(b).

86
  Id.  § 50-204.l(e),
87


88
  See discussion on this point at Section 3.1, page 3-10.

DO
  29 C.F.R.  i 1518.52 now appearing at 36 Fed. Reg. 7348
(April 17, 1971).
89
  29 U.S.C.A. § 651, et se£. (1971).

90
  Id. ,  § 651 (b) (3) .

91
  See the discussion at Section 2.3.1 at page 2-23, infra.
Illustrative cases giving the breadth of the definition of a
"business affecting interstate commerce include:  Wickard v.
Filburn, 317 U.S. Ill, 87 L.Ed. 122, 63 S.Ct. 82  (1942)Twheat
grown for own use in excess of market quota under Agricultural
Adjustment Act);  United States v. Sullivan, 332 U.S. 689, 92
L.Ed. 297, 68 S.Ct.  331 (1948)  (local druggist reboxing pills
shipped in from out of state);  Heart of Atlanta Motel, Inc. v.
U.S., 379 U.S.  241,  13 L.Ed. 2d 258, 85 S.Ct. 348  (1964)  (motel
located near interstate highways which advertised nationally
and has approximately 75% out-of-state clientele); Katzenbach v.
McClung, 379 U.S. 294, 13 L.Ed. 2d 290, 85 S.Ct.  377 (1964)
(restaurant purchasing 46% of meat from local suppliers who
obtained same from out-of-state).

92
  29 U.S.C.A. § 651 (1971).

93
  A "National Consensus Standard" is defined at §  652(9)  as:

     .  . . any occupational safety and health standard or
     modification thereof which  (1), has been adopted and
     promulgated by a nationally recognized standards-
     producing organization under procedures whereby it can
     be determined by the Secretary that persons  interested
     and affected by the scope or provisions of the standard
     have reached substantial agreement on its adoption,
     (2) was formulated in a manner which afforded an oppor-
     tunity for diverse views to be considered and  (3) had
                                i

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                             1-146
      been designated as  such  a standard by the Secretary,
      after consultation  with  other appropriate Federal
      agencies.

 An "established Federal  standard"  at §  652(10)  is:

      .  .  . any  occupational safety and  health standard
      established by any  agency of  the United States and
      presently  in effect,  or  contained  in any Act of
      Congress in force on  December 29,  1970.

 94
   29  C.F.R.  § 1910.95 now  appearing at  36 Fed.  Reg. 10518
 (May  29,  1971).
 95
   Penalties are discussed at 29  U.S.C.A.  i 666 (1971).
 96
   29  U.S.C.  §§ 660.661.

 Note  that a  variance procedure also exists under i 662,  but
 this  procedure requires  that the Secretary of Labor may  only
 grant such variances and exemptions "to avoid serious impair-
 ment  of the  national defense."  Further he must go on record
 as having granted such variance and must give notice of  and
 afford the opportunity for a hearing.   Variances may only
 last  six months if affected employees  are not notified and
 afforded hearing opportunity.
 97
   29  U.S.C.A.  i 667(b)  (1971).
 98
   Id. ,  § 667(c) (l)-(8) .

 99
   This  has tended to slow development of any more meaningful
 standards by Federal agencies.   It is only recently that some
 discussion of the necessity for stricter standards has been
 brought to the public forum.   See generally "Noise Control,"
 Hearings on H.R.  5275 and other bills before the Subcommittee
 on Public Health and Environment of the House Committee on
 Interstate and Foreign Commerce, 92d Cong., 1st Sess., Ser. 30
 (1971).
100
   30 U.S.C.  § 846 (Supp.  V, 1970).
101
   "Qualified person" is defined at 28 C.F.R.  i 70-504-1 now
appearing at 36 Fed.  Reg. 12740 (July 7, 1971).

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                            1-147


102
   28 C.F.R. § 70.510(b)(l)  at 36 Fed. Reg. 12740 (July 7, 1971).

103
   36 Fed. Reg. 12739 (July 7, 1971).

104
   28 C.F.R. § 70.510.

105
   AEC 0550-01 OS (Feb.  25,  1970).

106
   "Standards" is defined at AEC 0550-041 as:

     Standards include pertinent Federal, state and local
     laws, codes, regulations, specialized guides, manuals,
     and other issuances sponsored by various Government
     agencies, industrial organizations, technical associations,
     and other groups.

107
   AEC 0550-051 and 0550-054.

108
   AEC 0550-034c

109
   AEC 0550-034e

110
   See discussions of these regulations, supra, at 1-28 and 1-14.

Ill
   AFR 160-3  (29 Oct.,  1956) as amended, AFR 160-3A (27 June,
1960), and AFR 160-3B (7 Feb., 1967).

112
   AFR 160-3B,   1.3c(l).

113
   BUMEDINST 6260.6B (5 Mar.,  1970).
   NAVAIRINST 6260.1 (24 Feb., 1971).
   OPNAVINST 5100.14 (11 August, 1970)

114
   OPNAVINST 5100.14, Ch. 3-2a.

115
   BUMEDINST , pt. 3.

116
   Id., i 3d; this section has been implemented by BuMedNote 6260,
732:SHB:al;  (28 April,  1971).
                                i

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                            1-148


117
   This regulation applies to all Naval Air Systems Command
Headquarters field activities.

118
   NAVAIRINST 6260.1, § 5.b.(4)  (24 Feb., 1971).

119
   40 U.S.C. § 333(a) (Supp.V, 1970).
120
   36 Fed. Reg. 7340 (April 17, 1971).

121
   Contract GSA-Washington,  B.C.  71-8378,  "United States Courthouse
and Federal Office Building, Philadelphia, Pennsylvania", Cl. 35.6
at 2-14.

122
   Corps of Engineers,  CE-1300 point 1 at i (May, 1970).

123
   Id., point 5 at ii.

124
   Id., point 9 at vi.
125
   Id. at 1.

126
   Contractors must see that subcontractors carry forth the
specifications or the contractors will be liable to action by
the Contracting Officer for non-compliance.

127
   Corps of Engineer, U.S. Army, EM 385-1-1, Safety;  General
Requirements, g 32 "Noise Control" at 127 (1 Nov., 1967).

128      Q
   Id.,  I 32.A.02 and .03 at 128.

129
   CE-1300, para  	-5 at 2.

130
   ETL 1110-3-141 (30 Nov., 1970).
                                  I

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                            1-149
131
   P.H.A. Manual, Vol. VII, Book 1, Underwriting - Home
Mortgages, i 71453.

132
    Id., §§ 71453.5 and .6.

133
   P.H.A. #2600, Minimum Property Standards for Multifamily
Housing, § M405  (Feb. 1971).

134
   ]Ed_. Statement of Purpose at 1

135
   Id., § M201 at 26.

136
   Berendt, Winger, and Burroughs, A Guide to Airborne, Impact,
and Structure Borne Noise - Control in Multifamily Dwellings,
at 10-5 (Sept. 1967).

137
   F.H.A. #2600, op.  cit., i M405-2.4 at 87.

138
   "Partition" includes walls separating living units from public
and service spaces but does not include exterior walls.  See
Table 4-6 at n.7.

139
   F.H.A. #2600, Table 4-6 at 89.

140
   Berendt, et.al., op. cit. at 10-8.

141
   F.H.A. #2600, Table 4-7 at 90.

142
   H.U.D. Circular 1390.2,  I 2,  "Policy"  (July  16,  1971).

143
   Id., § 2(4)  at  2.

144
   Id., § 2(1-3) at  2.

145
   Id. , i 4.b.(1)  at  7, 8.
                                i

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                            1-150
146
   Id.r s 4.b.(2)at 9.  Note that no specific measuring point
within the house or on the site is set for either the interior
or exterior standards.  Lamentably, this is all too often true
of noise abatement laws at all governmental levels.

147
   Id., § 4.b.(3) at 9.

148
   G.S.A. Handbook; PBS P 3410.5 Chge 1, "Architectural Criteria"
(Sept. 2, 1969), and PBS P 3460.1C "Mechanical and Electrical
Engineering.

149
   Public Building Service:  Guide Specifications, PBS 4-0950
"Acoustical Ceiling Systems",  (May, 1968), PBS 4-1031 "Relocatable
Partition Systems" (as amended, Feb., 1968), and PBS 4-515-71
"Vibration Insulation" (April, 1970).

150
   G.S.A. Handbook PBS P 3460.1C, Ch. 2-41 at 24


151
   PBS -4-515-71, point 4 at 1515-3  (April, 1970).

152
   Id. at 1515-4.


153
    15 U.S.C.  §  717,   et  seq.  (1963);  regulations appearing at
 18 C.F.R.  § 2.69 (1971).

154
   18 C.F.R.  §  2.69(a)(3)(iii)  (1971).

155
   H.R.  5275, 92dCong.,  IstSess., § 6(d)(2).

156
   41 U.S.C.  §  35(e)  (1966).

157
   41 C.F.R.  §  50-204.1(e)      (1971).

158
   Cal. Gen.  Laws Ann., ch. 1433 §§21000-21150 (Deering 1970).

159
   Id.   ch. 1534.

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                             1-151
160
   Id.  ch. 1533.

161
   Id.

162
   Ch. 87 1  1-3  [1970] Colo. Laws 360-361.

163
   Colo. Rev. Stat i 66-35-1 to 66-35-8  (Senate Bill No.  197,  1971)

164
   Id. §  66-35-3.

165
   Id. I  66-35-3(4).

166
   Id. i  66-35-8.

167
   Ch. 71-36, I 1-3,  [1971] Fla. Laws 85.

168
   Act 147, [1970] Hawaii Laws 271.

169
   Id. 271-272.

170
   Letter from Dr. Walter B. Quisenberry, Director of Health,
State of Hawaii to Robert C. Ware, July 7, 1971.

171
   Hawaii Rev.  Laws § 267-1 (1955).

172
   111. Ann. Stat. ch.  111^ s 1001 et seq. (Supp. 1970).

173
   Ch. 140, 1 et seq.,  [1970] N. Y. Laws 185-213  (McKinney
1970).  (Noise was added to the list of air pollutants  by Act
of February 3,  1971).

174
   Ch. 140, §  15(7), [1970] N. Y. Laws 191  (McKinney 1970).
The lack of a provision concerning search warrants presents
a fourth amendment question on the validity of the section.

175
   Ch. 140, I 1 et seq.  [1970] N. Y. Laws 185-213 (McKinney  1970).

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                              1-152


176
   N. D. Cent. Code 1  23-01-17 (House  Bill No. 1436, 1971).

177
   Penn. Stat. Ann. tit. 71, § 510-17 (1970).

178
   Cal. Pub. Util. Code § 21669 et seq.  (Deering 1970).

179
   Interview with Joseph Crotti, Director of Aeronautics, State
of California and Nicolas Yost, Deputy Attorney-General of
California.  The regulations appear in Cal.Business Reg., tit 4,
subch. 6.

180
   The SENEL limit in the regulations was determined by adding
five decibels to the normal noise emission of the heaviest
aircraft of types given.

181
   Cal. Pub. Util. Code i 21669.4  (Deering 1970).

182
   Cal. Business Regulations tit. 4 § 5075(4).

183
   Id. § 5075(6).

184
   At  least one California official believes the regulations
will have  to be eased for Los Angeles International Airport
and possibly others during the  first time period.   (Interview
with Richard G. Dyer, Assistant Engineer, Department  of Aero-
nautics, State of California, in Sacremento, California,  on
August 4,  1971.)

185
   Orange  County Airport in California has already  taken  steps
to lower aircraft noise.  The airport has set up monitoring
devices and informs airlines if pilots have been noisy on
takeoffs.  Through the  use of changes in short-term leases,
the airport has restricted the  number of flights and  set  a cur-
few.   (Letter from Robert J. Bresnahan, Director of Aviation,
Orange County, to Robert C. Ware, August 17, 1971.)

186
   Minn. Stat. Ann. §   360.063  (1966).

187
   Conn. Gen. Stat. Ann. i  14-80  (1958).
   Ky. Rev. Stat. § 189.020  (1962).
   Mass. Ann. Laws ch 90, § 16.   (Supp. 1968).
   Mo. Rev. Stat. i  304.560  (1959).
   Ore. Rev. Stat. § 483 . 448 (3) (1969).

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                              1-153
188
   Ky. Rev. Stat. I 189.140  (1962).
   Mo. Rev. Stat. § 304.560  (1959).
   Ore. Rev. Stat. § 483.448  (1969).

189
   Conn. Laws of  1971, Public Act  No.  762,  §  3.

190
   Conn. Laws of  1971, Pub. Act No. 762.

191
   N. Y. Veh. and Traf. Law § 386  (McKinney,  1970).

192
   Id. § 375(31).

193
   Idaho Code Ann., i 49-835  (1971). (Letter from Jack Farley,
Director, Motor Vehicle Division.)

194
   Cal. Vehicle Code I 23130  (Deering 1971).

195
   Id.

196
   Id. § 21760  (In the original Act, standards for new automobiles
were stricter than those for operation.  An amendment changed the
operational levels.  There is legislation pending which would raise
the standards for new cars.)

197
   Cal. Vehicle Code § 23130(c).

198
   Colo. Rev. Stat. Ann. § 66-35-1 et seq.  (Senate Bill No. 197.)

199
   Id. § 66-35-8.

200
   Ch. 563, § 1,  [1971] Minn. Acts 870.

201
   111. Ann. Stat. ch. 95^ §  12-121(b)  (Supp. 1970).  Most states
which define mufflers, do so  in terms of baffle plates, not turbine
wheels.  For a discussion of  the proper state definition of mufflers
see Kolb,  Richard G, "Vehicle Noise and State Regulations," Heavy
Duty Truck  Manufacturers Association Newsletter,  (Washington, D.C.
July 28, 1971).

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                             1-154
202
   Ala. Code tit. 36 , § 39  (1958) .

203
   Penn Stat. Ann.  tit. 75, I 828 (1959).

204
   Tex. Pen. Code Art. 797  (1948).

205
   Wis. Stat. Ann. I 22.40  (11),  (12) (West 1970).

206
   Id. I 347.39  (1958).

207
   Colo. Rev. Stat. Ann. § 13-5-105  (1963).
   111. Ann. Stat. ch. 95^, I 12-121 (1958).
   La. Rev. Stat. § 32:352  (1950).
   Me. Rev. Stat. Ann. tit 29, § 1364 (1964).
   N. H. Rev. Stat. Ann. § 263:46 (1966).
   N. Y. Veh. & Traf. Law § 375(31)   (McKinney 1970)
   Okla. Stat. tit 47, § 12-402  (1961).
   Penn. Stat. Ann. tit. 75,1 828 (1959).
   Wis. Stat. Ann. § 347.39 (1958).

208
   Va. Code Ann. § 46.1-301 (1958).

209
   Md. Ann. Code art 66%, § 11-1409  (1957).

210
   Ga. Code Ann. I 68-1717  (1967).

211
   Vt. Stat. Ann. tit 23, § 1097  (1967).

212
   Nev. Rev. Stat. § 486.100  (1967).

213
   Mich. Comp. Laws § 9.2407.
   N. Y. Veh. and Traf. Law § 381 (McKinney 1970).

214
   Hawaii Rev. Laws § 311-24  (1955).

215
   V. I. Code Ann. tit 20, §  465  (1964).

216
   Penn. Stat. Ann. tit 75, § 828 (1959).

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                             1-155


217
   Cal. Vehicle Code § 23130 (Deering 1971).

218
   A motor-driven cycle is generally defined as a two-wheeled
vehicle with a motor which produces less than 15 horsepower.

219
   Although no enforcement procedures are specified in the law,
the California Highway Patrol has developed methods for the
measurements of motorcycle noise.  These are described in
Motorcycle Noise Test Procedure Evaluation, California Highway
Patrol, January, 1971.

220
   Colo. Rev. Stat. Ann. § 66-35-7  (Senate Bill No. 197).

221
   Id. i 66-35-6.

222
   Id. I 66-35-8.

223
   Ch. 563, § 1  [1971] Minn. Acts 870,.

224
   111. Ann. Stat. i 314-3 (1958).

225
   Kan. Stat. Ann. § 82a-809 (1963).

226
   Neb. Rev. Stat. § 81-815.09  (Supp. 1959).

227
   Penn. Stat, Ann. tit 55, §§  411, 485f  (1959).

228
   Wis. Stat. Ann. § 60.29 (35)  (1964).

229
   Id. i 350-10  (Supp. 1970).

230
   Me. Rev. Stat. tit-12,§1 1978, 1984  ("Maine Snowmobile Law,"
State Park and  Recreation Commission).

231
   Ch. 90B, I 24,  [1970] Mass.  Gen. Laws 274.

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                             1-156


232
   N. Y. Conservation Law § 8-0305  (1971).

233
   Mont. Lews 1971 (Senate Bill 54).

234
   Colo. Rev. Stat. Ann. i§ 66-35-6, 66-35-7  (Senate Bill No. 197).
This Snowmobile operation provision is included in the law governing
operational noise from other vehicles.  This  accounts for the
measurements being dependent on speed limits.  Although it is
doubtful that there is a speed limit everywhere any snowmobile
may go, this is the way the law is written.


235
   Ala. Code tit. 36, § 36  (1958).
   Ariz. Rev. Stat. Ann. i  28-954  (1956).
   Ark. Stat. Ann. § 75-725 (1947).
   Colo. Rev. Stat. Ann. §  13-5-104  (1963).
   Ga. Code Ann. i 68-1716  (1967)si
   Kan. Stat. Ann. § 8-5, 102  (1963).
   Me. Rev. Stat. tit 29, § 1362  (1964).
   Mich. Comp. Laws I 9.2406 (Supp.  1970).
   Md. Ann. Code art. 66%,  § 12-401  (Supp.  1970).
   Mo. Rev. Stat. § 304.560 (1959).
   Ore. Rev. Stat. § 483.446 (1969).
   S.D. Comp. Laws Ann. § 32-15-10  (1967).
   Tenn. Code Ann. § 59-901(a)   (1955).
   Tex. Pen. Code art 796 (1948).
   Wyo. Stat. Ann. i 31-204 (1967).

236
   Tex. Pen. Code art 796 (1948).

237
   Ala. Code tit. 36, § 36  (1958).

238
   Tex. Pen. Code art 796 (1948).

239
   Minn. Stat. Ann. I 360.075  (1970).

240
   Md. Ann. Code art. 66%,  § 12-401.1  (1957).

241
   N. J. Stat. Ann. § 39:4-78  (1937).

242
   Miss. Code Ann. i 3374-124  (1956).

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                              1-157
243
   Nev. Rev. Stat. § 266.360 (1967).

244
   N. J. Stat. Ann. § 40:175-10  (1937).

245
   Del. Code Ann. tit 4, §§ 543, 561 (1953).

246
   Tex. Code art 666-12  (1948).

247
   N. Y. Multiple Dwelling Law § 84 (McKinney 1968).

248
   Act 146 I 103  [1970] Hawaii Acts 270.

249
   Iowa Code § 138.13(b) (Supp. 1970).

250
   Ch. 1298, § 216 [1970] Cal.  Stats.

251
   Colorado—Rules and Regulations pertaining to Occupational
Health § OH 2.10.
   Delaware—Letter from Franklin B. Drumheller, Director, Depart-
ment of Labor, State of Delaware, to Hon. James Hodgson, Secretary
of Labor, April 14, 1971.
   Idaho—Minimum Safety Standards and Practices for Sawmill, Wood-
working and Allied Industries,  ch. 1,  § 7.8.
   Kansas—Letter from Robert J. Borchardt, Director, Industrial
Safety Division, Department of Labor,  State of Kansas to Mr. Darrell
D. Carlton, Commissioner of Labor, State of Kansas, April 6, 1971
on file in Office of State Programs, Occupational Safety and Health
Administration, Washington, D.C.
   Kentucky--State Board of Health Regulation OH 1 (4).
   Maine—Department of Labor and Industry, Rules and Regulations
Relating to Occupational Health and Sanitary Standards § 16.
   Michigan--Department of Public Health, Division of Occupational
Labor, Occupational Air Contaminant and Physical Agents  R 325.2421-
325.2424.
   Mississippi—State Board of Health Regulations.
   New Jersey—N.J.A.C. 12:173.
   Norht Carolina—State Board of Health Regulations.
   Pennsylvania—Department of Environmental Resources Occupational
Health and Safety Standards §§ 201.81 et seq.
   Tennessee--Letter from Winfield Dunn, Governor, to Hon. James
Hodgson, Secretary of Labor, April 21,  1971.
   Washington—Department of Labor and Industries, Division of
Safety Regulations.
   West Virginia—Occupational and Industrial Health Regulations
Ch. 5, Art. 1.

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                             1-158
252
   California—Division of Industrial Safety, General Industry
Safety Orders Group 6.1, art.  55.
   Oregon—Workmen's Compensation Board, Oregon Safety Code for
Places of Employment § 22-018.
   Utah—Industrial Commission Regulations § 28.

253
   Hawaii Public Health Regulations ch. 24, § 13 requires that the
noise level to which workers can be continually or with regular
frequency subjected cannot be greater than 90 dB.
   Arizona has adopted ANSI standards Z24-X-2.
   The Virginia Bureau of Industrial Hygiene requires that hearing
conservation measures be initiated if the noise exceeds an average
of 85 dB in the ranges of 300-600, 600-1200 and 1200-2400 Hz.
   The rules of the Wisconsin Industrial Commission § 1.82 require
ear protective devices if the noise exceeds 100 dBC for a major
portion of the day or 120 dBC at any time.


254
   Florida Department of Commerce, Bureau of Workmen's Compensation,
Regulations for Control and Prevention of Occupational Diseases
§ 1855-1.11.
   New Mexico Department of Public Health, Regulations Governing
the Sanitation of Places of Employment § K.

 255
    Alaska Stat.  1 11.45.030.
    Cal.  Code tit 11,  §  415 (West  1960).
    Kan.  Stat.  Ann.  §  21-950  (1963).
    La.  Rev.  Stat.  § 14:103 (1950).
    Me.  Rev.  Stat.  Ann.  tit.  20,  § 3771 (1964).
    Mass.  Ann.  Laws ch 272, i  41  (Supp.  1968).
    Mo.  Rev.  Stat.  § 562.240  (1959).
    Ohio Rev. Code Ann.  § 2923.41  (1965).
    R.I.  Gen. Laws Ann.  §§ 12-2-4, 12-2-5  (1968).
    Tenn.  Code Ann.  §§ 39-1204,  39-1213 (1955).
    Vt.  Stat. Ann.  tit.  13, §§ 1022-1023,  1051 (1967).
    Wis.  Stat.  Ann.  §  947.01 (1958).
    Wyo.  Stat.  Ann.  §§ 6-112,  6-114,  6-173.

 256
    V. I.  Code Ann.  tit 14, §§ 622,  624.

 257
    Conn.  Gen.  Stat. Ann. § 7-194  (1958).
    111.  Ann. Stat. §  11-5-2 (1958).
    Iowa Code § 368.7  (1966).
    Ky.  Rev.  Stat.  ii  82.220,  85.180  (1962).
    Mich.  Comp. Laws § 5.1740  (1948).
    Minn.  Stat. Ann. § 412.191 (1958).
    Penn.  Stat. Ann. tit. 53,  i 46202 (20)  (1959).

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                              1-159
258
   Wash. Rev. Code §§ 35.22.280(36), 35.23.440(10).

259
   In each of these cases, the state law regulating disturbance
of the peace is given first, followed by the law granting to
localities the power to regulate it.
   Miss. Code Ann., tit.  11, § 2088, 2090-5  (1956); tit. 16, I 3374-124,
   Neb. Rev. Stat. § 32-466  (1968); §1 14-102, 16-227, 16-228, 17-556.
   N.Y. Pen. Law §§ 240.20,  240.21  (McKinney 1970); Town Law i 130.
   Okla. Stat. tit. 21, 1 1321.8 (1961); tit. 11, I 655.
   Tex. Pen. Code tit 9,  art. 281,  451, 465, 474  (1948); tit. 28,
art. 1015.
   Utah Code Ann. II 76-52-9, 76-55-3, (1953); 3310-8-47, 10-8-50.
   Wash. Rev. Code §§ 9.76.010, 9.76050 (1967); §§ 35.22.280(36),
35.23.440(10).


260
   R. I. Gen. Laws Ann. II 12-2-4,  12-2-5  (1968).

261
   Me. Rev. Stat. Ann. tit.  20, i 3771 (1964).

262
   V. I. Code Ann. tit. 14,  I 624 (2) (1964).

263
   Tenn. Code Ann. § 39-1213 (1955);
   Tex. Pen. Code tit. 9, art. 451  (1948);
   La. Rev. Stat. § 14:103 (1950);
   Miss. Code Ann., tit.  11, i 2090.5 (1956).

264
   Penn. Stat. Ann. tit 34,  § 1311.704 (g) (1959).
   Minnesota has a wildlife  region within the state regulated
so as to maintain an untouched sanctuary.   Many noise sources
are restricted from entering this area so as to create disturbing
noise.

265
   Colorado, Connecticut, Florida, Idaho,  Maine, Minnesota,
Montana, New York and North Dakota have enacted some regulations
on noise in 1971.

266
   Colorado, Illinois and New York are examples of states which
have taken this action.

267
   Port of New York Authority, "Terms and Conditions for the
Operation of Jet Aircraft."  For takeoffs, these conditions
are indentical for each airport.

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                             1-160
268
   Port of New York Authority, "Terms and Conditions for the
Operation of Jet Aircraft, Kennedy International Airport," (1).

269
   Port of New York Authority Airport Rules and Regulations,
1 330/0-02.

270
   Id. § 320/0-06.

271
   Letter from Dan E.  Sweat,  Jr.,  Chief Administrative Officer,
Office of the Mayor, Atlanta, Georgia, to John J.  Zimmerman,
June 18, 1971.

272
   Letter from Merle F.  Goff, City Manager, Bangor, Maine, to
John J. Zimmerman,  June  21, 1971.

273
   Letter from Floyd Holland, Major, Cheyenne, Wyoming, to
John J. Zimmerman,  June  21, 1971.

274
   Letter from Robert W. Rank, City Manager, Durango, Colorado
to John J. Zimmerman,  June 21, 1971.

275
   Letter from Dan Rock, Manager,  Evergreen Area Chamber of
Commerce, Evergreen, Colorado, to  John J. Zimmerman, June 22, 1971,

276
   Letter from Harvey M. Pose, Assistant to City Manager,
Grand Junction, Colorado, to  John  J. Zimmerman, June 22, 1971.

277
   Letter from Nathaniel Felzer, Deputy Corporation Counsel,
Honolulu, Hawaii, to John J.  Zimmerman, June 23, 1971.

278
   Letter from Bryce Brasel,  Administrative Assistant to the
Mayor, Omaha, Nebraska,  to John J. Zimmerman, July 23, 1971.

279
   Letter from Dr.  Frank B. Clark, Director, Allegheny County
Health Department,  Pittsburgh, Pennsylvania, to John J. Zimmerman,
June 24, 1971.

280
   Letter from William M. Johnstone, Town Clerk, Stowe, Vermont,
to John J. Zimmerman.   Stowe, a major eastern ski resort is
unincorporated.  However, it does  have a zoning ordinance which
does not mention noise.

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                             1-161


281
   Letter from James H. Norton, Air Pollution Control Officer,
Columbia, South Carolina, to John J. Zimmerman, July 20, 1971.

282
   Letter from Vincent DiMase,  Department of Building Inspection,
Providence, Rhode Island, to John J. Zimmerman, July 21, 1971.

283
   The National Institute of Municipal Law Officers has also
drafted a model ordinance which includes decibel limits on noise.
However, this model has been enacted much less frequently on the
local level than the subjective ordinance.

284
   The summary of local  laws at the end of this section provides
citations for the Nimlo-type ordinances in each locality surveyed.

285
   El Paso, Tex., City Code §  12-52.

286
   Portland, Ore., City Ordinances s 14.52.030.

287
   Norfolk, Va., City Code § 31-40.

288
   Manchester, N. H. , City Noise Ordinance i 4.

289
   Killeen, Tex., City Code ch. 7, art. 9, s 3.

290
   Indianapolis, Ind., City Ordinances § 10-303.

291
   Beverly Hills, Cal., Municipal Code tit. 4, ch. 8, art. 1.

292
   Boston, Mass., Revised City Ordinances ch.  29.

293
   Pocatello, Idaho, Ordinance No. 1642.

294
   Aspen, Colo., City Code § 6-1-48.

295
   Boulder, Colo., Revised Code § 21-61.

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                             1-162


296
   The validity of these laws is questionable as a result of
the new Colorado noise law described in 1.2.

297
   Scranton, Pa., (General Offenses Code §§ 733.01-733.05, 733.99)
has such a law.  It establishes different classes of nuisances
and provides penalties for each class.  Various noise sources
can be found in three different classes.  Wichita, Kan., also
has such a law (City Code § 710.040), as does Decatur, 111.
(City Code ch. 47).

298
   Detroit, Mich., City Code §  39-1-40; Minneapolis, Minn.,
Code of Ordinances § 609.74; Sioux Falls, S.D., City Ordinances
§ 9.1001.

299
   Portland, Ore. (Portland, Ore., Zoning Ordinance), and
Sioux Falls, S. D.  (Sioux Falls,  S.  D., Zoning  Ordinance) allow
uses not objectionable due to noise.   Richmond, Va.  (City  Code
art. 17, § 42-54) allows certain  industries in its  light
industrial districts if they create  no more noise than other
uses.   Ogden, Utah  (Revised Ordinance Book § 29-16-1(w)., prohibits
certain noisy uses in certain zones.

300
   Those cities which appear to apply  decibel limits to any
activity include:
   Binghamton, N. Y.  (Zoning Ordinance i 609),
   Denver, Colo.  (Zoning Ordinance § 13-2(2)),
   Jacksonville,  Fla.  (Zoning Regulations § 708.423),
   Minneapolis, Minn.  (Code of  Ordinances § 240.030),
   Rochester, Minn.  (Zoning Ordinance  § 40.^052) .
Those cities which apply decibel  limits only to industrial or
commercial noise  sources include:
   Chicago, 111.  (Municipal Code §§ 17-4.9 to  17-4.14),
   Dallas, Tex.  (Comprehensive  Zoning  Ordinance,  §  10-420),
   Juneau, Alas.  (Zoning Ordinance),
   Las Vegas, Nev.  (Zoning Regulations if! 11-1-22,  11-1-23),
   Washington, D. C.  (Zoning Ordinance §§ 6101.51,  6102.51).

301
   Dallas, Tex.,  Comprehensive  Zoning  Ordinance § 10-420.

302
   Binghamton, N. Y., Zoning Ordinance i 609.

303
   Denver, Colo., Municipal Code  § 372.1-10.

304
   Salt Lake  City, Utah, Revised  Ordinances I 2-12-3.

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                             1-163
305
   Scottsbluff, Neb., City Ordinances 31-201.

306
   Park Ridge, 111., City Ordinances II 4-8-1  to 4-8-3.

307
   Santa Barbara, Cal., Municipal Code § 18.08.200.

308
   Portland, Ore., City Ordinances § 33.78.040.


309
   Beverly Hills, Cal., Municipal Code 34-8.402;
   Decatur, 111., City Code ch.  30, §88;
   Detroit, Mich, City Code § 38-10-10;
   Little Rock, Ark., City Ordinances art XIV, § 39-126;
   Minneapolis, Minn., Traffic Code § 414.070;
   Philadelphia, Pa., Code of Ordinances § 10-406;
   Portland, Ore., City Ordinances § 16.28.290;
   Richmond, Va., City Code § 25-30;
   Salt Lake City, Utah, Revised Ordinances art. 9,  § 247;
   Seattle, Wash., City Ordinances § 12.82.050;
   Sioux Falls, S.D., City Ordinances, Traffic Code  § 13.131;
   Washington, D. C., Traffic and Motor Vehicle  Regulations s  153(e)

310
   Salt Lake City, Utah, Revised Ordinances art. 9,  § 247.

311
   Id. § 250.

312
   Beverly Hills, Cal., Municipal Code §4-8.401.

313
   Id. I 4-8.402.

314
   Id. § 4-8.104.

315
   Ann Arbor, Mich., City Code § 9:14.

316
   Pocatello, Idaho, Ordinance No. 1642 § 3.

317
   Cincinnati, Ohio, Code of Ordinances I 511-2.

318
   Pocatello, Idaho, Ordinance No. 1642 I 4.

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                             1-164


319
   Chicago, 111.,  Municipal Code I  17-4.7;
   Minneapolis, Minn.,  Code of Ordinances,  § 240.060.

320
   Chicago, 111.,  Municipal Code §  17-4.7.
   Minneapolis, Minn.,  Code of Ordinances § 240.060.

321
   Chicago, 111.,  Municipal Code §  17-4.31.

322
   Billings, Mont.,  Code of Ordinances § 21-1-178;
   Birmingham,  Ala., City Code § 34-146;
   Bismarck, N. D.,  Revised City Ordinances s 10.1109;
   Chicago, 111.,  Municipal Code §  27-353;
   Cleveland, Ohio,  Penal Code § 13.1123;
   Decatur, 111.,  City  Code ch. 30.391;
   Denver,  Colo.,  City  Code § 507.6;
   Des Moines,  Iowa, City Code § 30-1733;
   Detroit, Mich,  City  Code § 38-10-10;
   Flagstaff, Ariz., City Code § 6-1-42;
   Helena,  Mont.,  City  Ordinances § 10-13-34;
   Kansas City, Kan., City Code § 23-50;
   Killeen, Tex.,  City  Code ch. 13, art. 1, § 54:
   Little Rock, Ark., City Ordinances art.  XIV,  §  39^126;
   Memphis, Tenn., City Code §§ 23-116, 23-117;
   Milwaukee, Wis.,  City Code i 101-283;
   Minneapolis, Minn. Traffic Code  §  417.360;
   Missoula, Mont.,  City Ordinances § 20-22;
   Nashville, Tenn., City Code § 27-1-71;
   Norfolk, Va., City Code § 29-777;
   Philadelphia, Pa., Code of Ordinances §  10-406;
   Portland, Ore., City Ordinances  §  16.28.290;
   Scottsbluff, Neb., City Ordinances § 13-118.
   Sioux Falls, S. D.,  Traffic Code § 13.131;
   Wichita, Kan.,  Traffic Code I 11.60.240.

323
   Ann Arbor, Mich., City Code § 9:14;
   Cincinnati,  Ohio, Code of Ordinances § 511-16;
   Madison, Wis.,  City  Ordinances § 12.115   (2);
   Ogden, Utah, Revised Ordinance Book § 14-18-17;
   Pocatello, Idaho, Ordinance No.  1642 i 3;
   Salt Lake City, Utah, Revised Ordinances art. 9, § 172;
   Washington,  D.  C., Traffic and Motor Vehicle Regulations § 144,

324
   Madison, Wis.,  City  Ordinances § 12.115(2).

325
   Richmond, Va.,  City  Code I 25-222.

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                             1-165
O O C                                                c
   Salt Lake City, Utah, Revised Ordinances art. 9 s 248.

327
   Decatur, 111., City Code ch. 30, I 91.

328                            s
   Cleveland, Ohio, Penal Code s 13.1123.


329
   Missoula, Mont., City Ordinances § 20-14.1.

330
   Detroit, Mich., City Code §1 38-6-20 to 38-6-26.

331
   A motor-driven cycle is generally defined as a two-wheeled
vehicle with a motor which produces less than fifteen horsepower.

332
   Chicago, 111., Municipal Code I 17-4. 'I a

333
   Minneapolis, Minn., Code of Ordinances § 240.060.

334
   Chicago, 111., Municipal Code i 17-4.31.

335
   Birmingham, Ala. City Code § 35-10(d);
   Buffalo, N.Y., City Ordinances ch. XXV, § 1701;
   Cleveland, Ohio, Penal Code § 13.1114;
   Dallas, Tex., City Code § 30-4;
   Decatur, 111., City Code ch. 66, § 23;
   Des Moines, Iowa, City Code § 32-31;
   Fort Lauderdale, Fla., Code of Ordinances §-28-35;
   Hartford, Conn., City Code i 21-1;
   Houston, Tex., City Code § 29-12;
   Indianapolis, Ind., City Ordinances § 10-302;
   Las Vegas, Nev., City Code § 6-1-24;
   Manchester, N.H., City Noise Ordinance i 3(7);
   Miami Beach, Fla., City Code § 24-2;
   Milwaukee, Wis., City Code § 8-80(4) (b);
   Oklahoma City, Okla., City Ordinances § 9.3.11;
   Phoenix, Ariz., City Code § 23-14;
   Portland, Ore., City Ordinances § 14.52.040;
   Richmond, Va., City Code § 26-1;
   Washington, D.C., Police Regulations art. 29, § 14.
   Portland, Ore., allows underwater exhausts as an alternative to
mufflers.  Decatur, 111., provides a penalty of a fine of at least
$5.00 but not more than $200.00 for each offense.

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                             1-166
336
   Chicago, 111.,  Municipal Code 53 17-4.21,  17-4.31.

337
   Id.  li 17-4.22, 17-4.31.

338
   Dillon, Colo.,  Snowmobile Ordinance.

339
   Ann  Arbor,  Mich.,  City Code I 9:14;
   Birmingham, Ala.,  City Code 3 34-143;
   Bismark, N. D., Revised City Ordinances I  10.1105;
   Chicago, 111.,  Municipal Code § 17-4.20;
   Decatur, 111.,  City Code ch. 30, I 89;
   Des  Moines, Iowa,  City Code I 30-1730;
   Detroit, Mich., City Code § 38-10-6;
   Little Rock, Ark., City Ordinances art XIV,  i 39-126;
   Madison, Wis.,  Vehicle Code § 12.115  (1);
   Memphis, Tenn., City Code § 23-118;
   Milwaukee,  Wis., City Code § 101-282;
   Minneapolis, Minn., Code of Ordinances §  875.020;
   Nashville,  Tenn.,  City Code 1 27-1-70;
   New York, N. Y., Traffic Regulations  § 151;
   Oklahoma City,  Okla., City Ordinances  § 9.3.03 (this law
   applies only between 10 PM and 7 AM);
   Philadelphia, Pa., Code of Ordinances  § 10-406;
   Portland, Ore., City Ordinances § 16.28.260;
   RichMond, Va.,  City Code §§ 25-202, 25-203;
   Salt Lake City, Utah, Revised Ordinances art. 9, § 249;
   Seattle, Wash., City Ordinances § 12.82.030;
   Washington, D.  C., Traffic and Motor Vehicle Regulations I 143;
   Wichita, Kan.,  Traffic Code § 11.60.230.
   Dallas, Tex.,  (Criminal and Civil Code § 30-5), does not
require horns on vehicles but does restrict the use of bells,
sirens and exhaust whistiles to emergency vehicles.

340
   San  Francisco,  Calif., Police Code ch.  VIII, § 94.

341
   Des  Moines, Iowa,City Code § 30-159.

342
   Chicago, 111.,  Municipal Code § 17-4.31.

343
   Seattle, Wash., City Ordinances I 12.82.170.

344
   Decatur, 111.,  City Code ch. 62 i 28.

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                             1-167


345
   Chicago, 111., Municipal Code i 188-44 (Chicago sets a
penalty of $10-$200 in Id. § 188-52.);
   Des Moines,  Iowa, City Code § 45-3;
   Detroit, Mich., City Code § 39-1-74;
   Madison, Wis., City Ordinances i 24.05.  (Madison sets a
penalty of $25-$100 in Id. § 24.20.).
   Jacksonville, Fla., restricts locomotive whistles after 10 P.M.
(Jacksonville,  Fla., Ordinance Code § 324.105).

346
   Beverly Hills, Cal., Municipal Code § 4-8.601.

347
   Detroit, Mich., City Code 1 39-1-73.

348
   Portland, Ore., City Ordinances § 19.16.215.

349
   Nimld Model Ordinance Prohibiting Unnecessary Noises (14).

350
   Richmond, Va., City Code § 25-30.

351
   Portland, Ore., City Ordinances § 14.52.060.

352
   Chicago, 111., Municipal Code I 17-4.7.

353
   Nashville, Tenn., City Code I 29-1-53.
   Madison, Wis.,  (City Ordinances § 24.04(5)), has a similar
provision prohibiting the parking of vehicles with animals in
them.

354
   Madison, Wis., City Ordinances § 24.04.
   Santa Barbara, Cal., Municipal Code 1 9.16.010.

355
   Decatur, 111., City Code ch. 47, § 10.
   Jacksonville, Fla., Ordinance Code § 324.104.
   Milwuakee, Wis., City Code § 80-26.
   Decatur provides a penalty of a fine of $5 to $200 for each
   violation.

356
   Salt Lake City, Utah, Revised Ordinances s 20-31-3.

357
   Flagstaff, Ariz., City Code § 6-1-39.
   Cleveland, Ohio, Penal Code i 13.1118.

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                             1-168


358
   Cleveland, Ohio,  Penal Code s 13.1118.

359
   Chicago, 111.,  Municipal Code II 150-23,  150-25.

360
   Id.  § 150-15.

361
   Houston, Tex.,  City Code § 23-10

362
   Washington, D.  C., Police Regulations art 6, I 4.

363
   Fort Lauderdale,  Fla., Code of Ordinances s 28-33

364
   Decatur, 111.,  City Code ch 54.1, § 2.

365
   Detroit, Mich., City Code § 39-1-90.2.

366
   Birmingham, Ala., City Code § 26-9.

367
   Houston, Tex.,  City Code § 14-14.

368
   Killeen, Tex.,  City Code ch. 3, art. 7, § 1.

369
   Id..

370
   Cleveland, Ohio,  Penal Code i 13.1110.

371
   Id.

372
   St. Louis, Mo., Ordinance No. 54719.

373
   Cleveland, Ohio,  Penal Code §13.1112.

374
   Chicago, 111.,  Municipal Code 1 150-45.

375
   Decatur, 111.,  City Code ch. 54.1, § 2.

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                             1-169
376
   Nimlo Model Ordinance Prohibiting Unnecessary Noises (6),  (7),
(9), (17).

377
   Chicago,  111.,  Municipal Code s 17-4.4.
   Detroit,  Mich., City Code § 39-1-75.
   New Orleans, La.,  City Code § 42-43.
   Seattle,  Wash,, City Ordinances § 12.82.070.

378
   Nashville,  Tenn.,  City Code § 29-1-60.
   Seattle,  Wash., City Ordinances § 12.82.040.

379
   University Heights,  Ohio, General Building Code ch 1613.
   Miami Beach, Fla., City Code i 24-2 (n).
   New Haven,  Conn.,  City Code of Ordinances § 18-19.

380
   New Haven,  Conn.,  City Code of Ordinances 1 18-19.

381
   Chicago,  111.,  Municipal Code § 17.4.3.
   New Orleans, La.,  City Code § 42-45.   In New Orleans, the
curfew is from 10  P.M.  to 9 A.M.

382
   Detroit,  Mich., City Code I 28-3-4.

383
   St. Louis,  Mo., City Code I 760.130.

384
   Detroit,  Mich., City Code § 28-3-4.

385
   New Orleans, La.,  City Code § 42-45.

386
   Des Moines, Iowa,  City Code § 42-11.

387
   Nashville,  Tenn.,  City Code § 26-2-12.

388
   Birmingham, Ala.,  City Code art. II,  i  35-12.

389
   Minneapolis, Minn.f  Code of Ordinances  § 375.060.

390
   Washington, D.  C., Police Regulations art 6, 1 3.

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                             1-170


391
   Madison, Wis.,  City Ordinances § 24.04.

392
   Buffalo, N.  Y.  City Ordinances ch.  XXV,  I  1702.

393
   Des Moines,  Iowa,  City Code i 4-27.

394
   Beverly Hills,  Cal., Municipal Code § 4-8.202;
   Decatur, 111.,  City Code ch.  59. §  6;
   Madison, Wis.,  City Ordinances § 24.04 (6);
   Philadelphia,  Pa., Code of Ordinances §  10-405;
   Portland, Ore., City Ordinances  I 14.52.050;
   Richmond, Va.,  City Code § 28-5;
   St. Louis, Mo., Ordinance No. 54719.

395
   New York City, N.  Y., Department of Markets rule No. 11
prevents any hawking except between 9  A.M.  and 9 P. M.  This
rule permits sound devices which do not increase the noise
level at ten feet by more than four decibels.

396
   Detroit, Mich., City Code I 39-1-38;
   Killeen, Tex., City Code ch.  3,  art. 2,  § 8;
   Madison, Wis., City Ordinances i 24.04 (3);
   Seattle, Wash., City Ordinances § 12.82.140.
   The Nimlo model ordinance also has a provision which fits
this category.

397
   Buffalo, N.  Y., City Ordinances ch. XXV, § 1702, prohibits
use of horns, etc.;
   Cleveland, Ohio, Penal Code § 13.1116;
   Madison, Wis., City Ordinances § 24.04(3);
   New York, N. Y., Department of Markets rule No. 11;
   Ogden, Utah, Revised Ordinance Book i 23-1-5;
   Philadelphia, Pa., Code of Ordinances § 10-405;
   St. Louis, Mo., City Code i 760.140;
   Indianapolis, Ind.  (City Ordinances § 9-912)  prohibits this
activity in  zones of quiet.

398
   Cleveland, Ohio, Penal Code § 13.1117.

399
   Decatur,  111., City Code ch.  47, § 25.

400
   Beverly Hills, Cal., Municipal Code § 4-8.104.

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                             1-171
401
   Buffalo, N. Y., City Ordinances ch. XXV, § 1702;
   Des Moines, Iowa, City Code § 32-35;
   Nashville, Tenn., City Code § 3-1-9;
   New York, N. Y., Administrative Code ch. 18, § 435-6;
   Richmond, Va., City Code § 26-5;
   Salt Lake City, Utah, Revised Ordinances § 20-31-3;
   Seattle, Wash., City Ordinances § 12-82-090, prohibits  (in
any building) sound equipment which casts sound on public streets
for advertising purposes.

402
   Fort Lauderdale,  Fla., Code of Ordinances I 28-30 allows
radios and other music devices from 11:30 A.M. to 1:00 P.M.
and from 5:00 P.M. to 9:00 P.M. as long as sounds cannot be
heard over three hundred feet away.  Madison, Wis., City
Ordnances § 24.04 restricts use of such equipment from buildings
and aircraft except from 12:00 noon to 1:30 P.M. and 5:00 P.M.
to 7:00 P.M.  Madison makes an exception for equipment used by
churches.  Oklahoma City, Okla., City Ordinances § 9.3.05, pro-
hibits operation of loudspeakers on any premises outside the
walls of buildings from 10:00 P.M.  to 6:00 A.M., New Orleans, La.,
City Code 1 42-421, prohibits this equipment from 7:00 P.M. to
7:00 A.M. and within three hundred feet of a synagogue on Sat-
urday and churches on Sunday.

403
   Buffalo, N. Y., City Ordinances ch. XXV, § 1702.

404
   Buffalo, N. Y., City Ordinances ch. XXV, I 1702,
   Greensboro, N.C., Code of Ordinances § 13-12(14).

405
   Detroit, Mich., City Code i 38-1-34.

406
   Richmond, Va., City Code § 26-5.

407
   Chicago, 111., Municipal Code § 36-28.3;
   Miami Beach, Fla., City Code § 24-2.

408
   Houston, Tex., City Code s 9-11.

409
   Philadelphia, Pa., Code of Ordinances § 10-404; Washington, B.C.,
Police Regulations art 6, § 2.

410
   Nimlo Model Ordinance Prohibiting Unnecessary Noises  (10), (16).

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                             1-172
411
   Beverly Hills,  Cal.,  Municipal Code § 4-8.301;
   Decatur, 111.,  City  Code ch.  47 I 16;
   New Orleans, La.,  City Code i 42-68;
   Philadelphia, Pa., Code of Ordinances § 10-402;
   St. Louis, Mo., City Code § 760.090;
   Washington, D.  C., Police Regulations art.  25 §  14.

412
   Minneapolis, Minn.,  Code of Ordinances § 240.040.

413
   Chicago, 111.,  Municipal Code §§ 17-4.6, 17-4.8.

414
   Beverly Hills,  Cal.,  Municipal Code § 4-8.104;
   Chicago, 111.,  Municipal Code § 17-4.31;
   Decatur, 111.,  City  Code ch.  47, § 25;
   St. Louis, Mo., City Code § 760.090.

415
   New York, N. Y., Building Code Subart. 1208.0 (1968).

416
   Interview with Irving Minkin, Assistant Director of
Operations, New York City Department of Buildings,  in New
York City, August 6, 1971.

417
   Toward a Quieter City, A Report of the Mayor's Task Force
on Noise Control, New York City, N. Y., 1970, 25.

418
   Interview with Irving Minkin, Assistant Director of
Operations, New York City Department of Buildings,  in New
York City, August 6, 1971.

419
   The following  cities responded, stating they have some
noise provision in their building codes:  Helena, Mont.;
Milwaukee, Wis.; Wichita, Kan.

420
   Detroit, Mich., Bureau of Industrial Hygiene Regulations;
   Philadelphia, Pa., Department of Public Health Regulations
Pertaining to  Noise, I 6-401.

421
   Cincinnati, Ohio, Code of Ordinances §§ 901-L/,  901-L8;
   Decatur, 111., City Code ch. 67, § 2;
   Denver, Colo., Municipal Code § 842.1;
   Des Moines, Iowa, City Code § 32-6;
   Kansas City, Kan., City Code § 23-35;

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                              1-173


   Madison, Wis., City Ordinances § 24.04;
   Medford, Ore., City Code § 5-060;
   Minneapolis, Minn., Code of Ordinances § 870.060;
   New Haven, Conn., City Code of Ordinances § 18-19;
   Oklahoma City, Okla., City Ordinances § 9.3.01;
   Park Ridge, 111., City Ordinances ch. 8, § 14-8-1;
   Philadelphia, Pa., Code of Ordinances § 10-407;
   St. Louis, Mo., City Code § 762.030;
   San Clemente, Cal., City Code § 16-14;
   Santa Barbara, Cal., Municipal Code § 9.16.010;
   Seattle, Wash., City Ordinances § 12.82.110;
   Sioux Falls, S. D., City Ordinances § 9.203;
   Washington, D. C. Police Regulations art. 6, § 7 restricts this
prohibition to the night time.

422
   Nimlo Model Ordinance Prohibiting Unnecessary Noises (4).

423
   Cleveland, Ohio, Penal Code §§ 13.1125, 13.1126.  Penal Code
§ 13.1125 carries a penalty of not more than $25 and/or imprisonment
for the first offense of not more than thirty days, for the second
of not over sixty days and of the third for not more than three
months.  Penal Code I 13.1126 carries a penalty of not more
than $50 and/or imprisonment of not more than thirty days for
the first offense, ninety days for the second and six months
for the third.

424
   Beverly Hills, Cal., Municipal Code i 4-8.201.

425
   Beverly Hills, Cal., Municipal Code i 4-8.204;
   Chicago, 111., Municipal Code § 36.7;
   Killeen, Tex., City Code ch. 7, art. 6, § 10;
   Minneapolis, Minn., Code of Ordinances § 875.050;
   Norfolk, Va., City Code § 29-6;
   Philadelphia, Pa., Code of Ordinances § 10-403;
   Phoenix, Ariz., City Code art I, § 23-17;
   St. Louis, Mo., City Code § 760.100;
   Scottsbluff, Neb., Ordinance No. 1668, § 10-114;
   Seattle, Wash., City Ordinances § 12.84.010;
   Washington, D. C., Police Regulations art. 6, i 2(a).

426
   Chicago, 111., Municipal Code § 17-4.5.

427
   Sioux Falls, S.D., City Ordinances § 9.807.

428
   Killeen, Tex., City Code ch. 7, art. 6, § 9.

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                             1-174


429
   Detroit, Mich.,  City Code I 39-1-39.

430
   Minneapolis, Minn., Code of Ordinances I 870.061.

431
   Killeen, Tex. (City Code ch. 7, art.  6, 1 9), Park Ridge,
111.  (City Ordinances § 14-8-3),  and Decatur, 111.  (City Code
ch. 67 § 2), have penalties in this range.

432
   Chicago, 111., Municipal Code § 36-50.

433
   Norfolk, Va., City Code § 29-6.  Philadelphia, Pa.  (Code of
Ordinances § 10-408), has a fine of $10  for the first offense
$25 for the second and $50 for all subsequent offenses.  If the
fine is not paid within ten days the violator is subject to
imprisonment for thirty days.

434
   Minneapolis, Minn.  Code of Ordinances s 240.050.

435
   Beverly Hills, Cal., Municipal Code I 4-8.301.

436
   Chicago, 111., Municipal Code I 17-4.8.  Chicago's penalty
of $15-$300 for the first offense and $50-$500 for all others
applies.

437
   Seattle, Wash.,  City Ordinances § 12.82.130.

438
   Greensboro,  N. C., Code of Ordinances § 13-12.

439
   Philadelphia, Pa., Code of Ordinances § 10-901.

440
   Denver, Colo., Municipal Code § 842.2;
   Detroit, Mich.,  City Code § 39-1-37;
   Minneapolis, Minn., Code of Ordinances § 875.030;
   Los Angeles, Cal., Municipal Code § 41.57.

441
   Nashville, Tenn.,  City Code § 29-1-54;
   San Francisco, Cal., Police Code ch.  VIII, § 49.
   The distances are  fifty feet in San Francisco and  one  hundred
feet in Nashville.   Richmond, Va. (City  Code i 26-5), has a law
forbidding sound equipment to emit noise above the level  of
conversational speech at two hundred feet from the property from
which the sound emanates.

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                             1-175
442
   Washington,  D.  C.,  Police Regulations art.  6,  I 1.

443
   Beverly Hills,  Cal.,  Municipal Code § 4-8.502  et seq. ;
   Buffalo, N.  Y., City  Ordinances ch. XXV,  §  1703;
   Des Moines,  Iowa,  City Code § 32-35;
   Medford, Ore.,  City Code § 5-620 (i) ;
   Missoula, Mont., City Ordnance §§ 21-28,  21-29;
   Ogden,  Utah, Revised  Ordinance Book i 23-1-20;
   Salt Lake City, Utah, Revised Ordinances  §§ 20-31-1,  20-31-12;
   San Clemente, Cal., City Code §§ 16-22 to 16-25;
   San Francisco,  Cal.,  Police Code ch. VIII,  § 44-49;
   Santa Barbara,  Cal.,  Municipal Code § 9.16.020.
   Minneapolis, Minn.  (Code of Ordinances §  352.080),  and
   Flagstaff, Ariz. (City Code § 6-1-38), restrict only  sound trucks,

444
   Des Moines,  Iowa,  City Code § 32-35.

445
   Beverly Hills,  Cal.,  Municipal Code i 4-8.506.

446
   Jacksonville, Fla., Ordinance Code 3 324.103.

447
   Des Moines,  Iowa,  City Code § 32-35;
   Greensboro,  N.C.,  Code of Ordinances § 13-12;
   Phoenix, Ariz., City  Code § 23-15;
   Santa Barbara,  Cal.,  Municipal Code ch. 9.14.

448
   Madison, Wis.,  City Ordinances i 24.04(3).

449
   Salt Lake City, Utah, Revised Ordinances  1  20-31-10.

450
   Santa Barbara,  Cal.,  Municipal Code § 914.030.

451
   Decatur, 111.,  City Code ch. 46, §i 13,301;
   Madison, Wis.,  City Ordinances i 24-04(4);
   Seattle, Wash., City  Ordinances § 12.82.120;
   Washington,  D.  C.,  Police Regulations art.  18, § 1.

452
   Beverly Hills,  Municipal Code § 4-8.205;
   Dallas, Tex., Criminal and Civil Code ch. 30,  § 7-38.

453
   Birmingham,  Ala.,  City Code § 7-3,
   Salt Lake City, Utah, Revised Ordinances  §  1-3115.

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                              1-176


454
   Salt Lake City,  Utah,  Revised Ordinances § 1-3115.

455
   Decatur, 111., City Code ch.  46,  §§ 13,30.

456
   Beverly Hills, Cal., Municipal Code § 4-8.205.

457
   Dallas, Tex., Criminal and Civil  Code ch.  30,  § 7-38.

458
   Nimlo Model Ordinance Prohibiting Unnecessary Noises (5).

459
   Statement of Jerome Kretschmer, Administrator,  Environmental
Protection Administration of New York City, before the Subcommittee
on Environment, Senate Commerce Committee, June 29, 1971, 7.

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                              1-177
                           APPENDIX 1

                     SUMMARY OF FEDERAL LAWS


Atomic Energy Commission (AEC)

     Occupational and Aircraft Noise

         AEC Manual 0550-01 (February 25, 1970)  (adopts Walsh-
           Healey Occupational Noise standards and Federal Avia-
           tion Administration Part 36 standards

Air Force

     Occupational Noise

         AFR 160-3 (29 October 1956) as amended,
         AFR 160-3A (27 June 1960), and
         AFR 160-3B (7 February 1967)

     Aircraft Noise

         AFM 86-5, TM 5-365, NAVDOCKS P-98  (10 October 1964)
         A.F. Reg. 55-34 (5 February 1971)
         MIL-N-93155A (USAF)  (25 March 1970, amended. 2 September 1970)
         MIL-S-008806B (USAF)

Army

     Aircraft Noise

         TM 5-365, AFM 86-5, NAVDOCKS P-98  (10 October 1964)

     Construction Noise  (both acoustical characteristics of
         buildings and construction site noise)

         Corps, of Engineers, U.S. Army, EM 385-1-1, Safety;
           General Requirements, § 32, "Noise Control" at 27
            (1 November 1967)

         Corps, of Engineers, CE-J300  (May 1970)
         ETL 1110-3-141  (30 November 1970)

Department of Defense

     General

         MIL-STD-1472A (acts concurrently with other military
           regulations)

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                               1-178
Department of Interior

     Occupational Noise
         30 U.S.C. § 846 (Supp. V, 1970)
         28 C.F.R. § 70-504.1, now appearing at 36 Fed. Reg. 12740
           (July 7, 1971)

Department of Labor

     Occupational Noise

         41 U.S.C. § 35 (e)  (1964)
         41 C.F.R. § 50-204.1 and .10  (1971)
         29 U.S.C.A. § 651, et seq.  (1971)
         29 C.F.R. § 1910.1 and .95  (May 29, 1971)

     Construction Noise

         40 U.S.C.A. § 333 (1971)
         29 C.F.R. § 1518.52, now appearing at 36 Fed. Reg. 7348
           (April 17, 1971)

Department of Transportation

     General Transportation Noise

         49 U.S.C. § 1653(a)   (Supp. IV, 1969)
         DOT Order 1100.37, 2 September 1969
         DOT Order 1100.23 Chg. 2, 8 May 1968

     Aircraft

         49 U.S.C. § 1653(a)   (Supp. IV, 1969)
         see generally Federal Aviation Administration

     Highway-Related Noise

         23 U.S.C. § 101, et seq.  (1964) , particularly the Federal-
           aid Highway Act of 1970, §  136, amending 23 U.S.C. § 109 (g) ,
           84 Stat. 1713

Environmental Protection Agency

     General

         Title IV of the Clean Air Amendments of  1970, Pub. L. No. 91-604

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                              1-179
Federal Aviation Administration

     Aircraft

         Generally provisions of 49 U.S.C. § 1301, et. seq.  (1964)
           but particularly 49 U.S.C. § 1431 (Supp. IV, 1969)
         14 C.F.R. I 36 and 21 (1971)
         49 U.S.C.A. § 1701, et seq. (Supp. 1971)

Federal Highway Administration

     Highway-Related Noise

         23 U.S.C.A. § 101.109 (Supp. 1971)
         Bureau of Public Roads, PPM 20-8 "Public Hearing and
           Location Approval" (January 14, 1969)

Federal Housing Administration

     Construction (Acoustical Characteristics of Buildigns)

         FHA Manual, Vol. VII, Book 1, Underwriting-Home Mortgages,
           § 71453
         FHA #2600,  Minimum Property Standards for Multifamily
           Housing,  § M405  (February 1971)
        (See HUD)

Federal Power Commission

     Industrial  (Internal Combustion Engine)

         15 U.S.C. § 717, et seq.  (1964)
         18 C.F.R. § 2.69 TT97T)

General Services Administration

     Construction Noise  (Acoustical Characteristics of Buildings
       and Site Noise)

         GSA Handbook: PBS P 3410.5 Chg. 1  (September 2, 1969) and
                       PBS P 3460.1C

         Public Building Service: Guide Specifications, PBS 4-0950
           (May 1968)
           PBS 4-1031  (February 1968), and
           PBS 4-515-71  (April 1970)

         Also see trial clause in government construction contract
           at Contract GSA-Washington, D.C. 71-8378, "United States
           Courthouse and Federal Office Building, Philadelphia,
           Pennsylvania," Cl. 35.6 at 2-14

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                               1-180


Department of Health, Education, and Welfare

     Occupational Noise

         Review authority under the Coal Mines Health and Safety
           Act at 30 U.S.C.A. § 846 (Supp. V, 1970)

Department of Housing and Urban Development

     Construction Noise  (Acoustical Characteristics of Buildings)

         HUD Policy Circular 1390.2 (July 16, 1971)

Navy

     Occupational Noise

         BUMEDINST 6260.6B  (5 March 1970) BuMedNote 6260.732
           (28 April, 1971)
         NAVAIRINST 6260.1  (24 February 1971)
         OPNAVINST 5100.14  (11 August 1970)

     Aircraft Noise

         NAVDOCKS P-98, ATM 86-5, TM 5-365  (10 October 1964)

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                              1-181





                           APPENDIX II

                      SUMMARY OF STATE LAWS
Alabama

     Title 36, Sec. 36 Horns
               Sec. 39 Mufflers

Alaska

     Title 11, Sec. 11.45.030 Disorderly Conduct

Arizona

     Title 13, Art. 15, Sec. 13-371 Disturbing the Peace
     Title 28, Sec. 28-954 Horns
               Sec. 28-955 Mufflers

Arkansas

     Title 75, Sec. 725 Horns
               Sec. 726 Mufflers

California

     Title 7, Chap. 1.5 Office of Planning and Research
     Title 11, Sec. 415 Disturbing the Peace
     Public Utilities Code, Chap. 5 Powerplant Sites
          Sec. 21669-21669.4 Airports
     Public Resources Code, Div. 13, Sec. 21000-21150,
          Environmental Quality Act
     Motor Vehicle Code, Sec. 23130, Sec. 23160, Motor
          Vehicle Noise Limits
     Streets and Highways Codes, Sec. 216

Colorado

     Chap. 13, Sec. 5-104 Horns
               Sec. 5-105 Mufflers
     Chap. 66, Art. 35 Noise Abatement
     Chap. 132, Sec. 1-9-1-10 Environmental Quality

Connecticut

     Title 7, Sec. 194 Municipal Powers
     Title 14, Sec. 14-80(e) Motor Vehicle Noise
     Public Act No. 762 - Maximum Vehicle Noise Levels

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                               1-182
Delaware
     Title 4, Sec. 543 Grounds for Refusal of License to Sell
                       Alcoholic Beverages
              Sec. 561 Grounds for Cancellation or Suspension
                       of License
     Chap. 43, Sec. 4311 Mufflers
Florida
     Sec. 317.631 Mufflers
     Sec. 403.031, 403.061 Air and Water Pollution Control-Noise
Georgia
     Title 68, Sec. 1716 Horns
               Sec. 1717 Mufflers

Hawaii

     Chap. 103, Sec. 103 Noise Control in Schools
     Chap. 322, Excessive Noise
     Sec. 267-1 Common Nuisances
     Sec. 311-24 Mufflers on Motor Scooters

Idaho

     Sec. 49-835 Mufflers

Illinois

     Vehicle Code, Sec. 12-121 Mufflers
     Sec. 314-3 Mufflers on Boats
     Sec. 11-5-2 Municipal Powers
     Chap. Ill 1/2 Environmental Protection Act

Indiana

     Sec. 47-2230 Mufflers
     Sec. 48-1401 Municipal Corporations Powers
Iowa
     Chap. 138, Sec. 138.1 Migrant Labor Camps
     Sec. 321.436 Mufflers
     Sec. 368.7 Powers of Cities and Towns

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                               1-183
Kansas
     Chap. 8, Sec. 8-5, 102 Horns
              Sec. 8-5, 103 Mufflers
     Chap. 21, Sec. 21-950 Disturbance of the Peace
              Sec. 21-4101 Disorderly Conduct
     Chap. 82a, Sec.  82a-809 Motorboat Mufflers
Kentucky
     Sec. 82.220 Powers of Local Units
     Sec. 85.180 Powers of Local Units
     Sec. 85.190 Powers of Local Units
     Sec. 189.020 Vehicle Equipment
     Sec. 189.140 Mufflers
Louisana
     R.S. 14, Sec. 103 Disturbing the Peace
     R.S. 32, 352 Mufflers
Maine
     Title 12, Chap. 304 Snowmobiles
     Title 20, Sec. 3771 Disturbing Schools
     Title 29, Sec. 1362 Motor Vehicle Noise
               Sec. 1364 Mufflers
Maryland
     Art. 66 1/2, Sec.
                  Sec.
                  Sec.
                  Sec.
                  Sec.
11-1117 Excessive Vehicle Noise
11-1409 Muffler Cutouts
12-401 Horns
12-401.1 Bells on Ice Cream Sales Vehicles
12-402 Mufflers
Massachusetts
     Chap. 90, Sec. 16 Motor Vehicle Noise
     Chap. 90B, Sec. 24 Restrictions on Noise of Snow Vehicles
     Chap. 272, Sec. 41 Distrubance of Libraries
Michigan
     Sec. 5.1740 General Powers of City Corporation
     Sec. 9.2406 Horns
     Sec. 9.2407 Mufflers

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                               1-184
Minnesota
     Chap. 169, Sec. 169.69 Mufflers
                Sec. 169.691 Motor Vehicle Noise Limits
     Chap. 412, Sec. 412.191 Village Council Powers
     Chap. 360, Sec. 360.063 Airport Zoning
                     360.075 Advertising Noise from Aircraft
Mississippi
     Title 11, Sec.
               Sec.
     Title 16, Sec.
     Title 30, Sec. 8251 Mufflers
                    2088 Disturbance of Family
                    2090.5 Disturbance in Public Place
                    3374-124 Power of Municipalities
Missouri
     Sec. 304.560 Horns, Mufflers
     Sec. 562.240 Disturbing the Peace
Montana
     Sec. 32-31-146 Mufflers
     Fish and Game Laws (Supp. 1971), p. 174 (Senate Bill 54,
          Sec. 9) - Snowmobiles
Nebraska
     Sec. 14-102
     Sec. 16-227
                 Powers of Cities of Metropolitan Class
                 Powers of Cities of the First Class to
                 Prevent Noises
     Sec.  16-228 Powers of Cities of the First Class to
                 Prevent Disorderly Conduct
     Sec.  17-556 Powers of Cities of Second Class to Prevent Noises
     Sec.  32-466 Disturbing Elections
     Sec.  39-777 Mufflers
     Sec.  81-815.09 Mufflers on Boats

Nevada

     Sec.  486.100 Mufflers on Power Cycles
     Sec.  266.360 Power of City Councils to Regulate
                  Business Noise

New Hampshire

     Sec.  263.46 Muf lers

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                               1-185
New Jersey
     Title 40, Sec.
     Title 39, Sec.
               Sec.
40:175-10 Powers of Local Boards
39:3-70 Mufflers
39:4-78 Carrying Metals
New Mexico
     64-20-44 Mufflers

New York

     Conservation Law Sec. 8-0305 Snowmobiles
     General Business Law, Sec. 7 Sports and Shows on Sunday
          Sec. 14 Parades on Sundays
     Penal Law, Sec. 240.20 Disorderly Conduct
                Sec. 240.21 Disturbance of Religious Service
     Navigation Law Sec. 44 Mufflers on Boats
     Multiple Dwelling Law, Sec. 84 Construction Standards
          for Control of Noise
     Town Law Sec. 130 Powers of Town Boards
     Vehicle and Traffice Law Sec. 375  (31) Mufflers
          Sec. 381 Motorcycle Equipment
          Sec. 386 Motor Vehicle Noise Limit
     Environmental Conservation Law

North Carolina

     Sec. 20-128 Mufflers
North Dakota
Ohio
     Sec. 23-01-17 Noise Harmful to Health and Safety
     Sec. 39-21-37 Mufflers
     Sec. 2923.41 Disturbance of the Peace
     Sec. 4513.22 Mufflers
Oklahoma
     Title 11, Sec. 655 Powers of Local Councils to Prohibit Noises
     Title 21, Sec. 1321.8 Riots
     Title 47, Sec. 12-402 Mufflers
Oregon
     Sec. 483.446  (3) Horns
     Sec. 483.448 Mufflers

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                               1-186
Pennsylvania

     Title 34 Sec. 1311.704 (g)  Hunting Sounds
     Title 53 Sec. 46202 (20)  Powers of Boroughs to Regulate
          Disturbance of the Peace
     Title 55 Sec. 411 Mufflers  on Boats
              Sec. 485F Mufflers on Motorboats
     Title 71 Sec. 510-517 Abatement of Nuisances
     Title 75 Sec. 828 Mufflers

Puerto Rico

     Title 9 Sec. 1302 Mufflers

Rhode Island

     Sec. 12-2-4 Power of R.R. Police to Arrest Disorderly Person
     Sec. 12-2-5 Power of Steamboat Police to Arrest Disorderly
          Person
     Sec. 31-23-13 Mufflers

South Carolina

     Sec. 46-601 Mufflers

South Dakota

     Sec. 32-15-10 Horns
     Sec. 32-15-11 Sirens
     Sec. 32-15-17 Mufflers
Tennessee

     Sec.

     Sec.
     Sec.
39-1204 Disturbing Religious, Educational, Literacy
or Temperance Assemblies
39-1213 Disturbance of Peace
59-901 (a) Horns
     Sec. 59-902 Mufflers
Texas
     Title 28, Art. 1015 Powers of Governing Bodies of Cities,
          Towns and Villages
     Title 9, Art. 281 Disturbing Congregation
              Art. 451 Disturbing Families
              Art. 465 Disturbing Residences
              Art. 474 Disturbing the Peace
     Title 11, Art. 666-12 Cancellation or Suspension of
          Permit to Sell Alcoholic Beverages
     Title 13, Art. 796 Horns
               Art. 797 Devices to Prevent Unusual Noise

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                               1-187
Utah
     Sec. 10-8-47 Powers of Cities and Towns to Prevent Noises
     Sec. 10-3-5G Powers of Cities and Towns to Punish for
          Disturbing the Peace
     Sec. 76-52-9 Disturbing Neighborhood Quiet
     Sec. 76-55-3 Disturbing Assembly for Religious Worship
     Sec. 41-6-147 Mufflers
Vermont
     Title 13, Sec. 1022 Noises in the Nighttime
               Sec. 1023 Disturbing Meetings and Schools
               Sec. 1051 Breach of the Peace
     Title 23, Sec. 1097 Mufflers Cutouts
Virginia

     Sec.
     Sec.
46.1-301 Vehicle Exhaust
46.1-302 Muffler Cutout Illegal
Virgin Islands
     Title 14 Sec. 622 Disturbing the Peace
              Sec. 624 Disturbing Meetings
     Title 20 Sec. 464 Horns and Mufflers
     Title 20 Sec. 465 Motorcycle Mufflers

Washington

     Title 9, Sec. 9.76.010 Sabbath Breaking
              Sec. 9.76.050 Disturbing Religious Meeting
     Title 35, Sec. 35.22.280 (36) Power of First Class Cities
          to Provide for Disorderly Conduct
              Sec. 35.23.440 (10) Power of Second Class Cities
          to Prevent Disturbance of the Peace
     Title 46, Sec. 46.37.390 Mufflers

West Virginia

     Sec. 17C-15-34(a) Mufflers

Wisconsin

     Chap. 22, Sec. 22.40  (11)(12) Auto Races on State Fair Grounds
     Chap. 60, Sec. 60.29  (35)  Power of Town Boards to Regulate
          Motorboats
     Vehicle Code, Title 44, Sec. 347.39 Mufflers
          Sec. 350-10 Provisions for Snowmobile Operation
     Criminal Code, Title  45, Sec. 947.01 Disorderly Conduct

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                               1-188
Wyoming
     Sec. 6-112 Disturbing Meetings, Generally
     Sec. 6-1?4 Breach of the Peace
     Sec. 6-173 Disturbing Religious Worship
     Sec. 31-204 Horns
     Sec. 31-205 Mufflers

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                               1-189
                         APPENDIX III

                     SUMMARY OF CITY LAWS

Ann Arbor, Michigan

      City Code
          Title IX  Police Regulations
              Sec. 9:12  Unlawful to create unreasonable noise
              Sec. 9:13  Following Acts          (NIMLO)
              Sec. 9:14  Vehicular Noise
                         1. Definitions
                         2. Acts Prohibited
                            a. Horns
                            b. General
                            c. Exhaust
                            Sound Level Tests
3.
Aspen, Colorado
      City Code
          Title 6
              Chap. 1 - General Offenses
              Sec. 6-1-48  General Noise Prohibited
Atlanta, Georgia
      No laws - letter of June 18, 1971 from Dan E.  Sweat,  Jr.
                Chief Administration Officer
                Office of the Mayor
                Atlanta, Ga.

Bangor, Maine

      No laws - letter of July 20, 1971 from Merle F.  Goff
                City Manager
                Bangor, Maine

Beverly Hills, California

      Municipal Code
          Title 4, Chap. 8 - Noise Regulation
              Article 1 - General Provisions
              Sec. 4-8.101 Declaration of Policy

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                               1-190
              Sec.  408.102   Definitions
              Sec.  4-8.103   Measurement  Criteria
              Sec.  4-8.104   Violations:  Misdemeanor
              Sec.  4-8.105   Violations:  Additional remedies
              Sec.  4-8.106   Severability
              Article 2  - Special  Noise  Sources
              Sec.  4-8.201   Radios,  T.V. sets  & similar  devices
              Sec.  4-8.202   Hawkers  & Peddlars
              Sec.  4-8.203   Drums
              Sec.  4-8.204   Schools,  Hospitals, Churches
              Sec.  4-8.205   Animals  and  Fowl
              Sec.  4-8.206   Machinery, Equipment,  Fans and  Air-
                            Condi tioning
              Article 3  - Construction
              Sec.  4-8.301   Construction of Buildings and Projects
              Article 4  - Vehicles
              Sec.  4-8.401   Vehicles Repairs
              Sec.  4-8.402   Motor  Vehicles
              Article 5  - Amplified  Sound
              Sec.  4-8.501   Purpose
              Sec.  4-8.502   Registration:   Required
              Sec.  4-8.503   Registration:   Application & Issuance
              Sec.  4-8.504   Appeals
              Sec.  4-8.505   Fees
              Sec.  4-8.506   Regulation
              Article 6  - Train Horns and Whistle
              Sec.  4-8.601   Excessive Noise Prohibited
              Article 7  - General  Noise  Regulations
              Sec.  4-8.701   General  Noise Regulations

Billings, Montana

      Code of Ordinances
              Sec.  21-1-178  Mufflers

Binghamton, New York

      Zoning Ordinances
              Sec.  609  Noise

Birmingham, Alabama

      City Code
              Sec.  3-9  Noisy and  Obnoxious Advertising
              Sec.  7-3  Noisy Animals or Fowl

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                               1-191
              Sec. 26-9  Prevention of Noise from Tourist Homes
              Sec. 34-143  Motor Vehicle Horns
              Sec. 34-146  Motor Vehicle Mufflers
      Article II  Noises
              Sec. 35-10
              Sec. 35-11

              Sec. 35-12

              Sec. 35-13

              Sec. 35-14

Bismarck, North Dakota
 Illegal Noises Generally (NIMLO)
 Outside Speakers emanating music on
 public streets
 Transmitting music audible to Persons
 outside premises
 Payment of license tax for automatic
 music machines
 Radios and Television
      Revised City Ordinances
              Sec. 10.1105  Motor Vehicle Horns
              Sec. 10.1109  Motor Vehicle Mufflers
              Sec. 19.0201  Interference with Radio Reception
                            Prohibited
              Sec. 19.0205  Loud, Disturbing and Unnecessary
                            Noises Prohibited     (NIMLO)

Boston, Massachusetts

      Revised City Ordinances
              Chap. 15
              Sec. 2  Jurisdiction and Powers of Air Pollution
                      Control Commission
              Chap. 29  Unreasonable Noises

Boulder, Colorado

      Revised Code
              Sec. 21-61  Noises Prohibited

Buffalo, New York
      City Ordinances
              Chap. XXV
              Art. XVII
              Sec. 1701
              Sec. 1702
              Sec. 1703
Noise Control
Prohibited Noises     (NIMLO)
Commercial Purposes
Non-commercial Purposes

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                              1-192
Cheyenne,  Wyoming

      No laws - letter of June 21,  1971 from Floyd Holland
                Mayor
                Cheyenne, Wyoming

Chicago, Illinois

      Municipal Code

              Sec.  17-1.6  Qualifications  of Deputy  Commissioner
                           of Environmental Control
              Sec.  17-1.8  Qualifications  of Engineers
              Sec.  17-1.11  Duties  of the  Commissioner
              Sec.  17-1.14  Policy  of city; Subcommittees
                           Definitions
                           General Restrictions
                           Hand organ or musical instrument
                           Steam Whistles
                           Noise from Buildings
                           Building Operations
                           Motor Vehicles
                           Construction, Industrial,  Commercial,
                           Agriculture and Domestic Equipment
                           Uses in zones in Zoning Ordinances
                           covered
                            Measurement Criteria
                            Measurement of Noise in Manufacturing
                            Districts
                            Restricted Manufacturing District
                            Noise Limits
                            General Manufacturing District Noise
                            Limits
                            Heavy Manufacturing District Noise
                            Limits
                            Horns on Motor Vehicles
                            Harbor Craft Noise Limits
                            Recreational and other vehicle Noise
                            Limits
                            Public Performance exempt
                            Test procedures for new motor vehicles
                            Test procedures for operation of
                            motor vehicles
                            Test procedures for engine-powered
                            equipment, hand tools, etc.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
17-4.1
17-4.2
17-4.3
17-4.4
17-4.5
17-4.6
17-4.6
17-4.8
17-4.9
17-4.10
17-4.11
17-4.12
17-4.13
17-4.14
17-4.20
17-4.21
17-4.22
17-4.23
17-4.24
17-4.25
Sec. 17-4.26

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                              1-193
              Sec. 17-4.27  Test procedures for property uses
              Sec. 17-4.28  Test procedures for recreational
                            vehicles
              Sec. 17-4.30  Other remedies not impaired
              Sec. 17-4.31  Penalties

              Sec. 27-264  Horns; when used
              Sec. 27-301  Bells and Sirens on Bicycles
              Sec. 27-345  Horns Required
              Sec. 27-353  Mufflers
              Sec. 27-363  Penalties
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
36-7
36-28.
36-50
38-28
38-29
38-59
106-17
Sec.
Sec.

Sec.
Sec.

Sec.
Sec.
Sec.
Cincinnati, Ohio
                   106-19
                   150-15

                   150-23
                   150-25

                   150-45
                   188-44
                   188-52
Zones of Quiet
3  Sound amplifiers on aircraft
 Penalties
 Boat Whistles
 Motorboat Operations
 Penalties
  Noises Prohibited in Connection with
  Auctions
  Penalties
  Noise Limits on Foundries near
  Residences
  Operations of Machine shops at night
  Noise Limits on Machine shops near
  residences
  Penalties
  Locomotive signal noise
  Penalties
      Code of Ordinances
              Sec. 511-2
            Unnecessary Noise in Operation of
            Vehicles
Sec. 511-16  Mufflers
Sec. 901-L7  Loud Noises
Sec. 901-L8  Loud Noises,  Music
Cleveland, Ohio
      Penal Code
              Sec. 13.1110  Dances,  Entertainments,  Etc.
              Sec. 13.1111  Appeal
              Sec. 13.1112  Penalties
              Sec. 13.1113  Severability

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                              1-194
              Sec. 13.1114  Unnecessary Noises     (NIMLO)
              Sec. 13.1115  Unnecessary Noises in Specific  Areas
              Sec. 13.1116  Bells
              Sec. 13.1117  Penalties
              Sec. 13.1118  Hours for Producing Music,  Permit
              Sec. 13.1119  Permits - Application; Provisions
              Sec. 13.1122  Penalty
              Sec. 13.1123  Muffler on Gas Engines
              Sec. 13.1124  Participation in Disorderly Assemblies;
                            Penalty
              Sec. 131125  Breach of the Peace; Penalty
              Sec. 13.1126  Rude Disturbance, Etc; Penalty
Columbia, South Carolina

      Zoning Ordinance -
never used
letter of July 20, 1971 from
James M. Norton
Air Pollution Control Officer
Columbia, South Carolina
Dallas, Texas
      Criminal and Civil Code
          Chap. 30 - Noise
              Sec. 7-38  Barking dogs
              Sec. 28-9  Zones of Quiet
              Sec. 28-185  Whistles, Bells on vehicles
              Sec. 28-186
              Sec. 28-192  Horns
              Sec. 30-1  Noises detrimental to life or health
              Sec. 30-2  Noises interfering with enjoyment of
                         property or public peace and comfort
              Sec. 30-3  Unreasonably loud, disturbing, unnecessary
                         noises - Prohibited     (NIMLO)
              Sec. 30-4  Same - Enumerated     (NIMLO)
              Sec. 30-5  Use of bell, siren, whistle on vehicle
              Sec. 30-6  Arrest for violation of sec. 30-4 and
                         30-5
              Sec. 30-7  Noisy animals
              Sec. 32-49  Sirens on boats
              Sec. 39-7, 3908  Train bells and whistles
      Comprehensive Zoning Ordinance
          Volume III
              10-420  Noise
              10-421  Measurement criteria

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                               1-195


              10-422  Permissible Noise Level:   1-1,  1-2,
                      Planned Development Districts
              10-423  Permissible Noise Level:   1-3 Districts
              10-424  Permissible Noise Level:   Residential
                      Districts
              10-425  Permissible Noise Level:   Retail and
                      Commercial Districts
              10-426  Special Noise Corrections
Decatur, Illinois
      City Code
          Chap. 30 - Traffic
              Sec. 18  Zone of Quiet
              Sec. 88  Unnecessary Noise
              Sec. 89  Horns
              Sec. 91  Mufflers
          Chap. 46 - Control of Animals, Fowl,  and Dogs
              Sec. 13  Barking Dogs
              Sec. 30  Other Animals
          Chap. 47 - Nuisances
              Sec. 10  Use of Premises
              Sec. 15  Disturbing the Peace
              Sec. 16  Building Operations
              Sec. 25  Penalties
          Chap. 54.1 - Drive-in Restaurants
              Sec. 2  Noise
              Sec. 18  Loud speakers
          Chap. 59 - Peddling
              Sec. 6  Hawking
          Chap. 62 - Taxicabs
              Sec. 28  Blowing of Horns
          Chap. 66 - Regulation of Lake Decatur
              Sec. 23  Cut-outs prohibited
          Chap. 67 - Misdemeanors
              Sec. 2  Disturbing the Peace
              Sec. 5  Disturbing Lawful Assemblage
              Sec. 6  Disturbing Places of Amusement
Denver, Colorado
      Municipal Code
              Sec. 310.8  Disturbance of the peace
              Sec. 372.1-10  Flight Regulations
              Sec. 507.6  Mufflers

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                              1-196
              Sec.  842.1  Disturbing the Peace:   Offensive
                          Language
              Sec.  842.2  Unlawful to Produce Loud and Raucous
                          Noise upon Public Property;  Loud
                          Speakers
              Sec.  842.3  Unlawful to emit in Public Places Loud
                          and Raucous Noises
          Zoning Ordinances
              Sec.  13-2(2)  Volume of Sound Generated
Des Moines, Iowa
      City Code
              Sec. 4-27
              Sec.
              Sec.
              Sec.
              Sec.
              Sec.
              Sec.
              Sec.
              Sec.

              Sec.
              Sec.
              Sec.
              Sec.

Detroit, Michigan

      City Code
              Sec.
              Sec.

              Sec.
              Sec.
              Sec.

              Sec.
              Sec.
              Sec.
              Sec.
      Use of sound amplifying devices at
      airport
13-68  Loud talking in cemetaries
30-159  Driving in Zones of Quiet
30-1730  Horns
30-1731  Sirens and Bells
30-1733  Mufflers
32-6  Disturbing peace and quiet
32-31  Motorboats - Mufflers and cut-outs
32-35  Regulation of Sound Amplifying
       Equipment
42-11  Band Prohibited on streets;  exception
42-18  Noisy or disorderly parades
45-3  Ringing bells in switching yards
46A-20  Mufflers on motorboats
28-3-4
              Sec. 38-1-34
        Noise Prohibited in Hospital  Zones;
        some declared a nuisance
         Operation of sound cars  prohibited
         in certain areas
38-6-20-Sec. 38-6-26  Noise Control of
                      Motorcycles
         Horns
         Sirens
          Cut-outs, unnecessary noise from
          motor vehicles
         Noise Amplifying devices
         Same - Vendors
         Same - Persons in vehicles
         Nuisances-Maintenance prohibited
38-10-6
38-10-7
38-10-10

39-1-37
39-1-38
39-1-39
39-1-40

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                               1-197
              Sec. 39-1-73  Steam or compressed air whistles -
                            Use by steamliners
              Sec. 39-1-74  Same - Use by Locomotives
              Sec. 39-1-75  Same - Stationary engine whistle
              Sec. 39-1-76  Same - Use for Alarms for fire, etc.
              Sec. 39-1-77  Steam Producing, etc. equipment
              Sec. 39-1-90.1  Wash racks and Motor Vehicle
                              Laundries
              Sec. 39-1-90.2  Same-Restriction on Noise
              Sec. 39-1-90.3  Same - Restriction on time of
                              operation
              Sec. 43-1-19  Use of Noisemaking device to attract
                            patrons restricted
              Bureau of Industrial Hygiene Noise Regulations

Dillon, Colorado

      Snowmobile Ordinance

Durango, Colorado
      No laws - letter of June 25, 1971 from Robert W.  Rank
                City Manager
                Durango, Colorado

El Paso, Texas

      City Code
              Sec. 12-49  Noises constituting a nuisance-
                          Generally     (NIMLO)
              Sec. 12-50  Same - Specifically     (NIMLO)
              Sec. 12-52  Abatement by Chief of Police

Evergreen, Colorado

      No laws - letter of June 22, 1971 from Dan Rock
                Manager, Evergreen Area Chamber of Commerce
                Evergreen, Colorado

Flagstaff, Arizona

      City Code
              Sec. 6-1-42  Mufflers; Unnecessary Noise
              Sec. 6-1-38  Loud Speakers on Sound Trucks
              Sec. 6-1-39  Loud and Unusual Music

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                              1-198
Fort Lauderdale, Florida

      Code of Ordinances
              Sec. 28-30  Noises - Musical instruments and radios
              Sec. 28-31  Same - Hours noisy outdoor amusements
                          must close
              Sec. 28-32  Same - Hours noisy business may operate
              Sec. 28-33  Loud and Disturbing noises from
                          filling stations
              Sec. 28-34  Loud and Unnecessary noises prohibited
                          (NIMLO)
              Sec. 28-35  Same - Acts declared loud and unnecessary
                          (NIMLO)
              Sec. 2-121  Committee on Noise Control established

Grand Junction, Colorado

      No laws - letter of June 22, 1971 from Harvey M. Pose
                Assistant to City Manager
                Grand Junction, Colorado

Greensboro, North Carolina

      Code of Ordinances
              Sec. 13-12  Unnecessary Noise Generally     (NIMLO)

Hartford, Connecticut

      City Code
              Sec. 21-1  Loud, disturbing and unnecessary noises
                         prohibited     (NIMLO)
              Sec. 21-2  Enumeration of acts declared loud and
                         disturbing     (NIMLO)

Helena, Montana

      City Ordinances
              Sec. 10-13-34  Mufflers, Prevention of Noise
          Uniform Building and Housing Code

Honolulu, Hawaii

      No laws due to state preemption - letter of June 23, 1971
      from Nathaniel Felzer, Deputy Corporation Council
      Honolulu, Hawaii

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                              1-199
Houston, Texas
      City Charter
          Article II  Sec. 16(n)  To restrain various noises
      City Code
              Sec. 9-11
              Sec,
              Sec,
              Sec.
14-14
23-10
29-1
              Sec. 29-2,
Advertising by loudspeakers from
aircraft over city
 Convalescent home noise
 Disturbing the peace by junk dealers
Loud, unnecessary, disturbing noise
generally
29-21  Acts declared loud and unnecessary
       (NIMLO)
Indianapolis, Indiana

      City Ordinances
              Sec. 9-912
              Sec. 9-913
              Sec. 10-302
              Sec. 10-303
              Sec. 10-307
Jacksonville, Florida
       Additional quiet zones
       Penalty as to all quiet zones
        Unlawful noises     (NIMLO)
        Penalties for aforesaid noises
        Commercial advertising by sound truck
        prohibited
      Ordinance Code
              Sec. 324.101  Unnecessary Noises Prohibited    (NIMLO)
              Sec. 324.102  Acts deemed to be unnecessary Noises
                            (NIMLO)
              Sec. 324.103  Sound trucks prohibited in residential
                            districts
              Sec. 324.104  Business Noises in Residential Sections
              Sec. 324.105  Blowing Locomotive Whistles after
                            10 P.M.
      Zoning Regulations
              Sec. 708.423  Performance Standards:  Noise

Juneau, Alaska

      Zoning Ordinance

Kansas City, Kansas

      City Code
              Sec. 23-35  Noise Generally

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                               1-200


              Sec. 23-50  Stationary engines,  motors,  etc.,
                          noise and mufflers

Killeen, Texas

      City Code
          Chap. 3, Art. 2 Sec.  8  Loud Noises  and Speaking devices
                          Sec.  15  Penalties
                   Art. 7, Sec. 1  Conduct of  shows
          Chap. 6, Art. 3, Sec. 1  Fireworks
          Chap. 7, Art. 6, Sec. 9  Insulting and disturbing meeting
                           Sec. 10  Disturbing of Public worship
          Chap. 7, Art. 9, Sec. 1  Unlawful to create noise (NIMLO)
                           Sec. 2  Acts deemed violation    (NIMLO)
                           Sec. 3  Penalty
          Chap. 13, Art. 1, Sec. 54  Mufflers

Las Vegas, Nevada

      City Code
          Zoning
              Sec. 11-1-22 M, Industrial District Regulation
              Sec. 11-1-23 C-V, Civic District Regulations
              Sec. 6-1-24  Noises     (NIMLO)

Little Rock, Arkansas

      City Ordinances
          Art. XIV  Miscellaneous Provisions
              Sec. 39-126  Equipment - Motor Vehicles
              Sec. 39-153  Zone of quiet

Los Angeles, California

      Administrative Code
          Art.. 3
              Sec. 22.9  Enforcement of Ordinances Relating to
                         dumb animals, public  pound, Animal license
      Municipal Code
              Sec. 41.57  Loud and Raucous Noise Prohibited

Madison, Wisconsin

      City Ordinances
              Sec. 12.115   (1)  Horns
                            (2)  Mufflers

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                               1-201
              Sec. 24.02  Disorderly Conduct
              Sec. 24.04  Prohibition of Noises Disturbing the
                          Public Peace
              Sec. 24.05  Sounding of Railroad Whistle
              Sec. 24.20  Penalty

Manchester, New Hampshire

      City Noise Ordinances
              Sec. 1  Loud and Unnecessary Noise     (NIMLO)
              Sec. 2  Loud and Unnecessary Noise     (NIMLO)
              Sec. 3  Specific Acts     (NIMLO)
              Sec. 4  Penalties
              Sec. 5  Separability
              Sec. 6  Ordinances Repealed

Medford,  Oregon

      City Code
          Chap. 5 - Offenses
              Sec. 5-060  Disorderly Conduct
              Sec. 5-080  Disturbance of Assemblies
              Sec. 5-105  Discharge of Weapons
              Sec. 5-620  Unnecessary Noise     (NIMLO)
              Sec. 5-623  Abatement Notice
              Sec. 5-645  Abatement by City
          Chap. 6 - Motor Vehicles
              Sec. 6-460  Horns and Noise

Memphis,  Tennessee

      City Code
              Sec. 23-116  Muffler Required
              Sec. 23-117  Muffler cut-out prohibited
              Sec. 23-118  Horns
              Sec. 23-118.1  Sounding of vehicle horn
              Sec. 23-119  Sirens, whistles, bells
          Chap. 24 - Noise
              Sec. 24-1  Loud, disturbing and unnecessary noise
                         generally      (NIMLO)
              Sec. 24-2, Sec. 24-14  Acts deemed loud, unnecessary
                                      (NIMLO)

Miami Beach, Florida

      City Code
          Chap. 24 - Noises

-------
                               1-202

              Sec. 24-1  Purposes of chapter
              Sec. 24-2  Prohibited noises     (NIMLO)
              Sec. 24-3  Waiver of provisions of chapter

Milwaukee, Wisconsin

      City Code
              Sec. 6-36  Prohibition on noise for commercial
                         purposes
                         (Zones of Quiet)
              Sec. 8-80 (4) (b)  Mufflers on boats with motors
              Sec. 8-80 (10)  (k)  Horns and whistles on boats
              Sec. 78-18  Noise from dogs
              Sec. 80-26  Business Noise
              Sec. 85-14  Noise for attracting attention
              Sec. 90-27  Noise from tavern amusement premises
              Sec. 100-31  Noise from alarms or bells on coaches
              Sec. 101-282  Automobile horns
              Sec. 101-295 (3)   Tire Chains
              Sec. 101-283  Mufflers on motor vehicles
              Sec. 105-6  Bells on motor vehicles
              Sec. 105-29  Exhaust from stationary engine
      Building Code

Minneapolis, Minnesota

          City Charter
              Chap. 4
              Sec. 5(3)  City Council Powers to prevent disturbance
                     (24)  to remove nuisances
      Code of Ordinances
          Chap. 240 - Noise Control  (to take effect Sept. 24, 1971)
              Sec. 240.010  Declaration
              Sec. 240.020  Noise Prohibited
              Sec. 240.030  Measurement of Noise
              Sec. 240.040  Construction Equipment
              Sec. 240.050  Outdoor Implements
              Sec. 240.060  Motor Vehicles
              Sec. 240.070  Preservation of other remedies
              Sec. 240.080  Severability
              Sec. 240.090  Definitions
          Zoning  Code
              Sec. 251.216(7)  Air Conditioning Condensers
              Sec. 284.051  Performance Standards-Noise Generally
              Sec. 285.051  Noise in Ml Districts

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                               1-203
          Licensing
          Chap. 352 - Broadcasting Vehicles
              Sec. 352.080  Limits on Sound
          Chap. 375 - Juke Boxes
              Sec. 375.060  Noise Restricted
          Traffic Code
              Sec. 414.070  Unnecessary Noise from Motor Vehicles
              Sec. 417.350  Sirens
              Sec. 417.360  Mufflers
          Criminal Code
              Sec. 609.74  Public Nuisance
              Sec. 609.745  Permitting Public Nuisance
          Petty Offenses
          Chap. 875 - Noise
              Sec. 870.060  Breach of the peace
              Sec. 870.061  Noise in Residential Areas
              Sec. 875.010  Unnecessary Noise or Odor
              Sec. 875.020  Automobile Horns
              Sec. 875.030  Sound Amplifying
              Sec. 875.040  Advertising by Public Address System
              Sec. 875.050  Zones of Quiet
          Chap. 876 - Fireworks
              Sec. 876.010  Sale of Fireworks
      City Charter
          Chap. 4, Sec. 5(3)   City Council Powers to prevent
                               disturbance
                         (24)   To remove nuisances

Missoula, Montana

      City Ordinances
              Sec. 20-14.1  Mufflers required on motorized
                            bicycles
              Sec. 20-22  Mufflers required on motor vehicles
              Sec. 21-28  Sound devices-Transportation through city
              Sec. 21-29  Same-Permit required

Nashville, Tennessee

      City Code
              Sec. 3-1-9  Use of loudspeakers, bells, etc. in
                          advertising
              Sec. 26-2-12  Sound not too audible on adjoining
                            premises
              Sec. 27-1-70  Horns; unnecessary noise
              Sec. 27-1-71  Mufflers

-------
                               1-204
              Sec. 29-1-53  Placing on vehicle substance,  animal,
                            etc.  which is nuisance or imperils
                            health
              Sec. 29-1-54  Radios, television,  etc.
              Sec. 29-1-60  Steam exhaust muffled

New Haven, Connecticut

      City Code of Ordinances
              Sec. 18-19  Noise

New Orleans, Louisiana

      City Code
              Sec. 42-42  Noise-Violent
              Sec. 42-42.1  Noises Prohibited
              Sec. 42-43  Noise-Blowing Whistles
              Sec. 42-44  Same-Drums, horns, trumpets
              Sec. 42-45  Same-Organ grinders
              Sec. 42-68  Distrubance of Sunday worship by
                          building contracts
              Sec. 42-681  Construction noises-hours permitted

New York City, New York

      Administrative Code
          Chap. 18  Title A
              Sec. 435-5  Unnecessary Noise      (NIMLO)
              Sec. 435-6  Sound amplification equipment
          Traffic Regulations
              Sec. 151  Horns
          Health Code
              Sec. 135.19  Department Powers
          Dept. of Markets Rule 11 - Noise from Peddlars
          Building Code
              Subarticle 1208.0  Noise Control in multiple
                                 dwellings

Norfolk, Virginia

      City Code
              Sec. 29-6  Hospital  Quiet Zones
              Sec. 29-777  Mufflers
              Sec. 29-778 Mufflers cut-outs illegal
              Sec. 31-48  Noise Generally     (NIMLO)

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                              1-205

Ogden, Utah

      Revised Ordinance Book
              Sec. 23-1-5  Sound Producing devices,  use by vendor
              Sec. 23-1-20  Sound Producing devices, use by anyone
              Sec. 14-18-17  Mufflers
              Sec. 22-2-3  Noise Signs Prohibited
              Sec. 29-16-1 (n)   Zoning-use regulations

Oklahoma City, Oklahoma

      City Ordinance
              Sec. 93.01  Disturbing Public Peace
              Sec. 93.02  Disturbing Assemblies
              Sec. 93.03  Horns
              Sec. 93.04  Music Boxes-Bells
              Sec. 93.05  Loud Speakers
              Sec. 93.06  Offensive Noises
              Sec. 93.07  Breach of Peace
              Sec. 93.10  Unnecessary and Disturbing Noise  (NIMLO)
              Sec. 93.11  Noises Prohibited     (NIMLO)
              Sec. 93.12  Exceptions
              Sec. 93.14  Steam Whistles
              Sec. 93.16  Discharging Firearms

Omaha, Nebraska

      No laws - letter of July 23, 1971 from Bryce Brasel
                Administrative Assistant to the Mayor
                Omaha, Nebraska

Park Ridge, Illinois

      City Ordinances
          Chap. 8 - Noise Abatement
              Sec. 14-8-1 to 14-8-3

Philadelphia, Pennsylvania

      Code of Ordinance
          Chap. 10-400 - Noise
              Sec. 10-401  Ash,  Trash and Garbage Cans
              Sec. 10-402  Building Construction
              Sec. 10-403  Hospitals, Churches, Court Houses and
                           schools
              Sec. 10-404  Sound devices

-------
                              1-206
              Sec. 10-405  Street Vendors
              Sec. 10-406  Vehicles
              Sec. 10-407  General Provisions
              Sec. 10-408  Penalties
              Sec. 6-401  Occupational and Industrial Hygiene
          Dept. of Public Health Regulations Pertaining to
          Hearing Conservation

Phoenix, Arizona

      City Code
          Art. I
          Sec. 23-12  Unreasonably Loud and Disturbing Noise
                      (NIMLO)
          Sec. 23-13  Noises detrimental to life and health (NIMLO)
          Sec. 23-14  Enumeration of loud, unnecessary noises
                      (NIMLO)
          Sec. 23-15  Exemptions
          Sec. 23-17  Hospitals; quiet required

Pittsburgh, Pennsylvania

      No formal program - letter of June 24, 1971 from
                          Dr.  Frank B. Clack
                          Director, Allegheny County
                          Health Department
                          Pittsburgh, Pennsylvania

Pocatello, Idaho

      Ordinance No. 1642  Loud, Unnecessary Noise

Portland, Oregon

      City Ordinances
          Chap. 14.52 - Noise
              Sec. 14.52.010  Creating Noise Prohibited   (NIMLO)
              Sec. 14,52.020  Acts declared violations      (NIMLO)
              Sec. 14.52.030  Acts in 14.52.020 declared nuisances
              Sec. 14.52.040  Motorboats
              Sec. 14.52.050  Public outcry
              Sec. 14.52.060  Loading noisy material
          Chap. 16.28 - Equipment
              Sec. 16.28.260  Horns
              Sec. 16.28.290  Mufflers - Noises Prohibited

-------
                              1-207
          Chap. 19.16  Harbors
              Sec. 19.16.215  Making unnecessary noise
          Chap. 33.78  Heliport and Helistop Regulation
              Sec. 33.78.040  Noise
          Zoning Ordinances
              Each includes prohibition 6f uses objectionable
              due to noise

Providence, Rhode Island

      No noise control in building or zoning code - letter of
      July 21, 1971 from Vincent DiMase, Director,  Department of
      Building Inspection, Providence,  Rhode Island

Richmond> Virginia

      City Code
              Sec. 25-30  Unnecessary noise in operation of motor
                          vehicles
              Sec. 28-5  Noise near certain buildings
              Sec. 25-202  Horns on motor vehicles
              Sec. 25-203  Sirens, whistles, etc.
              Sec. 25-204  Sirens or whistles on emergency vehicles
              Sec. 25-222  Muffler required
              Sec. 25-223  Muffler cut-out illegal
          Chap. 26 - Noise
              Sec. 26-1  Enumeration of acts declared loud and
                         disturbing, noise     (NIMLO)
              Sec. 26-2  Creating loud noise prohibited    (NIMLO)
              Sec. 26-3  Summons of persons violating chapter
          Art. II  Sound Trucks and Sound Amplifying Equipment
              Sec. 26-4  Definitions
              Sec. 26-5  Restrictions on operations generally
              Sec. 26-7  Exceptions
              Sec. 26-6  Noncommercial use
              Sec. 26-8  License for sound truck
          Art. 17 M-l  Light Industrial District Regulations
              Sec. 42-54  Use Regulations

Rochester, Minnesota

      Zoning Ordinances
          Art. 40  Performance Standards
              Sec. 40.00  Compliance Required
              Sec. 40.052  Noise

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                              1-208
St. Louis,  Missouri

      City Code
              Sec.  762.010  Disturbing religious worship
              Sec.  762.020  Disturbing lawful assembly
              Sec.  762.030  Public Disturbance of  the Peace
              Sec.  760.090  Building Operations on Sunday
              Sec.  760.100  Noises near Schools, Hospitals,
                            Churches,  etc.
              Sec.  760.110  Drum,  loud speakers, etc.
              Sec.  760.120  Band Music in streets
              Sec.  760.130  Hand organs,  etc. played for  gain
              Sec.  760.140  Use of bells,  etc. to  attract persons
      Ordinance No. 54719  Regulation of Business  of Vending

Salt Lake City, Utah

      Revised Ordinances
              Sec.  1-3115  Dogs which disturb neighborhood
              Sec.  2-12-3  Aircraft engine run-up  areas
              Sec.  20-17-28  Noise Prohibited
              Sec.  20-31-1, Sec. 20-31-12  Regulation of  Sound
                                           Equipment
          Art. 9
              Sec.  172  Mufflers
              Sec.  247  Unusual noises
              Sec.  248  Increasing noise,  devices  forbidden
              Sec.  249  Use of horn
              Sec.  250  Quiet Zones

San Clemente, California

      City Code
              Sec.  16-13  Nuisance-Defined
              Sec.  16-14  Same-Allowing Committing
              Sec.  16-15  Same-Notice to Abate? Abatement by city
              Sec.  16-22  Sound amplifying equipment -  defined
              Sec.  16-23  Same-Application for permit
              Sec.  16-24  Same-Conditions of Use
              Sec.  16-25  Same-Grounds for revocation of  permit

San Francisco, California

      Police Code
          Chap. VIII
              Sec.  43  Permits for use of loudspeakers  or sound
                       amplifying equipment

-------
                              1-209
              Sec.  44  "person"  defined
              Sec.  45  Exceptions
              Sec.  46  Definitions
              Sec.  47  Use of sound trucks
              Sec.  47.1  Registration statement amendment
              Sec.  47.2  Regulations for use
              Sec.  48  Commercial advertising by sound truck
              Sec.  49  Unnecessary Noise Authorized emergency
                       vehicles
              Sec.  50  Severability
              Sec.  94  Horns

Santa Barbara, California

      Municipal Code
          Chap. 9,  14- Operation of Vehicle containing Sound
                       Amplifying Equipment
              Sec.  9.14.010  Definitions
              Sec.  9.14.020  Operation-Regulations
              Sec.  9.14.030  Penalty
          Chap. 9.16 - Noise
              Sec.  9.16.010  Generally
              Sec.  9.16.020  Radio loudspeaker-Sound amplification
              Sec.  9.16.025  Sound Amplification in public parks
                             and places
              Sec.  18.08.200  Noise abatement at airport

Scottsbluff,  Nebraska

      City Ordinances
              Sec.  1-201  Aircraft
              Sec.  8-122  Fireworks
              Sec.  13-118  Combustion engines, mufflers
          Ordinance No. 1668  Quiet Zones

Scranton, Pennsylvania

      General Offenses Code
              Sec.  733.01  General Nuisances
              Sec.  733.02  First Class Nuisances
              Sec.  733.03  Second Class Nuisances
              Sec.  733.04  Third Class Nuisances
              Sec.  733.05  Fourth Class Nuisances
              Sec.  733.99  Penalty

-------
                               1-210
Seattle, Washington

      City Ordinances
). 12,
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
.82
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
- Noise
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.82
.84
.010
.020
.030
.040
.050
.060
.070
.080
.090
.100
.110
.120
.130
.140
.150
.160
.170
.010
                              Definitions
                              Unlawful acts or omissions
                              Horns
                              Exhausts
                              Mismanagement of Vehicles
                              Loading, unloading or opening of
                              boxes
                              Blowers
                              Whistles
                              Loud speakers,  amplifiers for
                              advertising
                              Radios, television,  etc.
                              Yelling, shouting, etc.
                              Domestic pets
                              Tools
                              Hawkers, peddlars
                              Sirens
                              Exceptions
                              Penalty
                              Hospital Zones
Sioux Falls,  South Dakota

      City Ordinances
              Sec. 9.202
              Sec. 9.203
              Sec. 9.701
              Sec. 9.702
              Sec. 9.703
              Sec. 9.807
              Sec. 9.1001
              Sec. 9.100s
              Sec. 11.1004
              Sec. 11.1008
Disorderly conduct
Disturbing the peace
Discharging fireworks
Sale of Fireworks
Discharging firearms
Musical instruments in public places
 Public Nuisances Defined; remedy
 Removal and Abatement
  Firearms in public parks
  Disorderly conduct in parks
          Traffic Code
              Sec. 13.105  Zones of Quiet
              Sec. 13.131  Muffler
          Zoning Ordinance
              (11) M-l  Light Industrial District

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                              1-211
S towe, Vermont
      No laws governing noise - letter of William M. Johnstone
                                          Town Clerk
                                          Stowe, Vermont

Toledo, Ohio

      Municipal Code
          Chap. 3 - Regulation and Control of Pollution
              Sec. 3-60-31  Noise

University Heights, Ohio

      General Building Code
          Chap. 1613 - Air Conditioning Systems
              Sec. 1631.01  Definition
              Sec. 1631.02  Compliance Required
              Sec. 1631.03  Permit required; fee
              Sec. 1631.04  Existing Systems
              Sec. 1631.05  Enforcement; Appeals
              Sec. 1631.99  Penalty

Washington, B.C.

      Traffic and Motor Vehicle Regulations
              Sec. 99.1  Excessive Idling of Vehicles
              Sec. 143  Horns
              Sec. 144 Mufflers
              Sec. 153 (e)  No unnecessary noise
          Police Regulations
              Art. 6 Sec. 1 - Mechanical devices for creation of
                              sound
              Sec. 2  Same-for advertising
              Sec. 2(a)   Zones of Quiet
              Sec. 3  Musical Instruments
              Sec. 4  Circuses, rodeos, etc.
              Sec, 6  Noise Generally     (NIMLO)
              Sec. 7  Loud Noises at Late Hours
              Art. 18, Sec. 1 - Barking animal
              Sec. 9  Fowl
              Art. 25 Sec. 14 - Building Construction
              Art. 29 Sec. 14 - Mufflers on Boats
          Zoning Ordinances
              Sec. 6101.51  C-M Districts-sound volume limits
              Sec. 6.102.51 M Districts sound volume limits

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                               1-212
White Plains, New York

      City Ordinance Regulating Unnecessary and Annoying Noises
      and Harmful Sounds
              Sec. 1  Legislation Determination
              Sec. 2  Definitions
              Sec. 3  Noise generally     (NIMLO)
              Sec. 4  Enumeration of acts     (NIMLO)
              Sec. 5  Sound devices near public places for
                      advertising purposes
              Sec. 6  Sound devices near public places for non-
                      commercial purposes
              Sec. 7  Exemptions
              Sec. 8  Penalty
              Sec. 9  Severability

Wichita, Kansas

      City Code
          Traffic Code
              Sec. 11.60.230  Horns-Sirens
              Sec. 11.60.240  Mufflers
          Chap. 5.58 - Noise
              Sec. 5.58.010  Loud and unnecessary noise     (NIMLO)
              Sec. 5.58.020  Same-Enumerated list of unnecessary
                             noises
              Sec. 7.40.040  Nuisances
              Sec. 7.40.050  Abatement or suppression of nuisances
              Sec. 28.04.020  Noise Standards for Home Occupation

Wilmington/ Delaware

      City Code
              Sec. 39-52  Unnecessary Noise Generally     (NIMLO)

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                            2-1
        2  ANALYSIS OF EXISTING LEGAL REGULATORY STRUCTURE
                 FOR NOISE ABATEMENT AND CONTROL
  2.1  LEGAL BASIS FOR NOISE ABATEMENT AND CONTROL THROUGH
       PRIVATE ACTIONS
  2.1.1  Private Actions;  Private Sector Noise Sources

     Environmental noise has sometimes been characterized as a

"local problem."  This is substantially correct to the extent

that the effects of noise must be viewed as related to particular

social contexts of participants,  social values, institutions and

activities within specified geographical areas.  This character-

ization is not necessarily correct with respect to the need for

or authority to control "unwanted, disturbing sound."*•  Control

and effects are related.  The effects sought to be regulated (and

the sources thereof)  are the essential means for specifying the

"problem."  Whether particular effects can legally or most effec-

tively be regulated at the Federal, State, Regional or local

levels is a matter which to some extent has been resolved through

Constitutional distribution of powers and by past and current

practices.  But many aspects of a complete regulatory configura-

tion for the abatement and control of environmental noise remains

to be determined.

     Environmental noise is not a new problem.   From this gen-

eral observation Spater concludes:  "As has so often been the

case in the history of the law, the story of noise and the law is

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                               2-2


not one of the development of new principles to fit new noises,

but the application of established principles to solve old prob-

lems arising in somewhat different forms."^  This,  however, is

an over-simplification as the subsequent analysis will show.

Yet it is correct that control over noise has in the past largely

been left to the initiative of individual complainants.  The

more conventional theories for abatement and control of noise in

the judicial arena have been:  nuisance, physical trespass, "in-

verse condemnation," and "constitutional damaging."4  Local ord-

dinances have undertaken to provide a legislative-administrative

means of controlling excessive noise.   Two major principles,

according to the Restatement of the Law o'f Torts, have governed

the evolution of the law in this area:

       First, each person must put up with a certain
       amount of annoyance,  inconvenience and inter-
       ference.

       Second, in determining the amount of annoyance,
       inconvenience and interference that must be tol-
       erated, the gravity of the harm to the complain-
       ant should be weighed against the utility of the
       conduct of his troublesome neighbor.^

The Report of the Panel on Noise Abatement to the Commerce Tech-

nical Advisory Board on The Noise Around Us? comments on the

second principle as follows:

       in other words, courts and legislatures are
       called upon to weigh the harm that is being
       caused to the plaintiff (claimant) against the
       reasonableness of the defendant's conduct.
       Also to be considered are the detrimental

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                               2-3
       effects, including considerations such as safety
       and cost, that would be caused to the defendant
       (and sometimes to the public)  if the defendant
       were forced to discontinue the activity that pro-
       duces the disturbance.

In further elaboration on the "gravity-utility rule" Spater
states:

       When an injunction is sought,  the opposing elements
       on the scale are weighed against each other.  When
       damages are sought and proved, the question is largely
       whether the defendant's conduct is reasonable.

     On the nuisance theory, the plaintiff can recover damages

if the noise generated by the defendant results in a decrease in

the value of plaintiff's property,   sometimes described as a

"substantial interference" with the use of and enjoyment of

land.11  The test of "substantial interference" by the noise

source is the effect the alleged noise would have on a "normal

                                  1 9
person of ordinary sensibilities."    In weighing the social

utility of the noise-maker's conduct against the gravity of the

harm to the plaintiff, the court must decide what is "unreason-:

able" in the context of the particular case,  critical factors

may include whether the noise occurs during the day or at night,

the suitability of the activity producing the noise to the par-

ticular locality and needs of the community, and whether the

complainant occupied the land prior to or subsequent to the

commencement of the alleged noise.

     The prospects for injunctive relief as contrasted with an

action for damages depend upon several factors.  For example,if

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                               2-4




the noise producing activity is one which is  of substantial ben-



efit to the community,  economically or otherwise,  and the burden


imposed upon the plaintiff is not substantially more severe than



that imposed upon the public at large, then an injunction is not


likely to issue.  The plaintiff will be left  to remedy of damages

        14
at most.    The plaintiff stands in a stronger position if he


undertakes to enjoin the noise producing activity prior to its



construction or activation and the investment of substantial re-



sources by the defendant.  Spater states that "Once a business is



under way, a noise that causes a substantial  decrease in the



value of plaintiff's property or a material discomfort to plain-



tiff will be enjoined:   (a) if the annoyance  is due to poor de-



sign or improper operation of defendant's facility and can be


abated by the adoption of an improved design or operation, but


the improvement must be one that is commercially feasible, or


(b) if the activity creating the noise was established in a


neighborhood obviously inappropriate for the activity. "^


     Deficiencies of the nuisance suit as a means of effective


environmental noise abatement are apparent.  Private litigation



based on this theory will normally arise after the noise pro-



ducing facility has commenced operations and a substantial invest-


ment made.  In such instances, the court is likely to consider the



benefit of the activity to the community to far outweigh the

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                               2-5






annoyance caused to nearby land owners.    Hence, unless the




noise is excessive to the point of being unbearable and the




offended land owner has some special argument in his favor - such




as a recently increased level of noise intrusion from the source




which it is "commercially feasible" to terminate - most offended




persons will not consider the cost and effort of a nuisance suit




worth the prospective benefit.    Further, nuisance suits are




clearly an inadequate remedy where the noise eminates from such




sources as vehicular traffic wherein the sources are multiple


                           18
and largely unidentifiable.    A similar difficulty confronts




the prospective plaintiff where the noise level results from a




number of different types of sources (vehicular traffic, construc-




tion, sound trucks, etc.) since the problem arises of apportion-




ing damages among the offend I \g noise producers even if all are



           19
identified.    In some circv. astances, class actions may provide




a means of amplifying the leverage of the plaintiff's position




in nuisance suits, but this procedural technique does not elim-


                                                      20
inate many other weaknesses in this remedial approach.



     Furthermore, this general conclusion tends to hold whether




nuisance suits are brought under the various precedents developed




in the common law of "nuisance"^! or brought pursuant to general




statutory authority covering harm from excessive noise sources.22

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                               2-6
     In a recent paper by Professor Milton Katz involving pri-

marily tort actions as means of controlling environmental qua-;

lity, ^ he discusses the "controversial New York case" of Bopm-

                                24
er v. Atlantic Cement Co., Inc.,   in terms of the considerations

which are influential in such judicial determinations:

       The Atlantic Cement Company operated a large cement
       plant near Albany.  Seven neighboring land owners
       filed suit against the Company complaining of injuries
       to their property from dirt, smoke and vibrations
       arising in the Company's operations.  The plaintiffs
       sought an injunction.  The Court of Appeals of New
       York recognized that a socially satisfactory resolu-
       tion of the competing interests in the control of
       pollution and in the maintenance of production and
       employment in the defendant's plant would involve
       new technical facilities and methods to curb the
       pollution while maintaining the production and
       employment.  A majority of the court declined to give
       effect to a requirement of new research through a
       decree in equity.  To the majority, it seemed "apparent
       that the amelioration of air pollution [would]  depend
       on technical research in great depth; on a carefully
       balanced consideration of the economic impact of
       close regulation; and of the actual effect on public
       health.  It [would be] likely to require massive ex-
       penditure and to demand more than any local community
       can accomplish and to depend on regional and inter-
       state controls."  A dissenting judge nevertheless
       insisted that the difficulties stressed by the major-
       ity did "not mean that better and more effective dust
       control devices could not be developed within" a
       time which might be allowed by the court to the defen-
       dant to abate the pollution.  He argued that the
       court should "enjoin the defendant cement company
       from continuing the discharge of dust particles
       upon its neighbors' properties unless, within eigh-
       teen months, the cement company abated this nuisance."
       The dispute between the majority and the dissent is
       illuminated by a finding previously made in the liti-
       gation that the defendant company had installed in its
       plant "the most modern dust control devices available."
       The disagreement among the judges plainly reflected an

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                               2-7
       ambiguity in the word "available."  To the majority,
       the word signified commercially available, readily
       purchasable on the market.   In the view of the dis-
       senting judge, however,  better dust control devices
       should be regarded as "available" if they were with-
       in the capacity of modern technology and science to
       design through a reasonably intelligent and energetic^c
       program of research over a reasonable period of time.

     Professor Katz states that the "usefulness of a private  tort

action against a company for the purposes of ... environmental

protection (as distinguished from the immediate advantages or

disadvantages to the parties litigant) will turn on the changes

in industrial and technical practice that may be expected to  re-
                      o r-
suit from the action."    In a judgment for damages the cost  of

pollution will be transferred from the injured plaintiff to the

enterprise that caused it.  In short, the amount of damages re-

presents a previously "external cost" that has been "internalized"

by the damage award.  He notes that in the past it has been stan-

dard business practice to treat industrial pollution as external

costs or social costs which have not been "taken into account in

ordinary business calculations of income and expense.27  He

amplifies:

       They have been excluded from the regular cost-benefit
       calculations of business and treated as "external costs"
       not for reasons inherent in the nature of things nor
       derived from the fundamentals of economics, but because
       the legal system has so provided.  The incidence of a
       cost is determined by the legal order.  Damage to the
       community caused by waste products will be a "social"
       and "external" cost only if and to the extent that the
       legal system may so decree.  The legal system may alter
       or maintain the incidence of a cost by recognizing, or

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                               2-8
       declining to recognize, a cause of action in tort against
       the company.  It may enable the persons involved to
       adjust or modify the incidence of cost, or nullify
       their efforts to do so, by giving effect, or refusing to
       give effect, to agreements among them.

Professor Katz interprets the practical consequences of a tort

judgment to be that the damage award in theory "permits the

defendant to pollute the plaintiff's air, water, or land if and

as long as the defendant is able and willing to pay the cost,

                              29
internalized by the judgment."    He notes that in the broader

social context such judgments are useful primarily to the extent

they serve as an incentive to the defendant to apply new manage-

rial methods or technological innovations.    After examining

the alternatives open to the defendant faced with an injunction,

Professor Katz comes to the conclusion that "From the point of

view of sufferers  from pollution, there are serious obstacles

to the effective use of private tort actions against the source

enterprises under  existing law."    He goes on, however, to sug-

gest measures for  increasing the effectiveness of tort actions:

       To an  important degree, the obstacles and short-
       comings can be mitigated by remedial and supple-
       mentary legislation (as well as by incremental
       judicial improvement).  Such legislation might
       provide new bases for standing to sue in nuisance
       cases; facilitate proof of causation; facilitate
       the proof and computation of damages; facilitate the
       apportionment of damages among multiple defendants;
       make it possible to cover some of the real costs of
       litigation  incurred by plaintiffs; energize proceed-
       ings to abate public nuisance by adding a private
       lever  to the machinery of a public nuisance pro-
       ceeding; incorporate the general public interest

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                        2-9
in the environment into the criteria for adjudicating
a claim of private nuisance based upon pollution; and
introduce a duty to use the best available technology
into the balance of factors by which a nuisance action
is determined, making it clear that availability is to
be determined not only by the commercial market but
also and especially by the reach of contemporary tech-
nology and science through a reasonable research effort.

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                               2-10
  2.1.2  Private Actions:   Government Sector or Government
         Authorized Noise  Sources

     The environmental noise problem is in large measure a pro-

duct of governmental activities or of government authorized activ-

ities such as railroads,  commercial aircraft, interstate motor

freight carriers, etc.    Spater sets forth two legal principles

which are here relevant to noise abatement and control through

private action:

       There is, first of all,  the well-recognized concept of
       sovereign immunity - that the government is not liable
       for any of its acts except those for which recovery has
       been expressly provided.  Almost inextricably inter-
       twined with that concept is the second principle that
       members of the public shall bear without redress certain
       of the burdens that arise from action which the govern-
       ment has taken or has authorized in the common interest.

The second principle is more relevant to the previous discussion

so will be discussed first.  It forms the basic rationale for the

doctrine of "legalized nuisance" which has served as a formidible

defense to nuisance actions and suits for injunctions.    Tondel

has stated this doctrine as follows:

        (W)here a public or quasi-public enterprise, like a
       railroad, or a power or gas works, or a sewer system,
       or any  irrigation system, or thruway or an airport,
       or the  like, is expressly authorized by legislation,
       nuisance claims that arise out of its proper operation
       are to be denied.  The theory is that even if the act-
       ivity in question would, if privately conducted, con-
       stitute a nuisance, it has been legalized by the legis-
       lative body which, within constitutional limits, auth-
       orized  the particular conduct on behalf of the public.
                                                            on
In the Supreme Court case of Richards v. Washington Terminal

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                               2-11


the plaintiff, who resided near the defendant's railroad track

and tunnel, brought an action to recover property damages on the

theory of nuisance, i.e., that he suffered injury from the noise,

vibration, and smoke of passing trains including "cracking the

walls. . . breaking glass in the windows, and disturbing the

peace and slumber of the occupants" and from the gas and smoke

forced on the plaintiff's property from the tunnel by a fanning

system.3°  The activities and facilities of the defendant had

been authorized by the Congress.  It was not alleged that the

trains were negligently constructed, operated, or maintained.

Spater comments as follows:

       The Court held that the plaintiff, like all other
       property owners along a railroad right-of-way, was
       required to bear without redress the amount of noise,
       vibration, and smoke incident to the running of the
       trains.  However, the plaintiff was entitled to com-
       pensation to the extent he was damaged by the fan
       arrangement which artificially concentrated gas and
       smoke on the plaintiff to a degree not shared by other
       property owners, "and this, without, so far as appears,
       any real necessity existing for such damage."39

       The general conclusion to be drawn from Richards v.
       Washington Terminal is that under federal law no
       right of action exists in private property owners for
       noise made by an entity functioning under authority
       of the government (and, a fortiori, for noise made by
       the government itself) even though the noise may cause
       a decline in the value of affected property.  In such
       circumstances both damages and equitable relief are denied.

     Kramon notes that the defense of "legalized nuisance" has

been frequently applied in aircraft noise cases,   and the Report

on The Noise Around Us comments with respect to this doctrine:

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                               2-12
       Mr. Tondel states that a survey of all the public
       airport cases in the last ten years shows  only two
       cases in which the nuisance theory was considered
       a proper basis for recovery.  Thus, he concludes that
       this theory,  although expressed and referred to as such
       in most complaints in this field,  has had  little success.

     In those situations wherein the government is the manager of

facilities or the operator of activities  producing noise  or has

formally sanctioned the operation of facilities or activities  by

private participants or entities, resort  to the theory of a con-

stitutional "taking" has been increasingly employed as an alter-

native to a nuisance suit. '   The Fifth Amendment to the  U. S.

Constitution provides that "private property (shall not)  be taken

for public use, without just compensation."  Hence, if a  "taking"

can be proved, then the concept of "inverse condemnation"^** can

be employed "to circumvent the barrier presented by sovereign

immunity."    What constitutes a "taking" is, of course,  the

pivotal question.  Presumably, under the  common law ad coelum

theory that "the claim of title to a landowner's property extends

to the universe above, as well as to the  boundaries of the land

below,"46 the intrusion of an aircraft into the airspace  over a

particular landowner's property would involve an actionable phys-

ical trespass.  However, the Federal Aviation Act of  1958,  provides;

       There is hereby recognized and declared to exist  in
       behalf of any citizen of the United States a public
       right to freedom of transit through the navigable air-
       space of the United States.

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                               2-13
and defines "navigable airspace" as that

       .  .  . above the minimum altitudes of flight prescribed
       by regulations issued under this chapter,  and shall
       include airspace needed to insure safety in take-off
       and landing of aircraft.^8

Hence, the question arises as to whether an aircraft flying

above a landowner's property will, under any circumstances,  be

considered a physical trespass and, if so,  whether such tres-

pass will amount to a constitutional taking.  Assuming that

under some circumstances the flight of an aircraft above such

property will be considered a taking, the precise question here

is whether noise alone emitted from the aircraft will be deemed

a taking.

     The two Supreme Court cases of United States v. Causby^

and Griggs v. Allegheny County   have been interpreted by most

commentators to stand for the proposition that under certain

circumstances noise from aircraft flying overhead can constitute

a compensable taking.    In the causby case military aircraft

regularly flew over the plaintiff's land at a height of approxi-

mately 83 feet.  The Court stated that:  "The superadjacent air

space at this low altitude is so close to the land that contin-

ous invasions of it affect the use of the surface of the land
        CO
itself."J   In the Griggs case commercial aircraft regularly flew

a path which cleared plaintiff's chimney by only 11 feet.

Whereas in Causby the United States Government was both the

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                               2-14


airport manager and the aircraft owner,  in Griggs the question

arose as to which party to sue;  the airport manager (Allegheny

County which was the operator of the Greater Pittsburgh Airport),

the offending commercial airline, or the United States, which had

certified the carrier and had approved the flight path.  The

plaintiff was successful in suing Allegheny County "under the

Federal constitution's 14th Amendment on the basis of a taking

of an aviation easement over his land."    The report on The

Noise Around Us states:

       In upholding the suit of the landowner, the Court
       reasoned that the airport operator must first acquire
       an easement of flight.  The Court said that it  is the
       airport operator who causes the interference, that the
       Government- takes nothing, and that it is the local
       authority which decided whether or not to build an
       airport and where it is to be located."

     It should be noted, however, that Spater argues vigorously

and at length to the effect that in both the Causby and Griggs

cases that while "there existed both the invasion and  exclusive

use which are required to effect a displacement of the property

owner," in neither case was the taking "based on the existence

of an objectionable noise."    Spater states that it was the

invasion and use of the plaintiff's airspace which constituted
           C'J
the taking.    In brief, it is Spater's position that  "noise

alone, no matter how aggravating . . . cannot constitute a taking

as defined by the cases, i.e., a displacement of the landowner
                                                     CO
by a direct or physical invasion of the government."

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                               2-15



     It would follow from this rather restricted concept of a


"taking" that an overhead flight would be a precondition to re-


covery under this theory.  The element of "physical invasion"


as a prerequisite to a "taking" has continued to exert strong

                                                       co
influence with some courts.  In Batten v. United States   the


court stated that "We are cited to no decisions holding that


the United States is liable for noise, vibration, or smoke with-


out a physical invasion." °  The implication of this statement


is that even if noise alone from an over-flying plane could be


considered as sufficient interference with the landowner's use


and enjoyment of his property to constitute a taking, adjacent


landowners - laterally displaced from the flight path - could


not recover even if the actual damages resulting from the noise


intrusion were similar or exceeded the harm inflicted on the


property owner directly beneath the flight path.


     Some State courts, however, have adopted an approach which


views a compensable taking as consisting "not in an appropriation


of the landowner's property in a zone or column of airspace but


rather in the creation of noise which substantially interferes

                                a o
with surface use and enjoyment."    This approach would seem


more amenable to courts in those states whose constitutions do


not follow the U.S. Federal-type Constitutional provision pro-


viding compensation for property "taken" for public use but


which provide broader protection for the landowner under "taken

-------
                               2-16
or damaged" language.     Writing in 1965 with reference to the

states having the "taken or damaged" provision,  Spater found that

most of these states had adopted the Richards v. Washington Ter-

minal rule" that property owners adjacent to a right-of-way are

required to bear without redress any depreciation in their pro-

perty due to the noise resulting from its use."64  He continued:

       Finally, the few cases that have been found dealing
       with the loud noises made by trucks and cars moving
       on modern high-speed expressways unanimously hold that
       there can be no recovery. ^

Kramon, writing in 1970, seems to dispute in part this finding

of Spater as indicated by the following quotation:

       The cases of United States v, Causby and Griggs v.
       Allegheny County have established that under certain
       circumstances noise from airplanes may constitute a
       compensable taking.  There have also been a number of
       recoveries for takings by noise resulting from the con-
       struction and use of highways.  In most of the latter
       class of cases there was conceded to be an exercise of
       eminent domain and the recovery for noise was sought as
       consequential damages incident to the taking. "

     Even though the preponderance of judicial decisions up to

the present time have rejected noise as a basis for recovery on

the theory of a compensable taking, a few courts have reached a

contrary result. ^  This incipient trend is to some extent a

reflection of the growing concern with noise as an environmental

problem and, more specifically, a reflection of increasing sen-

sitivity to aircraft noise.  Courts responsive to public demands

to abate environmental  noise would probably tend to adopt a con-

cept of compensable taking which consists "not in a.n appropriation

-------
                               2-17


of the landowner's property in a zone or column of airspace but

rather in the creation of noise which substantially interferes

with surface use and enjoyment."6°  TWO state courts have held

that plaintiffs alleging that their property had been damaged by

noise from aircraft not shown to have been negligently operated

and which did not pass directly over their property could re-

cover under a theory of compensable taking.  In Thornburg v.

Port of Portland   the Oregon Supreme Court (under a "taking for

public use" constitutional provision) described a taking as

follows in the context of aircraft noise intrusion:

       The idea that must be expressed to the jury is that
       before the plaintiff may recover for a taking of his
       property he must show by the necessary proof that
       the activities of the Government are unreasonably
       interfering with his use of his property, and in so
       substantial a way as to deprive him of the practical
       enjoyment of his land.  This loss must then be trans-
       lated factually by the jury into a reduction in the
       market value of the land. ^

In the case of Martin v. Port of Seattle73- the Washington court

held (under a "taken or damaged" constitutional provision) that

recovery could be had "when land of an individual is diminished

in value for public benefit . . . "72  Spater criticizes these

decisions saying that "both of these states had previously decided

that damage from noise alone, in the absence of negligence, did

not constitute compensable injury"7^ but notes that the earlier

decisions had involved railroads, not airplanes.

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                               2-18
     The trend toward recovery for noise intrusion is also illus-




trated by a number of cases involving the construction and use of




highways.    However, the theory of inverse condemnation or




compensable taking has its limits as a means of environmental




noise abatement.  It can be applied only to the sovereign or a




sovereign-sanctioned activity.  Further, as Kramon states, "even




when the state is sufficiently implicated in the activity, it is




necessary for the plaintiff to show an injury peculiar to himself




and not simply that he must tolerate that degree of noise which




is common to the community." °  Courts are reluctant to decide




for the plaintiff in such suits for reason that the potential




reach of the doctrine seems limitless.  '  Put otherwise, the




selection of a standard - what degree of noise should constitute



                                         7P
a taking - presents serious difficulties.0

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                               2-19
  2.2  FORMAL AUTHORITY FOR GOVERNMENTAL CONTROL OVER NOISE

       SOURCES AND NOISE EFFECTS
     The increasing magnitude of environmental noise intrusions



and the obvious ineffectiveness of abating and controlling offen-



sive noise sources through privately initiated suits has resulted



in a variety of legislative prescriptions and programs at the



Federal, State and local levels.  The precise formal authority



upon which such enactments supposedly rest is not always clear.



However, as a general proposition, when a social problem becomes



sufficiently severe, a doctrinal foundation for remedial action



can be found.



     At the Federal level there exists no "police power" as such



but an effective police power has in fact been exercised through



the application of certain specifically delegated powers such as



the commerce clause, the taxing power, the postal power, and the



war power. "  Regulation under the commerce power has been exten-



sive, especially with respect to the major modes of transportation


                                                 80
which are the source of most environmental noise.



     At the State level there exists a well recognized "police



power" flowing from the Tenth Amendment of the U.S. Constitution.^



In Nebbia v. New York,^2 the Supreme Court stated that:



       Government cannot exist if the citizen may at will

       use his property to the detriment of his fellows. . .

-------
                               2-20
       The power to promote the general welfare is inherent
       in government.  Touching the matters committed to it
       by the Constitution, the United States possesses the
       power, as do the states in their sovereign capacity
       touching all subjects jurisdiction of which is not
       surrendered to the Federal government. ...

With respect to the scope of the police power the Supreme Court

                           84
stated in Herman v. Parker;

       Public safety, public health, morality, peace and
       quiet, law and order — these are some of the more
       conspicuous example of the traditional application
       of the police power to municipal affairs.  Yet they
       merely illustrate the scope of the power and do not
       delimit it.85

     The exercise of the police power is subject to the limitations

of due process as is the exercise of individual "liberty."  Con-

sider the following quote from the opinion of Chief Justice
                                         Q£!
Hughes in West Coast Hotel Co. v. Parrish   wherein a State of

Washington minimum wage law for women was attacked as a viola-

tion of the due process clause of the Fourteenth Amendment:

       The principle which must control our decision is not
       in doubt.  The constitutional provision invoked is
       the due process clause of the Fourteenth Amendment
       governing the states, as the due process clause in-
       voked in the Adkins Case governed Congress.  In each
       case the violation alleged by those attacking minimum
       wage regulation for women is deprivation of freedom of
       contract.  What is this freedom?  The Constitution
       does not speak of freedom of contract.  It speaks of
       liberty and prohibits the deprivation of liberty without
       due process of law.  In prohibiting that deprivation,
       the Constitution does not recognize an absolute and
       uncontrollable liberty.  Liberty in each of its phases
       has its history and connotation.  But the liberty safe-
       guarded is liberty in a social organization which
       requires the protection of law against the evils which
       menace the health, safety, morals, and welfare of the

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                               2-21
       people.  Liberty under the Constitution is thus nec-
       essarily subject to the restraints of due process,
       and regulation which is reasonable in relation to
       its subject and is adopted in the interests of the
       community is due process. . . .  '

This opinion also stated that "even if the wisdom of the policy

be regarded as debatable and its effects uncertain,  still  the

                                         88
Legislature is entitled to its judgment."    Since the police

power, as described by one opinion of the Supreme Court, extends

"to all the great public needs,"^ its exercise will be upheld if

the legislature perceives a public need to be satisfied and the

means selected is reasonably appropriate to the achievement of

             90
this purpose.    But the police power is subject to the further

limitation that private property cannot be taken for public use

without just compensation.  What constitutes a taking in the

context of police power applications by a state has occasionally

posed difficulties for the courts.  The controlling considerations

are discussed in the following quotation from Pennsylvania Coal

CO. v. Mahon;

       The general rule at least is that while property may be
       regulated to a certain extent, if regulation goes
       too far it will be recognized as a taking.  It may be
       doubted how far exceptional cases, like the blowing
       up of a house to stop a conflagration, go — and if
       they go beyond the general rule, whether they do not
       stand as much upon tradition as upon principle.  . .
       In general it is not plain that a man's misfortunes
       or necessities will justify his shifting the damages
       to his neighbor's shoulders. ...  We are in danger
       of forgetting that a strong public desire to improve
       the public condition is not enough to warrant achiev-
       ing the desire by a shorter cut than the constitutional

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                               2-22
       way of paying for the change.  As we already have said
       this is a question of degree — and therefore cannot
       be disposed of by general propositions.

     Within the general framework of constitutional authority

numerous legislative enactments have been taken at the Federal,

State and local levels as noted in § 1 supra.  Furthermore, the

Report on The Noise Around Us states flatly:

       It would seem that legislation on the national,9-*- state
       and local levels could thus be accomplished toward
       the end of controlling noise without serious problems
       of a constitutional nature arising.

Nevertheless a number of legal and political problems do arise

with respect to the distribution and exercise of power among

entities in our Federal structure as noted in the next section.

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                               2-23
  2.3  DISTRIBUTION OF FORMAL AUTHORITY AMONG FEDERAL,  STATE
       AND LOCAL JURISDICTIONS
  2.3.1  Illustrative Cases and Materials Relevant to the
         Commerce Clause and the Police Power

     Assuming the authority to impose effective controls over

environmental noise,  the question remains as to what level of

government has authority to prescribe and apply regulatory mea-

sures to what noise sources under what sets of circumstances.

There is, of course,  the further question of which level of

government might be most effective in applying certain types of

noise controls, but this matter will be treated elsewhere.

     This section is concerned primarily with the issue of for-

mal authority.  A series of cases which apply the commerce

Clause to situations in the transportation field will serve as

a summary explication of the manner in which the distribution

of authority over given activities has been made between the

National level and the State-local level.

     The first case presented the Supreme Court under the Com-

merce Clause of the Constitution was Gibbons v. Ogden,   which

held a New York law providing for a State "steamboat monopoly"

invalid and, in effect, upheld the right of Gibbons, operating

under a coasting license obtained from the United States Govern-

ment, to continue his scheduled interstate runs between New Jersey

and New York.  In their book on Cases in Constitutional Law the

Cushmans say:

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                               2-24
       The economic consequences of it in freeing a develop-
       ing commerce from the shackles of state monopoly can
       hardly be overestimated;  and it established for all
       time the supremacy of the national government in all
       matters affecting interstate and foreign commerce.9^

In the case of Cooley v. The Board of Wardens of the Port of

             95
Philadelphia,   the Court undertook to determine whether the

power of Congress to regulate foreign and interstate commerce

was exclusive or whether it might be in part shared by the states.

The Court adopted a rule which placed a segment of control in the

states, the test being whether a particular subject or activity

of commerce requires uniform national control or whether it is

sufficiently local in character to permit State regulation.  Leg-

islation by Congress is, of course, in some instances "substan-

tial evidence" of the need for uniform national control.  In the

Post-Civil War period, the expanding interstate railway system,

which soon became transcontinental, posed problems which could

not be adequately controlled by the separate states.  In the
            96
Wabash Case,   the Supreme Court held State regulation over rates

charged by interstate carriers to be void.  In other words, in

line with the Cooley doctrine, the setting of such rates was

held to be a matter for national uniform regulation.  A few months

after the Wabash decision the Congress passed the Interstate Com-

merce Act  (1887) and authorized the regulation of railroad rates

by the Interstate Commerce Commission which was established by

        97
the Act.    There have been any number of important railroad

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                               2-25


cases decided subsequent to the Wabash case,  as for example,
                                         oo
Southern Pacific Co. v. State of Arizona,  ° in which the Sup-

reme Court, relying again on the Cooley doctrine,  held that the

Arizona Train Limit Law (limiting train length) contravened the

Commerce Clause of the Constitution.  The Majority Opinion states

in conclusion:

       The contrast between the present regulation and the
       full train crew laws in point of their effects on
       the commerce, and the like contrast with the high-
       way safety regulations, in point of the nature of
       the subject of regulation and the state's interest'-
       in it, illustrate and emphasize the considerations
       which enter into a determination of the relative
       weights of state and national interests where state
       regulation affecting interstate commerce is attempted.
       Here examination of all the relevant factors makes
       it plain that the state interest is outweighed by
       the interest of the nation in an adequate,  economical
       efficient railway transportation service, which
       must prevail. 9

     One of the leading cases on interstate highway regulation is

                                                          lnO
South Carolina State Highway Department v. Barnwell Bros.,

which involved the following facts.  By an Act of the General

Assembly of South Carolina of 1933, use on the state highways

of motor trucks and semi-trailer motor trucks whose width ex-

ceeded 90 inches and whose weight, including load, exceeded 20,000

pounds was prohibited.  These limitations were more restrictive

than those of most other states.  Nevertheless, this Act was

upheld by the Supreme Court.  Though recognizing that "inter-

state carriage by motor trucks has become a national industry"

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                               2-26


and that Federal monies had been applied toward construction

and maintenance of the South Carolina highway system,  the Court

stated:  "Few subjects of state regulation are so peculiarly of

                                               102
local concern as is the use of state highways."     There was

no dissenting opinion, although justices cardozo and Reed took

no part in the decision,  in this connection it is instructive

to note two passages from the Report of the Committee on Public

Works of the U.S. Seante on S. 2658, March 27, 1968, Report No.

1026 on "Vehicle Weights and Dimensions":

       Until July 1, 1956, the regulation of motor weights
       and dimensions was a matter solely within the province
       of the individual States.  The Federal-Aid Highway Act
       of 1956 established maximum permissible weights and
       widths for vehicles operating on the Interstate System.
       Though it constituted a departure from the policy of
       the past, this action was taken by the Congress in
       order to protect the Federal investment in interstate
       highways and to insure the safety of the traveling
       public.  Pre-existing Federal-aid statutes were silent
       on the subject.

The Report also states:

       The proposed legislation continues the congressional
       policy of providing limits regarding maximum permis-
       sible use of weights and dimensions on the Inter-
       state System in order to adequately protect the Fed-
       eral investment.  This determination is based on the
       condition that such maximums will be properly imple-
       mented and enforced by the States, which continue to
       bear the ultimate responsibility for permitting veh-
       icles to operate within these weight and width ranges.
       The committee most emphatically reaffirms that the
       responsibility for legal maximum allowable limits and
       control of sizes and weights of vehicles operating on
       the Interstate System, as well as on all the other
       road systems of the United States, rests with the
       individual States.104

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                               2-27


     This brief review suggests that in many social problem

areas regulation at the state level pursuant to the police pow-

er may come into conflict with a delegated national power (such

as the Commerce Clause) or legislation based upon a delegated

power.  If a conflict is in fact found, then the national power

will prevail pursuant to the Supremacy Clause of the Constitution.

However, it is also established that there is "a residuum of power

in the state to make laws governing matters of local concern

which in some measure affect interstate commerce, or even to

some extent, regulate it."

     Huron Portland Cement Co. v. City of Detroit    involved

a criminal proceeding instituted in the Detroit Recorder's

Court against the defendant for violation of the city Smoke

Abatement Code as applied to ships owned by the defendant and

operated in interstate commerce.  Pertinent passages from the

Supreme Court opinion state:

       In support of the claim that the ordinance cannot con-
       stitutionally be applied to appellant's ships, two basic
       arguments are advanced.  First, it is asserted that
       since the vessels and their equipment, including their
       boilers, have been inspected,  approved and licensed to
       operate in interstate commerce in accordance with a
       comprehensive system of regulation enacted by Congress,
       the City of Detroit may not legislate in such a way
       as, in effect, to impose additional or inconsistent
       standards.  Secondly, the argument is made that even
       if Congress has not expressly pre-empted the field, the
       municipal ordinance "materially affects interstate com-
       merce in matters where uniformity is necessary."  We
       have concluded that neither of these contentions can
       prevail, and that the Federal Constitution does not
       prohibit application to the appellant's vessels of the
       criminal provisions of the Detroit ordiance.

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                              2-28
       The ordinance was  enacted  for the manifest purpose of
       promoting  the health and welfare of the city's inhabi-
       tants.   Legislation designed to free  from pollution the
       very air that people breathe clearly  falls within the
       exercise of  even the most  traditional concept of what is
       compendiously known as  the police power.  In the exercise
       of that  power,  the states  and their instrumentalities
       may act, in  many areas  of  interstate  commerce and mari-
       time activities, concurrently with the federal government.
       Gibbons  v. Ogden,  9 Wheat.  1, 6 L.Ed. 23; Cooley v. Board
       of Wardens of Port of Philadelphia, 12 How. 299.  .  .  .

       The basic  limitations upon local legislative power  in
       this area  are clear enough.  The controlling principles
       have been  reiterated over  the years in a host of this
       Court's  decisions. Evenhanded local  regulation to
       effectuate a legitimate local public  interest is valid
       unless preempted by federal action, Erie R.R. Co. v.
       People of  State of New  York, 233 U.S. 671;.  . . or
       unduly burdensome  on maritime activities or interstate
       commerce,  State of Minnesota v. Barber, 136 U. S. 313;
       Morgan v.  Commonwealth  of  Virginia, 328 U.S. 373; Bibb v.
       Navajo Freight  Lines, Inc., 359 U.S.  520.

       In determining  whether  state regulation has-, been pre-
       empted by  federal  action,  " the intent to supersede the
       exercise by  the state of its police power as to matters
       not covered  by  the Federal legislation is not to be
       inferred from the  mere  fact that Congress has seen  fit
       to circumscribe its regulation and to occupy a  limited
       field.   in other words, such intent is not  to be  implied
       unless  the act  of  Congress,  fairly interpreted, is  in
       actual  conflict with the law of the state."  Savage v.
       Jones,  225 U.S. 501, 533 . .  .  .

     Somewhat  similar  constitutional  issues  arose  in the case

of American Airlines,  Inc., etal., v. city  of Audubon Park, Ken-
      108
tucky_.     A summary of  this decision which  accurately reflects

the opinion of the  U.S. Court  of  Appeals, Sixth Circuit, states:

       A city  passed an ordinance declaring  it unlawful
       to operate an aircraft  over the municipality below
       an elevation of 750  feet.   The Federal Aviation
       Administration  regulations applicable to  the airspace
       in question  provided a  glide path  approach  to an

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                               2-29
       adjacent airport at elevations of 442 feet down
       to 282 feet.  Several airlines brought a declaratory
       judgment action against the city in the United
       States District Court for the Western District of
       Kentucky, Louisville Division, Henry L. Brooks,
       Ch. J., to have the ordinance declared invalid
       and to enjoin the city from enforcing it.  A
       summary judgment declaring the ordinance unconsti-
       tutional 'and unenforceable was entered on a motion
       therefor, supported by uncontroverted affidavits.
       On appeal by the city, the United States Court of
       Appeals for the Sixth Circuit, in a per. curiam
       opinion, affirmed the judgment of the trial court,
       holding, inter alia (1) that the provisions of the
       ordinance made it such that pilots operating the
       plaintiff's aircraft could not comply with the ordi-
       nance and with FAA regulations, (2) that enforce-
       ment of the ordinance would constitute an intolerable
       and undue burden on interstate and foreign commerce,
       (3) that the city had no power to regulate inter-
       state and foreign air traffic in the manner set forth
       in the ordinance, and (4) that for these reasons the
       ordinance was unconstitutional and void and there-
       fore unenforceable.

     The ALR Annotation accompanying the above summary of the

American Airlines v. Audubon Park case states that the power

of Congress over aerial navigation is not exclusive in all res-

pects and adds:

       In fact, the Air Commerce Act of 1926, the
       Civil Aeronautics Act of 1938, and the Fed-
       eral Aviation Act of 1958 recognize the sov-
       ereign powers of the states in enacting con-
       sistent legislation if the Federal Government
       has not acted in the particular matter.HO

A few cases involving ordinances regulating either the flight

paths or altitudes of aircraft have been held to be valid and
                                         111
reasonable exercises of the police power.     Other cases have

held that ordinances regulating the flight or altitudes of

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                               2-30
aircraft are invalid,  under the particular circumstances, in



                                                     112
that the ordinances conflicted with Federal statutes.

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                               2-31


  2.3.2  Illustrative Federal Environmental Quality Control
         Legislation

     The evolving structure for regulatory controls in the area

of environmental quality is reflected in several Acts of the

Congress over the past few years.  These Acts, in varying degree,

presume to express national policy toward environmental quality,

prescribe functions and institutional arrangements for the imple-

mentation of the stated policies, and normally provide in either

explicit or general terms for the apportionment of authority and

functions among entities at Federal, Regional, State, and local

levels of government.

     The general observation is probably warranted that this

Federal legislation has attempted to express explicitly a strong

national interest in the "quality of the human environment."

Such national interest is further supported by the establishment

of new agencies at the Federal level with prescribed authority,

functions, and resources for effective implementation of legisla-

tive objectives.  However, there is a parallel thrust which en-

courages Regional, State and local participation in the pursuance

of this national purpose.  Instead of delineating sharp divisions

among governmental levels, the more recent legislation tends to

promote cooperative efforts among all jurisdictions in order to

gain control over social problem areas which involve a complex

of interrelated factors among all levels of government.

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                               2-32


     The increasing emphasis being given to cooperative efforts

among agencies at the same level of government,  among the various

levels of government, and between public sector  and private sec-

tor entities is illustrated by provisions of the Water Resources

Planning Act of 1965. x^  The Statement of Policy is as follows:

       In order to meet the rapidly expanding demands for
       water throughout the Nation,  it is hereby declared to
       be the policy of the Congress to encourage the con-
       servation, development, and utilization of water and
       related land resources of the United States on a com-
       prehensive and coordinated basis by the Federal Govern-
       ment, States, localities, and private enterprise with
       the cooperation of all affected Federal agencies, States,
       local governments, individuals, corporations, business
       enterprises, and others concerned.

This Act provides for a Water Resources Council at the Federal

level, for the establishment of River Basin Commissions, and for

financial assistance to the States for comprehensive planning

grant authorizations.  As with most recent legislation pertaining

to environmental quality and to natural resource conservation

and use, this Act includes a jurisdictional provision. Sec. 3

(a) states:

       Nothing in this Act shall be construed —

        (a) to expand or diminish either Federal or State
       jurisdiction, responsibility, or rights in the field
       of water resources planning, development, or control?
       nor to displace, supersede, limit or modify any inter-
       state compact or the jurisdiction or responsibility of
       any legally established joint or common agency of two
       or more States, or of two or more States and the Federal
       Government; nor to limit the authority of Congress to
       authorize and fund projects; .  .  .

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                               2-33


     Title I of the National Environmental Policy Act of 196911

presents a comprehensive statement of the national concern for

and interest in environmental quality:-

       Declaration of National Environmental Policy

       Sec. 101. (a) The Congress, recognizing the profound
       impact of man's activity on the interrelations of all
       components of the natural environment,  particularly
       the profound influences of population growth,  high-
       density urbanization, industrial  expansion, resource
       exploitation, and new and expanding technological
       advances and recognizing further  the critical  importance
       of restoring and maintaining environmental quality to
       the overall welfare and development of man, declares
       that it is the continuing policy  of the Federal Govern-
       ment, in cooperation with State and local governments,
       and other concerned public and private organizations,
       to use all practicable means and  measures, including
       financial and technical assistance, in a manner calcu-
       lated to foster and promote the general welfare, to
       create and maintain conditions under which man and
       nature can exist in productive harmony, and fulfill
       the social,  economic, and other requirements of pres-
       ent and future generations of Americans.

         (b)  In order to carry out the  policy set forth in
       this Act, it is the continuing responsibility of the
       Federal Government to use all practicable means, con-
       sistent with other essential considerations of national
       policy, to improve and coordinate Federal plans, func-
       tions, programs, and resources to the end that the
       Nation may —

              (1)  fulfill the responsibilities of each gener-
          ation as trustee of the environment for succeeding
          generations;
              (2)  assure for all Americans safe, healthful,
          productive, and esthetically and culturally pleas-
          ing surroundings;
              (3)  attain the widest range of beneficial uses
          of the environment without degradation, risk to
          health or safety, or other undesirable and unintended
          consequences;
                                                        i

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                              2-34
              (4)   preserve important historic,  cultural,  and
          natural aspects of our national heritage,  and main-
          tain,  wherever possible,  an environment which supports
          diversity and variety of individual choice;
              (5)   achieve a balance between population and
          resource use which will permit high standards of
          living and a wide sharing of life's amenities; and
              (6)   enhance the quality of renewable resources
          and approach the maximum attainable recycling of
          depletable resources

          (c)  The Congress recognizes that each person should
       enjoy a healthful environment and that each person has
       a responsibility to contribute to the preservation and
       enhancement of the environment.

     This Act also provided for the establishment of a Council on
                     116
Environmental Quality    in the Executive Office of the President

with the function among others of making an annual report to the

President who is in turn to report to the Congress on:

       (1) the  status and condition of the major natural,
       manmade, or altered environmental classen of the
       Nation, including but not limited to, the air, the
       aquatic, including marine, estuarine, and fresh water,
       and the terrestrial environment, including, but not
       limited to, the forest, dryland, wetland ranae, urban,
       suburban, and rural environment;  (2)  . .  .

Sec. 205 requires that the Council shall, in exercising its powers,

functions, and duties under the Act:

       (1) consult with the Citizens' Advisory Committee on
       Environmental Quality established by Executive Order
       numbered 11472, dated May 29,  1969, and with such
       representatives of science, industry, agriculture,
       labor, conservation organizations, State  and local
       governments and other groups,  as  it deems advisable;
       and

       (2) utilize, to the fullest extent possible, the
       services,  facilities, and information  (including
       statistical information) of public and private
       agencies and organizations, and  individuals, in order

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                               2-35
       that duplication of effort and expense may be avoided,
       thus assuring that the Council's activities will not
       unnecessarily overlap or conflict with similar activ-
       ities authorized by law and performed by established
       agencies.

     Title II of the Water Quality Improvement Act of 1970 hav-

ing the short title of the "Environmental Quality Improvement
             IIP
Act of 1970,"    in addition to establishing an Office of Environ-
                                                        ing
mental Quality in the Executive Office of the President,     sets

forth the following "Finding, Declarations, and Purposes":

       Sec. 202. (a) The Congress finds —
          (1) that man has caused changes in the environment;
          (2) that many of these changes may affect the rela-
       tionship between man and his environment; and
          (3) that population increases and urban concentra-
       tion contribute directly to pollution and the degrada-
       tion of our environment.
       (b)(1) The Congress declares that there is a national
       policy for the environment which provides for the en-
       hancement of environmental quality.  This policy is
       evidenced by statutes heretofore enacted relating to
       the prevention, abatement, and control of environ-
       mental pollution, water and land resources, transpor-
       tation, and economic and regional development.

          (2) The primary responsibility for implementing
       this policy rests with State and local governments.

          (3) The Federal Government encourages and supports
       implementation of this policy through appropriate
       regional organizations established  under existing law.

       (c) The purposes of this title are —

          (1) to assure that each Federal department and agency
       conducting or supporting public works activities which
       affect the environment shall implement the policies
       established under existing law; and

          (2) to authorize an Office of Environmental Quality,
       which, notwithstanding any other provision of law, shall
       provide the professional and administrative staff for

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                               2-36
       the Council on Environmental Quality established by
       Public Law 91-190.12°

     Some rather significant provisions of the Clean Air Amend-

                 121
ments of 1970 Act    also reflect the comprehensiveness of the

Federal government's concern and role in the achievement of a

desired level of environmental quality.  Section 103 of the Clean

Air Act was amended by adding the following subsection:

       (F)(1) In carrying out research pursuant to this
       Act, the Administrator shall give special emphasis
       to research on short- and long-term effects of air
       pollutants on public health and welfare.  In the
       furtherance of such research, he shall conduct an
       accelerated research program —

       (A) to improve knowledge of the contribution of air
       pollutants to the occurrence of adverse effects on
       health, including but not limited to, behavioral,
       physiological, toxicological, and bio-chemical effects;
       and

       (B) to improve knowledge of the short- and long-term
       effects of air pollutants on welfare.

Other new sections or amendments of this Act cover such matters

as the requirement that the Administrator (of EPA) publish a list

which includes each air pollutant which in his judgment has an
                                           122
adverse effect on public health or welfare,    the requirement

that the Administrator prescribe national primary ambient air
                  123
quality standards,    the establishment of standards applicable

to the emission of ary air pollutant from any class or classes

of new motor vehicles or new motor vehicle engines, which in the

judgment of the Administrator causes or contributes to air

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                               2-37


pollution which endangers the public health or welfare,

                                                12 5
enforcement of motor vehicle emission standards,     motor ve-

hicle and motor vehicle engine compliance testing and certifi-
                               127
cation,    regulation of fuels,     and development of low-emis-

              128
sion vehicles.     Title II of the Clean Air Act was amended by

adding a new, Part B on "Aircraft Emission Standards" with pro-

visions for the establishment of standards and the enforcement

             129
of standards.     A section on "State Standards and Controls"

prescribes:

       Sec. 233.  No State or political subdivision thereof
       may adopt or attempt to enforce any standard respect-
       ing emissions of any air pollutant from any aircraft
       or engine thereof unless such standard is indentical
       to a standard applicable to such aircraft under this
       part.

In this connection an amendment to the Clean Air Act pertaining

to the "Retention of State / ttthority" provides:

       Sec. 116.  Except as otherwise provided in sections
       209, 211 (c) (4) , and 233 (preempting certain State
       regulation of moving sources) nothing in this Act
       shall preclude or deny the right of any State or
       political subdivision thereof to adopt or enforce
       (1) any standard or limitation respecting emissions of
       air pollutants or (2)  any requirement respecting con-
       trol or abatement of air pollution; except that if an
       emission standard or limitation is in effect under an
       applicable implementation plan or under section 111 or
       112, such State or political subdivision may not adopt
       or enforce any emission standard or limitation which
       is less stringent than the standard or limitation
       under such plan or section.

It is also of interest to note that the clean Air Amendments of

1970 Act introduced new sections on "Emergency Powers" 30 and

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                               2-38


on "Federal Procurement" 133. designed to assist in the implemen-

tation of a more effective program to improve the quality of the

Nation's air.  Another new section provides for "Citizen Suits"

which states in part:

       Sec. 304. (a) Except as provided in subsection (b),  any
       person may commence a civil action on his own behalf—

       (1) against any person (including (i) the United States,
       and (ii) any other governmental instrumentality or agency
       to the extent permitted by the Eleventh Amendment to the
       Constitution) who is alleged to be in violation of (A) an
       emission standard or limitation under this Act or (B) an
       order issued by the Administrator or a State with respect
       to such standard or limitation, or

       (2) against the Administrator where there is alleged a
       failure of the Administrator to perform  any act or duty
       under this Act which is not discretionary with the Admin-
       istrator.

       The district courts shall have jurisdiction, without
       regard to the amount in controversy or the citizenship
       of the parties, to enforce such an emission standard or
       limitation, or such an order, or to order the Administra-
       tor to perform such act or duty, as the case may be.

     The Airport and Airway Development Act of 1970132 also con-

tains a number of new provisions relating to the preservation of

environmental quality, including:

       It is declared to be national policy that airport
       development projects authorized pursuant to this
       part shall provide for the protection and enhance-
       ment of the natural resources and the quality of
       environment of the Nation.  In implementing this
       policy, the Secretary shall consult with the Sec-
       retaries of the Interior and Health, Education, and
       Welfare with regard to the effect that any project
       involving airport location, a major runway exten-
       sion, or runway location may have on natural
       resources including, but not limited to, fish
       and wildlife, natural, scenic, and recreational

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                              2-39
       assets, water and air quality, and other factors
       affecting the environment, and shall authorize
       no such project found to have adverse effect
       unless the Secretary shall render a  finding, in
       writing, following a full and complete review,
       which shall be a matter of public record, that
       no feasible and prudent alternative exists and that
       all possible steps have been taken to minimize such
       adverse effect.133

     The purpose in setting out illustrative Federal environ-

mental quality control legislation is to suggest that evolving

regulatory schemes for the abatement and control of environ-

mental noise will be shaped not only by the authoritative Con-

stitutional decisions apportioning Federal-State-Local power

but also by emerging public attitudes as expressed in formal

governmental policies toward environmental quality and recent

legislation designed to institutionalize effective supporting

programs.  The implementation of the National Environmental Policy

Act of 1969 requiring the submission of environmental impact state-

ments on all "Federal actions" significantly affecting the quality

of the human environment has given strong impetus to the considera-

tion of environmental effects of public programs.  The Airport and

Airway Development Act of 1970 will certainly require considera-

tion of the noise factor when new airports are  located or exist-

ing facilities modified.  Provision  for  "Citizen Suits"  in Sec.

304 of the Clean Air Amendments of 1970 establishes a regularized

channel for formally asserting complaints, a feature which should

be considered in proposed "noise legislation."

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                               2-40






     Most of the new Environmental Quality legislation pays




appropriate respect to State and local prerogatives as,  for




example,  the Environmental Quality Improvement Act of 1970 which




states that "The primary responsibility for implementing this




policy rest with State and local governments."  But a striking




characteristic of the new legislation is the emphasis placed on




cooperative efforts among agencies at the same level of govern-




ment, among the various levels of government, and between public




sector and private sector entities as illustrated by the Water




Resources Planning Act of 1965.  Whether this intent will mature




into effective inter-entity working relationships is, of course,




another matter.  Since the Federal government is establishing




national standards in given areas (for example, ambient air qual-




ity standards and standards respecting emissions of air pollutants




from aircraft), it is to be anticipated that difficult problems




of preemption or of conflict arising from other formal or informal




actions may arise unless there is, in fact, dedicated and know-




ledgeable cooperation among the various levels of government.

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                               2-41
  2.4  DISTRIBUTION OF POWER AMONG FEDERAL-STATE-LOCAL JURIS-
       DICTIONS WITH RESPECT TO ENVIRONMENTAL NOISE ABATEMENT
       AND CONTROL
  2.4.1  Regulatory Scheme for Aircraft Noise Abatement

A.  Federal Aircraft Noise Abatement Policy and Regulation

     Important aspects of the evolving pattern of distribution

of authority among Federal-State-Local levels for environmental

noise regulation has been shaped by legislation and other actions

at the Federal level related to the abatement of aircraft noise.

However, various State regulatory schemes as well as judicial

decisions arising from complaints pressed under local ordinances

have also contributed to the evolving pattern.  Airport pro-

prietors are also significant participants in the overall reg-

ulatory scheme.

     The Report on The Noise Around Us in its discussion of Fed-

eral Legislation and Regulation asserts that pursuant to the Fed-

eral Aviation Act of 1958 requiring each particular model or

make of aircraft to obtain an "airworthiness certificate" and an

"air operating certificate" that:

       It is clear that the FAA has, . . . full power to
       prescribe air traffic rules for the "protection of
       persons and property on the ground," including
       prescription tif air traffic rules in the interest
       of noise abatement.

Michael Wollan, in his article on "Controlling the Potential

Hazards of Government-Sponsored Technology"    indicates that

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                               2-42
despite the fact noise per se was not covered in the Federal

Aviation Act of 1958,  it was generally assumed by 1961,  Or ear-

lier, that the FAA had the responsibility and authority to deal

with aircraft noise standards:

       A year later (1961) when Congress made its first
       appropriation for research on SST feasibility, the
       FAA discussed more specifically the standards it
       would use to regulate the SST's engine noise.  FAA's
       new administrator, Najeeb Halaby, told Congress;
       "We would try to see to it that the noise levels
       were tolerable to the community, or as tolerable
       as the then existing aircraft."136

It was not until the passage of the Department of Transportation
           137
Act of 1966    that statutory authority was granted pertinent to

aircraft noise, but no explicit provision was made for regulation.

§4(a) of the Act directs the Secretary of DOT to "promote and

undertake research and development relating to transportation,

including noise abatement, with particular attention to aircraft

noise."  That the authority for aircraft noise abatement was

unclear prior to the passage of the Department of Transportation

Act of 1966 is attested by Conclusion 12 and Recommendation 4 of

the Report of the Office of Science and Technology Jet Aircraft

Noise Panel, "Alleviation of Jet Aircraft Noise Near Airports"

of March 1966:

       Conclusion 12.  The Federal Government, through the FAA,
       has the responsibility for aircraft certification, air
       traffic control, and operational flight procedures near
       airports.  The FAA, therefore, is the agency which should
       seek authority from the Congress (to the extent that it

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                              2-43
       does not now have it)  to formulate appropriate regulations
       as to noise potential in the design and operation of
       power-plant and aircraft.  The FAA has not yet used or
       sought such authority because of doubts as to the avail-
       ability of adequate quantitative criteria for measuring
       the subjective annoyance of aircraft noise at the in-
       dividual and community levels.138

Further, the OST Panel Report states under Measurements & Stan-

dards:

       Recommendation 4.  The FAA and/or NASA, using qualified
       contractors as necessary, establish and fund adequately
       an urgent program for conducting the physical,,psycho-
       acoustic, sociological, and other research results needed
       to provide the basis for quantitative noise evaluation
       techniques and standards which can be used by the FAA,
       airport operators, and aircraft/engine manufacturers for
       aircraft hardware and operational specifications.  Such
       programs should be developed in the light of and in coop-
       eration with related work abroad, and should be aimed to
       converge as rapidly as possible on the development of
       nationally and internationally accepted noise evaluation
       techniques and standards which can be used by the FAA, air-
       port operators, and aircraft/engine manufacturers for
       aircraft hardware and operational specifications.  Such
       programs should be developed in the light of and in
       cooperation with related work abroad, and should be
       aimed to converge as rapidly as possible on the develop-
       ment of nationally and internationally accepted noise
       evaluation procedures and standards.  These standards
       must be compatible with and a part of general national
       and international noise rating schemes aimed at preventing
       nuisance or detriment to public health.139

In May 1968, Mr. Robert F. Allnut, Assistant Administrator of

NASA for Legislative Affairs, commented on the pending House

Bill 3400 relating to aircraft noise abatement as follows:

       As might be expected,  the interests and responsibilities
       of the interested agencies vary somewhat depending on
       the statutes under which they operate, but every possible
       effort has been made to coordinate and carry forward
       noise research and prevention work of those agencies.

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                               2-44
       NASA's responsibility flows from its  statutory duty to
       "contribute materially to ...  the  improvement of the
       usefulness, performance,  speed,  safety,  and  efficiency
       of aeronautical .  .  . vehicles."  Funds  for  noise  re-
       search have been regularly included  in NASA's  annual
       budgets and program authorizations and appropriations.

     The question of Federal authority  over  aircraft  noise and

sonic boom was directly considered in the Congressional hearings

of 1968 leading to the enactment of §611, an amendment to the

Federal Aviation Act of 1958.  The Report of the House Committee

on Interstate and Foreign Commerce (Report  No.  1463 of May 23,

1968) stated in part with respect to "Background and  Need for

Legislation":

       The right to use the airspace over the United  States
       in the operation of aircraft has long been established.
       Aviation has become an essential and widely approved
       part of our national transportation  system.  However,
       aircraft noise and sonic boom have few  if any  champions.
       Both noise and sonic boom are unwanted and unpleasant.
       At this stage of engine and aircraft development there
       are no easy nor ready solutions  to the continuing  and
       increasing problems.  The committee  does believe,  how-
       ever, that this legislation provides a  needed  frame-
       work within which solutions to these problems  will
       be actively pursued.

       A subcommittee of this committee first held hearings
       on aircraft noise in September 1959  at  the New York
       International Airport.  The House of Representatives
       adopted House Resolution 420 in  August  of 1961 which
       specifically authorized the Committee on Interstate
       and Foreign Commerce to investigate  the  problem, and
       in February of 1963 the committee published the "Inves-
       tigation and Study of Aircraft Noise Problems" (88th
       Cong., first sess. H. Rept. No.  36).  Further  research
       was needed then.  Further research is still needed.
       Many technical achievements have been made,  some in
       the reduction of noise level, but more  must be done.
       It is insufficient to say that a 1968 engine is quieter
       than a 1963 engine if the 1968 engine nevertheless
       produces and intolerable level of noise.

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                               2-45
       Over the last ten years we have had numerous panels of
       experts, with representatives from virtually all seg-
       ments of the aviation industry, as well as from local
       governments and the Federal Government.  Airport oper-
       ators, manufacturers, air carriers and their associa-
       tions, local port authorities,  municipal groups, NASA,
       the Federal Aviation Administration,  the Department of
       Housing and Urban Development,  and the Department of
       Transportation have all made contributions looking
       toward solutions, particularly of the noise problem,
       but also many of them have been giving increasing
       attention to the sonic boom problem.

       The noise problem is basically a conflict between two
       groups or interests.  On the one hand, there is a group
       who provides various air transportation services.  On
       the other hand there is a group who live, work, and
       go to schools and churches in communities near airports.
       The latter group is frequently burdened to the point
       where they can neither enjoy nor reasonably use their
       land because of noise resulting from aircraft operations.
       Many of them derive no direct benefit from the aircraft
       operations which create the unwanted noise.  Therefore,
       it is easy to understand why they complain, and complain
       most vehemently.  The possible solutions to this demand-
       ing and vexing problem which appear to offer the most
       promise are ,{1) new or modified engine and air frame
       designs, (2) special flight operating techniques and
       procedures, and  (3) planning for land use in areas
       adjacent to airports so that such land use will be
       most compatible with aircraft operations.  This legis-
       lation is directed toward the primary problem; namely,
       reduction of noise at its source. ^

The Report of the Senate Committee on Commerce  (Report No. 1353,

                142
of July 1, 1968)    stated with respect to "Relation to Local

Government Initiatives":

       The bill is an amendment to a statute describing the
       powers and duties of the Federal Government with respect
       to air commerce.  As indicated earlier in this report,
       certain actions by State and local public agencies,
       such as zoning to assure compatible land use, are a
       necessary part of the total attack on aircraft noise.

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                        2-46
In this connection, the question is raised whether
this bill adds or subtracts anything from the powers of
State or local governments.  It is not the intent of
the committee in recommending this legislation to effect
any change in the existing apportionment of powers
between the Federal and State and local governments.

In this regard, we concur in the following views set
forth by the Secretary in his letter to the committee
of June 22, 1968:

  The courts have held that the Federal Government
  presently preempts the field of noise regulation
  insofar as it involves controlling the flight of
  aircraft.  Local noise control legislation limit-
  ing the permissible noise level of all over-fly-
  ing aircraft has recently been struck down because
  it conflicted with Federal regulation of air traffic.
  American Airlines v. Town of Hemstead, 272 F. Supp.
  226 (U.S.B.C., E.D., N.Y., 1966).  The court said,
  at 231, "The legislation operates in an area com-
  mitted to Federal care, and noise limiting rules
  operating as do those of the ordinance must come
  from a Federal source."  H.R. 3400 would merely
  expand the Federal Government's role in a field
  already preempted.  It would not change this pre-
  emption.  State and local governments will remain
  unable to use their police powers to control air-
  craft noise by regulating the flight of aircraft.

  However, the proposed legislation will not affect
  the rights of a State or local public agency, as
  the proprietor of an airport, from issuing regula-
  tions or establishing requirements as to the per-
  missible level of noise which can be created by
  aircraft using the airport.  Airport owners act-
  ing as proprietors can presently deny the use of
  their airports to aircraft on the basis of noise
  considerations so long as such exclusion is non-
  discriminatory .

  Just as an airport owner is responsible for decid-
  ing how long the runways will be, so is the owner
  responsible  for obtaining noise easements necessary
  to permit the  landing and takeoff of the aircraft.
  The Federal Government is in no position to require
  an airport to accept service by larger aircraft
  and, for that purpose, to obtain longer runways.

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                              2-47
         Likewise,  the Federal Government is in no position
         to require an airport to accept service by noisier
         aircraft,  and for that purpose to obtain additional
         noise easements.   The issue is the service desired
         by the airport owner and the steps it is willing
         to take to obtain the service,  in dealing with
         this issue,  the Federal Government should not
         substitute its judgment for that of the States  or
         elements of local government who,  for the most
         part, own and operate our Nation's airports.  The
         proposed legislation is not designed to do this and
         will not prevent airport proprietors from excluding
         any aircraft on the basis of noise considerations.

       Of course, the authority of units of local government to
       control the effects of aircraft noise through the exercise
       of land use planning and zoning powers is not diminished
       by the bill.

       Finally, since the flight of aircraft has been preempted
       by the Federal Government, State and local governments
       can presently exercise no control over sonic boom.  The
       bill makes no change in this regard. 4^

     A Notice of Proposed Rule Making on "Noise Standards:  Air-

craft Type Certification," was issued by the Department  of Tran-

                                    144
sportation (FAA) on January 3, 1969,    pursuant to Public Law

90-411 enacted July 21. 1968, which added a new Section  611,

Control and Abatement of Aircraft Noise and Sonic Boom,  to the
                             145
Federal Aviation Act of 1958.

       Sec. 611. (a)   In order to afford present and future
       relief and protection to the public from unnecessary
       aircraft noise and sonic boom, the Administrator  of
       the Federal Aviation Administration, after consultation
       with the Secretary of Transportation, shall prescribe
       and amend standards for the measurement of aircraft
       noise and sonic boom and shall prescribe and amend such
       rules and regulations as he may find necessary to pro-
       vide for the control and abatement of aircraft noise
       and sonic boom, including the application of such
       standards, rules and regulations in the issuance,

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                              2-48
       amendment, modification,  suspension,  or  revocation
       of  any  certificate  authorized by  this title.

          (b)   In prescribing  and  amending  standards,  rules
       and regulations under this  section,  the  Administrator
       shall —

              (1) consider relevant available data  relating
          to aircraft noise and  sonic boom,  including  the
          results of research, development,  testing, and
          evaluation of  activities conducted pursuant  to
          this Act  and the Department of Transportation Act;
              (2) consult  with such Federal,  State  and
          interstate agencies  as he deems appropriate;
              (3) consider whether any proposed standard,
          rule,  or  regulation  is consistent with the high-
          est  degree of  safety in  air commerce  or air  trans-
          portation in the public  interest;
              (4) consider whether any proposed standard,
          rule,  regulation is  economically  reasonable,
          technologically  practicable, and  appropriate for
          the  particular type  of aircraft,  aircraft engine,
          appliance, or  certificate to which it will apply;
          and
              (5) consider the extent to which  such stan-
          dard,  rule, or regulation will contribute to carry-
          ing  out the purposes of  this section.

          (c)  In any action to amend, modify, suspend,  or
       revoke  a certificate in which violation  of aircraft
       noise or sonic boom standards, rules, or regulations
       is  at issue^ the  certificate holder  shall have  the  same
       notice  and appeal rights  as are contained in section
       609, and in  any  appeal  to the National Transportation
       Safety  Board, the Board may amend, modify, or reverse
       the order of the  Administrator  if it finds that control
       or  abatement of  aircraft  noise or sonic  boom and the
       public  interest  do  not  require  the affirmation  of such
       order,  or that  such order is not  consistent  with safety
       in  air  commerce  of  air  transportation.

The Notice of  Proposed  Rule Making stated explicitly that:

       Senate  Report  1353  on Public  Law 90-411  states  that,
       while  other  approaches  to aircraft noise control must
       be  thoroughly  studied and employed,  "the first  order
       of  business  is  to stop  the  escalation of aircraft
       noise by imposing standards which require the  full

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                            2-49
      application of noise reduction technology. . . ."(p.2)
      The type certification standards in this Notice are
      designed to implement this first order of business by
       concentrating oh the aircraft that are most likely to
       raise aircraft noise levels  in airport neighborhoods.
       These aircraft include subsonic transport category
       airplanes regardless of means of propulsion and  sub-
                                                              1 M fi
       sonic turbojet powered airplane regardless of category.

     The quotation below from the Notice of Proposed Rule Making

suggests that even modest measures  at the Federal level would

provide a basis for various participants within the aircraft

noise context to move ahead with assessments and operational

programs.  It also outlines the authority for control which

rests with various governmental entities and private participants,

       In summary,  the proposals in this notice should  be
       placed in broad perspective.  This notice does not
       promise the immediate achievement of socially accept-
       able noise levels in airport neighborhoods where the
       responsible state or local governments have not,  or
       cannot, act to achieve land  use compatibility for their
       existing or planned airports.  Further,  this notice
       does not promise a Federal substitute for the actions
       that airport operators,  as proprietors,  can take and
       have traditionally and responsibly taken, to make
       their airports fit the particular needs of their
       locales, such as establishing conditions under which
       their airports and airport facilities may be used,
       including the issuance of specific noise ceilings.
       These limitations on this Notice reflect the statement
       of the Senate Commerce Committee,  concerning Public
       Law 90-411,  that "it is not  the intent of the committee
       in recommending this legislation to effect any change
       in the existing apportionment of powers between  the
       Federal and State and local  governments. ..."

       "The proposed legislation is not designed to prevent
       airport proprietors from excluding any aircraft  on the
       basis of noise considerations.  Of course, the authority
       of units of local government to control the effects of
       aircraft noise through the exercise of land use  planning
       and zoning powers is not diminished by the bill."

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                              2-50
       In his statement to the Subcommittee on Transportation
       and Aeronautics of the Committee on Interstate and
       Foreign Commerce of the House of Representatives on
       November  15, 1967, in support of H.R. 3400 and S. 707,
       which led to Public Law 90-411, the Secretary of Trans-
       portation indicated that approaches involving more than
       local community actions might require further legisla-
       tion.  Thus, he stated, "in the field of compatible
       land use, the Department is developing a computerized
       method of predicting aircraft noise exposure at airports.
       The methodology has been applied to three principal air-
       ports .  . . and plans are under way to apply it to 29
       conventional airports.  This, in turn, will now enable
       HUD to inventory the land use at these airports.  This
       noise exposure forecast land-use inventory will then be
       applied to or be applicable by the balance of the air-
       ports.  As a result, we shall for the first time have a
       precise grasp of the actual magnitude of the problems of
       compatible land use projected through 1975.  It will be
       on the basis of this understanding that any necessary
       legislation will be drafted and submitted enabling the
       Federal Government to assist, at long last, local
       communities in making the environment of the airport
       neighborhood one in which noise from aircraft does not
       generate  noise from an outraged citizenry.

       In the meantime, this notice plays an important role by
       providing airport operators and state and local govern-
       ments, as well as other concerned persons who are respon-
       sible for local noise control planning, with dependable,
       predictable noise parameters to be used as a basis for
       that planning.  For example, local governments would
       be able  to make administrative decisions covering zon-
       ing, general urban planning, highway and other transit
       system,  schools, hospitals, parks, and recreation
       facilities on the basis of noise ceilings specified
       in the type certification regulations.

       Airport  operators, as proprietors, would be able to
       base their actions on known noise levels substantia-
       ted during type certification.  But under this notice,
       responsibility for all local noise control planning
       remains  exclusively local.1^7

     The foregoing policy guides for the allocation of authority

for various functions among the governmental levels and for  the

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                               2-51


exercise of certain regulatory functions incident to proprietor-

ship provide a useful starting point for discussing the regula-

tory scheme for aircraft noise abatement.  This initial policy

framework, however, must be examined against the actual formal

regulatory structure and accompanying practices which have evolved

since 1968.  Particular attention will be given to the auth-

ority of states, municipalities,  and both State and Interstate

Transportation or Airport Authorities to participate in the air-

craft noise regulatory process.  Explicit consideration will be

given to the limitations on authority of such entities within

the Federal structure, including the question of "preemption."

     Under the Federal Aviation Act of 1958 the Administrator

                                                148
was authorized to control "inflight" operations.     In this con-

nection Greenwald states that pursuant to Paragraph (C) of 49

U.S.C. 1348:

       "The administrator is further authorized and directed to
        prescribe air traffic rules . . . regarding the navigable
        air space . . . including rules as to safe altitudes of
        flight."  Under its rulemaking authority the FAA has
        established "control zones" which encompass all of the
        navigable air space throughout the country.  (Federal
        Aviation Regulations (FAR) Part 77 and 91).  By a series
        of federal court decisions, navigable airspace has been
        made part of the public domain.  A surface land owner
        does not own or have the right to control the "navigable
        airspace" above his property.  Navigable airspace is
        that space which does not destroy the beneficial use
        of the land lU.S. vs. Causby, 328 U.S. 256 (1946)]
        and does not interfere with the use and enjoyment of the
        land [Griggs vs. Allegheny Airport, 363 U.S. 84 (1962)
        49 U.S.C. §1304].  Interference with use and enjoyment
        can come from fly-over noise or from fly-by noise;  fly-by

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                               2-52
       noise is that which extends laterally from the flight
       path.  [City of Jacksonville v. Schumann, 167 So. 295
       (1969) (Cert, denied, U.S. Sup. Ct.,  36  L.W.  3357)) 149

     The FAA has the responsibility for the inspection and cert-

ifcation of civilian aircraft and for the promulgation and en-

forcement of aviation safety standards. -^  This means that its

statutory responsibilities extend to the designation of perfor-

mance standards and equipment requirements for commercial air-

craft.  The FAA also controls flight paths, including approach

and takeoff patterns for major urban terminals.  In accordance

with new Section 611 of the Federal Aviation Act, the FAA was

given the responsibility of prescribing standards for the abate-

ment and control of aircraft noise and sonic boom.  The rules

developed from the Notice of Rule Making and subsequent hearings

limit maximum noise level at takeoff, approach, and sideline to

108 EPNdB for the heaviest aircraft and to 102 EPNdB for approach

and sideline and 93 EPNdB for takeoff noise from the lightest

aircraft.     The new rejulations apply only to sub-sonic air-

craft and to aircraft for which certification applications were

                                        152
submitted ^subsequent to January 1, 1967.     Additional. rules

will be promulgated with respect to retrofitting sub-sonic jets

and separate rules  for VTOL's and STOL's.     The FAA objectives

have been stated by Greenwald as follows:

       In its notice of the public hearing on New Part 36,  FAA
       stated, "The noise floor of 80 EPNdB is proposed as an
       objective to aim  for, and to achieve where economically
       reasonable,  technologically practicable, and appropriate

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                               2-53
       to  the particular type design.  It is recognized that
       this objective will not be appropriate for many current
       type designs.  However, this objective is important
       because  it makes it clear to all applicants that no
       increment of noise above 80 EPNdB can be considered
       acceptable, in and of itself, where it can be eliminated
       practically and reasonably.  This figure is proposed
       as  a reasonable boundary between noise levels that are
       high enough to interfere with communications and to
       obstruct normal life in homes or other buildings that
       are not  designed with specific acoustical objectives
       and lower noise levels which, while not completely
       benign,  nevertheless allow those activities to proceed.
       Where this goal can be reached in a given case, and
       can be justified as economically reasonable, techno-
       logically practical, and appropriate to the particular
       type design, the FAA does not intend to ignore this
       potential reduction. ^

     The effort of the FAA pursuant to  §611  is by  no  means  the

 exclusive  contribution at the Federal level to the abatement

 and control of  aircraft noise.  The thrust of the FAA authority

 and action is toward abating noise at the source.  But as pre-

 viously indicated, there are numerous other means of abating the

 effects of aircraft noise and certain Federal legislation is

 directed toward this purpose,  in the Report of the Airport Study

Group of the Harvard Environmental Law Society it is stated:

       Federal  Legislation.  Recent federal legislation may
       provide  tools for challenging unresponsive decision-
       making by industry, airport proprietors, and federal
       administrators.  In 1964, Congress required airport
       operations such as Massport to assure the FAA that
       action had been or would be taken to restrict incom-
       patible  land uses adjacent to airports before they
       could receive grants for airport construction and
       improvements.  The new Airport and Airway Develop-
       ment Act of 1970 further stipulates that no airport
       development project may be approved unless the pro-
       prietor  certifies "that there is reasonable assurance

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                               2-54
       that the project will be  located,  designed,  constructed,
       and operated so as  to comply with  appropriate  air  and
       water quality standards."   The  act also  requires the
       sponsoring owner to hold  public hearings to  consider
       "the economic,  social and environmental  effects of the
       airport location and its  consistency with the  goals
       and objectives of such urban planning  as have  been
       carried out by the  community."

       These acts may have two effects.   First, increasing
       reliance on federal grants and  loans to  finance capital
       improvements at air terminals  should result  in local
       decisions about airport location  and expansion being
       forced into the public view. While the  efficacy  of
       public hearings before non-representative promotion
       agencies is dubious, at least  the affected public  will
       have notice of airport plans before final decision-
       making.  A second,  more interesting possibility  is a
       direct challenge of the local  agency's decision  through
       the courts.  The Development Act,  like the National
       Environmental Policy Act of 1969  (NEPA), requires  agency
       consideration of the environmental impact of proposed
       actions.  Failure to give proper  attention to ecological
       effects would constitute unreasonable and arbitrary
       action by the local airport owner as a governmental
       body.  The question of who would  have standing to
       challenge the local agency UDder  these provisions
       remains a problem,  however.

B.  State Aircraft Noise Regulation (Including Authorities)

     just how the participation of states, municipalities and

airport authorities can be accommodated  in the  aircraft  noise

regulatory structure in view of the FAA's formal responsibilities

and other environmental quality legislation at  the Federal level

has not yet been settled.  Various methods have been adopted by

the states to abate the serious effects  of airport noise.  For

example, Massachusetts established the Massachusetts Port Author-

ity (Massport) to develop air and maritime facilities in the

Greater Boston area. ^   A recent study of the efforts of

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                               2-55


Massport to effectively regulate airport noise asserts that the

programs of Massport have not been particularly successful and

further, that the State has been able to exercise little effec-

tive control over its instrumentality.     One finding is that

Massport has not been fully responsible to the community with

respect to the many adverse effects of promoting transportation.

Suggestions of the study included:

       Though the state may be preempted from direct imposition
       of noise standards upon carriers, it does maintain general
       police powers and licensing authority over all public
       and private airports.  The Commonwealth could condition
       the privelege of operating an airport upon the adoption
       of aircraft noise performance standards and regulations
       controlling ground operations, curfews, and other
       activities.  To encourage compliance, these require-
       ments should authorize substantial fines for each
       infraction by the airport operator.  State legislation
       on noise standards, even if indirect, could raise the
       question of federal and state interstate commerce powers.
       Congress, the courts, and the FAA have taken the position
       that federal jurisdiction to impose noise control stan-
       dards is not exclusive but is shared with the airport
       owner.  The terminal operator has the duty to exercise
       this authority to meet noise problems as they apply to
       local conditions.  Where a subordinate governmental
       body such as Massport, created by and subject to the
       state, has failed as an airport proprietor to use these
       powers, it can be argued that the state legislature has
       the responsibility to force the public proprietor to
       fulfill its duty to the community.

       The state also retains final authority to exercise or
       allocate planning and zoning measures.  It could inte-
       grate the planning of a second airport and expansion of
       present facilities, by making the planning decisions of
       the designated agency binding on the Authority.  Provi-
       sion should be made for regional zoning of airport
       environs, or establishment of special noise encroach-
       ment zones, as well as acquiring and redeveloping areas
       with conflicting pre-existing uses.

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                               2-56
       Unfortunately,  neither federal nor state legislation
       has brought significant relief from the noise which
       has debilitated East Boston.   Despite the current flood
       of proposals,  legislative prospects are not encouraging.
       The airlines,  Port Authority,  and benefited industries
       sponsor an effective and organized lobby in the Legis-
       lature.  Many representatives  from other parts of the
       Commonwealth limit their concern to Massport's financial
       stability.  Since noise and other pollution that accom-
       panies airport operations do not touch their constituencies,
       these lawmakers do not give priority to airport legis-
       lation.  The result is delayed and often diluted use of
       the state's legislative potential.  Only one institutional
       channel remains - the courts.

     California has shown commendable leadership among the States

in attempting to cope with the aircraft and airport noise pro-

blem in a systematic and comprehensive manner.  Pursuant to

Assembly Bill 645 of the 1969 Legislature, the State Department

of Aeronautics has adopted noise standards which will take effect

                    159
on December 1, 1971.     The Preamble states:

       The following rules and regulations are promulgated in
       accordance with Article 3, Chapter 4, Part 1, Division 9,
       Public Utilities Code  (Regulation of Airports) to pro-
       vide noise standards governing the operation of aircraft
       and aircraft engines for all airports operating under
       a valid permit issued by the department.  These standards
       are based upon two separate legal grounds:   (1) the power
       of airport proprietors to impose noise ceilings and other
       limitations on the use of the airport, and (2) the power
       of the state to act to an extent not prohibited by fed-
       eral law.  The regulations are designed to cause the
       airport proprietor, aircraft operator, local govern-
       ments, pilots, and the departments to work cooperatively
       to diminish noise.  The regulations accomplish these ends
       by controlling and reducing the noise in communities in
       the vicinity of airports.

     A memorandum of November 13, 1970,  explaining the noise stan-

dards, "An Introduction to the Adopted Noise Regulations  for

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                               2-57






California Airports,"161 sets forth certain points in order "to




aid the layman and concerned citizen in understanding what the




standard is and will achieve."  The standards were based on two




points:  1) the level of noise acceptable to a reasonable person




residing in the vicinity of the airport; and 2) due consideration




of the economic and technological feasibility of complying with




the standard.  An "acoustic scale" was constructed for the pur-




pose of including "all elements that add up to form the total




aircraft noise environment around an airport."  This CNEL scale,




similar to others used for land use planning around airports,




provides a means of determining a numerical value or contour for




defining residential areas.  The Standard indicates a noise con-




tour ("noise impact boundary") inside which the noise environment




is not suited for residential use.




     The coordinating function is placed on the airport proprietor




who, acting within his powers as landowner, can establish rules




for the use of his airport which would exclude aircraft on the




basis of noise and can regulate which aircraft use which runways




during various parts of the day.  It is recognized that the air-




port proprietor "does not have direct jurisdiction over flight




paths at distances from the airport" but notes that those paths




can "be influenced by preferential runway use."




     Single event noise limits are to be enforced by  the  counties.




Aircraft operators who violate the limits are subject to a $1,000

-------
                              2-58
fine.   The Memorandum continues:

       With the cooperation of local  government  and  county
       airport land use commissions  ...  to  encourage  com-
       patible land use near the  airport,  it  will be possible
       to preserve the utility of the airport to the community,
       while achieving environmental  compatibility.   The  noise
       standard provides,  for the first  time,  a  structure for
       achieving this goal.

       In arriving at the  limit value of Community Noise  Equiv^
       alent level within  which the noise  is  too high for
       residences, the available  data on effects of  noise on
       people was reviewed.  These effects include disturbance
       of sleep, interference with speech  communication,
       physiological stress reactions and  the possibility of
       hearing loss.  The  most restrictive of these  were  used
       in arriving at the  limits: sleep disturbance and  speech
       communication.  However, these factors only tell us
       something about limiting the magnitude of the noise,
       but not about limiting the number of flights.  For
       that information,  it was necessary  to  refer to two
       other kinds of information: the  results  of community
       questionnaire surveys about noise,  and a  collection of
       case histories of people's complaints  and other actions
       about aircraft and  other kinds of noise in their
       environment.  From analyzing this kind of data,  one
       can determine how much relative importance to place
       on the number of events and the magnitude of  the nois e
       per event.                                     x

       All of the foregoing factors have been considered  in
       arriving at a limit CNEL value of 65 dB as the value
       to place on the noise impact boundary, based  on the
       language in AB 645  regarding the  "reasonable  person
       residing in the vicinity of an airport."  This value
       applies to all proposed new airports and  must be
       achieved by the end of 1985 by all  existing airports
       as well.  For a large, busy metropolitan  airport with
       heavy jet traffic,  the noise  impact boundary  corre-
       sponding to CNEL = 65 dB would encompass  many square
       miles of land.  Therefore, in  compliance  with the
       second requirement of AB 645  — that consideration be
       given to the economic and  technological feasibility
       of compliance — a schedule for gradual noise reduc-
       tion at existing airports   (ending in CNEL - 65 dB  by
       the end of 1985) is established in  the regulation

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                               2-59
     The following sections of the California Regulations on

Noise Standards undertake to provide general guides to the appor-

tionment of authority among Federal, State,  and local entities:

       5001.  Liberal Construction.  This subchapter shall
       be liberally construed and applied to promote its
       underlying purposes which are to protect the public
       from noise and to resolve incompatibilities between
       airports and their surrounding neighbors.

       5002.  Constitutionality.  If any provision of this
       subchapter or the application thereof to any person
       or circumstance is held to be unconstitutional,  the
       remainder of the subchapter and the application of
       such provision to other persons or circumstances
       shall not be affected thereoy.

       5003.  Provisions Not Exclusive.  The provisions of
       this subchapter are not exclusive, and the remedies
       provided for in this subchapter shall be in addition
       to any other remedies provided for in any other law
       or available under common law.  it is not the intent
       of these regulations to preempt the field of aircraft
       noise limitation in the state.  The noise limits
       specified herein are not intended to prevent any
       local government to the extent not prohibited by
       federal law or any airport proprietor from setting
       more stringent standards.

       5004.  Applicability.  These regulations 'establish a
       mandatory procedure which is applicable to and at all
       existing and future potential airports in California
       which are required to operate under a valid permit
       issued by the department.  These regulations are
       applicable  (to the degree not prohibited by federal
       law) to all operations of aircraft and aircraft
       engines which produce noise.  Only those airports
       which shall have been determined to have a noise
       problem (in accordance with Section 5050) will be
       required to perform noise monitoring.

       The regulations established by this subchapter are
       not intended to set noise levels applicable in litiga-
       tion arising out of claims for damages occasioned
       by noise.  Nothing herein contained in these regula-
       tions shall be construed to prescribe a duty of care

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                               2-60
       in favor of,  or to create any evidentiary presumption
       for use by, any person or entity other than the State
       of California, the counties and airport proprietors
       in the enforcement of these regulations.^°3

Greenwald considers the preemption question with respect to the

California regulatory scheme somewhat more explicitly:

       In extensive opinion briefs, legislative counsel of
       the State of California (Aircraft Noise Opinion No.
       8583-27-69) concluded that airport controls are not
       preempted by Federal law, nor in conflict with the
       Commerce Provisions of the Federal Constitution.  This
       position appears to be consistent with the view of
       FAA as expressed in correspondence (July 23, 1969
       from the office of Nathaniel H. Goodrich, FAA General
       Counsel, to -Robert F. Nuttman, Assistant County Counsel
       of the County of Orange,  State of California) which
       states in part:

       "In your meeting with a representative of our Regula-
       tions Division, you were furnished a copy of Senate
       Report No. 1353, on the subject of 'Aircraft Noise
       Abatement.'  This Report accompanied HR 3400 which
       amended Title VI of the Federal Aviation Act to add
       a Section 611 authorizing the Administrator to pre-
       scribe aircraft noise certification standards and
       regulations on the control of aircraft noise.  As
       indicated in that Report, Section 611 does not der-
       ogate the authority of a state or local public agency
       to fix the permissible levels of aircraft noise at any
       airport or airports which it owns.  It has this authority
       as the airport proprietor, however, and not as a
       legislative body.  In other words, the Orange County
       Board of Supervisors may, under the current state of
       the law, issue an ordinance fixing aircraft noise levels
       at the Orange County Airport.  It could not so regulate
       other airports in the County, public or private, which
       it did not own."

       A detailed opinion of the office of the Attorney
       General of the State of California (No. 216; 2-27-70)
       by Nicholas C. Yost, Deputy Attorney General, con-
       cludes that:  (1) The federal government has occupied
       a portion of but has not preempted the entire field
       of regulating aircraft-produced community noise; and

-------
                               2-61
       (2)  state and local governments may legislate in the
       field if there is no conflict with federal statutes
       or regulations.16"*

     Obviously the aircraft noise problem differs with the part-

icular locality.  The effects vary in terms of noise levels,

geographical area, number of residences,  hospitals,  schools,  etc.

affected, and with other variables.  Necessarily, the regulatory

schemes for effective abatement and control will differ depend-

ing upon how the aircraft noise problem context is defined with

respect to the above variables.  The California state-wide scheme

may prove effective for regulating the aircraft noise in that

state.  However, other aircraft noise problem contexts cannot be

defined in terms of a single state.  The Report on The Noise

Around Us notes that a joint response from several states may be

in order with respect to certain aircraft noise problem areas

but also finds that such interstate compacts or authorities have

not come into existence with the exception of New York Port Aut-

hority.  The authority and operations of this Authority are des-

cribed in the following terms:

       The Port of New York Authority, a bi-State compact
       agency of the States of New York and New Jersey,
       which operates a regional airport system in the New
       York-New Jersey area (John F. Kennedy International,
       La Guardia, Newark and Teterboro Airports), has for
       years imposed noise limitations on aircraft taking off
       from its airports and monitors the takeoffs to assure
       compliance.  The Authority exercises its right to pre-
       scribe noise limits in its capacity as an airport
       owner-operator and not as an exercise of local govern-
       mental police power to regulate in a legislative sense.
       The Authority does not regulate landings inasmuch as

-------
                              2-62
       approach procedures  are  executed off the  premises  in
       which it has a proprietary interest.   Moreover,  the
       Port of New York Authority's noise limitation rules
       have been stated to  be expressly subordinate to  the
       FAA rules,  and accordingly,  do not conflict with FAA
       procedures.

       It would appear that the passage of the Noise Certifi-
       cation Act  (Section  611  of the Federal Aviation  Act)
       will in no  way affect the power of the Port Authority
       to impose noise restrictions on aircraft  using its
       airports.  The legislative history of the Act makes
       it clear that Congress did not intend to  preempt the
       authority of a State or  local public agency acting in
       its capacity as the  operator of an airport, to issue
       regulations denying  the  use of its airport to aircraft
       on the basis of noise consideration,  so long as  such
       exclusion is non-discriminatory.  It does,  however,
       preempt the right of the State and local  governments to
       regulate aircraft noise  pursuant to the local police
       power.

     The lack of faith reflected in the foregoing judgments in

the legislative-administrative-regulatory structure as  a  means

for effective abatement and control of aircraft  and airport

noise and the necessity for falling back on the  judicial  process

is not fully supported by past experience with court decisions

involving noise abatement.

C.  Regulation of Aircraft  Noise by Private Actions and Local
    Ordinances

     In reviewing the "first aircraft noise cases" between 1928

and 1946, Lesser states that "An uneven, and in various respects

conflicting, body of law emerged from these decisions."166  Some

of these actions were brought on the common law doctrines of

trespass and nuisance while others dealt with state legislation,

the Air Commerce Act of 1926, and the Civil Aeronautics Act of

-------
                               2-63
          The Causby case which held for the plaintiff on the

basis of a partial, constitutional taking, discussed in 2.1.2
                           168
supra, was decided in 1946.

     Lesser asserts that "In 1952 for the first time, local gov-

ernment attempted to play a regulatory role in the field of air

traffic control."     Cedarhurst, New York,  which is near Kennedy

International Airport,  had enacted an ordinance making it a criminal

offense to fly aircraft over the village at altitudes under 1,000

feet.  The ordinance declared inter alia that low level flights

constitute "a public nuisance, a trespass, and a menace to the

inhabitants . .  . and to their rights of property."170  jn reciting

the court decisions in the second round of this litigation, Les-

ser states:

       The District Court ruled that the ordinance was uncon-
       stitutional and permanently enjoined its enforcement.
       It held that Congress exercised its commerce clause,
       powers to regulate aircraft flight in enacting the
       Air Commerce Act of 1926 and the Civil Aeronautics Act
       of 1938; that these statutes indicate a Congressional
       purpose to preempt the regulation of such flight in the
       interest of safety, a valid standard; that the navigable
       airspace through which Congress has granted a free right
       of transit includes the space below 1,000 feet necessary
       for take-offs from and landings at public airports; that
       the states and their subdivisions are precluded from
       enacting conflicting laws; and since the ordinance con-
       flicts in many ways with the federal regulatory system,
       it is invalidated by the Constitution's supremacy
       clause.  In addition, the court, relying on Causby,
       held that the airspace, apart from the immediate
       reaches,  is part of the public domain.

       The Second Circuit affirmed, ruling that the ordinance
       invaded a field of regulation - air traffic control -

-------
                               2-64
       which Congress had preempted to the complete exclusion
       of the conflicting legislation by the states and their
       agencies.  Its opinion pointed out that the federal
       regulatory system of air traffic control "has preempted
       the field below as well as above 1000 feet from the
       ground."171

     A New Jersey suit brought by five municipalities adjoining

Newark Airport undertook to achieve essentially the same objective.

The complaint alleged a continuing nuisance and trespass and

sought an injunction which would in effect have closed down the

airport.  Plaintiffs  wished to enjoin all flights over their

                                                                  172
properties at altitudes under 1,200 feet.  The suit was dismissed,

the court being of the opinion that the decree sought would ser-

iously interfere with "existing air traffic regulations and flight

patterns - action which the court held to be within the primary

jurisdiction of the federal regulatory agencies."173

     As noted in subsection 2.1.2 supra the second major U.S.

Supreme Court case involving the aircraft noise problem was that

of Griggs v. Allegheny County decided in 1962.     As is subse-

quently indicated, the Griggs case, while perhaps  "rightly

decided" in the context in which it arose, has nevertheless,

created some difficult and persistent questions concerning the

distribution  of authority over air operations and the critical

problem of where liability should be placed for injury resulting

from  aircraft noise.

-------
                               2-65
     The Causby case did not decide such questions as the lia-

bility of participating entities in the context of "a publicly-

owned airport where the noise . . . (is) caused not by military

aircraft (owned by the government) but by commercial air carriers

flying pursuant to flight patterns established by the federal

regulatory agencies."  5  The Griggs litigation commenced in 1953.

When finally decided by the Pennsylvania Supreme Court it was

determined that since Allegheny County neither operated the air-

craft nor controlled the flight pattern of the aircraft, the

County should bear no liability for the noise damage.  The Penn-

sylvania Court further found that while Griggs could not maintain

an action against the airlines on the basis of inverse condem-

nation (since the airlines had no power of eminent domain), that

comparable relief could be granted under Pennsylvania law against

the airlines:

       For Griggs to make use of ... Causby ... he should
       look for relief to the owners or operators of the air-
       craft which have made the complained of flights through
       the air space above the land. I"76

This holding was contrary to the holding of the Washington Sup-
                                                              1 -t-i
reme Court of the previous year in Ackerman v. Port of Seattle '

which said that the airport operator could be liable.

     Both the Pennsylvania and Washington Supreme Courts, accor-

ding to Lesser, agreed that "Takeoff and landing operations were

not within the navigable airspace or, in Justice Douglas's

-------
                               2-66
language, the public domain. "*-'°  However, this conclusion

which supposedly followed from Causby is contrary to the provi-

sions of the Federal Aviation Act of 1958, i 101 (24) ,  which

states:

       "Navigable airspace" means airspace above the minimum
       altitudes of flight prescribed by regulations issued
       under this Act, and shall include airspace needed to
       insure safety in take-off and landing of aircraft.

The U.S. Supreme Court decided Griggs in 1962, reversing the

Pennsylvania Supreme Court's ruling that since the airport operator

did not in fact control the planes, it should not be liable for a

                   180
taking of property.     Griggs had brought his action against

the Federal government / the commercial airlines using the Greater

Pittsburgh Airport, and Allegheny County which was the airport

operator.  According to Justice Douglas who wrote the opinion,

the airlines were not liable:

       The airlines that use the airport are lessees of
       respondent  (the airport operator) ; and the leases
       give them, among other things, the right  'to land1
       and  'take-off.1  No  flights were in violation of
                                        I p-|
       the regulations of C.A.A .....

Justice Douglas found that  the airport operator must accept the

liability since it was:

        . .  . the promoter,  owner, and lessor of the airport***
        (and) decided, subject to the approval of the C.A.A.,
       where the airport would be built, what runways it would
       need, their direction and length, and what land and
                                            18?
       navigation easements would be needed.

He  further determined that  the Federal government was not liable

-------
                               2-67
since it:

       takes nothing; it is the local authority which decides
       to build an airport vel non. and where it is to be
       located.  We see no difference between its responsibility
       for the air easements necessary for operation of the air-
       port and its responsibility for the land on which the
       runways were built. °^

The opinion notes the redefined concept of "navigable airspace"

in the Federal Aviation Act of 1958 but gave it no "operative
                            •I QA
effect" according to Lesser. °   Would not a strict application

of §101(24) have placed the liability on the Federal government?

The dissent (written by Justice Black and concurred in by Justice

Frankfurter) stressed that the airport had been designed and

built under Federal supervision and with CAA approval and that

Congress had adopted a comprehensive plan "regulating in minute
                                              •I Qt-
detail virtually every aspect of air transit. "-1-00  The dissenters

also emphasized that the Federal Aviation Act of 1958 specifically

declares that "'airspace needed to insure safety in take-off and

landing of aircraft1 is 'navigable airspace,1" and concluded:

       (W)here Congress has already declared airspace free
       to all ... it need not again be acquired by an
       airport. .  . . Having taken the airspace over Griggs1
       private property for a public use, it is the United
       States which owes just compensation.18"

The Griggs decision provided a marginal type of relief for pri-

vate landowners, the complainant in Griggs as in Causby being a

private landowner.  The remedy of inverse condemnation, however,

did not prove suitable for coping with the distress suffered by

-------
                               2-68


large numbers of people residing in or near or doing business

in or near airports.  Hence,  despite the lack of success in

such cases as Cedarhurst,  many municipalities undertook to pro-

vide protection for the general public through the enactment of

local ordinances.

     The Town of Hempstead,  adjoining Kennedy International

Airport, adopted a local ordinance in 1963 which undertook to

prohibit the operation of mechanisms and devices including air-

craft within the town limits which created noise above specified

levels.  The effect of the ordinance would have prevented the

use of five runways at the airport which were aligned in the

direction of the town.  A suit to enjoin enforcement of the ord-
                      187
inance was successful.     The Federal District Court stated

that "the Ordinance does not forbid noise except by forbidding

flights and it is, therefore, the legal equivalent of the invalid

                      1 ftff
Cedarhurst Ordinance. "-1-00  Lesser sums up the situation as follows:

       The district court invalidated the ordinance on the
       grounds that it  (a) unconstitutionally burdened inter-
       state commerce, (b) invaded an area preempted by federal
       legislation, and (c)  conflicted with valid applicable
       federal regulations.   The Second Circuit avoided reach-
       ing the first two grounds but held that the third ground
        "is an ample basis for affirmance." 398 F2d 369, 372.
       Both courts noted that the litigation did not involve
       possible questions of landowner rights to compensation
        for overflights that might amount to "takincr. "189

     Among other attempts by local governments to establish some

degree of regulatory authority over aircraft noise was that of

-------
                               2-69






the City of Audubon Park,  Kentucky,  which  enacted  an ordinance




prohibiting flights over the city at altitudes under 750 feet.




In this case,  American Airlines et al.  v.  City of  Audubon Park




the court held the ordinance invalid in that the aircraft could




not comply both with the ordinance and FAA regulations and for




reason  that it imposed an unreasonable burden on  interstate




commerce.  This case was previously discussed in Subsection 2.




3.1.  Two other recent cases involving the imposition of night-




time curfews on jet aircraft operations have produced opposite




results.  In Stagg v. Municipal Court of Santa Monica, ^9^- an




ordinance prohibited jet take-offs between 11:00 P.M. and 7:00  A.M.




at the municipal airport which was not used by commercial airlines,




the court finding authority in both the police power and in the



                                                  192
proprietary authority over the use of the airport.     But in


                                         •I Q O

Lockheed Air Terminal v. City of Burbank,     a similar ordinance




of the City of Burbank made applicable to a privately owned air




terminal (but used by scheduled air carriers also) was held invalid,




     The Lockheed opinion is of considerable interest for several




reasons.  The fact situation would seem to be far  more represen-




tative of the aircraft noise regulatory context than the Stagg




case.  The action was for declaratory relief and injunction




whereby the plaintiffs sought to invalidate the Burbank Ordinance




which prohibited the take-off by jet aircraft from the air termi-




nal between the'hours of 11:00 P.M. and 7:00 A.M.  the next day.

-------
                               2-70
The FAA filed an Amicus Curias brief in support of the position

of the plaintiffs.  The opinion goes into an extensive discussion

of the multiplicity of ways in which the CAB and the FAA regulate

the activities and operations of the scheduled interstate carriers

that use the Hollywood-Burbank Air Terminal (HBA)  and the activities

and operations of the airport.  The pervasive control exercised

by the FAA over air traffic is emphasized with the concluding

finding that:

       In the interest of alleviating noise disturbances to
       the residents of communities adjoining airports located
       in metropolitan areas, the Administrator of the FAA
       has established regulations that (1) require turbine
       powered fixed wing aircraft, approaching for landing/
       to maintain within the airport traffic area an altitude
       of at least 1,500 feet above the surface of the airport
       "until further descent is required for a safe landing,"
       (2) require such aircraft, when taking off, to climb to
       1,500 feet as rapidly as practicable (FAR 91.87 (d), (f)).194

     The Defendant City of Burbank maintained that the Ordinance

was "in reality a 'land use1 regulation and that Lockheed, as the

owner and proprietor of HBA has the authority to place valid

limitations on take-offs of jet aircraft during the curfew and

that the City can, in turn, control Lockheed with respect to

its land use."195  The "preemption" question was treated in some

detail by the court which noted that the Defendant relied upon

Huron Portland Cement Co.  (discussed in 2.3.1 supra) for its

reguiatory authority.  But the court applied the principles of

the Huron case as well as Napier v. Atlantic Coast Line Railroad

-------
                               2-71

   196                                    TQ7
Co.    and Rice v. Santa Fe Elevator Corp.  y/ to the "often .  .  .

perplexing question" in deciding that:

       From the broad scope of Federal statutes and regula-
       tions governing and controlling the  use of air space
       and of air traffic, it would appear  that Congress
       intended to centralize full and dominant control of
       the navigable airspace in the Federal Government so
       as to provide for its safe and most  efficient use.198

Further the court cited Senate Report No.  1353 °° in support of

its judgment:

       H.R. 3400 would merely expand the Federal Government's
       role in a field already preempted.   It would not change
       this preemption.  State and local governments will
       remain unable to use their police powers to control
       aircraft noise by regulating the flight of aircraft.^°

The testimony of the Director of the Aviation Development Council  at

La Guardia airport was quoted with approval:

       The approach to the solution of problems in air trans-
       portation at the local level just does not work.  It
       has to be done on a national basis because it is a
                          201
       national operation.

     The court also discussed separately and at some length the

issue of whether the subject Ordinance was  a "Violation of the

Commerce Clause," and concluded:

       The noise problem created by jet aircraft is well known
       and it appears to the Court that a curfew Ordinance, if
       valid, would promptly be adopted by virtually all cities
       surrounding airports.  Considered singly, such an
       Ordinance might not impose an unlawful interference with
       interstate commerce in all cases.  However, considered
       on a national level, the Ordinance could not stand. 02

It was also observed that:

-------
                               2-72
       (l)t should be concluded that air commerce, by  reason
       of its speed and volume, requires a single authority
       in control if it is to be conducted at  maximum  safety
       and efficient use of the navigable airspace.

       The evidence discloses that air traffic is unique  and
       should be controlled on the national level.^03

     A somewhat different situation arose in the case  of  Town-

                                          204
ship of Hanover v. The Town of Morristown.     The Plaintiffs

(four municipalities, several townships, and certain individuals)

sought to enjoin the Town of Morristown from enlarging its air-

port because of the anticipated increased noise from an expanded

airport operation.  The action was based on a  theory of nuisance

although it was also asserted that the proposed improvements to

the airport would violate a Hanover zoning ordinance and  that

such encroachment would represent "a total aggrandizement of the

territory of the Township of Hanover."205  <£hQ defendant  maintained

that the proposed runway extension reflected "natural  growth"

and if the operation were a nuisance, it was a "legally authorized

nuisance."206  The Superior Court of New Jersey (Chancery Division)

reviewed the Huron case rationale and observed that  if local  ord-

inances designed to maintain community tranquility and property

interests do not conflict with Federal Air Traffic Rules  designed

to promote safety, then the local prescription should  be  upheld.

But it added:

       If the ability or the cost of compliance with a court
       decree is so very substantial in comparison with the
       local interest in reducing the noise interference  that

-------
                               2-73
       the regulation might be held to impose an unreasonable
       burden on interstate commerce, the state action must
       fail.207

It is to be noted that this court of equity jurisdiction recog-

nized the various competing considerations involved and under-

took to fashion a decree which would best accommodate the competing

interests.  The court futher recognized the provisional character

sometimes required of such decrees, saying:   "Substantial justice

can often be accomplished by the granting of conditional, experi-
                                                                    208
mental or substitutional relief or any equitable combination thereof."

Hence, the court undertook to accommodate the "adversarial posi-

tions."  Various alternative means of abatement were explored^0^

which would also be consistent with the social purposes served

by the airport operations.  In some respects this judicial ap-

proach has a similar quality to the new California Aircraft Noise

Code in that it provided for a flexible response by the airport

operator.

       If, for the purposes of this case, the Airport is
       considered to be an offending party,  it should be
       allowed to experiment with such measures as will
       produce the overall desired result.210

It is clear from the opinion that the court was convinced that the

Airport and the private corporate aircraft using the facilities

(no scheduled airlines were involved)  had ignored the complaints

and the legitimate interests of the nearby residents.211  As part

of the decree, it was provided that "jet aircraft will be

-------
                               2-74
prohibited from take-off or landing except during specified hours,

                            212
unless an emergency exists."     The court also observed in the

opinion that "private compensatory damage suits do not accomplish

                                        213
the end objective of noise suppression."

     Clearly the invocation of ordinances or other local actions

are on uneasy ground both with respect to preemption by Federal

legislation and with respect to their being an unreasonable bur-

den on interstate commerce.  Hence, local governments in their

capacity as proprietors of municipal airports have turned to

means of abatement other than legal-regulatory measures.  Lesser

explains that:

       Wherever possible,  runways have been constructed in
       directions away from residential areas and have been
       lengthened solely to achieve noise abatement.  More-
       over, together with other segments of the aviation
       industry, airport operators have worked towards the
       adoption of preferential runway systems designed to
       concentrate approaching and departing traffic in areas
       which will cause the least disturbance to neighboring
       communities.  Each of these measures has helped but
       airport officials believe that no further significant
       noise reduction can be accomplished by these measures.

     This discussion of the problem of aircraft noise abatement

and control leaves a number of highly significant questions un-

answered.  These questions pertain to the legal remedies, the

measure of damages for a noise nuisance or for a "taking," dis-

tribution of authority, locus of liability, zoning and curfew

ordinances, and alternative means available other than legal-

-------
                               2-75
regulatory for substantial alleviation of jet aircraft noise.



Lesser discusses some of the "questions left unanswered by



Griggs."  The first has to do with lateral noise intrusion from



aircraft flights, i.e., whether recovery can be had by land-



owners adjacent to the overflight tract.  He notes that the



Federal courts as in the Batten^^ case have denied relief



whereas three State courts have held that lateral flights can



constitute constitutional takings citing the case of Aaron v.


                   916
City of Los Angeles    in addition to the Martin and Thornbury



cases previously discussed in Subdivision 2.1.2 supra.  A



second question goes to the burden of proof required to justify



a compensable taking.  This involves the test of the measure of



damages required by different courts.  A New York Court has said



that the "better rule of damages is that if a claimant can demon-



strate that the value of his property is substantially diminished



... he will have met his burden of proof regarding the cause


                                          2 ] 7
of action for an unconstitutional taking." A/  The Washington



Court in Martin v. Port of Seattle said that the amount of dam-



ages was measured by "the diminishment of the value" of the land



"as reflected by the decrease in the amount he (the property


                                                 218
owner) can receive in a sale to a willing buyer."     The time



that an action accrues and the damages are to be measured poses


                       219
an additional question.

-------
                               2-76
     There have been several cases in both the Federal and State

courts in which property owners have recovered under inverse

condemnation claims.  The extent to which this represents an

appreciable control over the abatement of aircraft noise is, of
                  220
course, uncertain.     in addition to cases previously noted it

is of significance that 539 of 1,500 landowner plaintiffs

recovered total damages in the amount of $750,000 from the Los

                                                              221
Angeles International Airport in an inverse condemnation suit.

The court said that the cause of action accrued at the time "the

annoyance factor of jet noise has become stabilized and has

reached the point of causing the market value of the landowner's
                                           222
real property to be substantially reduced."     The damages were

measured by the "difference between the property's value immed-
                                                       p o o
lately before and immediately after the appropriation."     In the

Aaron case "The damages represent the extent to which the market

value of the respective properties was reduced because of air-
                                         224
craft flights for specified prior years."     In summing up the

various decisions discussed-, Lesser concludes:

       The indisputable fact that emerges from this review of
       post-Griggs decisions is that regardless of the result
       reached, whether individual property owners have won or
       lost their particular suits, whether they have collected
       substantial damages, or nominal damages or no damages,
       the noise of jet aircraft continues to afflict them.
       And with the ever-increasing amount of jet traffic the
       number of persons afflicted continues to grow.   Viewed
       realistically,  the legal problems presented by aircraft
       noise pale into insignificance compared with the political, ,

-------
                               2-77
        sociological, economic and human problems raised.  The
        question therefore naturally arises as to what steps the
        government can take - whether at the federal, state or
        local level - to protect airport neighbors from aircraft
        noise.

D.  Implications of the Griggs Doctrine;   Federal State,  Local
    and Private

     Before reviewing alternative modes of aircraft noise abatement,

it is perhaps advisable to inquire into some of the broader policy

implications of the Griggs case since issues of paramount import-

ance flow from that decision.  Not only did that case assist in

advancing inverse condemnation as a mode of noise abatement,  it also

established the airport operator as the locus of liability.  The

potential reach of this liability is suggested by Aaron v. City of

Los Angeles.  Local governments have been essentially unable to

solve the aircraft noise problem through the adoption of ordinances

for reason of Federal preemption or for reason of placing an undue

burden on interstate commerce.  The same considerations apply to

the states since both State and local jurisdictions must rely upon

the police power as authority for such enactments.  The Federal gov-

ernment, being absolved of liability under the Griggs doctrine,

did not feel pressed to undertake drastic abatement programs.  Fed-

eral officials could calmly maintain that "under the Federal Avia-

tion Act of 1958 the only power to regulate this phase of aviation

                                                      226
related to aircraft safety and not noise alleviation."     Some

commentators assert that the  Griggs  decision left the "financial

burdent of aircraft noise on  the segment of the  aviation community

-------
                               2-78
that could do least about it."  It seems evident that "Litigation




of the Causby and Griggs variety is no solution to the aircraft



              227
noise problem.




     However, the Federal government which, along with the airlines,




was relieved of liability for aircraft noise in Griggs,  had recog-




nized the existence of the impending dimensions of the noise prob-




lem from a relatively early date as previously noted.  A helpful




summary of the efforts of the Federal government and the private




sector with respect to noise reduction research and development was




appended in the Hearing Proceedings of the Aviation Subcommittee of




the Committee on Commerce, U.S. Senate, on  §707  and  H.R.  3400




leading up to the enactment of  §611  in 1968.228   The followinq par-




agraphs provide some commentary with illustrative quotes from this




Summary.




     Congressional Hearings in 1962 "confirmed a 1960 House




Committee recommendation that  'noise criteria be mandatory require-




ments in drafting specifications for future...aircraft,'"2   since




the lack of "maximum noise" criteria established by the Federal gov-




ernment had been a "deterrent to manufacturers to achieve greater



                   230
noise suppression."     There had been no doubt of the awareness of




the aircraft engine manufacturers of the noise problem,  but compet-




itive considerations precluded the allocation of substantial research




to noise abatement, the objective being to  "build engines and air-




craft  (with) maximum performance characteristics without regard to




noise."231

-------
                             2-79






     In the 1962 hearings, industry spokesman were extremely




pessimistic that a great deal could be done to alleviate aircraft



noise, though some difference of opinion was expressed on this


      232
point.     Government officials had noted as early as 1960 that



whatever the prospects for noise abatement, no appreciable effort




could be expected in the absence of formal noise limitation require-


      233
ments.     There was no incentive for a particular developer to




adhere to given standards if he was not sure his competitor was



being held to the same standards.  With the introduction of the



Boeing 727 it was established, according to the Summary, that,




"there is no technical problem in developing larger aircraft with


                                        234
greater power without increasing noise."     By 1964 Pratt & Whitney



                                                          235
was conducting a "great deal of noise abatement research."     Sub-



committee II on Technology to the White House Office of Science and




Technology "Program Evaluation and Development Committee" reported



in 1967 that a "15 to 20 PNdB engine/nacelle noise reduction goal



is considered to be within the present state of the art and addi-


                                   236
tional R&D should start from here."     Further, "On September 27,



1967, the Federal Aviation Administration, Office of Noise Abatement,



issued an Aircraft Noise Certification Alternatives paper proposing



aircraft noise reduction goals for certification of aircraft and pro-


                                                                 0-37
cedures for measuring aircraft noise for certification purposes."




In testimony before the House Committee on Science and Astronautics




on February 28, 1968, Dr. Donald F. Hornig, Director, Office of

-------
                                2-80
Science and Technology, stated:

        (T)he most important directions for our work in
        (aircraft) noise alleviation must be through reduc-
       ing noise at the source—i.e., through modifying
       the acoustical properties of currently available
       engines, through developing equipment enabling less
       noisy aircraft operating procedures near airports,
       and through providing, and as rapidly as possible,
       basically quieter jet engines.

     The Summary further states that FAA, NASA, and primary airframe

and engine manufacturers "are in agreement that, through the use of

today's currently available technology, we can effectively reduce

                                                        239
jet aircraft noise on take-off and landing by one-half."     The

Summary also stated that the "U.S. SST design competition demonstrates

the extent to which reduced noise annoyance can be  'built into' air-

                                                                240
craft design when manufacturers are given sufficient incentive."

     The Summary provided numerous examples of Government-sponsored

noise abatement research both by NASA and by contract to private

entities such as Boeing, Douglas, and General Electric.  It is asserted

that "Earlier Government-sponsored research into lowering noise annoy-

ance at the source has been augmented as the result of the President's

                                               241
Inter-Agency Aircraft Noise Abatement Program."     Several optimistic

references are made to the NASA "Quiet Engine" project and to other

                                                     042
efforts to reduce noise through nacelle modification.     However, as

pointedly noted by the Jet Aircraft Noise Panel of OST in its 1966

Report,  the coordinated effort required amonq all participants in the
                                              243
aircraft noise context was definitely lacking.

-------
                              2-81


     The airlines have enjoyed the legal shield of the Griggs

decision and had no statutory requirement to contribute a positive

input to aircraft noise abatement until the enactment of  §611  in

1968.  Likewise, the Federal government has shown no disposition

to accept liability for noise damage - even of Federally-certified

commercial aircraft as the dissenting Justices urged in Griggs.

     Understandably, the questions of the distribution of authority

or responsibility for aircraft noise abatement and of the allocation

of the burden (legal liability) for aircraft noise damage has been

a matter of serious controversy for many years.  One commentator

observed as of 1964 that:

       The potential liability for "takings" caused  by jet
       noise presents a serious problem to municipalities
       and other public airport owners.  Although they have
       not acquiesced in the philosophy of the Griggs deci-
       sion, and continue to urge that the federal government
       assume the burden, such a result appears unlikely.   The
       Federal Airport Act authorizes the Federal Aviation
       Agency to make matching grants to airport operators
       for "airport development," which is defined to include
       the cost of acquisition of "any easement through or
       any interest in airspace, which is necessary to permit
       any such work or to remove or mitigate or limit the
       establishment of, airport hazards...."  But this leg-
       islation was enacted in 1946, when the problem of jet
       noise was unforeseen, and before the decisions in
       either Causby or Griggs.  Thus, considerable doubt
       exists whether grants for the acquisition of avigation
       easements would be within the congressional intent.

Further, the prospects for Congressional approval of Federal assump-

tion of liability for aircraft noise damage seemed unlikely to the

author who quoted the following passage from H.R. Report,  No. 36,

-------
                               2-82
88th Cong., 1st Sess. 24 (1963):

       Any enactment by the U.S. Congress to indemnify
       each and every airport operator throughout the
       United States of America against judgments which
       might be obtained or for moneys paid over to
       claimants in the settlement of claims alleged
       under the doctrine of the Griggs case would be
       impractical.2

     In Senate Report No. 1353, relating to the  §611 legislation

of 1968, a question arose as to the extent of Federal involvement

in the total aircraft noise abatement process, the Report noting

that:  "It is not the intent of the committee in recommending this

legislation to effect any change in the existing apportionment of

                                                            246
powers between the Federal and State and local governments."

Illustrative quotes from a letter of the Secretary of DOT to the

Committee state:

       Just as an airport owner is responsible for deciding
       how long the runways will be, so is the owner respons-
       ible for obtaining noise easements necessary to permit
       the landing and takeoff of the aircraft.... ^'

       Likewise, the Federal Government is in no position
       to require an airport to accept service by noisier
       aircraft, and for that purpose to obtain additional
                       JAQ
       noise easements. ^°

     Nevertheless, it is of interest that the author, after commenting

favorably on the cases of Thornburg v. Port of Portland and Martin v.

Port of Seattle which held contrary to Batten by finding that noise

intrusions suffered by subjacent landowners was compensable, comes

to the concluding observation that "the airport operator (has) sub-
                                              249
stantial defenses to his potential liability."     Despite the

-------
                            2-83




relatively few cases in which airport operators have been held


liable for noise damages or subject to injunctions since 1964,


the concern of airport operators over their potential liability


                              250
appears to be on the increase.


     It was not until the 1968 enactment of  §611 (as an amendment


to the Federal Aviation Act of 1958) relating to the Control of


Aircraft Noise and Sonic Boom that the Federal government was dir-


ectly thrust into an active program of aircraft noise abatement.


This legislation provided the aircraft engine manufacturers and


airlines a compelling incentive for the first time to introduce


noise criteria into their planning and operations.  Senate Report


                                                              251
No. 1353 accompanying H.R. 3400 which became Public Law 90-411


made clear that the FAA had authority "to require retrofitting of

                           O K T
aircraft already certified"    as well as to set noise standards


for new aircraft.  The regulations established pursuant to Public


Law 90-411 took effect on December 1, 1969, and were made applicable


                         253
to new subsonic aircraft.     Some commentators have criticized the


noise standards set - in that under certain conditions noise levels


as high as 110 EPNdB would be permissible as a consequence of the


"trade-off" provision, and note that an increase in noise level from

                                                               254
106 to 110 EPNdB reflects close to a 50% increase in annoyance.


The regulations are also limited in that they do not apply to the


first group of Boeing 747's.  The first new aircraft to which they


unqualifiedly apply are the McDonnell Douglass DC 10 and the

-------
                               2-84






Lockheed L 1011.  However, it is stated in the FAA regulations that




"No determination is made...that these noise levels are or should




be acceptable or unacceptable for operation at, into, or out of,



          a. ,,255
any airport."




E.  The Proprietorship Doctrine of Control




     The previous discussion has described the role of major




participants in the aircraft noise context and the legal obligations,




or lack thereof, with respect to such participants.  The airlines are




subject only to the noise level requirements of the FAA upon certif-




ication of new aircraft.  The Federal government was effectively




relieved of aircraft noise liability by the Griggs  decision  as were




the airlines.  The states and municipalities have had little success




in controlling aircraft noise through invocation of the police power.




The airport operators are the loci of liability and, hence, the tar-




gets of private actions to enjoin certain types of operations or for




damages on the theory of nuisance or of a compensable taking.  One




further control alternative has emerged as a recurrent theme through-




out this discussion, namely, the control which may be initiated by




the airport owner or operator in his private, proprietorship capacity.




This concept needs further exploration.




     The "proprietorship" doctrine not only provides a useful means




of examining the liability question but also forces attention to




alternative means of aircraft noise abatement.  If the airport oper-




ator is to be held liable for aircraft noise, then it seems quite

-------
                                 2-85


 reasonable  that he would  insist upon the maximum degree of control

 over aircraft operations.   The concept of control here considered

 is  that of  an owner or operator - not that of a state or a munici-

 pality pursuant to the police power even though most major airports

 are owned by a state or municipality.  But the question arises as

 to  just what aspects of air transport operations might be subject

 to  control  by the airport operator.  The Federal Aviation Act of

 1958 provides that:

       "Navigable airspace"  means airspace above the minimum
       altitudes of flight  prescribed by regulations issued
       under this Act, and  shall include airspace needed to
       insure safety in take-off and landing of aircraft.

 It  would seem, therefore, that control over take-offs and landings

 with respect to safety is clearly the province of the FAA.  And the

 FAA now certifies new aircraft with respect to noise levels.  So what

 remains in  the control zone  of the airport operator?  Actually a num-

 ber of important operations  remain with the airport operator as shown

 in  statements of Congressional committees, the Secretary of Trans-

 portation,  and officials  of the FAA.  With respect to aircraft noise,

 the relevant dpcuments from official sources make it abundantly clear

 that the 1968 legislation on Control and Abatement of Aircraft Noise

 and Sonic Boom was directed solely to "abatement at the source" and

 that various public and private sector entities would necessarily be

 involved in other types of  abatement programs.

     The Port of New York Authority, pursuant to its status as

proprietor of four metropolitan airports,  has adopted noise regulations,

-------
                               2-86

                                                257
setting the noise limit on take-off  at 112 PNdB. '     The right of

the Port Authority to ban the use by jet aircraft  of a recently

completed runway at La Guardia pending completion  of construction

of a second runway, for purposes of  avoiding intense jet noise

which would have resulted from the use of one runway only,  has been

upheld.258

       The airline argued,..., that  the Authority's
       restriction invaded a field preempted by Congress
       to the total exclusion of local government  action.
       Although the Authority conceded that Congress had
       preempted, to a great extent, the field of  air
       traffic regulation, it argued that Congress had not
       ousted an airport operator of jurisdiction  to con-
       trol the use of its facilities.  The Authority con-
       tended that an inevitable corollary to the  Griggs
       holding must be that airport  operators possess the
       right to protect themselves from possible liability
       by limiting or otherwise conditioning the use air-
       craft can make of their runways.2^9

     Even if the "proprietorship" concept continues to be accorded

respectable legal status, it nevertheless seems a  somewhat simplistic

and undiscriminating control rationale to apply to the complex of

functions, operations, and public/private relationships associated

with a large metropolitan or regional airport.  Continued recognition

of the proprietorship status of the  airport operator would seem to

depend largely upon a mutual accord between the operator and the FAA

as to the division of authority and obligations with respect to var-

ious functions such as aircraft noise abatement.  It does not seem

plausible that an airport operator could impose noise standards which

were substantially more stringent than those approved or condoned by

-------
                                2-87


 the FAA as the general norm.   In  any event,  the noise abatement

 alternatives available to the airport operator are severely limited.

 He has essentially no  control over abating aircraft noise at the

 source.   He can impose some control through the use of runways,  by

 engine warm-up locational procedures,  and,  perhaps, by the imposi-

 tion of limited curfew regulations.  But the airport operator,  as

 proprietor,  cannot rezone,  or compel mass movements of people and

 associated public service activities.   He may not be financially

 capable  of purchasing  avigational easements or of bearing the expense

 of extensive buffering.   Yet, he  is liable for aircraft noise damage.

      The airport operator finds himself in a bind.  While his

 capability to abate aircraft  noise is severely limited,  his poten-
                               260
 tial liability is substantial.     To escape this liability he is

 interested either in removing the cause or in shifting the liabil-
     o/- -|
 ity.     The position  of the  Port of New York Authority offers some

 insights into the "thinking"  of the airport operator about this sit-

 utation.  In a recent  statement before the Senate Commerce Committee,

 Subcommittee on Aviation, John R. Wiley, Director of Aviation,  Port

of New York Authority,  reviewed the options  for abating aircraft•noise,

With reference to  "moving noise away from the people," he  stated:

        -(E) stablishment of approach and departure paths to
        minimize flight over residential areas,  use of pref-
        erential runways to make maximum use of open or un-
        congested areas,  and steeper climb and descent paths
        consistent with safety and existing technology...does
        not offer adequate relief.

-------
                               2-88


Mr. Wiley found the second method of "moving the  people  away from the

noise" also to be unacceptable, even  if economically feasible,  saying;

"The relocation of hundreds of thousands of people, the disruption

of their lives, and the destruction of entire communities is no sol-
       p/r o
ution."     He strongly supported the third method, namely, reducing

the noise at the source, maintaining that:

       In contrast to the billions of dollars that would
       be required by a land-use program, approximately
       the same goal can be achieved through retrofit at
       a cost of perhaps $600 million.

This position, relative to the feasibility and cost of retrofitting,

was strongly supported by some witnesses but vigorously disputed by

                           265
others in the same hearing.

     Of particular relevance to the present discussion was the

rejection by Mr. Wiley of the recommendation attributed to the Air

Transport Association which, as Mr. Wiley put it, would "provide,

in effect, for complete Federal government preemption of the entire

field of aircraft noise, even to the point of nullifying the histor-

ical right of local airport operators to provide noise limitations

on the aircraft which use their facilities. ll266  fje  indicates  that

this is directly contrary to "Congress's intent in adopting the Noise

Certification Act of 1968  (Public Law 90-411, 49 U.S.C. § 1431)," and

concludes:

       It is inconceivable to me that Congress can adopt
       the ATA recommendation without at the same time
       placing upon the Federal Government monetary lia-
       bility for the acquistion of whatever air easements

-------
                              2-89
       are constitutionally required to accommodate air-
       craft in the course of their landing and take-off
       maneuvers.  To do so would create an impossible
       situation for airport operators, since in many in-
       stances, only by restricting the use of jet aircraft
       at their airports can such operators avoid monetary
       liability to property owners aggrieved by aircraft
       noise.  Unless the Congress is willing to go the
       full way of assuming complete Federal monetary lia-
       bility and thus reverse the Supreme Court decision
       in the Griggs litigation by legislative means, the
       Congress should not, and most probably cannot, take
       away the historical right of an airport proprietor
       to control the noise characteristics of the jet air-
                                        267
       craft which use their facilities.  '

     A recent opinion (advisory) of the Supreme Judicial Court of

Massachusetts provides a further analysis of distribution of author-

ity for control of aircraft noise and sonic boom and raises addi-

tional questions concerning the "police power" versus the "propri-

etorship" concept of control.

     The Massachusetts Court undertook to examine a bill of the

State House of Representatives entitled "An Act Prohibiting Super-

sonic Transport (SST) Planes from Landing or Taking Off in the Com-
           268
monwealth."     The bill recited:

       Notwithstanding the provision of any law, unless
       there is an emergency, no commercial super sonic
       transport plane which is not capable of limiting
       its noise level to one hundred and eight decibels
       or less while landing, on the ground, or taking
       off will be permitted to land or to take off in
                        OC Q
       the commonwealth. u:7

Since "grave doubt" existed as to the constitutionality of the bill

if enacted into law, the question addressed was:

       Is it constitutionally competent for the General
       Court to enact said Senate Bill No. 1161, amended,

-------
                               2-90
       which in effect prohibits the landing of any
       commercial super sonic transport aircraft at any
       airport within the commonwealth notwithstanding
       that the operation of such aircraft in interstate
       and international commerce is regulated by the
                9?n
       Congress?^/u

In a decision dated June 25, 1971, the question was answered "no."

     In arriving at its answer the Massachusetts Court considered

various legal doctrines of significance to the regulation of environ-

mental noise and particularly to aircraft noise.  After reviewing

alternative ways in which Federal preemption of State action may be

indicated and after asserting that "The intention of Congress to

exclude states from exerting their police power must be clearly man-

         271
ifested,"    the Court went on to examine Federal legislation in the

air traffic control area.  It found that the "Federal government has

asserted a broad authority to control and regulate the use of navi-
                                       272
gable airspace and aircraft operations"    and discusses the "compre-
               273
hensive scheme"    of Federal control as reflected in the Federal

Aviation Act of 1958.  The Court noted that under this Act,  the United

States is declared "to possess and exercise complete and exclusive
                                                           274
national sovereignty in the airspace of the United States,"     and
that:
       This act confers upon the administrator (of FAA)
       vast powers over all aspects of aircraft naviga-
       tion.  These powers include, among other things,
       authority for the development of plans and policy
       with respect to the use of navigable airspace and
       allotment of the use of such airspace. '-*

-------
                               2-91
Moving to the precise question posed, the Massachusetts Court

asserted that:

       Federal legislative action has been taken directly
       in the field which Senate Bill No. 1161, amended,
       purports to regulate.  This was done by the 1968
       amendment to the Federal Aviation Act of 1958.  See
       49 U.S.C. §1431 (Supp. V, 1965-1969).  The amendment
       directs the FAA Administrator to prescribe standards
       for the measurement of aircraft noise and sonic boom
       and rules and regulations for the control and abate-
       ment of aircraft noise and sonic boom.

But again, the Court finds that the legislative history of the 1968

amendment "contains,...some indication that Congress did not intend

completely to exclude all State action in the field of aircraft

               277
noise control,"    citing Senate Report No. 1353, and quoting from

the Report:

       (T)he proposed legislation will not affect the rights
       of a State or local public agency, as the proprietor
       of an airport, from issuing regulations or establish-
       ing 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 to aircraft on the basis
       of noise considerations so long as such exclusion is
       nondiscriminatory.^'°

The Court further found that subsequent FAA action has been consistent

with this division of powers, stating:

       The amendment to the regulations is prefaced by the
       following statement:   "Relation to responsibility of
       airport proprietors;   Compliance with Part 36 is not
       to be construed as a Federal determination that the
       aircraft is  'acceptable1 from a noise standpoint, in
       particular airport environments.  Responsibility for
       determining the permissible noise levels for aircraft
       using an airport remains with the proprietor of that
       airport.  The noise limits specified in Part 36 are

-------
                                2-92
       the technologically practicable and economically
       reasonable limits of aircraft noise reduction tech-
       nology at the time of type certification and are not
       intended to substitute federally determined noise
       levels for those more restrictive limits determined
       to be necessary by individual airport proprietors in
       response to the locally determined desire for quiet
       and the locally determined need for the benefits of
       air commerce.  This limitation on the scope of Part
       36 is required for consistency with the responsibili-
       ties placed upon the airport proprietor by the U.S.
       Supreme Court in Griggs v. Allegheny County, 369 U.S.
       84...Consistent with this limited scope, this amend-
       ment specified that the Federal Aviation Administra-
       tion makes no determination, under Part 36, on the
       acceptability of the prescribed noise levels in any
       specific airport environment (see §§36.5 and 36.1581
       (a)."  See 34 Fed. Reg. 18355.279

     The Court then reviewed the more familiar cases involving local

ordinances which have been found to conflict with FAA regulations and

therefore to be unconstitutional.  The findings of the Court are summed

up as follows:

       The Hempstead case, of course, was decided prior to
       the 1968 amendment to the Federal Aviation Act and
       did not involve an airport proprietor.  Nevertheless,
       the principles expressed in that case and the com-
       prehensive character of Federal air statutes and reg-
       ulations, existing even prior to 1968, lead us to con-
       clude that the proposed Massachusetts legislation
       would intrude upon an area preempted by the Congress.
       Assuming without deciding that there has not been
       complete Federal preemption of the field of noise
       control  (at least with respect to action by a State
       or local public agency, as proprietor of an airport
       wholly owned and operated by the State or its agency)
       we conclude that Senate Bill No. 1161, as amended,
       is so broad as to exceed any permissible State action.
       (Citing Hempstead, Audobon Park and Rosenhan cases).
       The bill is not framed in terms of a State or local
       public agency acting as an airport proprietor and
       operator.  Instead it purports to prevent nonconform-
       ing aircraft from landing or taking off anywhere in

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                            2-93
       the Commonwealth.  This exceeds any area which may
       still be left subject to State regulation.  The leg-
       islative history of the 1968 amendment recognizes
       the breadth of the preexisting Federal preemption
       for it states that the amendment "would merely expand
       the Federal Government's role in a field already pre-
       empted. . .State and local governments will remain unable
       to use their police powers to control aircraft noise
       by regulating the flight of aircraft.1' (Emphasis sup-
       plied.)280

Having determined that State action pursuant to the police power as

expressed in the proposed bill was precluded by virtue of Federal

preemption, the Court then undertook to examine the situation from

the standpoint of control in terms of proprietorship.  It reasoned:

       Even if the bill were framed in terms of "airport
       proprietors," there would still be serious doubt
       about its constitutional validity.  Recently, the
       FAA issued notice of proposed noise control with
       respect to supersonic aircraft.  See 35 Fed. Reg.
       6189, 16980, 12555.  Federal action in this field
       may well invalidate any State action in the area.
       Also, although the Justices have insufficient evi-
       dence to advise on this point, the extremely complex
       procedures established by the FAA for evaluating
       noise  (14 D.F.R. §36.1581) may conflict with the
       simple and possibly imprecise "108 decibels" stand-
       ard prescribed by the proposed legislation.  Further-
       more, if State regulation of noise in fact does not
       have any effect on the operation of aircraft in the
       Commonwealth, there would remain the question whether
       the bill imposes an unreasonable or discriminatory
       burden on interstate commerce or conflicts with any
       treaty obligation of the United States Government.
       We need not, however, reach these difficult issues. °

In a footnote the Court observed that "even if the bill would place

a burden on interstate aircraft commerce, there would remain the

                                                                282
question of whether any State interest justified such a burden,"

citing the Huron Portland Cement Co. v. Detroit case, 362 U.S. 440

(discussed in 2.3.1 supra).

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                               2-94






     Whatever the precedent value of this particular decision,




the Court did delineate some of the critical questions concerning




State police power control and proprietorship control of aircraft




noise and sonic boom.  However, it falls far short of being a def-




initive resolution of the legal-constitutional issues.  It does




seem clear that the State's authority to regulate aircraft commerce




pursuant to its police power is severely circumscribed if not com-




pletely precluded.  Further, it would appear that if the "compre-




hensive (Federal) scheme" has in fact preempted the field, then it




would make no difference whether the proposed bill applied to all




aircraft operations within the State or to one or more particular




airports operated by the State.  Assuming some scope of aircraft




noise regulation remains with the States, however, the extent of the




air commerce operations proposed to be regulated by the State might




have a bearing upon the determination of whether such regulation




imposed an undue burden on interstate commerce.  A question still




remains with respect to control through proprietorship status.  What




if the Massachusetts Port Authority in its proprietorship capacity




should issue a regulation for control of aircraft operations at Logan




Airport for noise abatement purposes similar to the provisions of




Senate Bill 1161?  If the effect of such a regulation would be to




seriously hamper interstate and foreign air commerce, would a court in




a suit to enjoin the enforcement of such regulation likely reject the

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                               2-95







proprietorship concept and construe such regulation as an invalid




exercise of State police power?  Or might the court find that all




aspects of aircraft operations have been preempted by the Federal




government and that all airports must conduct their operations




consistent with this condition?  Or would new Federal legislation




be required to subject all airports handling interstate and for-




eign commerce to common rules of take-off,  landing, and in-flight




operations?




      One point is clear.  As long as aircraft noise continues to




be a serious social problem (noise not being sufficiently reduced




at the source) and the full burden of the liability for aircraft




noise damages rests with airport operators,  the proprietorship




concept will be tenaciously asserted - with good reason.  Yet, it




is obvious that the noise abatement measures available to the




airport operators even under authority of this doctrine are sev-




erely  limited.  Over  the  longer period  only noise  abatement  at  the




source, through new aircraft type certification and possibly retro-




fit, is likely to provide a satisfactory solution.




      This provisional judgment, however, needs further elaboration




in terms of the magnitude of the aircraft noise problem and the




alternative abatement measures available.

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                           2-96
F.  Scope of Aircraft Noise Problem and Alternative
    Abatement Techniques

     The aircraft noise problem has reached serious proportions.

The recent Joint DOT-NASA Civil Aviation Research and Development

Policy Study Report states:

     The impact of civil aviation on the environment is evident
     in the public concern regarding noise, air pollution, water
     pollution, esthetics, ecological disturbances, and meteoro-
     logical changes.  Of these effects, noise is judged to be
     the most important and presently a critical constraint to the
     future growth of civil aviation.  This constraint is already
     manifested in the inability to site and construct new airports
     in locations required to meet demand and in the reduction of
     existing airport-capacity by noise restrictions and operation-
     al limitations.

With respect to the magnitude of the problem this Report states

that inter alia;

     The high-noise area around the J. F. Kennedy Airport in
     New York includes 35,000 dwellings, 22 public schools, and
     several dozen churches and clubs.  This area, plus that
     surrounding the Los Angeles and Chicago airports, estimated
     at 42,000 acres, is three times greater than all the land
     redeveloped during the 16 years of urban renewal at a cost
     of $5 billion dollars.284

It is further noted that while the potential cost of damages

from law suits cannot be reliably evaluated, that presently

(March 1971) "in Los Angeles there are 34 law suits against the

airport, and the Los Angeles Unified School District alone is
                                285
seeking $95 million in damages."

     A recent news story documents the fact that there is

increasing public opposition to the expansion of existing

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                            2-97
airports and to the construction of new airports, perhaps primarily

                              286
for reason ot noise intrusion.     Among cities resisting

airport expansion or new construction are Atlanta, Boston, Los

Angeles, Minneapolis-St. Paul, New York, San Jose, St. Louis and

Portland, Oregon.  New airport projects are also being opposed in

Tokyo, Zurich, and Dusseldorf.  With respect to the delay caused

by such opposition, "attorneys for the Port of Portland estimate

that it takes a minimum of five years to carry a case through
                              287
the Circuit Court of Appeals."     Cleveland is seriously

considering the establishment of a new international jetport on
                                                         288
a diked island five to eight miles offshore in Lake Erie.   There

seems little question but that prospective noise and sonic boom

effects provided critical arguments in opposition to the American
                   289
version of the SST.     Official action had been taken prior to

the Congressional defeat of the SST to reduce the threat of the

sonic boom and, ostensibly, to soften the public resistance to

the SST program.  The DOT-NASA CARD Study  Report states:

     A Department of Transportation notice of proposed rule-
     making to ban civil supersonic flight over land was
     filed on April 10, 1970, and was published in the Federal
     Register on April 16, 1970  (ref. 4).  In addition to filing
     this proposed amendment to the Federal Aviation Regulations,
     the President of the United States, The Secretary of Trans-
     portation, and other representatives of the Executive Branch
     have said that commercial supersonic flight over land will
     not be permitted.  Despite these assurances, some critics
     contend that the regulation might be changed or revoked when
     commercial supersonic flight becomes a reality.

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                           2-98
     The full social costs of aircraft noise have been described

in terms of 1) Human cost; 2) Cost of land acquisition; 3) Cost

of noise abatement operating procedures; 4)  Cost of limitations

on operations; 5)  Cost of litigation; 6) Cost of ground trans-
                                                    291
portation; and 7)  Cost of aircraft operating delays.    The

DOT-NASA CARD Study Report indicates that with supporting research,

the current jet fleet might be modified by retrofitting techniques
                                                     292
to cut approach noise by 10 decibels within 10 years.    It is

further suggested that if noise is not substantially reduced, land

acquisition to avoid excessive noise may reach many billions of
        293
dollars.    One measure is provided by the  British experience

with the location of a new airport to serve the London Metropoli-

tan area.  A recent report states that:

     Today one thing is clear, both public and Government are
     increasingly concerned with the  (environmental pollution)
     problem.  A striking example of public concern and Govern-
     ment's reaction to it was the choice of the site for London's
     third airport.  Foulness, an island site situated on the
     east coast fifty miles from London, was chosen on environ-
     mental grounds in spite of the fact that it will cost at
     present estimates $360 million more to develop than other
     possible sites.  However, the alternatives would have caused
     irreparable damage to large tracts of the countryside and
     severe distress to the inhabitants.

In a recent editorial the New York Times stated:

     The city of Los Angeles is committing itself to pay $200
     million, including interest charges, to buy up some 2,000
     houses whose inhabitants have been driven desperate by jet
     planes using the nearby municipal airport.  The victims are

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                           2-99
     to be congratulated on their release from a tortured
     existence, but what is to be said for the reasoning
     processes of a society that can waste money at that rate
     which might more readily have been used to soften the noise
     of jet planes to the point of making them endurable?

     Numerous studies over the past several years have undertaken

to evaluate the alternative means of aircraft noise abatement.

The Report of the National Academy of  Engineering, A Study of
                     296
Technology Assessment,  of July 1969 includes a preliminary

assessment of the following strategies:

          Continue Methods Used in 1967-69

          Relocate Airports

          Create Buffer Zone Around Airports

          Soundproof Residences

          Modify Aircraft Hardware and Plight Profiles

The Report concluded that "strategy No. 5, to modify aircraft

hardware and flight profiles, has the greatest chance of success
                                              297
based primarily on noneconomic considerations."  The DOT-NASA CARD

Study Report under Actions Recommended states:

     If civil aviation is to meet the expected growth in demand
     for air transportation, a new approach to aircraft noise
     abatement is necessary.  This approach must provide for
     research goals based not on what is technologically feasible
     but on what is needed to satisfy community environmental
     goals.298

Among those "actions" recommended to achieve the research goals

and establish future regulatory standards is the following:
                                                I

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                           2-100
     Expand the current federally funded aircraft noise abatement
     program.  The initial step would be a comprehensive 10-year
     Aircraft Noise Abatement Program Plan incorporating activi-
     ties of DOT, NASA, HUD,  HEW, and the Environmental Protection
     Agency.  This plan should clearly delineate the roles and
     areas of responsibility of the participating agencies and
     require commitments from these agencies to support these
     activities with the appropriate resources, consistent with
                         OQfe
     funding limitations.

     The study of the National  Academy of Sciences on Jamaica

Bay and Kennedy Airport (1971) states that aircraft noise is

perceived as a major environmental hazard by residents in communi-
                                    *5 P ^
ties surrounding commercial airports  u and concludes that "The

construction of new runways will not significantly reduce the

number of residents of nearby areas exposed to intense aircraft
     301
noise"  and that "major reduction in noise exposure can come only
                             302
from use of quieter aircraft."   In elaboration the study states
that:
     A significant improvement in the noise environment around
     Kennedy Airport can be produced only by equipping aircraft
     with less noisy engines.  if engine noise were reduced to
     levels consistent with the projections of the National
     Aeronautics and Space Administration "quiet engine" develop-
     ment program, which is estimated to be 10 EPNdB (effective
     perceived noise level) below present FAA standards for new
     engines, the number of people exposed to NEF 30 would be
     reduced dramatically from about 700,000 to 60,000, even if
     present runways were used.   While the use of quieter engines
     would not eliminate the noise problem in communities surround-
     ing Kennedy Airport, it would so reduce its severity as to
     permit the implementation of a long-range plan for completely
     compatible land use in the environs of the airport.  Until
     aircraft are equipped with quiet engines, compatible land
     use is not a realistic possibility within the foreseeable
     future.303

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                           2-101

This study further recommended that the DOT should "Require the

installation of acoustically treated nacelles on all existing
                 304
aircraft by 1975"  and "establish a regulation requiring that all

new aircraft have engines that are quieter by 10 EPNdB . .  . below
                          305
present standards by 1975."  Recommendations were also made

relative to the establishment and enforcement of new building

construction standards "that protect the health and welfare of
                                  306
occupants against aircraft noise."

     The significant import of the recited findings and conclusions

from the foregoing reports is that legal concepts and techniques

constitute only one of multiple inputs required for an overall

program of aircraft noise abatement.  The need for a comprehensive

interdisciplinary approach was recognized several years ago by the

OST Panel on Jet Aircraft Noise in Conclusion 17 of its report:

     Conclusion 17.  In view of the general pessimism as to
     how much near term noise reduction can be achieved by
     further R&D focused on the engine and aircraft, or by
     additional modifications of flight procedures in the vici-
     nity of airports, and because of the apparent general inade-
     quacy of zoning authorities and financial resources for other
     routes to accelerated attainment of more compatible land uses, it
     seems that some new combination of the available tools—con-
     demnation authorities, police powers, program controls, and/or
     financial assistance by Federal and State aovernments—will
     need to be devised for attacking the aircraft noise problem
     particularly in those communities where it is rapidly becoming
     more acute.

     It would seem that the new California aircraft noise abatement

regulatory scheme comes closest to implementing the OST rationale.

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                           2-102

Section 5000 of the statute states explicitly that the standards

are based upon two separate legal grounds:   1)  the power of airport

proprietors to impose noise ceilings and other limitations on the

use of the airport, and 2)  the power of the state to act to an

extent not prohibited by federal law.  Section 5003 provides that

"noise limits specified herein are not intended to prevent any

local government to the extent not prohibited by federal law or

any airport proprietor from setting more stringent standards."

Perhaps most significant is section 5011 which assures a large

measure of flexibility and discretion to airport operators, aircraft

operators, local communities, counties, the State, and other

interested parties so that they "can work together effectively

to reduce and prevent airport noise."  Methods approved (though

not exclusive) include:

          Encouraging use of the airport by aircraft classes with
          lower noise level characteristics and discouraging use
          by higher noise level aircraft classes;

          Encouraging approach and departure flight paths and pro-
          cedures to minimize the noise in residential areas;

          Planning runway utilization schedules to take into
          account adjacent residential areas, noise characteristics
          of aircraft and noise sensitive time periods;

          Reduction of the flight frequency, particularly in the
          most noise sensitive time periods and by the noisier
          aircraft;

          Employing shielding for advantage, using natural terrain,
          buildings, et cetera; and

          Development of a compatible land use within the noise im-
          pact boundary.

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                           2-103


     Clearly,  certain California officials who are familiar with

the State's effort to abate aircraft noise and also knowledgeable

about airport operations are convinced that appreciable abatement

can be accomplished through exercise of the proprietorship

authority and by State and local programs which do not impinge on
                                      308
Federal control of in-flight operations.  Even though most of the

techniques of abatement available to the States or municipalities

or to the airport operator as proprietor may be of only marginal

utility, at least over the short term, it can be expected that

efforts of some sort will persist.  After all, the noise-abused

citizens are real people in identifiable communities who are becoming

wore and more insistent that effective abatement action be taken.

Since the Federal policy has consistently stated that the Federal

government has not completely preempted all control over techniques

of aircraft noise abatement but has left certain areas of regulation

to the States, it can be expected that the high density air traffic

states will continue to impose abatement measures of some sort.  If

Federal action (and court decisions) gradually but persistently

reduce State and local control over aircraft noise abatement until

it approaches the vanishing point, then the Federal government will

be hard put to refuse to accept all or a large measure of the

liability obligation with which the airport operator is now saddled.

Yet, practically speaking, there would still remain a need for State,

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                           2-104

local and private initiatives (in terms of systematic regulatory

schemes and techniques of abatement)  even if the Federal govern-

ment should accept full responsibility for liability resulting

from private suits.  Furthermore, as  previously noted,  many State

officials feel that there are useful  steps which can be taken

at the State, local or proprietorship level to curb unnecessary

aircraft noise.  At the very least it is felt that initiatives

such as that by California have been  influential in getting more

movement toward effective noise abatement at the  Federal and

State levels and in stimulating and institutionalizing public

response at the state and local level.

     Nevertheless, it is of some significance to note that two

recent studies of aircraft noise and airport noise regulation come

to the somewhat disillusioning conclusion that the ultimate

recourse, namely the courts, may be the only means of compelling

appropriate attention to the full range of social interests

affected by such noise pollution.  In the article "A Noisy Airport

is a Damned Nuisance" the authors state:

     It is time to call a halt.  In fact, it is long past time
     to do so.  We are living in a time when the noise problem
     has grown so severe that otherwise normal American house-
     wives are threatening to counter-attack with bombs, barrage
     balloons, or baby buggies, those airports which have forced
     their schools to close and their children to shriek in
     terror as the jets fly unconcernedly overhead.  This may be
     "progress" as seme define that term, but it is certainly not
     civilization.  If "progress" must be slowed in order to
     civilize it, then it will have to be slowed—and it must be

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                           2-105

     slowed now.   All who live in our modern society must,  to
     some extent,  adjust their lives and habits to the needs  of
     others.  So far, all of the "adjustment" has come from the
     airports' neighbors.

     If other public and private decision makers do not shut  off
     the noise, then it is up to the courts to order it stopped,
     or order the purchase of noise-devastated property,  or order
     the operational methods of the aircraft and airports altered
     until such time as the technology of silence catches up  with
     the technology of speed and power.

     To date, there has been a tragicomic display of buckpassing.
     The airports blame the airlines for wanting speed and the
     manufacturers for providing it.  The airlines blame the  public
     for wanting speed, the manufacturers for providing it and the
     airports for inappropriate runway location.  The manufacturers
     blame the airlines, the public and the airports.  The airports'
     fault the FAA for not exercising its authority.  The FAA says
     that's a local problem. ™^

In more succinct form the Airport Study Group of the Harvard

Environmental Law Society concludes:

     Of the many institutions able to respond to the aircraft noise
     problem, courts are least suited to evaluate the merits  of each
     approach.  Although the judicial process is unlikely to  produce
     a final resolution of the broader social and economic issues,
     it may stimulate more appropriate institutions like administra-
     tive agencies to effect a resolution of the relevant problems.

     The emphasis on the need to resort to the courts in order to

assure prompt and effective noise abatement may not at all be

misplaced.  While it is suggested above that the main implication

of Griggs was to place liability for aircraft noise on the airport

operator, it is the adjacent airport resident who not only absorbs

the detrimental impact but who must also bear the burden of initiating

remedial action.  Put otherwise, without a policy and implementing

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                           2-106




program involving the Federal Government, airport operators




or scheduled air carriers which could initiate satisfactory




preventive (removal)  or remedial (purchase of avigational




easements) action in the first place for affected residents or




businesses within intolerable noise contours, the crucial effect




of Griggs is to place the real burden on the noise-abused resident




or business man.  A suit is usually the only means by which he




can even get public notice of his injury, let alone satisfactory




action.

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                             2-107
  2.4.2  Regulatory Schemes for Abatement and Control of
         Environmental Noise Sources and Effects other than
         Aircraft Noise

A.  Analytical Framework

     This subsection will undertake to place those aspects of

the environmental noise regulatory scheme previously discussed

in Subsection 1, along with the regulation of various non-aircraft

noise sources and effects, into a perspective which will sharpen-

the issues which improved regulatory designs should take into

account.

     Attention will be given,  on a selective basis, to certain of

the following topics in this subsection  (2.4.2):

     *  What trends do the cases show with respect to the recognition

        by the courts of noise as a cause of injury to person or

        property which will be compensated in an action for nuisance

        or trespass or on the theory of a Constitutional "taking"

        or a State constitutional "taking or damaging" or for which

        full or modified injunctive relief might be available?

     *  What trends do the cases show with respect to actions

        brought pursuant to municipal noise control ordinances in

        terms of:

        1.  Authority asserted to justify enactment of the ordinance?

        2.  Limitations of authority recognized or asserted with
            respect to such ordinances?

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                         2-108
       a.  Preemption by Federal or state legislation
       b.  Preclusion by terms of state constitution
       c.  Due Process limitations:

           1)  Not reasonable means to a legitimate end
           2)  Discriminatory and violative of equal protection
           3)  Vagueness

       d.  Encroachment on free expression (1st Amendment)
       e.  Encroachment on other individual liberties
       f.  Threat to other significant social values such
           as safety, efficiency of operation, community
           economic well-being, etc.
       g.  Technological feasibility
       h.  Economic reasonableness
       i.  Undue burden on interstate commerce

•  What are the legislative trends at the state level with

   respect to noise source and effects regulation?:

   1.  Authority asserted to justify enactment of the
       legislation?

   2.  Limitations of authority likely to be asserted with
       respect to such statutory schemes?

       a.  Preemption by Federal legislation

           1)  Field completely preempted
           2)  More stringent standards precluded

       b.  Due Process limitations:

           1)  Not reasonable means to a legitimate end
           2)  Discriminatory and violative of equal protection
           3)  Vagueness

       c.  Encroachment on free expression
       d.  Encroachment on other individual liberties
       e.  Threat to other significant social values such
           as safety, efficiency of operation, community
           economic well-being, etc.
       f.  Technological feasibility
       g.  Economic reasonableness
       h.  Undue burden on interstate commerce

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                     2-109
3.  Implications for local noise regulation with respect to:

    a.  Criteria and standards
    b.  Participants affected
    c.  Implementing techniques
    d.  Enforcement procedures
    e.  Remedies and penalties
    f.  Local ambient noise levels

4.  Implications of noise level standards on judicial
    determinations of a Constitutional taking or of a
    State constitutional "taking or damaging"

What are the legislative trends and proposals at the

Federal level with respect to noise source and effects

regulation:

1.  Authority asserted to justify the enactment of the
    legislation?

2.  Limitations of authority likely to be asserted with
    respect to Federal noise regulatory schemes?

    a.  Due Process limitations

        1)  Not reasonable means to a legitimate public need
        2)  Discriminatory and violative of equal protection
        3)  Vagueness

    b.  Encroachment on free expression
    c.  Encroachment on other individual liberties
    d.  Threat to other significant social values such
        as safety, efficiency of operation, community
        economic well-being, etc.
    e.  Technological feasibility
    f.  Economic reasonableness
    g.  Invasion of State and local police power

3.  Implications for State and local noise regulation with
    respect to:

    a.  Standards setting
    b.  Use, operation, and movement of noise sources
    c.  Participants affected

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                     2-110
    d.  Implementing techniques
    e.  Enforcement procedures
    f.  Remedies and penalties
    g.  State and local ambient noise levels

4.  Implications of noise level standards on judicial
    determinations of a Constitutional taking or of a
    State constituional "taking or damaging"

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                             2-111


B.   Private Actions;  Suits Grounded in Nuisance,  Trespass,  and
                       Compensable Taking or  Damaging

     The legal concepts of trespass,  nuisance, Constitutional

taking and State constitutional "taken or damaged"  provisions have

been discussed in subsection 2.1.1 supra.

     The observations of Professor Milton Katz in subsection 2.1.1

supra are directly relevant to the application of private tort

actions as a means of abating or controlling environmental pollution

in all its various ramifications.  While he notes that such actions

may provide an incentive to defendant pollution sources (including

noise sources) to introduce more effective managerial methods or

improved technology in order to reduce pollution emissions, he also

finds that "there are serious obstacles to the effective use of

private tort actions against the source enterprises under existing
     311
law."     He concludes:

     In sum, I believe that private civil actions based on
     common law remedies, especially if and as they may be
     supplemented and reinforced by new legislation, can
     serve as one important factor among many in the imple-
     mentation of technology assessment and in the protection
     of the environment.  I stress equally that private civil
     actions at best can constitute only one important factor
     among many. ^

     Noise clearly has physical attributes but courts have tended

to consider noise as an "intangible" intrusion, in contrast to a

conventional physical trespass, or an "unmeasurable" nuisance.  It

is also easy for the courts to dispose of noise complaints as

grievances suffered by the public in general rather than having

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                             2-112


distinguishable effects on particular complainants.   In

Mathewson v. New York state Thruway Authority3    residents  of  a

village brought an action against the Authority to compel it

"to prohibit the use of the Thruway by trucks,  busses,  and tractor-

trailers through the village during the hours between 8 o'clock
                                            314
in the evening and 8 o'clock in the morning."  In affirming the

Appellate Division, the New York  Court of Appeals referred to

the action of the Appellate Division in stating that it:

     . . . held that the complaint was insufficient, where it
     did not appear from the complaint that the noises emanating
     from the normal operation of the Thruway adversely affected
     the village residents, who brought the action, more than any
     other property owners similarly situated, or that the noises
     subjected the village residents, who brought the action, to
     a greater share of the common burden of incidental damage
     cast on all those living in the vicinity.315

Courts are also concerned with defining the limits of liability

should they take a more favorable attitude toward noise-abused

complainants.  The task of identifying the nature and extent of

the effects of noise as well as  identifying the principal offenders

among multiple noise sources, and especially moving noise sources,

obviously poses a difficult practical problem for the courts.

It should come as no surprise, therefore, that courts have found

various legal devices for disposing of such complaints.  In a 1965
                     316
Washington State case    a hospital  sought  to  enjoin the  State Highway

Commission from constructing a freeway in such close proximity to

the hospital as to constitute an alleged nuisance.  The hospital

was the owner of property abutting on the proposed  freeway and

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                             2-113


it alleged that "the noise and fumes of traffic from the proposed

freeway, together with projected interference with established

access routes,  would invade and restrict the peaceable enjoyment

of the hospital properties, constitute a nuisance in fact,  and

cause substantial damage to respondent's property rights."317  Tne
                                                         318
suit was not brought on the theory of inverse condemnation.  The

lower court granted injunctive relief.  The State Supreme Court

did not find a nuisance:

     The freeway is to be built not only under general statutory
     authority of the highway statutes, but also pursuant to specific
     enactment of the legislature establishing the highway as state
     primary highway No. 2. . . .No claim is made that the highway
     derives its nuisance qualities from faulty design or negligence
     in construction or that it will be improperly maintained.  The
     fact of nuisance found to exist in future by the court comes
     directly from the consequences of proximity.  Deaconess Hospi-
     tal wishes to enjoin the highway — not generally as a nuisance
     but specifically within 300 feet of its buildings.  Our legis-
     lature seems to have anticipated this very situation,  for in
     1881 ... it re-enacted the following:  "Nothing which is
     done or maintained under the express authority of a statute,
     can be deemed a nuisance."

     With respect to noise abatement through nuisance actions

the general conclusion of Professor Katz apparently holds since

such actions do not appear to provide an effective means of overall

environmental noise control.  Nevertheless, over the years numerous

suits have been initiated against a variety of community noise

source activities which interfere with the use and enjoyment of
         320
property.

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                             2-114


     There is a more perceptible trend for courts to recognize

the damages resulting from noise intrusion in the "taking"  cases.

In addition to the aircraft noise inverse condemnation  suits

which appear to be on the increase,  there are also numerous suits

being brought on the theory of inverse condemnation or for

determination of appropriate elements of damages incident to

customary eminent domain proceedings for highway construction.

These cases are significant not only for reason that the Interstate

Highway system has criss-crossed the Nation but for reason  that

the availability of the Highway System has produced increased

density of vehicular traffic - a major source of environmental

noise.  Some of the more recent cases involving highway construction

and highway use noise are the foci of the following discussion.

     The traditional attitude of the courts has been to view

highway/vehicular environmental pollutants, including noise, as

incidental to the principal needs and functions of a progressing

technological society and, hence, as adverse side-effect in which

we all must share without complaint.  In a 1931 Arkansas case the

Supreme Court of that State, in considering the complaint of an

abutting property owner to a new highway bridge, stated:

     It is alleged that the grade of the highway was changed
     so that the bridge and the approaches thereto are higher
     than the plaintiff's house, and thereby obstructs the free
     course of light and air thereto.  Some damage is alleged
     to have been caused by the construction of the lights on
     the bridge which shine throughout the night into the dwelling

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                             2-115
     house of the plaintiff.  We do not think the plaintiff,  however,
     should recover anything for noise, dust, and matters of that
     sort, which, in varying form,  are incidents to living upon a
     public highway or street, and, as such,  must be borne by all
     owners of abutting property.

     In addition to the Arkansas case cited above, several other

State courts have held that damage alleged from noise with respect

to highway construction and use is not compensable where there

has been no physical taking of any of complainant's property.

In a 1960 California eminent domain proceeding the Supreme Court
                                                                 322
of that State, in the case of Department of Public Works v. Symons,

quoting the earlier case of Eachus v. Los Angeles, stated the

general rule of that State:

     The Constitution does not, . . . authorize a remedy for
     every diminution in the value of property that is caused by
     a public improvement.   The damage for which compensation is
     to be made is a damage to the property itself, and does not
     include a mere infringement of the owner's personal pleasure
     or enjoyment.  Merely rendering private property less desirable
     for certain purposes, or even causing personal annoyance or
     discomfort in its use, will not constitute the damage contem-
     plated by the constitution;  ....

The Court continued:

     It is established that when a public improvement is made on
     property joining that of one who claims to be damaged by
     such general factors as change of neighborhood, noise, dust,
     change of view, diminished access and other factors similar
     to the damages claimed in the instant case, there can be no
     recovery where there has been no actual taking or severance
     of the claimant,'s property.

Subsequent California cases have served to buttress this position.
                                       325
In Department of Public Works v. Presley the court denied compensation

-------
                             2-116


to an abutting property owner (also the  owner of the  tract  condemned),

alleging injury which would result  from  an increase in noise,

fumes, and annoyances from increased traffic on the developed

freeway.  The court stated:

     We have express precedent in California opposing defendant's
      (original claimant) contention.  In City of Berkeley v. Von
     Adelung, supra (1963), 214 Gal. App. 2d 791,29 Cal. Rptr.  802,
     the city in rounding off the angle  of a street corner took
     a portion of defendant's corner lot.  "Defendant offered  to
     prove that the effect of the project as a whole would be  to
     approximately triple traffic past defendant's lot, with
     resultant increase in fumes and traffic noises."  (At pp.
     792-793, 29  Cal. Rptr. at p.  803).  The court held that  any
     decrease in the value of defendant's remainder because of
     this was uncompensabler that it was an inconvenience "general
     to all property owners in the  neighborhood, and not special
     to defendant."  (p. 793, 29 Cal. Rptr. p. 803).
                                    327
In Lombardy v. Peter Kiewit j?on's Co. property owners brought  an

action against the State and a highway contractor for damages  claimed

to have been sustained as a result  of construction and operation

of a freeway, the California  Court of  Appeals, 2nd Division

stated that:

     The mental, physical and emotional distress allegedly suffered
     by plaintiffs by reason of the fumes, noise, dust, shocks,
     and vibrations incident to the construction and operation of
     the freeway does not constitute the deprivation of or damage
     to property or property rights of plaintiff's for which they
     are entitled to be compensated.

     There can be no recovery where there has been no actual taking
     or severance of the claimant's property.

After finding that the complaint failed to state a cause of action

in inverse condemnation, the Court considered the allegation that

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                             2-117


the construction and use of the highway constituted a nuisance.

The Court displayed little sympathy to this claim noting that:

     All householders who live in the vicinity of crowded
     freeways, highways and city streets suffer in like manner
     and in varying degrees.   The roar of automobiles and trucks,
     the shock of hearing screeching brakes and collisions,  and
     the smoke and fumes which are in proportion to the density
     of the motor vehicle traffic all contribute to the loss of
     peace and quiet which our forefathers enjoyed before the
     invention of the gas engine.

Explaining that state highways are constructed and maintained

under the authority of the State constitution, the Court recited

the Civil Code which provides that "Nothing which is done or

maintained under the express authority of a statute can be deemed
            331
a nuisance."

     Other States which have considered the question of allowing

recovery for noise intrusion from highway construction and operation
                                                          332
on abutting landowners tend to follow the cases cited above.   For
                                                                 333
example, in the 1966 Georgia case of  Richmond County v. Williams,

the suit had been initiated by a homeowner for damages to his house

resulting  from nearby highway construction and pile-driving. The

complainant also alleged that the "presence of the highway in

such close proximity to their house has rendered it unfit for

residential use by reason of the attendant noise of the engines

of large diesel trucks, horn blowing and the glare of headlights
                                   334
from passing automobiles and trucks."   The Georgia  State Court

of Appeals held that damages for depreciation of property resulting

-------
                             2-118


from physical damaging (Georgia is a "taken" or "damaged" state)

was clearly recoverable,  but "the elements of inconvenience, etc.

resulting from the noises of engines, horn blowing, glare of

lights and the like from passing traffic on the highway are not
            335
recoverable."
                                                               336
     However, in the 1970 case of Cheek v. Floyd County, Georgia

decided by the U. S. District Court, N.D. Georgia, pursuant to

Georgia law, it was held that in an action for damage to property

resulting from highway construction, that an abutting property

owner could recover for loss of access, noise, fumes, and light

beams resulting from the construction.  The court noted that the

injuries complained of did not involve a taking but only a

"damaging" of property and hence, that the elements of "damage"

must be determined.  The court observed that whether noise, fumes,

and light beams are compensable elements presents a serious question

and that "the Georgia cases are not clear on the compensability
                           337
of  (such) elements  . . . ."     It was further stated:

     To the extent that these elements could be classed as  instances
     of mere inconvenience or instances suffered by the public in
     general along the project, then no compensation would be allowed.
     But beyond this, can thfese elements be considered as compensable?
     The Georgia cases dealing with these elements are not numerous.
     However, the recent case of State Highway Department v.
     Hollywood Baptist Church of Rome, supra, indicates that noise
     may be considered in determining damages if it is shown that
     the noise is a continuous and permanent incident to the improve-
     ment to be made and that it in fact specially affects the
     market value of the property.

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                             2-119


Only a nominal amount of $1,000 was awarded as "Permanent nuisance

damage," the Court stating that "any depreciation in value from

noise, lights, etc. is minimal as it could exceed that of other
                               339
property owners only slightly."

     While the courts have not tended to recognize noise damages

to property owners whose tracts are adjacent to a highway right-

of-way but whose property has not actually been physically taken,

the states have adopted differing positions with respect to noise

intrusion where there has been a partial,  physical taking of the

plaintiff's property.  In a 1963 Kentucky case, the State Department

of Highways moved the right-of-way 66 feet closer to a drive-in
                                                          340
theatre, condemning this segment of the theatre's property.   The

Kentucky Court of Appeals affirmed a lower court judgment which

awarded compensation for the property taken and for resulting

damages to the remainder.  The Court said in part with respect

to witnesses for the theatre:

     However, as we read their testimony these witnesses
     did not base their estimates of values on any considera-
     tions of past or future profits of the particular theatre
     here involved, but upon the effect a close location to a
     highway has upon the business of drive-in theatres generally
     . . . . In effect the witnesses here testified that noise
     and lights resulting from close proximity to a highway will
     cause a loss of income to a drive-in theatre, thus depreciating
     its market value.  We think the testimony was competent.
                                                             342
In Mississippi State Highway Commission v. Colonial Inn, Inc.   the

Highway Commission condemned a five foot strip of plaintiff's land

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                             2-120


(leasehold interest on motel property)  and a dispute arose as to

the elements of damage to be considered.   The State Supreme Court

explained its concept as follows:

     In the instant case, part of the owner's land has been taken.
     The remainder abuts on the highway,  and defendants (original
     plaintiff) are entitled to compensation for injuries to it
     caused by the noise, vibrations, and increased proximity of
     the highway traffic allocated to the additional land taken.
     Compensation for such injury is allowed, not as a distinct
     element of damages, but only as affecting the market value
     of the property.  Moreover, the injury must be special, and  .,43
     not such as is co::mon to all the property in the neighborhood.

And in the South Carolina case of State Highway Department v.
         344
Touchberry  involving a condemnation proceeding, the Supreme

Court of that State affirmed a lower court which submitted to

the jury four factors for assessing compensation claimed by the

landowner as elements of damage  (traffic noise, loss of breeze,

loss of view, and circuity of travel).  The Department claimed

that submission of these four factors was error.  With respect

to traffic noise, the defendant contended that construction of

the highway near the plaintiff's residence did not constitute

special damage because there was no showing  that the alleged injury

was special and peculiar to the plaintiff as contrasted with noise

intrusion commonly suffered by others with homes in close proximity

to the highway.  The Court based its refusal to grant a new trial

to the defendant on the applicable rule quoted  from the decision

of South  Carolina State Highway Department v. Boltt

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                             2-121
     "When a part of a parcel of land is taken by eminent domain,
     the owner is not restricted to compensation for the land
     actually taken; he is also entitled to recover for the damage
     to his remaining land.   In other words, he is entitled to
     full compensation for the taking of his land and all its
     consequences; and the right to recover for damage to his re-
     maining land is not based upon the theory that damage to
     such land constitutes a taking of it, nor is there any require-
     ment that the damage be special and peculiar,  or such as would
     be actionable at common law; it is enough that it is a conse-
     quence of the taking.  The entire parcel is considered as a
     whole, and the inquiry is, how much has the particular public
     improvement decreased the fair market value of the property,
     taking into consideration the use for which the land was
     taken and all the reasonably probable effects of its devotion
     to that use."  (Emphasis added.)

Further, in a recent California case of inverse condemnation, the

Court of Appeal, Second District, affirmed a lower court which

permitted the jury "to consider the property's loss of view and

relatively unrestricted access to the beach in determining
                  346
severance damages."   The opinion states in this connection:

     Where the property taken constitutes only a part of a
     larger parcel, the owner is entitled to recover, inter
     alia, the difference in the fair market value of the
     remaining portion thereof after the construction of the
     improvement (here for freeway)  on the portion taken.
     Items such as view,  access to beach property,  freedom
     from noise, etc. are unquestionably matters which a willing
     buyer in the open market would consider in determining the
     price he would pay for any given piece of real property.
     Concededly such advantages are  not absolute rights,  but to
     the extent that the reasonable expectation of their continuance
     is destroyed by the construction placed upon the part taken,
     the owner suffers damages for which compensation must be paid.

     There are cases to the contrary, however,  of which the Missouri

cases are illustrative.  In a 1963 condemnation case, State Highway
                  348
Commission v. Turk, the Supreme Court of that State held it to be

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                             2-122


reversible error for the lower court to have permitted testimony

relating to noise and traffic as elements of damage.   The Court

stated:

     It appears to be settled in this state that "the amount of
     noise and speed of the traffic on the highway are not proper
     elements to be taken into consideration in arriving at the
     damage resulting from condemnation of land for State Highway
     uses or for railroad,uses.

In the 1965 condemnation suit of State Highway Commission y. King
                   350
Brothers Motel, Inc.,  the St. Louis Court of Appeals cited the

Turk case and stated:

     (I)t was there held that the amount of noise on the highway
     is not a proper element to be taken into consideration in
     arriving at the damage resulting from the condemnation of land
     for highway uses.    We must therefore agree with plaintiff
     that the court erred in admitting evidence as to the factors
     of traffic and noise on the outer roadway.

But there seems to be language,  supported by one line of Missouri

cases involving compensation for diminished property value, which
                                                   352
is referred to both in the King Brothers Motel case  and the 1966
                                           353
case of State Highway Commission v. Galeener  which could provide

a plausible rationale for introduction of the noise factor into

the assessment of damages if and when the Missouri courts wish

to depart from the Turk rule.

     The 1968 New York case of Dennison v. State may prove to be

one of the more significant developments in the judicial treatment

of noise as a compensable element in a partial taking with respect

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                             2-123


highway construction and highway vehicular noise.   The lower

court, in proceedings on a claim for appropriation of a portion

of claimant's homestead which was "entirely secluded, quiet and

peaceful," considered noise as a factor in determining the award

for consequential damages.  The lower court did not make a separate

award for damages due to noise but considered it as one

factor in determining the decrease in the value of the remaining

property.  On appeal, the State argued that this procedure for

determining damages was error.  The State also asserted that alleged

elements of damage which are not peculiar to the owner of the

remaining property but suffered by the public in general should

be excluded from consideration, and further:

     Thus, the State points to the fact that where there has been
     no partial taking of property, an owner whose property adjoins
     a public highway would not be entitled to damages resulting
     from the depreciation of his property due to the noise of cars
     and trucks passing on the highway (citing several New York
     cases) . . .  Therefore, a property owner should not be
     entitled to compensation for such damages merely because of
     the fortuitous circumstance that a portion of his property
     was needed to construct the highway.

Even though the State conceded that "where there is a partial

taking, consequential damages which ensue upon the taking are to
                                       356
be considered in determining the award,"  the State also contended

that a determination must be made as to "which portion of the

diminution in value was due to loss of privacy and view and which
                          357
portion was due to noise."    The Court of Appeals majority opinion

replied to this contention as follows:

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                             2-124
     This does not answer the question and is clearly contrary
     to cases in this and other jurisdictions which have
     recognized that, where there has been a partial taking of
     property of the kind present here, the noise element may be
     considered as one of several factors in determining conse-    353
     quential damages, (citing cases from Pennsylvania and Nebraska)

The majority affirmed the order of the Appellate Division, but

several questions were raised by the concurring and dissenting

opinions.  Judge Fuld,  concurring, said that "I agree with

Judge Keating (majority) and would simply add that we are not,

contrary to intimations in the dissenting opinion, "accept(ing)
                                                            359
future traffic noise as an element of consequential damage."

But this point is not elaborated upon so as to indicate just how

"future traffic noise" is distinguishable from the noise factor

approved by the controlling opinion.  Judge Fuld also makes an

explicit point of the uniqueness of the property here involved,

comparing it to hospitals and cemeteries, emphasizing that the

distinguishing factor "is the quietude, the tranquility and the

privacy of the property,  qualities which the claimant prized

and desired and which undoubtedly are items that would be taken

into account by an owner and a prospective purchaser in fixing
                            360
the property's market value."

     The dissenting opinion of Judge Bergan questions whether

"future traffic noise is a legitimate part of consequential damages
                                                            361
at all," in view of the "very universality of traffic noise."    And

he found it difficult to "support the justice of a distinction

-------
                             2-125


between a man from whom a small slice of land is taken for a

road who may get damages for future traffic noise and a man who

is just as near the road and suffers every bit as much damage but
                            362
from whom no land is taken."    Rather than "unrestricted acceptance

of this enlargement of public liability," Judge Bergan suggested

a requirement, not imposed by the majority, that the party seeking

damages "show himself injured in a special way, not shared by
                                                        363
the general public, e.g., a hospital, a school, a church."

     Two subsequent New York cases which have considered Dennison

have applied qualifications to its application.  In Fleetwood
                       364
Synagogue, Inc. v. State,  the Court of  Claims held that noise

was an element to be considered in the determination of consequential

damages where there had been a partial taking for highway con-

struction.  But the opinion emphasizes the "special property" involved,

here a house of worship, and quotes from both the concurring and
                              365
dissenting opinions in Dennison. In a 1971 case,  Bronxville  Palmer
             366
Ltd., v. State, involving a partial taking for highway construction,

the  Supreme Court, Appellate Division  (3rd Department) held  that

the  Court of  Claims erred  in considering  "the  loss  of  privacy and

quiet,  loss of view,  light and  air,  exposure to traffic  noise,  light

and  odors" as adverse factors  in  the determination  of  consequential

damages,  the  court stating:

-------
                             2-126
     (T)he Court's (Court of Claims)  reliance  on Dennison  to
     support the other elements of consequential damages (noted
     above) is inappropriate,  since the location of subject
     property admittedly on two "principal thoroughfares"  in
     Yonkers, was a far cry from the "entirely  secluded, quiet
     and peaceful" setting pictured in Dennison .  . .  nor was
     this ten story apartment  enterprise in a busy,  highly  populated
     area a property possessing the "quietude,  the  tranquility
     and privacy" prized and desired in Dennisonf°

     This review of recent highway construction and traffic

noise cases discloses a strong continuing reluctance of the

judiciary, with some exceptions, to expand legal recognition of

injury from noise sources.  Courts tend to dismiss  claims  of

injury (effects) which cannot  be demonstrated in terms both

understandable and susceptible to measurement by the court or

a jury.  Noise is a complicated and elusive phenomenon.  Excessive

noise may be caused by multiple moving sources  rather than an

easily identifiable stationary source.  Noise may  be only one of

numerous concurrent annoyances  (dust, bright lights, fear)  which

cumulatively may amount to excessive interference  with the use and

enjoyment of property.  Noise  and other irritants  affect different

people and different property  owners in varying degrees.  Clearly,

these factors give the courts  concern.   The existence of these

characteristics is the reason  that courts have generally been

more likely to permit evidence of excessive noise  where there

has been an actual taking initiated by the State since this provides

-------
                             2-127


a means of limiting legal recognition of noise injury to

identifiable claimants.

     The increasing public reaction to excessive noise is

placing considerable strain upon the more conventional noise

doctrines, however. Doctrine being developed in the aircraft

noise cases will inevitably have increasing effect on claims

of noise injury from other noise sources.  Some of the emerging

issues were placed in sharp focus by the 1968 Florida inverse
                                                        368
condemnation  case of Northcutt v. State Road Department,

wherein an abutting property owner who suffered damages from

highway construction was denied damages resulting from noise,

dust, and vibrations.  The opinion states:

     They (plaintiffs) claim that the defendant placed the
     limited access right-of-way to interstate highway very
     close to their real property.  They alleged that the
     constant use of the quiet residential side street as an
     access road to the highway by earth moving equipment,
     dump trucks, concrete mixers, cranes, bulldozers,
     machinery, etc. during and after the construction of the
     interstate highway was a direct, and proximate cause of
     certain damages to their house and real property; thus
     causing the house to become structurally unsound and
     uninhabitable, and that their damage was irreparable and
     continuing.  They alleged that the defendant had con-
     structed, maintained and operated the interstate highway
     so as to cause heavy industrial and commercial traffic to
     use it so near their property as to cause excessive shock
     waves, vibrations, and noises, at all hours of the day and
     night which impaired their health and caused them to lose
     sleep, become ill and nervous and deprived them of the use
     and aesthetic beauty of their property, causing it to lose
     its value for residential purposes so that it cannot be
     sold or financed for any use or purpose

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                            2-128
The plaintiffs relied primarily upon the case of City of Jacksonville
          370
v. Schumann  wherein a complaint for inverse condemnation was

filed by 57 property owners adjacent to the municipally owned

Imeson Airport.  Injunctive relief was granted for reason of

noise and vibration nuisance originating with aircraft using the

field.  According to one commentator "Florida case law . . . seems

clearly to require the physical invasion or trespass necessary

for a taking before relief or damages will be afforded to adjacent
                        371
or abutting landowners."   He continues with respect to the Schumann

case:

     The physical trespass of the low-flying aircraft was
     considered only incidentally, this case introduced Florida
     to the increasing line of "airport cases," a major inroad
     in limiting the unconstitutional taking of property, and
     seemed to form a basis for valid extension into other
     takings by nuisance.  In fact, in the later appeal from the
     final decree in Schumann, the court maintained that Florida
     is now committed to the view adopted in the airport cases
     that noise and vibration can be a nuisance and that such
     nuisance can give rise to an easement for which compensation
     must be paid.

But in Northcutt, the District Court of Appeal of Florida  (3rd

District) did not accept the doctrine of Schumann, but undertook

to distinguish the factual situations:

     We think there is a substantial difference between the use
     of an airport by airplanes and the use of highway and access
     roads by motor vehicles.  The noise intensity factor is
     different; the safety factors are different; and the use
     factors are different. ... An airport may be placed at a
     considerable distance from a city while it is a public
     necessity for roads and highways to be built close to, or
     directly through a city, and sometimes through its most
     heavily populated areas.

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                             2-129


The court pointed out that the Florida constitution does not

provide just compensation to the property owner for "damage" to

his property.  It did not find the complainants to be situated

differently from "thousands of their fellow country men whose

homes abut highways and railroads and who endure the noise without
           374
complaint."    It is of interest to note that Nichols on Eminent

Domain (§14(1)) is cited for the "general rule"375 to support the

court's holding (based on Nichols1 quoting of a Florida case)

whereas the above mentioned Florida Law Review commentator quotes

Nichols on Eminent Domain as follows:

     The modern and prevailing view is that any substantial
     interference with private property which destroys or lessens
     its value, or by which the owner's right to its use or
     enjoyment is in any substantial degree abridged or destroyed,
     is ... a "taking" in the constitutional sense, to the extent
     of the damages suffered, even though the title and possession
     of the owner remains undisturbed.

The commentator asserts that "Under this construction, there need

not be a physical taking of the property or even dispossession.

Any substantial interference with basic rights growing out of
                                                      377
ownership of private property is considered a taking."  He notes,

however,  that the "courts seem to fear an overwhelming volume of

claims upon extending the compensation for a de  facto  taking of
                   378
adjacent property,"   and concludes:

     It is apparent that the consequential damage and physical
     trespass limitation currently in vogue in many states is
     an attempt to draw an arbitrary line to prevent frivolous

-------
                        2-130
claims.  But it is at least arguable that yesterday's frivolous
claim may have become both real and justified today because of
the increased potential of automotive noise and vibration.

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                             2-131


C.  Noise Regulation Through Municipal Ordinances

     In previous Sections  (2,1.1, 2.1.2, and 2.4.2B) the

basic legal rationales for the initiation of private suits

against noise sources in both the private and public sector

have been discussed.  The focus here is on local control of

environmental noise by means of municipal ordinances.  A succinct

summary by Lewin provides an introduction to this discussion:

     Excessive noise can cause loss of hearing or a hearing
     impairment; at less offensive levels it interferes with
     speech or can cause tension and anxiety.  Aside from the
     physical effect on an individual, excessive noise can
     adversely affect one mentally.  Courts have allowed
     recovery for pain, suffering, discomfort,  inconvenience,
     and financial loss caused by noise.  Recovery has also been
     permitted where noise has caused the death of animals,
     structural damage to buildings, and adverse psychological
     consequences, including a general detriment to persons,
     property values, and the quality of life.

     Private nuisance suits, though quite common, are not, however,
     an effective way of preventing urban noise problems. Private
     individuals cannot be relied upon to bring suits against all
     noise makers: private noise litigation is often so expensive
     that court action is not warranted; city noises often come
     from unidentifiable sources; judges are usually reluctant to
     restrain noises unavoidably created by business, government,
     or government-authorized groups.  Furthermore, even though
     private remedies might solve the individual's noise pollution
     problem, these remedies usually do not solve the Urban noise
     problem.

Lewin in his chapter on "Noise Pollution" in Law and the  Municipal

Ecology classifies local ordinances according to 1) ordinances to

preserve the public peace and tranquility; 2) ordinances to abate
                                                              382
noise as a nuisance; and 3) use-by-category zoning ordinances.

-------
                             2-132
The authority for each type of ordinance would,  of course,  be

based on the police power of the municipality as an instrumentality
             383
of the state.

     Peace and tranquility have been protected by ordinances

prohibiting drunk, noisy and disorderly conduct, unnecessary

blowing of locomotive whistles within the corporate limits, and

by regulating the beating of drums or other noise sources on the

city streets.

     Ordinances to abate noise as a nuisance "more or less

follow the law of nuisance as developed at common law and in
        384
equity."   It is the task of the courts to determine whether the

standard provided (such as "excessive" or "unnecessary noise") is

constitutionally supportable, whether the activity controlled or

regulated has been preempted by  State  or  Federal  laws or regu-

lations, and if applicable in light of the first two considerations,

whether the traditional common law elements of a nuisance have

been met in the particular case.  Such ordinances apply specifically

to or have been alleged to apply to such activities as merry-go-

rounds, roller coasters, noise created by the activities of a

dance hall, the operations of steelyards, concrete mixing plants,

motor vehicles on a drag strip, and the playing of musical
            385
instruments.

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                             2-133
     In the  1970 North Carolina case of Jones v. Queen City
               386
Speedway, Inc.,  the State Supreme Court held that the plaintiffs

 (nearby residents to an auto race track) were entitled to a

judgment restraining the operation of the track in such  manner  as

to constitute  a nuisance (because of lights, noise, and dust).

The court  found the following ordinance of the City of Charlotte

to have been violated even though such ordinance was not invoked

at the trial level:

     Section 23-30.  Noises.  Every use, activity and process
     shall be  so operated that regularly recurring noises are
     not disturbing or unreasonably loud, and do not cause injury,
     detriment or nuisance to any person.  Every use, activity  and
     process in business and industrial districts shall be so
     operated  that regularly recurring noises, as detected by
     the human sense of hearing, without instruments, at the
     adjoining residential or office district boundary lines,
     shall not exceed the normal noise level generated by uses
     permitted in residential and office districts.


      If this ordinance had been primarily relied upon by plain-

tiffs,  a question as to the constitutionally of the standard,  i.e.,

"that regularly recurring noises are not disturbing or unreason-

ably loud"  might have been raised.   Such alleged noise would

have to be detected,  "without instruments"  and set against the

suggested ambient noise standard,  i.e.,  "normal noise level gen-

erated by uses permitted. ..."  It is somewhat puzzling why

the Court introduced the ordinance into the opinion since it is

clear that the elements of a common law nuisance would have to be

-------
                               2-134


shown in order to justify injunctive relief.  In explanation the

Court says:

       The mere violation of a municipal ordinance does not
       constitute a nuisance,  but if the actual thing is a
       nuisance or in the nature thereof and it is done or
       maintained in violation of a municipal ordinance, it
       may constitute such nuisance as against which relief
       may be obtained by one who suffers special and pecu-
       liar injury of an irreparable nature therefrom.388

Somewhat more helpful is the Court's quotation from the case of

Hooks v. International Speedway, 263 N.C. 686, 140 S.E. 2d 387  (1965)

       Where noise accompanies an otherwise lawful pursuit,
       whether such noise is a nuisance depends on the local-
       ity, the degree of intensity and disagreeableness of
       the sounds, their times and frequency, and their effect,
       not on peculiar and unusual individuals but on ordinary,
       normal and reasonable persons of the locality.

     Numerous types of zoning ordinances exist as noted in Subsec-

tion 1.4 and elsewhere in this Report which are designed at least

in part, to regulate noise making activities, especially those

                                        390
of a manufacturing or industrial nature.

     There are, of course, a variety of ways of classifying

municipal ordinances for the regulation of noise sources and

effects other than the categories suggested by Lewin.  The NIMLO

Model Noise Ordinance sets forth various "acts" which would con-

stitute a violation of the Model Ordinance.  Greenwald has also

                                                           391
presented a more refined classification than that of Lewin.

     The basic concern at this point is with the limitations on

the exercise of the police power by municipalities in regulating

-------
                               2-135
noise making activities.  For example, standards set forth in




the ordinance may be challenged for being "unconstitutionally




vague," and therefore void for lack of "due process," or as being




discriminatory and violative of "equal protection of the laws."




If the standard is found to be sufficiently definite to meet con-




stitutional requirements, it may nevertheless be found that the




ordinance is administered in a discriminatory manner.  Even if




these fundamental tests are met, other factors  (and objections)




must be considered.  Does the ordinance encroach upon specific




constitutional rights such as individual free expression or free-




dom to engage in desired activities or occupations?  Objections




may be raised as to whether a noise abatement ordinance may inter-




fere unreasonably with public safety which is also a prime



                   392
public policy goal.     Perhaps the most significant question of




all is that of preemption of the "field" of regulation by the




state or by the Federal government.  This question is becoming




increasingly critical as Federal, State and local jurisdictions




undertake to regulate activities or to alleviate social problem




areas which require, in some degree, action at  all levels of




government.  At the national level there is not only the question




of whether specific Federal legislation has preempted the field




of activity covered by a local ordinance but the broader considera-




tion of whether,  absent Federal legislation,  a given activity weighs




so heavily as a national interest - as for example, the free flow

-------
                               2-136


of interstate commerce - that a state or locality is excluded

from participation in regulation with respect to such activity.

Conceivably certain standards might be alleged to be econo-

mically unreasonable or technologically infeasible and challenged

as a denial of due process or as constituting an undue burden

on interstate commerce.

     Ordinances prohibiting or regulating the use of sound trucks

                                                               393
raise several of the foregoing questions.  In Saia v. New York,

a Lockport, New York, ordinance banning the use of sound ampli-

fication devices except for the dissemination of news items and

"matters of public concern" provided that such activity could be

engaged in only "under permission of the Chief of Police."  The

majority opinion, per Justice Douglas, stated:

       There are no standards prescribed for the exercise of
        (the Chief of Police's) discretion.  The statute is not
       narrowly drawn to regulate the hours or places of use of
       loud-speakers, or the volume of sound  (the decibels) to
       which they must be adjusted. .  . .  The right to be
       heard is placed in the controlled discretion of the
       Chief of Police.  He stands athwart the channels of
       communication as an obstruction which can be removed
       only after criminal trial and conviction and lengthy
       appeal.

       Loud speakers are today indispensable instruments of
       effective public speech.  The sound truck has become an
       accepted method of political campaigning.  .  . .  Any
       abuses which  (they) create can be controlled by narrowly
       drawn statutes.  When a city allows an official to ban
       them in his uncontrolled discretion, it sanctions a
       device for suppression of free communication of ideas.

       In this case a permit is denied because some persons
       were said to have found tine sound annoying.  Annoy-
       ance at ideas can be cloaked in annoyance at sound.
       The power of censorship inherent in this type of
       ordinance reveals its

-------
                               2-137
                                               396
     In the subsequent case of Kovacs v. Cooper    involving a

Trenton, New Jersey, ordinance which prohibited the use of any
                                                                 397
vehicles with sound amplifiers emitting "loud and raucous noises,"

Justice Reed in the principal opinion, in which he was joined by

Justice Burton and Chief Justice Vinson, found that the standard

of "loud and raucous" was not so vague and indefinite as to be

properly enforced.  In reference to this standard he stated that:

       While these are abstract words, they have through
       daily use acquired a content that conveys to any
       interested person a sufficiently accurate concept
       of what is forbidden.

Other pertinent extracts from Justice Reed's opinion follow:

       The unwilling listener (to sound truck amplifiers) is
       not like the passer-by who may be offered a pamphlet
       in the street but cannot be made to take it.  In his
       home or on the street he is practically helpless to
       escape this interference with his privacy by loud
       speakers except through the protection of the munici-
       pality. 399

       The preferred position of freedom of speech . . . does
       not require legislators to be insensitive to claims by
       citizens to comfort and convenience.  To enforce free-
       dom of speech in disregard of the rights of others would
       be harsh and arbitrary in itself.  That more people may
       be more easily and cheaply reached by sound trucks . . .
       is not enough to call forth constitutional protection
       for what those charged with public welfare reasonably
       think is a nuisance when easy means of publicity are
       open.  There is no restriction upon the communication of
       ideas or the discussion of issues by the human voice,
       by newspapers, by dodgers.  We think that the need for
       reasonable protection in the homes or business houses
       from the distracting noises of vehicles equipped with
       sound amplifying devices justifies the ordinance.

-------
                               2-138
     Lewin reviews several cases subsequent to Kovacs involving

efforts to regulate the use of sound amplifiers and loud-speakers
                                                                  401
in the streets and public places by means of municipal ordinances.

There has been a definite split in the cases although the fact

situations, including the nature of the ordinances, have differed

substantially.  Where an ordinance requires a permit for the

operation of a sound truck or similar device, the absence of

uniform standards for issuance or denial of such permit, is

                                         402
without doubt constitutionally defective.     Such ordinances

invite arbitrariness in application.  Further, such standards as

"the making of \innecessary noises" also invite arbitrariness in

application and may be found to be unconstitutionally vague.

Lewin asserts that:

       On the whole, noise ordinances will probably continue
       to raise constitutional questions of vagueness unless
       there is an absolute ban on noise above certain decibel
       levels (which would be adjusted for frequency variations),
       for certain times, at certain places.  The new "decibel
       law" would seem to avoid the problem of vagueness by
       establishing objective standards.

Yet, Lewin immediately qualifies the above statement in two

respects.  He discusses recent cases in which ordinances having no

decibel standards have not been declared invalid, other than

Kovacs,    and he points out the serious difficulties involved

                                                            405
with the enforcement of ordinances having decibel standards.

Quantitative standards avoid the problem  of unconstitutional

vagueness but do not necessarily facilitate the enforcement of

noise standards.

-------
                               2-139


     Cases in non-First Amendment contexts tend to support ordi-

nances which provide for verbal standards such as "unusual and

excessive" or "loud and explosive" or "loud and unnecessary.  . . "

For example, in City of Dayton v. Zoller,    the Court of Appeals

of Ohio upheld a city ordinance which provided in part:

       Exhausts.  The discharge into open air of the exhaust
       of any steam engine,  stationary internal combustion
       engine, motor boat, or motor vehicle except through
       a muffler or other device which will effectively pre-
       vent loud or explosive noises therefrom (is prohibited).

The Court concluded:

       In our opinion, the ordinance of the city of Dayton
       under consideration is a valid enactment, and falls
       within the proper exercise of the police powers of the
       city.  In the application of the reasoning in the Kovacs
       case, supra, we hold that the ordinance designates the
       act which is made an offense with sufficient specificity
       to avoid a charge of unconstitutionality on the ground
       of vagueness and uncertainty. ^

     Similarly, the Court of Appeals of North Carolina in a 1968

case, State v. Dorsett,^^^ upheld an ordinance of the City of

Greensboro which provided:

       The use of any automobile, motorcycle, or vehicle so
       out of repair, so loaded, or in such manner as to
       create loud or unnecessary grating, grinding, rattling
       or other noise (is prohibited).

The Court stated flatly that the lack of a decibel standard did

not render the ordinance unconstitutional for vagueness or indefi-

                                                  412
niteness saying, "such exactness is not required."     State  sta-

tutes providing such standards as "excessive or unusual noise"

have also been upheld in New York, California , and Texas. 13

-------
                               2-140
     Related questions may arise in situations where local ordi-

nances undertake to preclude the use of certain streets or to

prohibit the operation of vehicles in specified zones of a

municipality.  Case law in this area to date does not appear to

have dealt with the noise problem specifically but rather with

the regulation of traffic.  In the 1970 Delaware case of State
           414
v. Crossan,    an ordinance of the city of New Castle barred

trucks and other commercial vehicles from city streets unless

they were making pickups or deliveries within the city.  The

Superior Court of Delaware (New Castle) held that the ordinance

was constitutionally reasonable even though it required a sand

and gravel business to use an alternative route around the city

which was  several miles  longer than a  direct route through the city.

After first determining that the  State had no power, authority,

or jurisdiction of the streets of any incorporated city or town

the court  stated:

       It  is clear that a municipality has the constitutional
       power to regulate and, in certain areas,  even  exclude
       truck traffic within the city so long as such regula-
       tions bear a direct relationship to the public purpose
       to be served and is not unreasonable or arbitrary.

A different decision might have resulted, the Court indicates,

if no alternative route existed or if such alternative route

                                         416
constituted  "a dangerous traffic hazard."

     The type and extent of control over vehicular traffic which

a city can impose often depends on the  State constitution or

-------
                               2-141




State legislation which delegates certain authority to a city of


town, as for example the validity of an ordinance prohibiting all


commercja 1 vehicles from using certain designated streets except


for delivery purposes,    or the validity of an ordinance which


undertakes to establish a one-way lane for the exclusive use of

                    A I p
buses and taxi cabs.


     The courts have yet to pass upon many of the questions which


may be raised in connection with various provisions of new,


comprehensive city noise abatement codes such as the proposed


New York City Noise Control Code.     This Code undertakes to


apply a three-dimensional regulatory approach by 1) retaining


the common law nuisance ordinances which prohibit "unnecessary


noise" so as to preserve the court precedents which have accrued;


2) "setting specific decibel limits for those sound-producing


devices for which a feasible abatement technology exists"  (air


compressors, air conditioners, paving breakers, emergency sirens


and refuse compactor trucks); and by 3) introducing the concept


of ambient noise standards within particular zones of the city


related to land uses planned for such zones.  By the new Code,


the Environmental Protection Administrator of the city would be


empowered to protect residents from the "harmful effects of


unnecessary noise."  The Administrator would also have authority


"to shut down or order abatement of a device which may not itself


be beyond the standards set by the Code if that device is part of

-------
                               2-142






a cumulatively harmful set of noise sources."  Also,  the Adminis-




trator and the Board of Health may declare certain sections to be




"noise sensitive zones" in which public health may require excep-




tionally stringent noise standards.  Within two years of enact-




ment the Administrator would be required to submit to the City




Council ambient noise quality zones for the entire city with




appropriate noise criteria and standards for each zone.  The




crucial consideration is that future land use planning in New York




City will have to be "environmentally sound with respect to noise."




     One of the more significant provisions of the Code is the




authority granted the Administrator to place various noise-pro-




ducing devices on an Operating Certificate List.  A certificate




will be granted if 1) the device will be operated without




causing a violation of other Code provisions , or  2)  the device




incorporates advances in the art of noise control developed for




the kind and level of noise emitted by the particular device.  It




is obvious that a variety of legal questions may arise with the




application of this Code, as for example, potential conflict with




the establishment of maximum noise levels for various machinery




or devices by the Federal Government.  Provisions of this Code,




including the Enforcement sections, are discussed in Subsec-




tion 3.




     Local ordinances undertaking to control aircraft noise




which have raised questions of preemption and undue burden on

-------
                               2-143






interstate commerce have previously been discussed extensively




in subsections 2.3 and 2.4.1 supra and will be noted only




briefly here.  In Cedarhurst the ordinance which prohibited




flights over the city at less than 1000 feet was invalidated on




the grounds that it was an unreasonable burden on interstate com-




merce, invaded an area preempted by the Federal government and




conflicted with valid Federal regulations.  In Audubon Park, the




court held an ordinance prohibiting flights over the city at




altitudes under 750 feet to be invalid in that the aircraft could




not comply both with the ordinance and FAA regulations and for




reasons that it imposed an unreasonable burden on interstate com-




merce.  The Lockheed case involved a curfew ordinance.  The court




there observed that if such a local ordinance werre adopted by a




large number of cities, thereby focusing the problem at the na-




tional level, it would impose an unlawful burden on interstate




commerce.  In the Stagg case a curfew ordinance was upheld under




the particular circumstances, a critical point being that the air-




port involved was not used by scheduled interstate air carriers.

-------
                               2-144


D.  State Environmental Noise Regulatory Schemes

     In prior subsection 2.4.2C, local ordinances relating to

noise regulation were considered with respect to authority and

various aspects of limitations on municipal authority.   This sub-

section involving State regulation will focus primarily on the

implications of existing State constitutional provisions and

statutory schemes and prospective State noise abatement codes for

local noise regulation.

     Most states have "muffler" statutes.  In the 1966 New York

                       420
case of People v. Byron    the validity of the State Vehicle and

Traffic Law section was challenged.  This section provides:

       Mufflers.  Prevention of noise.  Every motor vehicle,
       operated or driven upon the highways of the state,
       shall at all times be equipped with an adequate muffler,
       in constant operation and properly maintained to pre-
       vent any excessive or unusual noise and no muffler or
       exhaust system shall be equipped with a cutout,  bypass
       or similar device.  No person shall modify the exhaust
       system of a motor vehicle in a manner which will amplify
       or increase the noise emitted by the motor of such
       vehicle above that emitted by the muffler originally
       installed on the vehicle and such original muffler shall
       comply with all the requirements of this section.421

The court found that what is "excessive or unusual noise" has

become common knowledge to the reasonable man and that the

                                                               422
standard is constitutionally adequate, citing Kovacs v. Cooper.

Responding to the defendant's contention that a new section 386

added in 1956 on motor vehicle noise limits established a decibel

sound level defining excessive or unusual noise was a "conscious

-------
                               2-145


attempt of the Legislature to supply the missing objective stan-

                                                  423
dard of the precise quantity of noise prohibited,"    the court

stated:

       The addition of section 386 was not an attempt to
       shore up subdivision 31 of section 375.  On the con-
       trary, it makes no effort to amend the earlier pro-
       vision and the two are meant to stand side by side.
       One now sets a limit beyond which no vehicle noise may
       go while the other requires each motorist to minimize
       the noise his particular vehicle makes within that
       limit.424

The court also noted that the States of Texas and California have

statutes virtually the same as section 375 and that the courts in
                                                 425
those states have upheld their constitutionality.

     The implications of above section 386 of the New York State

Vehicle and Traffic Law for local vehicular noise control have

been construed as follows in A Guide To The New York City Noise

                       426
Control Code (proposed)    with respect to Sound Level Standards:

       Article V. This article complements Article III in
       setting specific decibel limits or providing for such
       limits to be set in the future on a series of noise
       producing devices.  It includes subways, air compres-
       sors, circulation devices (chiefly air conditioners),
       refuse compactor trucks, motor vehicle horns and
       sirens,  and paving breakers.  The article doesn*t
       mention motor vehicle noise because the state has
       preempted such legislation and forbids the passage
       of local laws inconsistent with or duplicating
       existing state limits.  The state limits are high —
       88 dBA at a distance of 50 feet — and obviously
       were not intended for city streets when set (pedes-
       trians are frequently closer than 50 feet to motor
       vehicles operating on city streets), and so the
       Environmental Protection Administration is attempt-
       ing abatement of this important noise source through
       an amendment to the state law which is expected to

-------
                               2-146
       be acted on by the state legislature next year.  The
       amendment calls for limits of 78 dBA on passenger
       cars at 50 feet and 84 dBA at 25 feet.  Higher limits
       are set for buses and trucks over 10,000 pounds (88
       dBA and 94 dBA at 50 and 25 feet, respectively),  buses
       and trucks under 10,000 pounds (80 dBA and 86 dBA)
       and motorcycles (88 dBA and 94 dBA).

However, section 386 does not explicity state that control over

vehicle noise has been preempted by the State thereby divesting

local communities of all authority over vehicular noise.

     The preemption question in California seems to be similar

to that in New York.  California has a New Environmental Quality

Statute (Division 13 of the Public Resources Code) which explic-

itly recites "freedom from excessive noise" as an objective to be

achieved.   More pertinent to the present discussion, however, is

the California Vehicle Code which by Section 23130 prescribes

"operational" Vehicular Noise Limits for speed limit of 35 mph

or less and for speed limit of more than 35 mph.  Subsection (c)

of Section 23130 provides that:  "This section applies to the

total noise from a vehicle or combination of vehicles and shall

not be construed as limiting or precluding the enforcement of any

other provisions of this code relating to motor vehicle exhaust

noise." (Emphasis supplied.)   Section 27160 of the Vehicle Code

provides that "(a)  No person shall sell or offer for sale a new

motor vehicle which produces a maximum noise exceeding the follow-

ing noise limit..." (with dates and decibel limits prescribed).

-------
                               2-147


     As to the preemption question, a so-called Primer on Public

Environmental Law in California428 dated March 1971, which under-

takes to cite relevant State Code Sections, Regulations and Deci-

sions on various aspects of environmental noise control refers

only to Sections 23130 and 27160 under Vehicular Noise with the

notation: "Under regulations adopted by California Highway Patrol

enforced by C.H.P.,  county sheriffs, and city police."  Neither

of these two Sections has a positive, explicit provision concer-

ning preemption by the State of vehicular noise control.  But as

in New York it seems to be generally assumed that the state has

preempted the field.  For example, in the publication The Ten

Point Action Program For the Alleviation of Noise Pollution in

 Inglewood, California 2" a statement by an officer of the City

Noise Abatement Division asserts that control over noise from

trucks and buses "is a regulatory area which has been taken away

from the cities by the  State, at least in California."     This

position has been recognized by a proposal, not yet acted upon

by the State legislature, to reallocate and clarify the State/

local control relationship through a new Section 23131 which would

prescribe:

       The provisions of Sections 23130 and 27160 are not
       intended to preempt the field of vehicular noise.
       No provision of this code shall preclude any city,
       county, or city and county from enacting ordinances
       whereby zones are created in which the local juris-
       diction may impose more stringent noise limits on
       vehicles including motorcycles than are provided

-------
                               2-148
       by Section 23130.  Such limits may be effective both
       on an off highway.  Such local entity may adopt means
       for measuring such noise  other than those adopted
       pursuant to Subsection (b)  of Section 23130.   Pro-
       vided, no city, county, or city and county may enact
       any ordinance limiting vehicular noise on the Cali-
       fornia freeway and expressway system.431

     The lack of precision in the muffler laws of the various

states for purposes of identification anfi enforcement as well as

the indifferent attitude which has been taken by most states

toward such  laws, together with the movement toward comprehensive

State Environmental Quality legislation leaves the State/local

division of authority in disarray.  For example, Illinois  has

had a State statute since 1935 requiring all motor vehicles to be

equipped with an adequate muffler but no specific penalty is pro-

vided for a violation.432  The City of Chicago has an ordinance

on the books which requires all vehicles to be equipped with a

good muffler and prescribes a fine up to $200 for violations.

However, the new Chicago noise ordinance sets decibel limits for

motorcycles and vehicles of all sizes and forbids the modifica-

tion of any muffler in such a way as to cause the vehicle to emit

more noise than when it came  from the factory.     New State leg-

islation, the Environmental Protection Act, which became effec-

tive on July 1, 1970, provides in Title VI; Noise, that the pur-

pose of this Title is to prevent noise which creates a public

nuisance and requires that the Pollution Control Board prescribe

limitations  on noise emissions beyond the boundaries of the

-------
                               2-149





                       435
property of any person.     Clearly, preemption problems may




arise  if the Pollution Control Board undertakes to prescribe




maximum decibel noise levels from various noise sources now




regulated by local ordinance.  Of course, this will depend upon




whether State standards will be made exclusive or whether munic-




ipalities will be permitted to establish more stringent require-




ments.  Municipalities will undoubtedly be left with authority




to establish "Zones of Quiet" to preclude certain activities




within designated zones or to prohibit noisy vehicles from using




streets within such zones except during prescribed hours or for


                    A O C

prescribed purposes.




     In this connection attention is invited to subsection C




above which considered several decisions wherein the validity




of local ordinances regulating vehicular noise were upheld in




states having muffler control statutes.  But as noted, some of the




new  state environmental quality legislation simply declares a




policy and establishes an agency or board with authority to dev-




elop standards.  Since several states with new environmental leg-




islation, including noise abatement provisions, have not yet estab-




lished standards and set forth the operations and intended




effects of such standards, the implications for preemption must




be highly speculative.  In a new Act relating to noise pollution,




Florida has provided that the Department of Air and Water Pol-




lution Control shall "Establish...standards for the abatement of

-------
                               2-150





excessive and unnecessary noise and in cooperation with the



Department of Transportation establish the maximum decibels of



sound permissible from motor vehicles and trucks operating on



the highways of Florida."     Nothing is said of the preemptive



impact of such standards.



     Hawaii passed an Act Relating to Excessive Noise which



became effective on July 1, 1970.  This Act provides that the



Department of Health shall "adopt such rules and regulations,



including standards of excessive noise relating to the various



sources thereof, for different areas of the state, as necessary


                                                             438
to prohibit or control excessive noise caused by any persor."



Section 322 (b) states:  "No county shall adopt any ordinance,



rule or regulation relating to noise control after the effective



date of this Act."  It is clear, therfore, that the various states



are taking somewhat different approaches to environmental noise



regulation insofar as the allocation of authority and responsibility



between the State and local level  is concerned.  Consequently, the



preemption question will, of necessity, differ among the several



states.



     The evolving State environmental quality control legislation



relating to noise not only has preemption implications for munic-



ipalities but  could raise questions concerning an unreasonable



burden on interstate commerce.   Suggestions along this line are



contained in a newssheet dated July 28, 1973, from an obviously

-------
                               2-151
                                                                 439
interested party, the Heavy Duty Truck Manufacturers Association.

After listing the enacted noise (dBA) laws on heavy duty trucks,

the paper sets forth bills which "are attempting to impose

either  unattainable goals (compared to present state-of-the-art)

or different measuring distances,  instruments, etc."

     The principal segment of the HDTMA newssheet is a paper by

Richard G. Kolb on "Vehicle Noise and State Regulations" which

is a strong statement to the effect that "the States not only

adopt one noise standard but also one uniform law for all safety

related items."  Kolb applauds the California approach of recog-

nizing "total vehicle noise,  regardless of where it comes from"

(tires, engine, transmission, drive train, exhaust, cooling fan,

combustion noise, or general body and loading mechanisms).

He contends that State  legislation should specify acceptable noise

                                         441
levels, rather than dictate muffler design,    which amounts to a

performance rather than a specification criterion.  Kolb strongly

urges that a State- statute be worded "so that no city or county

can impose more restrictive limits than the state."     He

concludes:

       Finally, it should be evident that there is an increas-
       ing need for uniform regulations on vehicle noise across
       the nation.  Operators today require the use of the
       same vehicle in a number of States, counties and cities.
       They should not be faced with an increasing problem
       by having wide variations in noise limits, test pro-
       cedures, equipment and interpretation of the regula-
       tions. 443

-------
                               2-152


     It is surely conceivable, as certain proposed legislation

 indicates, that one or more states might establish a substan-

tially more stringent vehicle noise standard than the great maj-

ority of states.  Resulting interruptions in operations and

delays caused motor freight carriers entering or passing through

such states (need to shift trucks or cargo)  could lead to a chal-

lenge based on such stringent noise levels constituting an  undue

burden on interstate commerce.  In Bibb v. Navajo Freight Lines,
    444
Inc.    the Supreme Court found an Illinois contour mudguard re-

quirement to be in conflict with the Commerce Clause even though

such "local safety measures" are normally not found to place an

unconstitutional burden on interstate commerce.     However, here

the facts showed that the straight mudflap was legal "in at least

45 states" and illegal only in Illinois, that the contour mud-

guard possessed no appreciable safety advantage over the straight

mudflap, and that "interline" operations  (interchanging of trail-

ers between an originating carrier and another carrier) would be
         446
hampered.     Pointing out that Arkansas required straight mud-

flaps, the Court noted that use of the same motor vehicle equip-
                                            447
ment in both states was rendered impossible.     Acknowledging

that "We deal not with absolutes but with questions of degree,"

the Court elaborated:

       The conflict between the Arkansas regulation and the
       Illinois  regulation also suggests that this regula-
       tion of mudguards is not one of those matters "admit-
       ting of diversity of treatment, according to the

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                               2-153
       special requirements of local conditions"***A State
       which insists on a design out of line with the
       requirements of almost all the other States may
       sometimes place a great burden of delay and incon-
       venience on those interstate motor carriers entering
       or crossing its territory.  Such a new safety device -
       out of line with requirements of the other States
       - may be so compelling that the innovating State need
       not be the one to give way.  But the present showing
       - balanced against the clear burden on commerce - is
       far too inconclusive to make this mudguard meet that
       test.449

     Would a highly industrialized, commercialized and traffic

congested state with a higher ambient noise level than surrounding

states be sufficiently justified in establishing more stringent

vehicular noise standards than the adjacent states so as to off-

set the resulting burden on interstate commerce?  Does "freedom

from excessive noise" and hence from the physical and psycholo-

gical effects of such noise enjoy - or deserve - as high a rating

on the social value scale as physical safety with which the

Court was primarily concerned in the Bibb case?  Unless the states

enact approximately equivalent vehicular noise standards (as to

decibel levels and effective dates) litigation involving the

Commerce Clause is likely to arise.  This statement assumes both

effective enforcement by most or all of the states of vehicular

noise regulations and also that State noise standards are not

preempted by Federal legislation.

     Another case which indicates how a court might approach

State or local regulatory schemes with respect to noise when

-------
                               2-154
challenged as an undue burden on interstate commerce is People

                                                                 450
of State of California v. Atchison, Topeka & Santa Fe Railway Co.

wherein the defendant was convicted in the trial court for viol-

ation of section 24242 of the Health and Safety Code which pro-

vides:

       A person shall not discharge into the atmosphere
       from any single source of emission whatsoever any
       air contaminant for a period or periods aggregating
       more than three minutes in any one hour which is:

       (a) As dark or darker in shade as that designated
       as No. 2 on the Ringelmann Chart, as published by
       the United States Bureau of Mines, or

       (b) Of such opacity as to obscure an observer's
       view to a degree equal to or greater than does
       smoke described in subsection (a) of this section.**•*•*-

This section was violated each time a diesel engine started mov-

ing after coming to a stop, emitting so-called "lag-time" black

smoke.  Defense witnesses offered undisputed testimony that there

was no known way to prevent such emissions.  The defense also

asserted that "it would be impossible to operate the railroad in

Los Angeles County without producing this  'lag-time smoke1 each

                                             452
time an engine started up from a standstill."     The Court of

Appeal,  Second District,  distinguished the situation here from the

Huron case,  (supra 2.3.1) saying:  "The question was not pre-

sented (in Huron) as to whether the ordinance 'could be applied

if appellant had made a showing that no methods were available

by which they could avoid violation.  It is because of this that

-------
                               2-155

                                              453
we do not feel the Huron case is controlling."     The decision

concludes:

       We conclude, therefore, that the statute in question
       as applied to appellant (defendant) herein under the
       circumstances shown by this record constitutes an
       unreasonable burden upon appellant's operations and
       as such substantially impedes the free flow of inter-
       state commerce which is prohibited by the Constitution
       of the United States.454

     This lower court California case as well as the Bibb and

Huron Supreme Court cases would seem to reflect the types of fac-

tors which will be taken into account by courts in deciding whe-

ther to find an unreasonable burden on interstate commerce resul-

ting from the imposition of environmental noise standards.  But

more explicitly, in addition to the test of whether a given ordi-

nance or State statute undertakes to regulate matters "admit-

ting of diversity of treatment, according to the special require-

ments of local conditions," are the amplifying or additional fac-

tors of delay or inconvenience to interstate carriers, safety,

technological feasibility, economic reasonableness (including the

availability, cost and effectiveness of alternative protective

measures), and "the nature of the menace against which it (the

ordinance) will protect	"  Legislation, and implementing

standards setting administrative procedure, which does not take

these various factors into account may well be vulnerable to either

Due Process or Commerce Clause challenge.

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                                2-156


E.  Federal Environmental Noise Regulatory Schemes

     With the exception of aircraft noise abatement at the source

and the limited reach of the Walsh-Healey requirements, the Federal

government has, so far, taken only modest steps toward the allevia-

tion of environmental noised5  The new Occupational Safety and Health

Act of 1970 authorizes the Secretary of Labor to "set mandatory occu-

pational safety and health standards applicable to businesses affect-

ing interstate commerce...."  The eventual implementation of this new

authority could be pervasive in the occupational noise area.  Also,

the 1970 amendment to the Federal-Aid Highway Act  (Public Law 91-605)

directs that the Secretary of DOT "develop and promulgate standards

for highway noise levels compatible with different land uses...."

The effects of this latter action are likely to be long range and

peripheral.

     The most comprehensive assertion of authority at the Federal

level over the abatement and control of environmental noise is con-

tained in the Noise Pollution and Abatement Act of 1970, which, oddly,

was enacted as Title IV - Noise Pollution to the Clean Air Amendments

of 1970 Act:

                    Title IV — Noise Pollution

       Sec. 401.  This title may be cited as the "Noise
       Pollution and Abatement Act of 1970."
       Sec. 402.(a)  The Administrator shall establish
       within the Environmental Protection Agency an Office
       of Noise Abatement and Control, and shall carry out
       through such Office a full and complete investigation
       and study of noise and its effect on the public health

-------
                                2-157
       and welfare in order to (1) identify and classify
       causes and sources of noise, and (2) determine —

          (A)  effects at various levels;
          (B)  projected growth of noise levels in
               urban areas through the year 2000;
          (C)  the psychological  and physiological
               effect on humans;
          (D)  effects of sporadic extreme noise (such
               as jet noise near airports) as compared
               with constant noise;
          (E)  effect on wildlife and property  (includ-
               ing values);
          (F)  effect of sonic booms on property (includ-
               ing values);
          (G)  such other matters as may be of  interest
               in the public welfare.

       (b)  In conducting such investigation, the Adminis-
       trator shall hold public hearings,  conduct research,
       experiments, demonstrations, and studies.  The Admin-
       istrator shall report the results of such investiga-
       tion and study, together with his recommendations for
       legislation or other action, to the President and the
       Congress not later than one year after the date of
       enactment of this title.

       (c)  In any case where any Federal department or
       agency is carrying out or sponsoring any activity
       resulting in noise which the Administrator determines
       amounts to a public nuisance or is otherwise object-
       ionable, such department or agency shall consult with
       the Administrator to determine possible means of abat-
       ing such noise.

     The requirement for a most inclusive report to the Congress

"together with...recommendations for legislation or other action"

clearly implies that the Congress does have the formal authority to

enact a most comprehensive legislative scheme for environmental noise

control.  The actual distribution of authority  in this area for the

various functions involved in characterizing any program for environ-

mental noise abatement and control could follow several patterns.

-------
                                2-158


For example, the standards setting function (as to minimum require-

ments) might be established at the national level pursuant to a

stated national legislative policy on environmental noise while the

techniques of implementation could include Federal support for the

administrative application of standards to particular noise sources

by State and local authorities.  Suggestions as to plausible appor-

tionments of powers and functions are made by the Report on The Noise

Around Us;

       Considering proposed legislation designed to regulate
       the production of noise, it would seem that there are
       areas in which the Federal government,  as well as the
       States and municipalities, could legislate without rais-
       ing serious questions of conflict or taking.  The Admin-
       istrator of the Environmental Protection Agency, for
       example, might be authorized to investigate and set
       standards to provide for a maximum amount of noise that
       might be produced by machinery transported in interstate
       commerce or operating in interstate commerce.  This could
       be accomplished on a legislative finding that an excess
       of noise is detrimental to the general health and welfare.
       State legislation could provide for a maximum noise limit
       for motor vehicles, appliances, and other machinery oper-
       ated within the State.  In addition, local zoning could
       establish maximum noise limits to be permitted in any
       particular zone.

       It would seem that legislation on the national, State
       and local levels could thus be accomplished toward the
       end of controlling noise without serious problems of
       a constitutional nature arising.4^

     As noted, several states have already given serious consideration

to the environmental noise problem and have gone to considerable effort

and expense to develop appropriate regulatory schemes.  It would appear

advisable, therefore, that further legislation at the Federal level be

-------
                                2-159
carefully  designed  to  1)  control noise  sources  and  effects wherein

a paramount national interest  is at  stake or  to 2)  supplement  and

support noise abatement  schemes at the  State  and local  levels.  This

is not an  easy objective  to  implement,  however,  as  the  occupational

noise legislation illustrates.  The  Walsh-Healey Public Contracts

Act, 42 U.S.C. 35(e) states  that "Compliance  with the safety,  sani-

tary, and  factory inspection laws of the State  in which the work or

part thereof is to  be  performed shall be prima-facie evidence  of

compliance with this subsection."  In 41 CFR  50-204.1(e)  it is  stated:

        (e)  Compliance with  the standards expressed in  this
       Part 50-204  is  not  intended,  and shall not be deemed
       to  relieve anyone  from  any other obligation  he may
       have to protect the health and safety  of his employ-
       ees, arising from  sources other  than the Walsh-Healey
       Public Contracts Act, such as State, local law or  col-
       lective bargaining agreement.

The new Occupational Safety  and Health  Act, 29  U.S.C. 651, et  seq.,

which became effective on  August 27,  1971, sets forth a somewhat

more complicated directive for the Applicability of Standards  in

29 CFR 1910.5(a)(b)(c)(d)  and  (e).

     It is manifest that the major thrust of  the  Federal  government

into the environmental quality control  field has  placed certain strains

                                        457
on Federal v. State/local  relationships.      State/local  officials dis-

tinctly sense that  "control  zones" formerly left  to the "police power"

are gradually being eroded by the recent Federal  legislation directed

to environmentalal pollution and by the aggressive enforcement initia-

tives of the Environmental Protection Agency.   In addition to the

-------
                                2-160


Federal v. State/local jurisdictional rift,  however,  it is apparent

that State/local officials are finding certain Federal criteria and

standards beyond their capability to interpret,  administer,  and

        458
enforce.     Nevertheless, it must be recognized that a systematic,

aggressive Federal policy with implementing legislation for the effec-

tive abatement of environmental noise can lend tremendous leverage to

State and local abatement efforts.

     In view of the Federal v. State/local relationship, the question

of Federal preemption of noise abatement regulatory measures becomes

a matter of critical significance.  Consequently, a more careful

assessment of the implications of proposed noise control legislation

needs to be made than has customarily been the case in the past.

     In their exhaustive review of the "Preemption Question" Abraham

and Loder carefully delineate the attitudes of the "preemptionists"

                                459
versus the "non-preemptionists."     They find varying predispositions

among Supreme Court Justices as to "the merits of maintaining state

power after Congress enters a field."     They also observe:

       Second, justices disagree on what specifically
       constitutes a preemptive worded federal statute,
       pervasive or modest scheme, arrangement for fed-
       eral agencies to cede jurisdiction to state agen-
       cies should they so desire, and agency action or
       inaction.  Third, justices can't agree on what
       specifically constitutes preemptive dominant fed-
       eral interest, burden on interstate commerce,  uni-
       formity, or implications in legislative history.

-------
                                2-161
Certain general tendencies are noted, however, such as:

       The rationale for federal supersedure of most state
       statutes concerning the liability of railroads con-
       sists of the following:  need for uniformity in reg-
       ulating the same subject matter, avoidance of conflict,
       and Congressional intent to occupy the whole field as
       based on an examination of legislative history. °2

       As in the motor vehicle and water transportation
       fields state health and safety regulations applying
       to the railroads usually stand despite claims of
       federal preemption.

But as a general proposition they also assert that "The uniqueness

of preemption cases makes it impossible to decide all of them on a

                        464
strict precedent basis."

     One of the authors' most telling blows is aimed at the Federal

legislative process:

       One must sympathize with the Court as it tries to
       resolve preemption questions.  It is hard to find
       legislative intent because Congress is very vague
       and sometimes it fails to really consider the pre-
       emption question or the impact of its legislation
       upon federal-state relations. "5

This conclusion, of course, is based upon a full review of the preemp-

tion cases through 1965.  Obviously, Congressional intent in some

areas is more definite than in others.  There is no question of the

Congressional intent to preempt the field of conventional broadcast

regulation.     In this context a national system of licensing was

essential to avoid electronic interference between stations and to

                                                            467
assure the "most widespread and effective service possible."

Broadcasting, however, involves a relatively "closed system" with

-------
                                2-162


limited frequencies/channels whose operations can be effectively

monitored.  The situation has become less well structured with the

expansion of CATV however.

     A somewhat more complicated situation is presented with respect

to the "regulation" of nuclear energy since the Atomic Energy Commis-

sion is not only charged with the licensing and regulation of "dan-

gerous activities" such as nuclear reactors but with the control of

radiation hazards by regulating byproduct, source, and special nuclear

materials.  Exclusiveness of AEC control over radiation emissions from

nuclear plants is, however, currently being disputed.  In Northern

                         46R
States Power Co. v. State     the plaintiff power company sought

declaratory relief to determine if the AEC's authority to regulate

radioactive releases by nuclear power plants is exclusive or if Minne-

sota could impose radiation emission standards which would permit only

a small fraction of the amount of escaping radiation allowed by AEC

regulations.  Drawing primarily upon a 1959 amendment to the Atomic

Energy Act of 1954 and the Report of the Joint Congressional Committee

on Atomic Energy which accompanied the 1959 amendment bill and noting

that Congress was aware of the efforts of Minnesota to regulate radio-

active wastes, the Federal District Court opinion stated:

       The Congress obviously acted to clarify the potential
       conflict by ceding certain authority to the State
       through turnover agreements, but specifically retained
       federal  (AEC) authority over "construction and operation
       of any production or utilization facility,"42 U.S.C.
       S 202l(c).  It was expressly stated in the accompanying

-------
                                2-163
       report that licensing and regulation of nuclear
       reactors was to remain the exclusive responsibil-
       ity of the AEC.  S. Rep. No. 870, supra.

       This, to me, is a "clear and manifest" assertion
       by the Congress of the exercise of its constitution-
       ally granted authority to preempt the field of regu-
       lation of radioactive discharges from nuclear power
       plants.469

     The Court noted the following factors as showing strong

preemptive intent:  the fact that Congress had directed, not merely

                                                                470
authorized, the AEC to effect a comprehensive licensing program;

the pervasiveness of federal supervision over the entire field of

              471
atomic energy;    and the Congressional purpose to achieve uniform-
                                            472
ity in the regulation of nuclear activities.     However, this deci-

                      473
sion is now on appeal,    the position of the State being that it has

the right pursuant to the Tenth Amendment to protect the health of

its citizens and to regulate and prevent pollution within its bor-

     474
ders.      In commenting on this case,  Attorney Lee Loevinger makes

the interesting observation:

       The basic theory of our federal government system
       is that the states shall be sovereign, except with
       respect to necessarily national matters such as for-
       eign affairs,  and that the states may serve as social
       laboratories within which different approaches to
       social problems may be tried.  In view of the great
       degree of uncertainty regarding the effect of radio-
       active environmental pollution and the very long
       time periods necessarily involved in reaching any
       trustworthy conclusions, it would seem that this is
       a field in which experimentation by independent
       state action might be most desirable...(but) It is
       surely the case that many states will not set their
       own radiological standards, either because they are
       satisfied with those of the AEC or because they lack

-------
                                2-164
       the interest or expertise to do so.   The federal
       government,  having developed and encouraged the use
       of nuclear power,  should set minimum standards for
       protection of the  public.  If a state,...sets stand-
       ards more rigorous than those of the AEC,  and if these
       are impracticable  and uneconomic it would seem that
       the inability or refusal of industry to establish
       nuclear power plants in that state would bring about
       some accommodation.^'^

     The Minnesota case and the foregoing quotation help to sharpen

certain questions which should be asked - and examined - concerning

prospective Federal noise regulation.  While radiation might be emit-

ted from various types of nuclear devices,  products or activities,

the principal threat seems to be from nuclear power plants, which, to

this date, are relatively small in number,  separately identifiable,

and stationary.  Hence, the source of the dangerous by-product (radi-

ation emissions) constitutes a readily identifiable and controllable

system.  Further, the principal thrust of the national atomic energy

program is to promote and utilize the many benefits of this potentially

enormous resource.  In short, radiation is only one of several side-

effects of a well organized social program.

     The social problem context of environmental noise is vastly

different.  Here, the principal objective is to abate unwanted sound -

not to develop a resource potential of which noise is only one of

various adverse side-effects.  Further, environmental noise comes from

a vast variety of sources with little in common.  Many of the most

obnoxious noises come from moving sources or from multiple and diverse

activities acting in concert.  Hence, various  techniques  (abatement

-------
                                2-165


at the source, reduction of effects, or remedies for damage) have

been devised to attempt to cope with this problem.  The noise abate-

ment task is further complicated by the necessity to determine at

what level of government these various techniques can best be pre-

scribed and implemented.  In the context of the overall environmental

noise problem, aircraft noise alone would appear to be comparable to

the situation posed by the Minnesota radiation emission case.

     Many questions need to be explored as the environmental noise

regulatory structure assumes increasing institutionalization.  In

order to urge the Congress to give appropriate consideration to the

implications of new Federal noise legislation on State and local reg-

ulatory efforts, significant social needs and demands to be satisfied

at the Federal, State, local and private levels should be identi-

fied and evaluated.  Certain questions might be posed for the purpose

of stimulating further inquiry:

       a) in order to assure some diminution in ambient
          noise throughout the nation, should maximum noise
          emission standards be established at the Federal
          level for the more obvious noise sources?

          Assuming the advisability of this action which
          can be based on Congressional control of prod-
          ucts moving in interstate commerce, would such
          national standards effectively proscribe more
          stringent State standards apart from explicit
          statutory preemption?

          Or is such explicit statutory preemption essential
          at the Federal level in order to assure that States
          and municipalities do not unduly burden the flow of
          interstate commerce by the imposition of diverse
          noise standards?

-------
                         2-166
    Yet, will the adoption of standards of
    "minimum adequacy or tolerance" at the Federal
    level necessarily preclude the achievement of
    optimum (and more stringent) noise standards
    in State and local situations?

b)  Should the Federal government set noise standards
    for "articulated systems"  or only for component
    parts of such systems?  For example, if the Federal
    government established standards for automobile
    engines, mufflers/exhausts, transmissions, and
    tires, how might the accumulative effect of such
    components when combined into a complete vehicle
    compare with the "total vehicle noise" standards
    set by California?

    If the cumulative noise of approved components
    by Federal standards exceeded the maximum "total
    vehicle noise" provided by the California statute,
    would the latter State action be preempted?

c)  Should Federal noise standards be limited to those
    products and equipment which tend to be standardized,
    produced for a mass market, and hence are regularly
    shipped or utilized in interstate commerce, leaving
    to State and local control those industrial installa-
    tions (articulated technologies), including trans-
    portation systems which are State and local in char-
    acter, being designed for the particular needs and
    demands of the State or local areas served?

    Should the subway system for the San Francisco Bay
    area or for the Washington, D. C., metropolitan area
    have total system noise levels set by the Federal
    government or by the local jurisdictions directly
    involved, especially if such local jurisdictions
    insist on lower "systems noise levels" than would
    result from the cumulative noise generated by subway
    systems components approved under Federal noise stand-
    ards?

    Or should local jurisdictions depend upon the
    competitive market to develop systems proposals which
    would incorporate the available technology at lowest
    practicable cost to accommodate the noise level demands
    of particular localities?

-------
                         2-167
d)  Should Federal regulation seek to conserve as
    large a scope for individual, private decision
    as practicable by means of information (label-
    ing) rather than by prescribing standards for
    those devices, products, and equipment which
    affect only the consumer (office or household)
    in a direct, immediate, and private fashion?

    Even with respect to aircraft noise (which
    affects many segments of the community) we rec-
    ognize a private "proprietary" control function.
    The California aircraft noise abatement scheme
    encourages various alternative means of reducing
    the effects of aircraft noise by the airport
    operator.

e)  Will one of the major factors supporting noise
    regulation at the Federal level be the ability
    (if exercised in terms of statutory prescriptions
    and research and testing resources) to enact noise
    standards which are compatible with the most
    advanced state of technological feasibility, with
    economic considerations, and with adequate safety
    precautions?

f)  Even if Federal noise standards are established,
    would they preclude a State from regulating the
    volume of traffic on the Interstate Highway Sys-
    tem so as to assure that the ambient noise level
    does not exceed a given State standard?

    Or would a State be obliged to forego traffic
    control and abate highway noise as best it can
    through a gradual process of land acquisition,
    highway noise easements, and rezoning procedures?

g)  What effect might Federal noise standards have on
    municipal control over operation, use, and movement
    of noise producing sources?

    Of course, some states such as Hawaii may under-
    take to totally preempt the noise control field
    within its jurisdiction though such action may be
    ill-advised for most states.

    Even if Federal standards for noise emitted from
    various mechanisms, devices, products, and equipment

-------
                        2-168

    are adopted, would it not seem unlikely that
    such standards would preempt or otherwise ser-
    iously interfere with most of the techniques
    customarily applied at the local level?

    Surely, cities could continue to establish "zones
    of silence" for the purpose of imposing ambient
    noise standards on various types of community
    activities or sections of the city.  Federal stand-
    ards on construction equipment might not permit
    any deviation by the State or municipality but
    "curfew" and "budget" or "decibel allocation" ord-
    inances could continue to provide more stringent
    protection than the maximum permitted by Federal
    standards with such equipment being operated at
    full capacity continuously.  There should be no
    objection to the designation of certain streets
    for through (and interstate) traffic so as to
    maintain some control over noise emissions.  Con-
    stitutionally passable "permit" requirements could
    still be imposed for the operation of equipment
    meeting Federal noise standards.

    But what provision might be made at the Federal
    level  (and what will the implications be at the
    local level) for emergency noise requirements
    (sirens on police cars and fire trucks) or for
    special activities such as sporting events, auto-
    mobile race tracks, political rallies, etc., where
    "excessive" noise may be quite appropriate on an
    infrequent, and permit basis?

h)  Special kinds of questions could arise with the
    initiation of Federal standards.

    For example, could a State, in order to reduce
    highway noise, limit motorcycle groups to five
    or six even though each motorcycle owned by mem-
    bers of a club of 20 (who customarily ride together)
    meets the Federal standard?

    Or might a municipality require that certain vehicles,
    devices, or equipment be operated in designated zones
    at noise levels which are far more stringent than
    required under Federal standards in order to maintain
    a given ambient noise level?

-------
                              2-169


       i)   In view of the foregoing questions and comments,
           what validity, if any,  is there to the proposi-
           tion that, in general, the Federal government
           might most usefully give its attention to the
           abatement of noise at the source, leaving to the
           states and municipalities the task of regulating
           the effects of noise by controlling the use, oper-
           ation, and movement of noise sources?

           But would Federal control directed to abatement at
           the source apply primarily to discrete noise sources
           (and those customarily transported in or moving in
           interstate commerce) rather than to noise environ-
           ments?

           Noise environments such as construction sites,
           airports, etc., may differ drastically from state
           to state and from locality to locality; so, should
           not states and localities retain control over total
           noise emissions from these activities?

           However, the Federal government does exercise some
           control over noise environments  (occupational),
           and certain states have undertaken to impose maxi-
           mum noise emission levels on various discrete sources
           (vehicles, for example).

           Hence, is it not useful to again recognize the
           diverse and unrelated dimensions of the total envir-
           onmental noise context and consider proposed regu-
           latory configurations in terms of appropriateness
           for particular noise sources and identifiable noise
           envi ronment s ?

     Simply posing the above questions, without undertaking an

analysis of the full implications of alternative measures  noted, leads

to certain tentative observations.  An active role by the  Federal gov-

ernment in the environmental noise regulatory area  (in addition to

aircraft noise) should provide an effective catalyst for noise abate-

ment efforts by all affected participants in the public and private

-------
                               2-170




sectors.  It would seem advisable, however, that the Federal govern-



ment enact preemptive noise standards only with respect to mechanisms,



devices, products, and equipment which will clearly contribute to an



appreciable lowering through time of ambient noise throughout the



nation.  New legislation should be as explicit as practicable as to



what noise abatement measures, including standards, are intended to



be preemptive of State and local control.  It would seem advisable



that both the Federal government and the State governments restrain



their preemptive control and encourage noise abatement efforts at the



lower governmental levels so as to optimize noise abatement for partic-



ular conditions.  The more unique the situation, the less the justi-



fication for preemption at governmental levels above the public entity


                      476
immediately concerned.     The establishment of more stringent noise



standards at all governmental levels should act as an incentive to the



private sector  (manufacturing, industrial and transportation activi-



ties) to take noise into account as a factor in the research, design,



development, and operation of noise—producing activities.  The general



public should be sensitized through informational programs  (labeling



and dissemination of noise source and effect data) to the problem.



Finally, the complexity of the total environmental noise problem con-



text, the comparatively rudimentary stage of development of an inform-



ation base  (grounded in research, development, program design, pre-



scription, implementation, and useful experience to be gained there-



from) , and the  fragmented, unsystematic regulatory structure now in

-------
                               2-171





existence, would seem to dictate a need for a large measure of dis-




cretionary, though carefully controlled, experimentation by all rel-




evant entities in the public and private sector in noise abatement




techniques.




     The gist of the above observations is that while Federal level




intervention in the environmental noise abatement regulatory effort




is probably indispensable for the implementation of an adequate reg-




ulatory effort, Federal preemptive standards should be established




only for those situations which can clearly be justified.  Admittedly,




what can be justified is no easy decision by virtue of the complexity




of the environmental noise abatement problem as noted above.  However,




Federal preemption is probably inadvisable unless it offers a clear




net benefit over cost outcome for environmental noise abatement.  The




following Tables which describe the environmental noise regulatory




context are illustrative of the factors which should be taken into




account and the questions which should be asked and answered in decid-




ing the preemptive question.

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                      2-172
             NOISE CONTROL LOCI

Noise Sources

Aircraft
Vehicles:  Autos, Trucks, etc.
Internal Combustion Engines
Construction Equipment
Electrical Appliances and Instruments
Industrial Activities
     Mining
     Quarrying
     Processing
     Manufacturing
Home Appliances:  Internal
                  External
Community Services
Commercial-Advertising and Amusements
Recreational Vehicles or Facilities

Noise Environments

Building Construction
Highway Construction
Airports
Highway Traffic
Urban Traffic
Industrial Parks
Occupational
Recreational
Home - Domestic
Public Events

Questions to Consider in Deciding Upon New
Environmental Noise Regulatory Proposals;

   What are the more critical noise sources
     not yet controlled?
   What noise can best be abated at the  source?
   What noise can best be regulated through
     reduction of noise effects?
   What noise is so infrequent or marginal in
     social costs as to be best left to  individual
     remedial action?

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                     2-173


QUESTIONS...Cont'd.
   What noise is so infrequent,  unique,  or
     marginal in terms of social costs that
     it can best be left to judicial or  admin-
     istrative techniques of compensation for
     special harm done?
   How can functions for certain noise control
     contexts be best apportioned among  govern-
     mental levels or among entities at  the same
     level?
   How can regulatory configurations be  designed
     for controlling specified noise contexts so
     as to minimize conflict in function, includ-
     ing standards setting, administration, and
     enforcement, i.e., minimization of  "preemp-
     tion situations"?
   Should municipalities be permitted to set
     noise standards at more stringent levels
     than required by either Federal or  State
     standards?  if so, with respect to  what dis-
     crete noise sources or noise environments?
     What are the considerations?  What  are the
     precedents in other environmental quality
     control areas?
   What are the more critical contexts of noise
     regulation in terms of the probability of
     placing an unreasonable burden on interstate
     commerce?

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                     2-174
                    II
ELEMENTS OF ANY PROPOSED ENVIRONMENTAL NOISE
  REGULATORY CONFIGURATION (ENRC)

Mode of Noise Control

Abate at Source
Regulate Effects of Noise
Compensate for Effects of Noise

Operative Level of Government

Federal
Regional Authority
State
Local
Federal- Regional-State-Local

Forma!^ Authority

Commerce Clause
Tax and Spend Power
Art. I, §10 of U.S. Constitution
   (Interstate Compacts)
Police Power:  9th and 10th Amendments
  of U.S. Constitution

Functions Proposed

R&D on Effects of Noise
R&D on Noise Abatement
R&D on Noise Criteria
Standards Setting
Administration and Enforcement
Determination of Damages, Compensation, or
  Penalties
Public Information
Continuing Monitoring and Evaluation

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                     2-175


Standards Proposed

National Ambient Noise Levels
State or Local Ambient Noise Levels
Verbal-Subjective:  "Unusual or Unnecessary
  Noise"
Decibel Levels:
     Devices-Products-Equipment
     Use, Operation or Movement of
       Devices-Products-Equipment
     Community Zoning
     Defined Noise Environments
Qualifications
     Technologically Feasible
     Economically Reasonable

Enforcement Alternatives

Federal-State-Local
Individual Actions
     Common Law
     Pursuant to Statute
Class Actions
Proprietary Control

Implementation Techniques

Federal Statutory Authority
Interstate Authorities
State Statutory Authority
Local Ordinances - Types
     Zonal
     Curfew
     License and Permit
     Certification
     Decibel Budget
     Assessory
     Anti-degradation
     Step-down
     Density
     Conservation
Public Information
Labelling
R&D to Eliminate Noise at Source
R&D to Reduce Noise Effects

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                     2-176

Remedies and Penalties

Damages;  Private Actions
Injunction:  Private Suits
Inverse Condemnation
Cease and Desist
Disqualification for Government Contracts, etc,
Non-Certification
Certification Revocation, Suspension or Modi-
  fication
Cessation of Operations
Modification of Operations
Confiscation
Fines
Imprisonment

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                      2-177

                     III


  INDICES FOR ASSESSING PREEMPTIVE EFFECTS
              OF PROPOSED ENRC

  (Federal Legislative Preemption of State
  and Local Noise Abatement Codes, Ordin-
  ances, etc.)

  (State Legislative Preemption of Local
  Noise Abatement Ordinances)

Questions to Facilitate Determination of the
Preemptive Effect of Higher Level (HL) ENRC
Include;

   Precisely what has the HL Regulatory
     Configuration undertaken to abate or
     control?

      What Noise Source or Noise Environment?
      Abate at Source, Regulate Effects,  or
        Compensate for Noise Damage  Effects?
      Support R&D?  Administer?  or  Enforce?
        or Provide Resources for Administration
        and Enforcement at Subordinate Govern-
        mental Levels?
      Set Standards for:
           Discrete Noise Sources
           Articulated Technologies  with
             Multiple Noise-Producing
             Components
           Recurring Sound Producing
             Activities with Varying
             Assemblies of Discrete  and
             Articulated Noise Producing
             Components
           Noise Environments?
      Set Exclusive Standards or Maximum Noise
        Decibel Limits Allowing Lower Jurisdic-
        tions to Establish More Stringent Stand-
        ards?

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                     2-178

QUESTIONS	Cont'd.
   Does the ENRC undertake to control noise
     sources or noise environments involved
     in or substantially impinging on activ-
     ities reflecting a strong national inter-
     est as demonstrated from practice and
     experience or by previous Federal legis-
     lation in the area?
   Does the ENRC undertake to control noise
     sources or noise environments requiring
     uniformity of regulation?  Why?
   Does the ENRC undertake to control noise
     sources or noise environments for which
     State and local jurisidictions have never
     taken initiative or for which they may
     lack authority, or which require resources
     or expertise which are not generally avail-
     able at the State and local levels?

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                      2-179


                     IV

 ANTICIPATED SOCIAL IMPACTS OF PROPOSED
   ENVIRONMENTAL NOISE REGULATORY CONFIGURA-
   TION (ENRC) RESULTING FROM APPRAISED NATURE
   AND SCOPE OF PREEMPTION

 The prime question here is whether the imposition
 of preemptive legislation will result in a net
 social benefit not only with respect to the ENRC
 proposed, but whether the proposed ENRC will
 result in a higher social benefit/social cost
 ratio than alternative regulatory configurations.

 The Effects identified as flowing from the impos-
 ition of the proposed ENRC must be translated into
 Social Impacts in terms of the

               Probability
               Magnitude
               Duration of such Effects
                 (whether Planned or
                  Derivative
               Degree of Social
                 Desirability (or
                 Undesirability)

 and with respect to the impact on

               Affected Participants
                 (number and character of
                 various categories:
                    Manufacturers
                    Suppliers
                    Operators
                    Users
                    Others Affected)
               and

               Value-Institutional Processes

Illustrative Questions to Assist Social Impact Eval-
uation Include;

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                  2-180

Will the ENRC satisfy reasonable community
  expectations re noise abatement efforts?
  With respect to existing sources and
  environments only or to new discrete noise
  sources and noise environments?
Will the ENRC encourage or discourage action by
  participants and entities involved in
  noise abatement or otherwise affected by
  noise and noise abatement?
Can the ENRC be effectively administered and
  enforced?
Will the ENRC deprive lower level jurisdic-
  tions of the authority and resources to
  deal with special or unique noise contexts?
Does the ENRC avoid unnecessary control over
  the use, operation, and movement of noise-
  producing machinery, devices, and equipment
  at the State and local level in accomplish-
  ing the desired noise abatement objectives?
If the ENRC is designed to promote a national
  interest or to take abatement action at the
  Federal level for lack of authority,
  resources or skill at the State and local
  level, is this being accomplished at mini-
  mum  (or reasonable) cost and without apprec-
  iable inconvenience to special State and
  local problem solving efforts?
Will the ENRC provide for an equitable
  apportionment of the social benefits and
  the social costs among those affected?
   (Manufacturers, Suppliers, Operators, Users,
  Administrators, etc.)
Can the ENRC be implemented and administered
  at "reasonable cost"?   (No waste of human
  and material resources required for other
  social programs)
Is the ENRC "technologically practicable" for
  the scheduled date of imposition  (set single
  date or progressively stricter standards for
  future dates)?
Will the ENRC encourage technological innova-
  tion  (provide an incentive)?
Is the requisite knowledge and skill available
   (or to be made available) for effective
  implementation of the ENRC?

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                  2-181


Will the ENRC encourage knowledge and skill
  development in the management of environ-
  mental quality programs, including noise
  abatement?
Will the ENRC reinforce cr deprive other
  social values such as:
       Non-Discriminatory Practices
       Free Expression
       Safety
       Mobility
       Access to Goods & Services
       Physical Well-Being
       Mental Weil-Being
       Pleasing Natural Environment
       Pleasing Social Environment
Will the ENRC provide for uniformity in
  administration and in uniformity of treat-
  ment among the affected or supporting
  industrial and commercial activities?
  Will the ENRC encourage responsible offic-
  ial and private behavior?

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                               2-182

                            FOOTNOTES


      This is a common definition of "noise" as used by most
contemporary commentators.  See Greenwald, Alvin G., "Law of
Noise Pollution," BNA Environment Reporter, Monograph No. 2, Vol. 1,
No. 1, at 1, May 1, 1970.  The Committee on Environmental Quality
of the Federal Council for Science and Technology titled its report
of September, 1968, on environmental noise as Noise - Sound Without
Value .

      2See Spater, George A., "Noise and the Law," 63 Mich . L . Rev .
1373  (1965) reprinted in Hildebrand, James L., Noise Pollution and
the Law 22  (1970) .  Subsequent citations to Spater will be to page
numbers in Hildebrand.

      •^Spater, supra note 2, at 23.

      But see Noise Litigation Study (April, 1965), published by
the Oregon State Highway Commission, which introduces the section
on Railroad Noise by stating:

       Much of the precedent existing today with regard to
       noise is a result of the early litigation in the
       railroad field.  While precedent as to noise nuisance
       existed at common law, it was not very valuable for a
       number of reasons.  First, the railroads posed a new
       problem in that no operations of any kind had previously
       existed on such a large and peculiar scale. 18 Am. Jur.,
       Eminent Domain § 141.

       Id. at 24.

          Greenwald, supra note 1, at 1.
      See also Kramon, James M., "Noise Control:  Traditional
Remedies and a Proposal for Federal Action," from Vol. 7 of  the
Harv. J. Legis.  (May  1970) and reprinted in Hildebrand, Noise Pol-
lution and the Law 78  (1970)..  Subsequent citations  to Kramon will
be to page numbers in Hildebrand.

      See also Hildebrand, James L.,  "Noise Pollution:  An Intro-
duction to the Problem and an Outline for Future Legal Research,"
70 Colum. L. Rev. 652, 683  (1970) .

     ^Greenwald, supra note 1, at 5-12.

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                               2-183

     6See 4 Restatement of Torts,  §822,  comment on Clause (d)(1939)
and §826.

     7Report of the Panel on Noise Abatement to the Commerce
Technical Advisory Board of the U.S. Department of Commerce, The
Noise Around Us, at 138 (Comm. 71-00147, Sept. 1970).

     8Id. at 138.

      Professor Milton Katz addresses this theme in his paper
presented at one of the Technology Assessment Seminars of The
George Washington University Program of Policy Studies in Science
and Technology, entitled The Role of the Legal System in Society's
Implementation of Technology Assessment, at 15, May 6, 1971, as
follows:

       The decisions of courts are reached and stated in
       the familiar terms of the respective tort doctrines,
       but when they are reviewed from the angle of vision
       of contemporary criteria of technology assessment
       and environmental protection, remarkable elements of
       similarity can be discerned between the two modes of
       thought.  In a well-known nuisance case often used in
       law school casebooks, for example, the court said:

              The law of nuisance plys between two
              antithetical extremes:  The principle
              that every person is entitled to use
              his property for any purpose that he
              sees fit, and the opposing principle
              that everyone is bound to use his prop-
              erty in such a manner as not to injure
              the property or rights of his neighbor...
              In our business of judging in this case,
              while sitting as a court of equity, we
              must not only weigh the conflict of
              interests between the  (defendant and
              the plaintiffs), but we must further
              recognize the public policy of the gen-
              eration in which we live.  (Antonik v.
              Chamberlain, 81 Ohio App. 465, 475-476,
              78 N.E. 2d 752, 759-60 [Summit County
              Ct. App. 1947] ) .

     ^Spater, supra note 2, at 25.

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                               2-184

     10 Ibid.

       See Lloyd, William H., "Noise as a Nuisance," 82 U. Pa.
L . Rev . 567, 569 (1934) .  This article deals with noise from such
sources as music, bells, barking dogs, etc.

     •'-•'•See Kramon,  supra note 4, at 83, citing Prosser, Handbook
of the Law of Torts 559-601  (3rd Ed. 1964) .

       Kramon further suggests that the doctrine of "strict
liability" has not been applied in the noise cases although it pre-
sents possibilities.  Kramon, supra note 4, at 85.

       See discussion by Katz, supra note 8, at 17, with respect
to a California case involving strict liability which was brought
against a manufacturer of a defective lathe by the injured purchaser,
The court explained:

       (T)he liability is not one governed by the law of
       contract warranties but by the law of strict liabil-
       ity in tort. . .

       The purpose of such liability is to insure that the
       costs of injuries resulting from defective products
       are borne by the manufacturers that put such products
       on the market rather than by the injured persons who
       are powerless to protect themselves...

       j^Greenman v. Yuba Power Products, Inc., 59 Cal . 2d 57,
       63-64, 377 P.2d 897, 901  (1963)
           Kramon, supra note 4, at 83, citing Smith v. Western
Wayne County Conservation Ass'n., 158 N.W. 2d 463, 470  (Mich. 1968)
and Township of Bedminster v. Vargo Dragway , Inc . , 253 A. 2d, at
659, 661  (Pa. 1969).
     1 O
       See Kramon, supra note 4, at 84, and Spater, supra note 2,
at 26.

       Kramon in footnote 27 undertakes to make a distinction
between two notions which he asserts are frequently confused:
1) "One is that a court of equity must balance the social utility
of a defendant's conduct against the harm it imposed upon others
in determining whether to grant an injunction.  An activity of
vital interest to the community will not be enjoined although it
creates what would ordinarily constitute a nuisance" and 2)  "The

-------
                                2-185
other notion is that a recovery for nuisance requires the plaintiff
to show an injury peculiar to himself and not merely one which he
suffers in common with the community at large."

     14see Kramon, supra note 4, at 84.

     !5See Spater, jsupjra note 2, at 27.

     16See Kramon, supra note 4, at 85.
     19Id. at 86-87.

     20Id. at 88-89.

     21Kramon, supra note 4, at 89 states:

       In summary, the nuisance theory is unworkable as a vehicle
       for forcing enterprises to assume social costs which are
       associated with them.  Private litigation takes place only
       after a decision to employ particular technology has been
       made.  There is waste inherent in a system which allows
       the construction of expensive facilities and decides after
       operations begin that they are too noisy and must pay their
       way in tort judgments or be enjoined from operation.  The
       judicial forum is not well-suited to decide how much noise
       is really detrimental to the community and how great will
       be the price of eliminating it.

       With respect to the theory of "strict liability" see Town-
ship of Hanover v. Town of Morristown, 261 A. 2d 692, 702  (1969) .
       Kramon, supra note 4, at 85, states with respect to the
application of this theory:

       It has been suggested, particularly with respect to
       airport noise, that these problems might be avoided
       by adoption of a standard of strict liability in nuis-
       ance suits.  Such a theory, it is argued, would dis-
       pense with the need for balancing such imponderables
       as community interest and would enable the private
       tort suit to serve as a useful vehicle for forcing

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                               2-186

       enterprises to bear the costs they create.  It is
       further suggested that the certainty inherent in
       a theory of strict liability would allow investors
       and other first-level decision makers to enjoy
       greater predictability in estimating their costs.
       Strict liability for noise would be useful in cases
       where there is only one source of noise involved
       such as airport noise.  But this approach would be
       ineffective in controlling noise which is the result
       of a large number of sources.  For example it would
       be difficult to say that building and repairing
       noises ought to incur strict liability.  Such noise
       is generally one of a number of noise sources which
       combine to create a high noise level in a particular
       area.

     22See discussion by Kramon, supra note 4, at 92-94, of "anti-
noise ordinances."

       It should be noted that this conclusion is not shared by
some commentators.  See Fadem, Jerrold A., and Michael M. Berger,
"A Noisy Airport is a Damned Nuisance!" 3 S.W. L. Rev. 39, 44  (1970)
See also Katz, Milton, "The Function of Tort Liability in Technology
Assessment," 38 Cine. L. Rev. 587-662 (1969).

     23See Katz, supra note 8, at 18.

     2426 N.Y. 2d 219, 222-223, 257 N.E. 2d 870, 871 (1970).

     25See Katz, supra note 8, at 17-19.

     26Id. at 19.

     27Ibid.
     2QId. at 19-20.
           Kramon,  supra note 4,  at 94.

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                               2-187


     34Spater, supra note 2, at 30.

     35See Kramon, supra note 4, at 86.
           Ton del, "Noise Litigation at Public Airports" in the
Office of Science and Technology Report on the Alleviation of Jet
Aircraft Noise Near Airports (Report of the Jet Aircraft Noise
Panel) 117, 125 (1966) , quoted in The Noise Around Us, supra note 7,
at 139-140.

     37233 U.S. 546 (1914) .

     38Spater, supra note 2, at 31.

     39Ibid.

     4Qlbid.
           Kramon, supra note 4, at 86, citing Atkinson v. City of
Dallas, 353 S.W. 2d 275  (Tex civ. App. 1961), cert, denied, 370
U.S. 939 (1962) and Loma Portal Civic Club v. American Airlines,
Inc., 61 Cal. 2d 582, 394 P. 2d 548, 39 Cal. Rptr. 708 (1964).

           Noise Around Us, supra note 7, at 140.

           The Noise Around Us, supra note 7, at 140.

     44See Kramon, supra note 4, at 89.

     45JLd. at 89.  It should be noted that in situations where the
government is the proprietor, it may be possible to require adher-
ence to standards which are more strict than in situations where
government acts only in the capacity of a regulatory agency.

     46The Noise Around Us, supra note 7, at 140.

       See Lesser, Joseph, "The Aircraft Noise Problem:  Federal
Power but Local Liability," in 3 The Urban Lawyer  175, 184  (1971),
who noted that in Butler v. Frontier Telephone Co. 186 N.Y. 486,
491, 79 N.E. 716, 718  (1906), this maxim of the English common law
is quoted as "cujus est solum ejus est usque ad coelum et ad inferos"
(he, who owns the soil, owns it from the heavens to the depths of
the earth).

     47Federal Aviation Act of 1958, §104, 49 U.S.C. §1304  (1964).

     48Federal Aviation Act of 1958, §101(24), 49 U.S.C. 1301(24)
(1964).

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                               2-188

     4^328 U.S. 256 (1946).  In this case the Court stated that
"The airspace, apart from the immediate reaches above the land,
is part of the public domain."  Id. at 266.

     50369 U.S. 84  (1962).

     51See Kramon, supra note 4, at 90.

     52328 U.S. 256, 265 (1946).

       The Federal Tort Claims Act has not been a useful tool in
the hands of private citizens to obtain relief from noise sources
authorized or operated by the Federal government.  The placement
and regulation of such sources is held to be a discretionary func-
tion at the planning level for which the government has reserved
itself sovereign immunity under the exceptions to the application
of the Federal Tort Claims Act outlined in 28 U.S.C. 2680(a).

     The Act requires some misfeasance or nonfeasance for its
application in that it can only be invoked upon a negligent or
wrongful act or ommission of a governmental employee at the opera-
tional level.  Dalehite v. United States 346 U.S. 15, 73 S.Ct. 956
(1953).  This holding is a reiteration of the notion of legalized
nuisance as it has been stated in Richards v. Washington Terminal
£0. 233 U.S. 546, 34 S. Ct. 654 (1914).

     Recovery for damages under the Act has been allowed where
Federal employees functioning at an operational level have acted
in violation of statutes or regulations, promulgated at the dis-
cretionary planning level, designed to protect members of the class
to which the injured party belongs and the harm is of the type which
the regulation or statute was intended to prevent.  Wildwood Mink
Ranch v. United States 218 F. Supp. 67  (D. Minn. 1963); Dahlstrom v.
United States 228 F. 2d 819  (8 Cir. 1956).

     Thus it follows that only when the United States has promulgated
regulations and statutes designed to protect the public from specific
measurable noise levels will the Federal Tort Claims Act be useful
to gain relief for damages caused by government authorized sources
that have exceeded those levels because of the wrongful acts of its
employees.

     See also Spater, supra note 2, at 48, and The Noise Around Us,
supra note 7, at 156, n. 16.

     An expression to the contrary may be found in the article by
Lesser, supra note 46, at 184:

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                               2-189


       It is certainly arguable that if the Federal Tort
       Claims Act (which was enacted two months after
       Causby was decided)  had existed at the time the
       suit was instituted  in 1944,  the cause of action
       alleged would have sounded in tort,  as had the pre
       vious aircraft noise cases,  rather than in consti-
       tutional law.

     53369 U.S. 85,  86 (1962) .

     54The Noise Around Us, supra note 7, at 141.

     55Ibid.

     56Spater, supra note 2, at 40.

     51Id. at 41.
           at 37-38.  Spater notes, however,  in footnote 76 to
his article that "Once a taking occurs, the damage from noise is
compensable. "  And in discussing why the adjacent landowner cannot
recover, he states:

       Thus, despite the assumed equality of the noise
       level, there is a very different impact on the two
       landowners.  Both have been damaged, but in only
       one case has property been taken.  And the Federal
       constitution, along with half of the state consti-
       tutions, provides for compensation only when there
       has been a taking.  Once the taking is established,
       the landowner may recover for consequential damages
       to the balance of his property, and this would include
       the damage from noise of aircraft utilizing the flight
       path.  This principle that a landowner whose property
       is taken may recover for consequential damages to
       his remaining property, but that a neighboring land-
       owner may not recover for damage arising from the
       same objectionable activity, was well established
       long before noise from airplanes became a problem.
       Id. at 44.

Spater also attempts to buttress his position that a physical
invasion of the immediate airspace over the landowner constitutes
a taking by suggestion that "fear" is a constituent element of the
overflight which presumably would not be a concern of an adjacent
landowner.  See Spater, supra note 2, n. 85 at 44.  Apart from the

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                               2-190

dubious nature of this proposition, fear often accompanies noise
from a mobile source or flying objects attendant to objectionable
noise.  See Washington Post, July 16, 1971, §c, at 3, col. 1,
"Quarry Blasts Shake Up Neighbors," wherein one affected person
states:  "It's like the whole house is coming down.  I just holler,
those blasts scare me so.  With so much noise, I just don't know
what's happening."

     59306 F. 2d 580 (10th Cir. 1962), cert, denied.. 371 U.S. 955,
rehearing denied 372 U.S. 925  (1963).

     60JId. at 584.  See also Mosher v. City of Boulder, 225 F. Supp.
32 (D. Colo. 1964).

     61James D. Hill in "Liability for Aircraft Noise - The After-
math of Causby and Griggs," 19 U. Miami L. Rev. 1  (1964), criti-
cizes the Batten case holding as "unsound."  Id. at 29.  "It can-
not be dismissed as a case involving only consequential damage, as
the trial court found a diminution in value of from $4,700 to
$8,800 - from 40.8 per cent to 55.3 per cent - in the ten homes
involved."  Ibid.  He finds support for his view in Thornburg v.
Port of Portland. 233 Ore. 178, 376 p. 2d 100 (1962), that "lateral
noise may diminish the value of subjacent property as much as verti-
cal noise."  Id. at 31.  He also states:

       It is a sterile formality to say that the government
       takes an easement in private property when it repeat-
       edly sends aircraft directly over the land at alti-
       tudes so low as to render the land unusable by its
       owner, but does not take an easement when it sends
       aircraft a few feet to the right or left of the per-
       pendicular boundaries (thereby rendering the same
       land equally unusable).  The line on the ground which
       marks the landowner's right to deflect surface invaders
       has no particular relevance when the invasion is a noise
       nuisance.  Id. at 30.

     62Comment, 74 Harv. L._ Rev. 1581, 1585 (1961).  This Comment
also states:  "Attention would be focused on the degree of actual
interference, rather than on formalistic factors like the relation-
ship of the flight path to a particular zone or column of air space.
Id. at 1583.

     63See Spater, supra note 2, at 48 and The Noise Around Us,
supra note 7, at 157.

           Spater, supra note 2, at 50.

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                                2-191


     65Id. at 51.

     66Kramon, supra note 4, at 89-90.  See also Dennison v. State
of New York, 22 N.Y. 2d 409, 239 N.E. 2d 708, 293 N.Y.S. 2d 68
(1968), subsequently discussed in  subsection  2.4.2.

     67The Report on The Noise Around Us. supra note 7, at 140,
states that "The Constitutional taking theory, which has been
increasingly relied upon by attorneys, is perhaps most significant."
A portion of the footnote to this statement adds, however:

       Nevertheless, Mr. Tondel reports that in the period
       1956-66 damages were recovered in only five cases
       against civil airport operations on a constitutional
       taking theory involving a total of $71,584,...However,
       in February of 1970 a trial court in California awarded
       $750,000 to residents for damages to their properties
       located in close proximity to Los Angeles International
       Airport on this theory.  Aaron v. City of Los Angeles,
       No. 837 799  (S.Ct. Cal. February 5, 1970).  Id. at 155.

     There have been a number of suits somewhat similar to Causby
brought against the United States involving military aircraft since
1946.  See, for example, HighlandJ?ark v. United States, 161 F. Supp.
597  (Ct. Cl. 1958) and other cases discussed by Lesser, supra note 46,
at 187-188.  Some substantial judgments have been awarded for a "tak-
ing" of property caused by noise and vibration, for direct and immed-
iate interference with the landowner's use and enjoyment of his prop-
erty, and for the taking of avigational easements.  The award of dam-
ages in several cases can be attributed to the sensitive recognition
by the Court of Claims that jet flights:

       ...made a greater and more piercing noise, and caused
       much greater vibration than the propeller driven planes
       had.  Highland Park, supra at 599.

and further that:

       ...all conversation had to cease, radio and television
       reception was disrupted, the windows in the houses
       shook, dishes rattled on the shelves, sleep was dis-
       rupted,  and the noise was so great as to be painful
       to the ears of some of the residents.  Some were in
       a constant state of anxiety, and even had to undergo
       medical care for nervous disorders...  Ibid.

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                               2-192


The Court of Claims awarded damages in the total amount of
$140,000 for the taking of avigation easements over twelve farms
situated near an Arizona airforce base.  Adaman Mutual Water Co. v.
United States, 181 F. Supp. 658 (Ct. Cl. 1958).  See discussion in
Lesser, supra note 46, at 187.  The amount plaintiff would lose when
his property was sold was the measure applied in the case of Herring
v. United States. 162 P. Supp. 769  (Ct. Cl . 1958).

     In the recent case of Town of East Haven v. Eastern Airlines,
Inc., et al. , 331 F. Supp. 16  (1971) wherein the Town of East
Haven, individual homeowners and another individual brought an
action against the city of New Haven and commercial airlines seek-
ing injunctive relief and damages with respect to the airport owned
and operated by the city and used by the airlines in the operation
of turbo-prop and jet aircraft, the U.S. District Court  (D. Conn.)
held that where such aircraft passed over or very nearly over homes
several times a day at altitudes of less than 500 feet, there was
a compensable "taking" by the city which owned and operated the
airport.  No compensable "taking" of a permanent easement was found
with respect to the airlines using the airport even though the air-
port was part of the National Airport Plan and was designated in
accordance with federal regulations.  The Court further held that
there had been no "taking" of other properties in the vicinity
which were subjected only to occasional overflights or to noise,
soot, and fumes caused by aircraft  taxiing or idling at the nearby
terminal and that none of the homeowners were entitled to separate
damages for mental anguish, interference with peace and quiet, or
for fear.
            note 62 supra.   In this connection see discussion of City
 of Jacksonville v. S chumann ,  167 So.  2d 95 (Fla.  1964)  in subsection
 2.4.1 B, infra.

      69233  Ore. 178, 376 P. 2d 100 (1962).

      7°.Id.  at 186, 376 P.  2d 100,  108 (1962) .

      7164 Wash 2d 309, 391 P. 2d 540  (1964),  cert, denied,  379
 U.S.  989 (1965).

        Hill,  supra note 61, at 31, explains that the court divided
 the claimants into three classes in this case:   Group A claimants
 were subject to direct overflights, Group B claimants as to which
 evidence of overflight was in conflict, and Group C claimants which
 were not subject to overflights.  The court held that all three
 groups of claimants were entitled to  compensation and expressly
 rejected the Batten holding:

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                               2-193


       This requirement, that a landowner show a direct
       overflight as a condition precedent to recovery of
       the damages to his land, is presently stressed by
       some federal courts in construing the "taking" as
       contemplated by the Fourteenth Amendment to the
       Federal Constitution.  Batten v. United States  (10th
       Cir. 1962), 306 F. 2d 580.  We are unable to accept
       the premise that recovery for interference with the
       use of land should depend upon anything as irrelevant
       as whether the wing tip of the aircraft passes through
       some fraction of an inch of the airspace directly above
       the plaintiff's land.  The plaintiffs are not seeking
       recovery for a technical trespass, but for a combina-
       tion of circumstances engendered by the nearby flights
       which interfere with the use and enjoyment of their
       land.  391 P. 2d 540, 545 (1964).

     72Id. at 64 Wash. 2d 309, 391 P.2d 540, 547, U.S. cert.
denied in 379 U.S. 989  (1965).

     73Spater,  supra note 2, at 53.
           Kramon, supra note 4, at 90, and cases cited in foot-
notes 46 and 47, including Dennison v. State of New York, 22 N.Y.
2d 409, 239 N.E. 2d 708, 293 N.Y.S. 2d 68 (1968).
     79See Report on The Noise Around Us, supra note 7, at 142.
Greenwald, supra note 1, at 1, provides the following statement
relative to Federal authority for noise control:

       The law of noise derives from the supreme law of
       the land - The United States Constitution.  The
       Constitution's Preamble sets forth the purpose;
       the commerce clause, the regulatory power; and the
       amendments, the private rights.  The Constitution's
       Preamble cites as one of the purposes and objectives
       for which it was promulgated:  "To assure domestic
       tranquility."  Tranquility  has  been  legally  defined

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                               2-194

       as the state or character of being quiet or "quiet-
       ness" (87 C.J.S. 886).  Disruption of quietness is
       generally associated with commercial activities.
       The Constitution vests in Congress the right to
       regulate interstate and foreign commerce (Article 1,
       Section 8).

       This Congressional authority to regulate noise under
       the Commerce Clause is limited by Common Law (the
       law by which the Constitution is judicially inter-
       preted) .  Common Law holds the right of habitation
       superior to  the right of commerce (Aired's Case 9,
       Cope 58).

       Habitation quietude is guaranteed by the 5th,  9th,
       and 14th Amendments of the Constitution.  The Fifth
       Amendment assures individual due process and individ-
       ual right of private property.  As related to noise
       it protects  against such conduct as noise trespass
       or noise invasion.  The Ninth Amendment reserves to
       the people all undelegated powers.  As related to
       noise, it preserves state, local and private right
       to regulate noise.  The Fourteenth Amendment guar-
       antees that no state shall deny due process or equal
       protection under the law.  As related to noise, it
       limits governmental power to deprive persons the
       benefits of quietude or other civil rights.  (See
       Shelly vs. Kraemer, 334 U.S.I., 685 Ct. 836; 92 L.FD.
       1161)

     80See Goldstein, Sidney and Albert H. Odell, Comments on the
problem of Jet Aircraft Noise  (The Port of New York Authority,
June 1966),  (Two papers presented before the panel on Jet Aircraft
Noise convened by Dr. Donald F. Hornig, Director, Office of Science
and Technology, Executive Office of the President, Washington, D.C.,
October 29,  1965):

       The jurisdiction of the Federal Government over air
       as well as over all forms of transportation stems
       primarily from the Constitution's commerce clause,
       though  the postal  and military powers are also
       involved.  The commerce clause provides that:   "The
       Congress  shall have power***To regulate Commerce
       with  foreign Nations, and among the several States
       ***."   This clause operates not only as a grant of
       power to the Federal Government but also as a  restric-
       tion  upon State authority.  Id. at 3.

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                               2-195
           discussion of the police power in Note, Environmental
Control;  Higher State Standards and the Question of Preemption,
55 Cornell L. Rev. 847, 849-850 (1970) .  The Tenth Amendment pro-
vides that "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people."  The Ninth Amend-
ment provides that "The enumeration in the Constitution, of cer-
tain rights,  shall not be construed to deny or disparage others
retained by the people."  The Cornell Note cites Edelman, "Fed-
eral Air and Water Control:  The Application of the Commerce Pow-
er to Abate Interstate and Intrastate Pollution," 33 Geo . Wash .
L. Rev. 1067, 1076-77  (1965) for the proposition that "The pro-
tection of public health and welfare can be a concomitant of the
exercise of the federal commerce power."  id. at 850, footnote
16 and 17.  The Cornell Note further asserts that:

       A federal power analogous to the police power is
       derived from the general welfare clause.  This
       clause has been interpreted as a substantive grant
       of legislative power to Congress.  Further support
       for analogous federal power is provided by the
       broad construction of the "necessary and proper"
       clause which led to the doctrine of implicit pow-
       ers.  The latter clause was held to justify all
       legislative means appropriate to achieving legit-
       imate ends of the Constitution,  thus paving the
       way for Congress to expand the powers enumerated
       in the Constitution by exercising them for ulterior
       police purposes.

       Activities regulated by the state under its police
       power may also come under federal control via the
       power of Congress over particular subject matter,
       without regard to health and safety objectives.
       Thus the federal commerce,  proprietary, admiralty,
       defense, taxing, and spending powers have been the
       basis  of federal regulation of matters such as radi-
       ation from atomic energy sources, air 'pollution,
       and water pollution.  Id. at 850.

     82291 U.S. 502 (1934) .

     83j[d. at 504.

     84348 U.S. 26 (1954) .

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                               2-196


     85id. at 32.

     86300 U.S. 379 (1937).   In this connection,  see also Nebbia
v. New York, 291 U.S.  502 (1934):

       The court has repeatedly sustained curtailment of
       enjoyment of private  property,  in the public inter-
       est.  The owner's rights may be subordinated to
       the needs of other private  owners whose pursuits
       are vital to the paramount  interests of the commun-
       ity.  The state may control the use of property in
       various ways  may prohibit  advertising bill boards
       except of a prescribed size and location,  or their
       use for certain kinds of advertising; may in certain
       circumstances authorize encroachments by party walls
       in cities; may fix the height of buildings, the char-
       acter of materials, and methods of construction, the
       adjoining area which  must be left open, and may ex-
       clude from residential sections offensive trades,
       industries and structures likely injuriously to
       affect the public health or safety;  or may establish
       zones within which certain  types of buildings or
       businesses are permitted and others excluded.  And
       although the Fourteenth Amendment extends protection
       to aliens as well as citizens,  a state may for ade-
       quate reasons of policy exclude aliens altogether
       from the use and occupancy of land.

       Laws passed for the suppression of immorality, in
       the interest of health, to  secure fair trade prac-
       tices, and to safeguard the interests of depositors
       in banks, have been found consistent with due process.
       These measures not only affected the use of private
       property, but also interfered with the right of pri-
       vate contract.  Other instances are numerous where
       valid regulation has restricted the right of contract,
       while less directly affecting property rights.

       The Constitution does not guarantee the unrestricted
       privilege to engage in a business or to conduct  it as
       one pleases.  Certain kinds of business may be prohib-
       ited; and the right to conduct a business, or to pur-
       sue a calling  may be conditioned.  Regulation of a
       business to prevent waste of the state's resources.
       may be justified.  And statutes prescribing the  terms

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                          2-197

  upon which those conducting certain businesses may
  contract, or imposing terms if they do enter into
  agreements, are within the state's competency.  Id. at
  526-528.

87West Coast Hotel Co. v. Parrish,  300 U.S. 379, 380 (1937).

88Id. at 382.

89Day*Brite Lighting v. Missouri, 342 U.S. 421,  424  (1952).

9°See Nebbia v. New York, supra note 82.

  So far as the requirement of due process is concerned,
  and in the absence of other constitutional restriction,
  a state is free to adopt whatever economic policy may
  reasonably be deemed to promote public welfare, and
  to enforce that policy by legislation adapted to its
  purpose.  The courts are without authority either to
  declare such policy, or, when it is declared by the
  legislature, to override it.  If the laws passed are
  seen to have a reasonable relation to a proper legisla-
  tive purpose, and are neither arbitrary nor discriminatory,
  the requirements of due process are satisfied, and
  judicial determination to that effect renders a
  court functus officio.  . .  .With the wisdom of the
  policy adopted, with the adequacy or practicability
  of the law enacted to forward it, the courts are both
  incompetent and unauthorized to deal.  The course of
  decision in this court exhibits a firm adherence to
  these principles.  Times without number we have said
  that the Legislature is primarily the judge of the
  necessity of such an enactment, that every possible
  presumption is in favor of  its validity, and that
  though the court may hold views inconsistent with the
  wisdom of the law, it may not be annulled unless pal-
  pably in excess of legislative power.  Id. at 537-538.

91260 U.S. 393, 415-416 (1922).

  In EUCLID v. AMBLER REALITY Co., 272 U.S. 365  (1926):
  Plaintiff brought suit in a federal district court to
  enjoin the enforcement of a comprehensive zoning ord-
  inance.  An injunction was  granted.  On appeal the
  Supreme Court reversed.  The Court said, in part:

-------
                              2-198
       "The ordinance now under review, and all similar  laws
       and regulations, must find their justification in some
       aspect of the police power, asserted for the public
       welfare.  The line which in this field separates  the
       legitimate from the illegitimate assumption of power
       is not capable of precise delimitation.  It varies
       with circumstances and conditions.  A regulatory  zon-
       ing ordinance, which would be clearly valid as applied
       to the great cities, might be clearly invalid as  applied
       to rural communities.  In solving doubts, the maxim sic
       utere tuo ut alienuum non laedas, which lies at the found-
       ation of so much of the common law of nuisances,  ordinar-
       ily will furnish a fairly helpful clew.  And the  law of
       nuisances, likewise, may be consulted, not for the pur-
       pose of controlling, but for the helpful aid of its anal-
       ogies in the process of ascertaining the scope of, the
       power.  Thus the question whether the power exists to
       forbid the erection of a building of a particular kind
       or for a particular use, like the question whether a
       particular thing is a nuisance, is to be determined,
       not by an abstract consideration of the building  or of
       the thing considered apart, but by considering it in
       connection with the circumstances and the locality.
          note  7,  supra,  at  146.

     9322 U.S.  (9 Wheat.)  1  (1824).

     94Cushman & Cushman,  Cases in Constitutional Law at  315-316
(1958) .

     9553 U.S.  (12  How.)  299  (1851).

     96Wabash,  St.L.  & P.Ry.  v. Illinois, 118  U.S.  557  (1886).

     97Interstate Commerce Act of  1887,  48 U.S.C.  §1 (1964).

     98325 U.S.  761 (1945).

     "id. at 783-784.

    100303 U.S.  177 (1938).

    101Id. at 179.

    102Id. at 181.

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                              2-199
       Report No. 1026, Vehicles Weights and Dimensions, Committee
on Public Works of the U.S. Senate on S. 2658, March 27, 1968, at 2,
        <1. at 1.  However, see Bibb v. Navajo Freight Lines, 359
U.S. 526  (1959), discussed infra in subsection  2.4.2.

    105Southern Pacific Co. v. Arizona, 325 U.S. 761, at 767  (1945)

    106362 U.S. 440, 441-443  (1960).

    107Id. at 443.

    108407 Fm 2d 1306  (1969), cert, denied 396 U.S. 845  (1969).

    10936 ALR 3d 1310  (1971) .

    110Id. at 1315.

    111A town ordinance which prohibited seaplanes from
       taking off or landing upon any portion of the chan-
       nel system of the town, except in emergency situa-
       tions, was held to be a proper exercise of the town's
       police power, having in mind the safety of its residents,
       to prohibit air traffic upon its channels, in People v.
       Sturgis v. Bridgeman,  L.R. 11  Ch. 852, 865. A
       nuisance may be merely a right thing in the wrong
       place, — like a pig in the parlor instead of the
       barnyard.  If the validity of  the legislative class-
       ification for zoning purposes be fairly debatable,
       the legislative judgment must be allowed to control.
       Radice v. New York, 264 U.S. 292, 294. "  Id. at 387-388.

     The concept of eminent domain and practices thereunder have
been treated extensively in the literature.  An excellent discus-
sion of the various theories can be found in the article by Pro-
fessor Joseph L. Sax, "Takings and the Police Power," 74 Yale L.
Jou. 36 (1964) wherein the author finds inadequacies in  "The
Invasion Theory," "The Noxious Use Theory," and  "The Diminution
of Value Theory."  He then undertakes to formulate a theory for
the "Taking Cases," saying in part:

       The rule proposed here is that when economic loss
       is incurred as a result of government enhancement
       of its resource position in its enterprise capacity,
       then compensation is constitutionally required? it
       is that result which is to be  characterized as a

-------
                              2-200

       taking.   But  losses,  however severe,  incurred as a
       consequence of government  acting merely in its arb-
       itral capacity are  to be viewed as  a  non-compensable
       exercise of the police power.   Id.  at 63.

       It remains now only to observe how  the proposed theory
       works when applied  to the  cases. The precise rule to
       be applied is this:   when  an individual or limited group
       in society sustains a detriment to  legally acquired
       existing economic values as a consequence  of govern-
       ment activity which enhances the economic  value of some
       governmental  enterprise, then the act is a taking, and
       compensation  is constitutionally required; but when
       the challenged act  is an improvement  of the public con-
       dition through resolution  of conflict within the private
       sector of the society, compensation is not constitution-
       ally required.  Id. at 67.

Sax applied this theory to three  airport noise situations.  1) Dir-
ect overflights as  in Causby; 2)  the imposition of noise and glare
over a neighboring  tract of land; and 3) Appropriate zoning of land
near an airport to  prevent the problem from arising.  Id. at 67-68.
The author asserts  that:  "(U)nder the test here  proposed the three
airport noise situations would be treated  identically, and as quite
simple and straightforward  (compensable taking) cases."  Id. at 69.

       Altman  (1969) 61 Misc. 2d 4, 304 N.Y.S. 2d 534, the
       court finding the defendant guilty of violating
       the ordinance.  Attacking the ordinance as uncon-
       stitutional,  the defendant argued:   first, that
       local governments were pre-empted from governing
       in this area by federal laws and by administrative
       action of the Federal Aviation Agency; and secondly,
       that the ordinance  placed an unconstitutional burden
       upon interstate commerce.   Rejecting defendant's first
       argument, the court said that while it was true that
       an ordinance must fail when the area has been pre-
       empted by the Federal Government, as where the scheme
       of federal regulation is so pervasive as to make
       reasonable the inference that Congress left no room
       for the states to supplement it, the court went on
       to say that  it was  equally true that such local leg-
       islation survived when its conflict with federal law
       was indirect and not wholly repugnant to the federal
       statute so that in  the end the two were reconciled.
       As to defendant's second argument,  the court said

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                          2-201

   that although the commerce clause delegated to Cong-
   ress the authority to regulate interstate commerce,
   the states could exercise their police powers within
   matters of purely local concern by enacting legisla-
   tion which had an incidental effect upon that commerce,
   so long as the regulation was reasonable and necessary
   and did not unduly burden the flow of interstate com-
   merce.  Id. at 1317.

   (I)n State v. McNaney (Md. Crim. Ct., Baltimore)(1950)
   U.S. Av 144,  the court held that an ordinance which made
   it unlawful for an airplane to fly or pass over a stadium
   while an event was in progress for any advertising or
   commercial purposes whatsoever was a reasonable and nec-
   essary exercise of the police power in order to protect
   lives and property, and was therefore valid and warranted
   conviction of a defendant who had flown an airplane tow-
   ing an advertising banner over the stadium during the
   progress of a football game, notwithstanding the distinc-
   tion made by the ordinance between advertising and non-
   advertising aircraft.  Ibid.

11 2
 •*•  A village ordinance which prohibited air flights at
   less than 1,000 feet when passing over the village
   was held invalid because it conflicted with federal
   statutes which pre-empted the field of air traffic reg-
   ulation, in Allegheny Airlines,  Inc. v. Cedarhurst (1956,
   CA2 NY) 238 F. 2d 812, the court affirming judg-
   ment in favor of the airlines.  First the court
   pointed out that the village did not dispute that
   the Federal Government had pre-empted the field
   of regulation and control of the flight of air-
   craft in the airspace 1,000 feet or more above the
   ground, but that the village contended that Congress
   had not purported to pre-empt the airspace under
   1,000 feet, such area being necessary for take-offs
   from and landings at the airport.  The court went
   on to review the Civil Aeronautics Act of 1938,
   which empowered the Civil Aeronautics Board to make
   rules as to safe altitudes of flight at any eleva-
   tions, and, said the court, the provisions contained
   no suggestion that "navigable airspace" was restricted
   to airspace of not less than 1,000 feet above the
   ground.  On the contrary, the congressional purpose
   was clear to empower the Board to make rules as to
   safe altitudes of flight at any elevation, said the

-------
                               2-202

        court,  since its rules were to have,  among other
        objects,  prevention of collisions between aircraft,
        and between aircraft and land or water vehicles.
        Obviously,  said the court,  the greatest danger of
        such collisions arises when an aircraft takes off or
        lands.   The court concluded that the  village's argu-
        ment that the Board had itself established the mini-
        mum safe altitude of flight over a congested area,
        such as Cedarhurst, at 1,000 feet, completely disre-
        garded the express exception of takeoff and landing
        referred to in the regulation, which  in effect said
        that except when necessary for takeoff or landing,
        no person shall operate an aircraft below 1,000 feet
        over congested areas.  Id.  at 1318-1319.

     113Public Law 89-80,   (July 22, 1965), 79 Stat. 244.

     114Public Law 91-190  (January 1, 1970),  83 Stat. 852.

     115Id. at Sec. 101.

     116Id. at Sec. 202.

     117Id. at Sec. 201.
              ii of an Act to amend the Federal Water Pollution
Control Act, as amended, and for other purposes, of Public Law 91-
224 (April 3, 1970) 84 Stat. 91.

     119Id. at §203.

     120Id. at §202.  §204 provides that:

        Each Environmental Quality Report required by Public
        Law Law 91-190 shall, upon transmittal to Congress,
        be referred to each standing committee having juris-
        diction over any part of the subject matter of the
        Report.

     191
       •'"Public Law 91-604 (December 31, 1970) 84 Stat. 1676 (An Act
to amend the Clean Air Act to provide for a more effective program
to improve the quality of the Nation's air).

     122New §108 of the Clean Air Act.

     123New §109 of the Clean Air Act.

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                                2-203



     124Amendment to §202 of the Clean Air Act.

     125Amendment to §203(a)(1) of the Clean Air Act.

     126New §206 of the Clean Air Act.


     127Amendment to §211 of the Clean Air Act.


     128New §212 of the Clean Air Act.


     129New §231 and §232 of the Clean Air Act.


     130New §303 of the Clean Air Act.


     131New §306 of the Clean Air Act.

     T 32
        Airport and Airway Development Act of 1970, §16(c)(1)(A) and
§18(4); Public Law 91-258, 84 Stat. 219.


     133Id. at §16 (c) (4).


     134The Noise Around Us, supra note 7, at 146.

     13536 Geo. Wash. L. Rev.  1105 (1968).

     136IcL at 1120.

     137
        Department of Transportation Act of 1966, 80 Stat. 931, 49
U.S.C. §§1651-1653  (Supp. IV,  1968).
     •I O O
     XJ Report of the Jet Aircraft Noise  Panel of the Office  of
Science and Technology, Executive Office  of the President, on
Alleviation of Jet Aircraft Noise Near Airports of March,  1966,
at 6.
     139
        Id. at 8.
               No. 1463 on Aircraft Noise Abatement to accompany
H.R. 3400, committed to the Committee of the Whole House on the
State of the Union, May 23, 1968, at 18-19  (Hereinafter cited as
Report No. 1463).  See NASA Release of August 27, 1971, No:  71-156
re "First Quiet Engine Noise Tests."

     141Id. at 3-4.

     •^2Report No. 1353 of the Senate Committee on Commerce on
Aircraft Noise Abatement to accompany H.R.  3400 of July 1, 1968
(Hereinafter cited as Report No. 1353).

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                              2-204
     143Id. at 6-7.

        Notice of Proposed Rule Making, "Noise Standards:  Aircraft
Type Certification," U.S. Department of Transportation, Federal
Aviation Administration, Docket No. 9337, Notice No. 69-1, January 3,
1969 (Hereinafter cited as Notice) .

     145Federal Aviation Act of 1958, §611, 49 U.S.C. §1431
(Supp.  IV, 1968) .
              , supra note 144, at 2.

     147Notice, supra note 144, at 25-28.

     148Federal Aviation Act of 1958, 49 U.S.C., §1301 et seq.  (1964)

     l^Greenwald, supra note 1, at 7.

     150Federal Aviation Act of 1958, 49 U.S.C. , §§1421-1430  (1964) f
as amended, October 15, 1966, §6, 80 Stat. 937, 49 U.S.C. 1655(c)(l)
(Supp. IV, 1969).
            discussion of these points in "Port Noise Complaint"
6 Harv. Civ. Rights-Giv. Lib. L.R. 61, 89-91  (December,  1970).
See also Id. at 90, n. 131.

     15214 C.F.R. Part 36, §201 (1970).

     l^see subsection 1.1. 2B, supra, at 1-21.

     •*-^4Greenwald, supra note 1, at 8.

     155iiport Noise complaint," supra note 151, at 95-96.

     156Icl. at 61-62.

     157JCd. at 98.

     158Id. at 99-100.

     159Title 4, Department  of Aeronautics  (Register  70,  No.  48 —
11-28-70),  Subchapter 6. Noise Standards, Article 1,  at  391.

     160Id. at 5000, p.  392.

     161"An Introduction to  the Adopted Noise Regulations for
California  Airports," of November  13, 1970.

     162Id. at 3-4.

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                               2-205
     163Title 4, supra note 159, at 191-192.

        Greenwald, supra note 1, at 8-9.

     165The Noise Around Us, supra note 7, at 148-149.

     166Lesser, supra note 46, at 181.

     167The Air Commerce Act of 1926, 44 Stat. 568, was the first
Congressional enactment regulating air commerce.  It conferred "a
public right of freedom of interstate and foreign air navigation"
through "navigable airspace."  See discussion of the provisions of
this Act in Lesser, supra note 46, at 176-178.  The author makes
reference to the Civil Aeronautics Act of 1938 which replaced the
1926 statute and wherein the existence of "a public right of free-
dom of transit in air commerce through the navigable air space of
the United States" was again declared.  §3,  Civil Aeronautics Act
Act of 1938, 52 Stat.973, 980.  "Navigable Airspace" was defined as:
"air space above the minimum altitudes of flight prescribed by reg-
ulations issued under this Act."  §1(24),  Civil Aeronautics Act
of 1938.  Lesser states that:

        Pursuant to this authorization, the newly-created
        Civil Aeronautics Authority issued civil air regu-
        lations which specified that no person shall oper-
        ate aircraft over congested areas below an altitude
        of 1000 feet or below 500 feet over noncongested
        areas, "Exclusive of taking off from or landing upon
        an airport or other landing area..." 14 C.F.R.60.350
        (1943).
        Lesser, supra note 46, at 182.

     T68
        Lesser, supra note 46, at 184, comments on post-Causby
cases as follows:

        The aircraft noise suits, decided in the years
        immediately following Causby, were the traditional
        type of State-created actions for trespass and
        nuisance.  Since most of these suits were brought
        against private, rather than governmental defend-
        ants, property owners were generally unable to
        take advantage of the constitutionally-based cause
        of action which the Supreme Court had created in
        Causby.  In some of these cases, damages were awarded
        and/or injunctions issued (cited in Lesser, f.n. 80);
        in others the defendant was successful  (cited in f.n.

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                               2-206


        81) .   But injunctive relief was never granted against
        operations at a publicly operated airport, though in
        one case a municipal airport operator was ordered to
        adopt and enforce regulations "fixing the minimum
        reasonable height at which planes may be flown over
        the property of plaintiffs." (Citing Brooks v. Patter-
        son,  159 Fla. 263, 272-273, 31 So. 2d 472, 477 (1947)1

     169Id. at 184.

        Cedarhurst ordinance as quoted in All American Airways, Inc.
v. Village of Cedarhurst, 201 F. 2d 273, 275 (2d Cir. 1953).

     l^Lesser,  supra note 46, at 185-186.

     172
        City of Newark v. Eastern Airlines, Inc.. 159 F. Supp. 750
(D.N.J., 158).

        Lesser,  supra note 46, at 187.

     174369 U.S. 84  (1962).

     175Lesser,  supra note 46, at 188-189.

        Griggs v. County of Allegheny. 402, 411, 419, 168 A 2d.
123, 127  (1961).

     177Ackerman v. Port of Seattle. 55 Wash. 2d 400, 348 P.  2d
664 (1960).

     1 7ft
        Lesser,  supra note 46, at 190.

     179Federal Aviation Act of 1958, §101(24), 49 U.S.C. '§1301  (1964)

     180369 U.S. 84  (1962).

     181Id. at  86.

     182Id. at  89.

     183Ibid.
     ] 84
        Lesser,  supra note 46, at  191.

     185369 U.S. 84, 91.

     186Id. at  93-94.

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                               2-207
     ^'American Airlines, et al.. Port of New York Authority, et
al., v. Town of Hempstead, 272 F. Supp, 266  (E.D.N.Y. 1967), aff'd.,
398 F. 2d 369 (2d 369 (2d Cir. 1968), cert, denied. 393 U.S. 1017
(1969).

     188272 p. supp. 226, 230.

     1 ftQ
     xo:?Lesser,  supra note 46, at 197, no. 147.

     1902g? p> Supp> 207  (W.D.Ky. 1968), aff'd., 407 F 2d 1306  (7th
Cir. 1969), cert, denied, 396 U.S. 845  (1969).
     1 Ql
      yJ-2 Cal. App. 3d 318, 82 Cal. Rptr. 578  (1969).

     192
        The Court recited a California Public Utilities Code which
gave certain powers to a city with a municipally owned airport:  "In
connection with the erection or maintenance of such airports or fac-
ilities, a local agency may:  (f) regulate the use of the airport and
facilties..."  The opinion states:  "The subject matter of the Santa
Monica ordinance clearly comes under the cities' power to 'regulate
the use of the airport.'  The ordinance may also be upheld as a valid
exercise of the municipality's police power."  Id. at 82 Cal. Rptr.
578, 581  (1969).
     193
        318 F. Supp. 914  (C.D. Cal. 1970).
     I QA
        .Id,, at 920.  The opinion also states:  "In the xnstant case,
the FAA, on September 4, 1969, issued a noise abatement order for
HBA making runway No. 25 a preferential runway for departure from
11:00 p.m. to 7:00 a.m....This preference was a noise abatement meas-
ure for the benefit of the City of Burbank."  (Id. at 923)

     195Ibid.

     196272 U.S. 605 (1926).   (Court found that the Interstate
Commerce Commission Boiler inspection Act applied to locomotives
in interstate commerce even if operated wholly within one State
and not engaged in hauling interstate freight.)

     197331 U.S. 218 (1947).  The Supreme Court applied three tests
for preemption:  1) pervasive scheme of Federal regulation; 2) field
of dominant Federal interest; and 3) state policy may produce a result
inconsistent with the objective of the Federal statute.

     198318 F. Supp. 914, 925.

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                              2-208
     I QQ
       See  note  142  supra.

     200318  F.  Supp.  914, 925.

     201Id.  at  926.
     202
        Id.  at 927.
     203JEd.  at 928.

     204261  A. 2d 692 (1969).

     205ld.  at 698.

     206Id.  at 699.

     207,Id.  at 701.

     208Id.  at 705.

     209Id.  at 706.

     210Id.  at 707.

     211Id.  at 696,  701.

     212Id..  at 708-

     213Id.  at 707.   After noting that Public Law 90-411 which
added §611 to the Federal Aviation Act of 1958 strengthened the pos-
ition of the Federal government in the aircraft noise regulation
field, Lewin concludes:

        The  precise legal effect of expanding power of the
        FAA has not as yet been determined.  The question
        of whether municipalities can set  lower maximum
        noise levels in cases where interstate commerce
        would not be burdened but where the FAA has
        already set these levels is yet to be determined
        by the Courts.

        Lewin, Stuart F., Alan H. Gordon,  Channing Hartetius,
        Law and the Municipal Ecology, Part II, "Noise Pollu-
        tion" at 74  (NIMLO Research Report 156, 1970).

-------
                               2-209
     214
        Lesser, supra note 46, at 198.  Apparently, only Washington
National Airport has a total ban on jet operations  during  certain
hours of the night.  See  "Airport Noise and Airport Neighbors", at
30, of DOT/HUD's A Study of Logan International Airport, Report No.
IA NAP-70-1, March 1970).

     91 S
     *X3Batten v. United  States, 306 F. 2d 580  (10th  Cir.  1962),
cert, denied, 37 U.S. 955  (1963), rehearing denied, 372 U.S.  925
(1963) .

     21611 Avi. 17, 642 (Cal. Super. Ct. 1970).

     217Cunliffe v. County of Monroe, 63 Misc. 2d 62,  65,'  312 N.Y.S.
2d 879, 883  (1970).

     21864 Wash. 2d 309,  319; 391 P. 2d 540,  547  (1964).
     o 1 q
        Lesser, supra note 46, at 194-195.

     220_Id. at 195.
     901
     * •'-See Environmental Law Reporter, 1 ELR 65068 of 2-71.   Case
cited as Aaron v. City of Los Angeles  (Superior Ct. Cty. of Los Ang-
eles, 1970).  See also 1  ELR 20196, 4, 5 - 71 which cites  the case
as Aaron v. City of Los Angele_s, No. 837 799  (Super.  Ct. Los  Angeles,
February 5, 1970), with the full opinion.

     72?
     ^ ^1 ELR 65068 at 65069.

     223
        Lesser, supra note 46, at 194.
     994.
     z *1 ELR 65068 at 65069.

        Lesser, supra note 46, at 195.
     225
        Lesser, supra note 46, at 196.

     226Id.  at 201.

     997
     " 'Report of the Jet Aircraft Noise Panel, siupra  note 138, at  141,

     228
        This Summary on "Aircraft Noise:  Reduction of Noise  at the
Source," was appended to a letter of June 25, 1968, to Senator Mon-
roney, Chairman, Subcommittee on Aviation, Committee  on Commerce,
U.S.  Senate, from the Airport Operators Council International,  Inc.,

-------
                               2-210
at pages 82-86 of Hearing Proceedings on "Aircraft Noise and Abate-
ment Regulation" of June 17, 1968 (Serial No. 90-72)(Hereinafter
cited as Summary).

     229Id. at 82.

     230Ibid.

     231Ibid.

        The International Civil Aviation Organization is also moving
toward some standard of international uniformity with respect to air-
craft noise abatement to avoid similar competitive problems.  Meynell
in "International Regulation of Aircraft Noise," SAE/DOT Conference
on Aircraft and the Environment,  P-37, 2 vols.,  Society of Automotive
Engineers,  Inc., New York 10001,  1971, Part 1, at 172, states:

        International uniformity is needed not only to protect
        the noise-suffering public throughout the world, but
        also because., without it, those manufacturers and air-
        lines which carried out the greatest amount of quiet-
        ing would be at a commercial disadvantage vis-a-vis their
        competitors becuase they had increased greater costs.
        Operators of aircraft of a country a condition of whose
        registry was the adoption of significantly more severe
        and costly standards of quietness would also be penalized
        if other operators in competition with them faced less
        severe requirements.

     232
        Summary, supra note 228,  at 82.

     233ld. at 83.

     234Ibid.

     235Ibid.

     236Id. at 84.

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                              2-211
     241Ibid.

        The letter of Mr. Robert F.  Allnut,  Assistant Administrator
for Legislative Affairs,  NASA,  to the Chairman,  Committee on Inter-
state and Foreign Commerce,  House of Representatives, of November 21,
1967, relative to H.R. 3400,  provides some background on this point:

        In his March 2,  1966,  message to Congress,  recommend-
        ing the establishment of a Department of Transportation
        (H.Doc. 399),  the President  recognized the  noise prob-
        lem and its urgency.

        He said,  in part:

        "The jet  age has  brought progress and prosperity in
        our air transportation system.   Modern jets can carry
        passengers and freight across a continent at speeds
        close  to  that of  sound."

        "Yet this progress has created special problems of its
        own.  Aircraft noise  is  a growing source of annoyance
        and concern to the thousands of citizens who live near
        many of our large airports.   As more of  our airports
        begin  to  accommodate  jets and as the volume of air travel
        expands,  the problem will take on added dimension."

        "There are no simple  or  swift solutions. But it is
        clear  that we must embark now on a concerted effort to
        alleviate the problems of aircraft noise.   To this end,
        I  am today directing  the President's science adviser to
        work with the Administrators of the  Federal Aviation
        Agency and the National  Aeronautics  and  Space Administra-
        tion,  and the Secretaries of Commerce and of Housing and
        Urban  Development,  to frame  an action program to attack
        this problem."

        "I am  asking this group  to -

             Study the development of noise  standards and
               the compatible uses of land near  airports;

             Consult with local  communities  and industry;
               and

             Recommend legislative or administrative actions
               needed to  move ahead in this  area."

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                          2-212
   The President's  action was  in  part  based on recommenda-
   tions,  also published in March 1966,  in a report of
   the Jet Aircraft Noise Panel of the Office of Science and
   Technology entitled "Alleviation of Jet Aircraft Noise
   Near Airports."   That report,  which resulted from extended
   study of the problem, contains information on many aspects
   of the  problem.

   Following through on the President's request and using
   the above-mentioned report  as  a starting point for an
   integrated study of the problem, first the Director of
   the Office of Science and Technology and more recently
   the Secretary of the Department of  Transportation
   taken leadership in the study  of aircraft noise and its
   related problems.  The National Aeronautics and Space
   Administration and other interested and affected execu-
   tive agencies are participating in  that work.
   Report  No. 1463, supra note 118, at 19.

942
   Summary,  supra note 228, at 86.

243
   In recent years  an industry-wide organization, the
   National Aircraft Noise Abatement Council, has been
   engaged in developing a broad  program of studies and
   research aimed at reduction of jet  aircraft noise.
   However,  a major difficulty in developing practical
   approaches has been inhibition of initiative by any one
   of the  several groups involved because of conflicting
   economic and other interests.   For  example, it is dif-
   ficult  for engine manufacturers to  initiate costly
   engine modifications because airline operators claim
   they cannot afford to pay for  them; for economic rea-
   sons, some airline operators insist on maximizing the
   payload to be carried with  a specific engine/airframe
   combination in spite of resulting take-off noise levels
   objectionable to communities near the airports; some
   local governments in communities bordering on
   airports are not willing to accept  the economic
   consequences of zoning constraints  or the exercise
   of eminent domain and argue that aircraft noise
   should rather be reduced by improving engines, off-
   loading aircraft and steeper take-offs and landings;
   and many affected residents object  to being uprooted,
   and having to give up long-time personal and commun-
   ity associations.  Note 227 supfa,  at 4.

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                               2-213


     244
        Hill, James D., "Liability for Aircraft Noise - The After-
math of Causby and Griggs," 19 U. Miami L. Rev. 1, 26 (1964).  In
support of this observation the author quotes a statement by Sena-
tor Monroney, Chairman of the Senate Aviation Subcommittee, to the
effect that grants for "avigation easements" were not authorized
the Federal Airport Act, 60 Stat. 170  (1946), as amended, 49 U.S.C.
§1101 (Supp. V.  1961) :

        (T)he law specifically provides that no funds will
        be allocated to proj'ects which are not directly
        related to safety  (such as runways, high intensity
        runway lighting, and runway distance markers).  Con-
        sequently, the Agency is precluded by law from allo-
        cating Federal funds for the acquisition of land for
        the purpose of noise abatement.

     245Id. at 27.

     246Note 142, supra, at 6.

     247Id. at 7.

     248Ibid.

     249Hill, supra note 244, at 31.

     250
        See Statement by John R. Wiley, Director of Aviation, The
Port of New York Authority, before the Subcommittee on Aviation of
the Senate Commerce Committee, of July 13, 1971.  See also Statement
of the Airport Operators Council International at the same hearing
which asserts that:  "On the basis of a recent survey of noise liti-
gation now pending, A.O.C.I, estimates the amound claimed against
operators of local public airports in noise suits in excess of $3.8
billion."   (id. at 13.)

     251Federal Aviation Act of 1958 §611, 49 U.S.C. 1431  (Supp. IV, 1968).
     25314 c.F.R. §36, et seq.

        See Lesser, supra note 46, at 204.

     25514 C.F.R §36.5.  FAA has acknowledged that its aircraft
noise standards so far promulgated are based on economic reasonable-
ness and technological practicability as contrasted with social

-------
                               2-214

acceptability. (U.S. Federal Aviation Administration, "Adoption of
Noise Type Certification Standards and Procedures," Federal Register,
XXXIV, No. 221, November 18, 1969, 18355-18379 [as amended} "Part 36 -
Noise Standards:   Aircraft Type Certification  corrections  ," Fed-
eral Register, XXXIV, No. 229, November 29, 1969, Appendix B, "Air-
craft Noise Evaluation under section 36.103."  See at 18356.)

     The language of Public Law 90-411 is to be contrasted with the
Clean Air Amendments of 1970 as to the establishment of standards.
The Clean Air Amendments provide for the adoption of national air
quality standards and specifically reject the test of technological
practicability and economic reasonableness.  "The concept is of pub-
lic health, and the standards are uncompromisable in that connection."
(U.S. Congress, Senate, remarks by Senator Edmund S. Muskie, 91st
Cong., 2d Sess.,  September 22, 1970, congressional Record, S. 16239
{daily ed.} .

     256Federal Aviation Act of 1958, §101(24), 49 U.S.C. §1304  (1964)
     257
        Lesser, supra, note 46, at 198.
     OCQ
     ^•JOPort of New York Authority v. Eastern Airlines 259 F. Supp.
142  (E.D.N.Y., 1966).

      ^9Lesser, supra note 46, at 199.
               reports two recent actions which also give airport
operators cause for considerable concern:

         (I)n July, 1970, the New York Attorney General sued
        it  (Port of New York Authority) together with 58 for-
        eign and domestic airlines who use Kennedy and La
        Guardia Airports.   (State of New York v. Port of New
        York Authority - Index No. 6981/70) The Attorney Gen-
        eral claims that defendants ' activities have created
        excessive and intolerable noise conditions.  He is
        seeking to have the Authority and the airlines enjoined
        from injuring and endangering "the comfort, repose and
        health" of the affected citizens and is asking, in
         effect, that the Authority be compelled to adopt a
        more stringent standard than its 112 PNdb jet regu-
         lation and that the airlines be required to obey
         the new standard.

         Lesser, Id. at 199.

-------
                               2-215
        (T)he City of Boston has recently commenced a federal
        court action against the Massachusetts Port Authority
        and nineteen airlines using Logan International Air-
        port for noise pollution damages totaling $10.2 million.
        Mayor White of Boston said that if the suit is success-
        ful the damages would be used in part to help soundproof
        fifteen schools.  A city survey, he said, disclosed that
        instruction at these schools had to be interrupted every
        six minutes because of aircraft noise.

        Lesser, Id. at 205, citing N.Y.L.J., September 10, 1970,
        p. 1, col. 6.

     2^-*-Lesser, supra note 46, at 205, reports one legal action
which undertakes to circumvent the Griggs doctrine by shifting  lia-
bility to the airlines and the aircraft engine manufacturers.  He
cites Greater Westchester Homeowners' Association v. City of Los
Angeles (Cal. Super. Ct. No. 931, 989, April 21, 1970).  However,
the trial court dismissed the complaint for reason of not establish-
ing "standing" and on appeal by the Association, this decision was
affirmed without comment on the City of Los Angeles' cross claims
seeking to pass liability to the airlines and aircraft manufacturers,
See 13 Cal. App. 3d 485 (1970).

     262Wiley, supra note 250, at 2.

        The FAA is currently working on new regulations that will
set specific limits on noise abatement procedures, defining minimum
safe operational performance levels below which operational flight
will not be permitted for noise abatement purposes.  See Pulling,
"The Federal Regulation of Aircraft Noise," SAE/DOT Conference on
Aircraft and the Environment, P-37, 2 vols.. Society of Automotive
Engineers, Inc., Two Pennsylvania Plaza, New York, New York 10001,
1971, Part 1, at 178.,

     263Ibid.

     264Id. at 3.
     o c. c
        See Testimony of Burt F. Raynes, Chairman and Chief
Executive of Rohr Corporation, before the Senate Subcommittee on
Aviation of the Senate Committee on Commerce, July 13, 1971, who
apparently favors retrofit; but see Statement of Secor D. Browne,
Chairman of the Civil Aeronautics Board before the Subcommittee on
Aviation of the Senate Committee on Commerce of July 13, 1971, who
stated:  "I do not believe that the retrofit program is worth the
cost to the public."  Id.  at 4.

-------
                               2-216
        See also Aviation Week & Space Technology, April 26,  1971,
p. 26, and relevant comments from DOT/NASA CARD Study Report, note
283, infra.

     266Wiley, supra note 250, at 6.

     267Id. at 8.

     268
        40 Law Week 2029, July 20, 1971.  Mass Sup. Jud. Ct.:  Opin-
ion of the Justices, June 25, 1971.

     269
        Mass. Senate No. 1161, as amended by the House  (1971).

     270
     ^Opinion of the Justices, supra note 268, at 1.
          - at 3.

     272Id. at 4.

     273Ibid.

     274Ibid.

     275Id. at 5.

     276lbid.
     277
        Id. at 6.
        T, . ,
        Ibid .
     279
        Id. at 6-7.  The Court notes that this policy is also written
into the regulations (14 C.F.R. §36.5).

     280Id. at 9-10.

     281Id. at 10-11.

     282Id. at 11.

     283Joint DOT/NASA Civil Aviation Research and Development Policy
Study Report (CARD Study) of March, H71, at 5-3  (DOT TST - 10-4)
(NASA SP-265) (Hereinafter referred t •> as CARD Study Report) .

        To the effect that there is a trend toward increased aircraft
noise "exposure"  (as defined by NEF methodology) and that increases

-------
                               2-217


in airline passenger traffic and increases in aircraft noise exposure
around airports are essentially proportional, see Paullin,  "Capacity
and Noise Relationships for Major Hub Airports," 58 Proceedings of
the IEEE, No. 3 (March, 1970).

     284CARD Study Report, supra note 283, at 5-3, 5-4.
     285Id. at 5-4.
        See New York Times, July 11, 1971, p. 1, col. 3,  "New Jet-
ports Held Up By Protest Movements."

     287Ibid.

     288See New York Times, April 4, 1971, p. 66, col. 8.
     O Q Q
        Among numerous articles touching on this topic see Washington
Post Editorial of March 19, 1971, §A, p. 14, col. 1; New York Times,
March 21, 1971, p. 1, col. 1; and New York Times, March 28, 1971,
§4, p. 1, col. 5.  Numerous analyses of the sonic boom problem and
how it might be managed were made prior to the Congressional decision
to terminate the American version of the SST.  See, for example,
Baxter, William F. ,  "The SST: From Watts to Harlem in Two Hours,"
21 Stan. L. Rev. 1  (1968) , which discusses the response of the
legal system to this problem.  The introduction states: "Some
system of rules and procedures will develop that will allocate the
social cost of the boom phenomenon between those exposed to booms
and the users and owners of supersonic air transport." Ibid.
     290
      ^
        See CARD Study Report, supra note 283, at 5-7.
            Statement of Airport Operators Council International
before the Subcommittee on Aviation of the Senate Committee on Com-
merce of July 13, 1971, p. 11-13.
             Study Report, supra note 283, at 5-7.
     293
        Id. at 5-6. "If engine noise is not reduced, it would cost
roughly $17 billion to purchase the approximately 1300 square miles
affected by noise levels of 30 Noise Exposure Factor (NEF) or greater.
On the other hand, if engine noise could be reduced by 10 dB, the
land exposed to 30 NEF or greater would cost an estimated $1.6 billion."

     9QA
     ''^Special Report, British Record No. 5, May 19, 1971, "Pollu-
tion Control in Britain" at 2.

-------
                               2-218
     295
        New York Times Editorial, July 24, 1971, p. 24,  col.  2.
A more recent story in the Washington Post, September 11,  1971,
p. D 46, col. 1, states that the City is spending almost $300 million
to "eradicate" 1,994 private homes spread over 400 acres on the
outskirts of Los Angeles International Airport.
               of the Committee on Public Engineering Policy,
National Academy of Engineering, July 1969, at 92-94.


     297Id. at 95.


     298CARD Study Report, supra note 283, at 5-9.


     299Id. at 5-8.


        Vol. I:  Conclusions, Recommendations, Summary, at 2.


     301Ibid.


     302Ibid.


     303Id. at 20.


     304Id. at 2.

     305Ibid.


     306Ibid.


     307Note 227, supjra, at 7.

     308
        Interview with Mr. Joseph Crotti, Director of Aeronautics,
State of California, August 9,  1971.

     "5OQ
        Fadem and Berger, "A Noisy Airport is a Damned Nuisance,"
3 SW. U. L. Rev. 39, 86-87  (1971) .

     310llport Noise complaint," supra note 151, at 117.


        Katz, supra note 8, at  21.


     312Id. at 23.


     313174 N.E. 2d 754  (1961).


     314Id. at 755.

-------
                               2-219
        Deaconess Hospital v. Washington State Highway Commission
403 P. 2d 54 (1965).

     317'id., at 56.

     318ld. at 59.

     319Id. at 71-72.  Under other circumstances, however, a hospital
has been successful in maintaining an action for nuisance against
noise making sources.  In Clinic & Hospital v. McConnell 236 S.W. 2d
384 (1951)  (23 ALR 2d 1278) the plaintiff sought to enjoin the opera-
tion of a loud speaker in the front window of a music store diagon-
ally across the street from which music was continuously broadcast,
sometimes until 11:00 p.m.  The hospital was established long before
the music store.  The sound was clearly audible in the hospital above
ambient street noise.  Evidence showed that the sound had an injurious
effect on some patients.  The court considered interference with the
operation of the hospital to be "relatively serious" and determined
that the defendants should be perpetually enjoined.  The general prin-
ciple was stated by the court as follows:

         (A) business which is lawful in itself may become a
        nuisance where it is not operated in a fair and reason-
        able way with regard to the rights of others in the
        use and enjoyment of their property....(T)he question
        is one of reasonableness.  What is...an unreasonable
        invasion of another's use and enjoyment of his prop-
        erty cannot be determined by exact rules, but must
        necessarily depend upon the circumstances of each
        case, such as locality and the character of the sur-
        roundings, the nature, utility and social value of the
        use, the extent and nature of the harm involved, the
        nature, utility and social value of the use of enjoy-
        ment invaded, and the like.  See Restatement of Torts,
        Vol. IV, §822 and §831, at 214, 265  (23 ALR 2d 1287).

      320For discussion of particular noise sources as a nuisance see:
        Annot., 2 ALR 3d 1372  (Truck Terminal)
        Annot., 4 ALR 3d 902  (Power Plant)
        Annot., 5 ALR 3d 989  (Tavern)
        Annot., 26 ALR 3d 661  (Shooting Range)
        Annot., 18 ALR 2d 1035  (Stockyard)
        Annot., 39 ALR 2d 1007  (Undertaker)

-------
                               2-220


        Annot., 44 ALR 2d 1394  (Dance Hall)
        Annot., 26 ALR 2d 653  (Auto Wrecking Yard)
        Annot., 44 ALR 2d 1322  (Oil Refinery)
        Annot., 91 ALR 2d 572  (Drive-in Restaurant)
        Annot., 92 ALR 2d 977  (Dairy and Creamery)
        Annot., 93 ALR 2d 1171  (Drive-In Movie)
        Annot., 23 ALR 2d 1289  (Business Premises)

        Also see recent cases:

        Davoust v. Mitchell,  257 N.E. 2d 332  (Ind.  1970) (Dog Pen)
        Johnson v. Mount Ogden  Enterprises, Inc.,  23 Utah  2d 169,
          460  P. 2d 333  (1969)  (Drive-in Theater)
        Severt et. al v. Beckkley Coals, Inc.,  170  S.E.  2d 577
           (Sp. Ct. W. Va. 1969)  (Coal Mine)
        Corporation of the Presiding Bishop of  the  Church  of the
          Latter Day Saints v.  Ashton, 92  Idaho 571, 448 P.  2d  185
           (1968)(Church Activities, Baseball Games)
        Smith  v. Western Wayne  County Conservation  Association,
          380  Mich 526, 158 N.W. 2d 463  (1968)(Gun  Club)
        Kasala v. Kalispell Pee Wee Baseball League, 151 Mont.
          109, 439 P. 2d 65  (1968)(Baseball Game)
        City of Fredericktown v. Osborne,  429 S.W.  2d  17 (Mo. App.
          1968)(Keeping Dogs)
        Bates  v. Quality Ready  Mix, Inc.,  261 la 696,  154  N.W.  2d
          852  (1967)(Cement Factory)
        Sanders v. Roselawn Memorial Gardens, 152 W. Va. 91, 159
          S.E. 2d 784  (1968) (Cemetery).

     321
        Campbell v. Arkansas  State Highway Commission,  38  S.W.  2d
 753, 754  (1931).

       In the  case of Arkansas  State Highway Commission v. McNeill,
 381 S.W. 2d 425  (1964), the Arkansas Court cited the Campbell case
 and again rejected claims of  reduced property value due to noise,
 dust fumes, glaring lights, and vibration  from  highways, saying that
 such damage which is suffered by the public in  general,  even though
 to a degree it may involve more inconvenience to particular landowners,
 is not compensable.  The McNeill case involved  an attempt  by property
 owners to enjoin the Highway  Commission  from constructing  an inter-
 change near their homes unless  it filed bond to secure damages  that
imight be suffered as a result of the construction.  See the subsequent
 case, also citing the Campbell  case of Arkansas State  Highway Commis-
 sion v. Kesner, 388 S.W. 2d 905 (1965) which was a similar situation
 to McNeill.  The Court said that where there is no actual  taking,  the
 claimant  "must suffer direct  and substantial damage peculiar to him-

-------
                               2-221


self,  and not suffered by other members of the public, arid this is
true,  even though he may be actually more  inconvenienced than the  pub-
lic in general."  Id. at 909.

     It is of interest to note that in a 1963 Wyoming case in inverse
condemnation where it was claimed that lights from automobiles on a
new highway rendered certain property undesirable for use as a theatre
(property which had not been used within two years as an outdoor
theatre prior to opening of traffic), the Supreme Court of that State
held  that the claim was too speculative to  support an  award for
damages.  The Court stated,  inter alia;  "Unlike smoke, gases, dust,
and noxious odors, or even disturbing noises, light is  not inherently
harmful and it does not unreasonably or substantially interfere with
the ordinary use and enjoyment of property."  Sheridan  Drive-In
Theatre. Inc. v. State of Wyoming,  384 P. 2d 597, 600  (1963).

     322357 P. 2d 451  (1960).

     323Id. at 453.

     324Id. at 454.

     32548 Cal. Rptr. 672  (1966).

     326Id. at 677.
     •507
     J  772 Cal. Rptr. 240  (1968).

     328Id. at 242.

        T, . ,
        Ibid.

     330Id. at 244.

     331Ibid.

     332
        The Louisiana Supreme Court held in  Reymond v.  Department
of Highways, 231 So. 2d 375  (1970)  that in a suit for damages  for
diminution of property value resulting from  highway construction that
the plaintiff could not recover  for diminution  in value caused by
impaired accessibility, discomfort,  and disturbance, but  that  she
could recover for diminution in  market value of her residence  by rea-
son of  structural damages attributable to vibration from  pile-driving
activity during highway construction.

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                              2-222
        See also,  Northcutt v. State Road Department of Florida, 209
S.E. 2d 710 (1968) discussed infra this subsection.

     333137 S.E. 2d 343 (1964).

     334Id. at 344.

     335_Id. at 347.

     336308 F. Supp. 777 (1970) .

     337Id. at 783.

     338Id. at 782-783.
            at 785.  The Court found no compensable damages for
"substantial loss of access," or for "loss from change of grade,"
or for "loss of parking, " or for "loss of business occasioned by
the project. "

     3  Commonwealth v. Elizabethtown Amusements, Inc., 367 S.W. 2d
449 (1963) .

     341.Id. at 452.  On a related point the Court stated:

        The purpose of the testimony was to show that there
        would be benefits to the theatre operation offsetting
        any possible resulting damages from additional noise.
        A sufficient answer to this contention is that under
        the law in force at the time this case was tried, ben-
        efits could not be set off against resulting damage.
        Id. at 453.

        A subsequent Kentucky case, Commonwealth, Department of High-
ways v. Carson, 398 S.W. 2d 706 (1966) reaffirmed the Elizabethtown
Amusements, Inc. doctrine, stating that "The second error charged
concerns the introduction of evidence of noise from a new highway.
We have held such evidence to be competent."  Id. at 707.

     342149 So. 2d 851  (1963).  Mississippi is a "taken or damaged
for public use" state.  Id. at 855.

     343Id. at 855.  The Court also observed that:

        Where part of a tract is physically appropriated, the
        condemnor should pay severance damages,  i.e., the

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                               2-223


        depreciation in the fair market value of the remaining
        area... This principle has been almost universally applied
        in other states, and is in accord with the decisions in
        this state.  Id. at 855-856.
     344
        148 S.E. 2d 747 (1966) .

     345
        .Id. at 748-749.  The Court also cited 4 Nichols on Eminent
Domain, §14.1, at 743:

        A distinction must be drawn between consequential
        damages to a remainder area where a part of a tract
        is physically appropriated and consequential damages
        to a tract no part of which is physically appropriated.
        In the latter case the damage must be peculiar to such
        land and not be such as is suffered in common with the
        general public.  In the former case it matters not that
        the injury is suffered in common with the general pub-
        lic.

     346Pierpont Inn, Inc. v. State of California, 68 Cal. Rptr. 235
243 (1968) .

     347Ibid.

     348366 S.W. 2d 420 (1963) .
        Iji. at 421. The Turk decision quoted with approval from Wilson
v. Kansas City, 162 S.W. 2d 802, 805 (1942) on the "more general sub-
ject" that "traffic, great or small, is merely an incident of streets
and highways and cannot be considered either as an element of damages
or of benefits."

     350388 S.W. 2d 522 (1965).

     351Id. at 525.
        402 S.W. 2d 336, 340 (1966).

        239 N.E. 2d 708 (1968).

     355Id. at 710.

     356Ibid.
                                                          T

-------
                              2-224
     357Ibid.
        Ibid.
     363Ibid.

     364302 N.Y.  Supp.  2d 898 (1969).

     365Id. at 904.

     366318 N.Y.  Supp.  2d 57 (1971).

     367Id. at 61.

        See also  Valicenti v. State,  312 N.Y.S.  93,  95 (1970):

        Far from  the "entirely secluded, quiet and peaceful"
        setting pictured in Dennison, . . .claimants '  Jericho
        Turnpike  realty has suffered essentially no loss of
        privacy apart from the noise factor and to award dam-
        ages for  increased traffic noise in this instance
        would be  to  do  so in the impermissible "quite unrestric-
        ted form."   A comment on the Dennison case appears in
        10 Wm. &  Mary L. Rev. 767 (1969) wherein the writer states
        that Dennison is contrary to "the general tendency of the
        law" and  that it must be read in light of the particular
        uniqueness  of the property there involved.   Id .  at 769.

     368209 So. 2d  710  (1968).

     369Id. at 710-711.

        Id. at 711.   City of Jacksonville v. Schomann, 199 So.  2d
727 (1st B.C. A. Fla. 1967), cert, denied 204 So. 2d 327  (Fla. 1967)
cert,  denied,  390 U.S.  981 (1968).

     371Honeywell,  "Eminent Domain:   Inverse Condemnation - What Con-
stitutes a Taking?"  21  U. Fla. L. Rev.  257, 259 (1968).

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                               2-225
     312Id.  at 259-260.

     373209  So.  2d 710,  711.

     374Id.  at 712.

     375Ibid.

     376Honeywell, supra note 370,  at 258.

     377Ibid.


     378Id.  at 261.

     379
        Id.  at 262.   A recent decision in a Superior Court of New
Jersey heTd in favor of a citizens' group which filed suit to enjoin
a planned widening of the New Jersey Turnpike.  Plaintiffs alleged
that such widening would increase air and noise pollution problems
to a level that would prove hazardous to health.  Counsel for the
plaintiffs was quoted as stating that this was the "first time a
highway project has been enjoined in New Jersey and the first time
such a project was halted anywhere for environmental reasons, as
far as we can determine."  New York Times, September 5, 1971, p. 26,
col. 3.

     In another recent New Jersey case, an award of $164,119 was
made by a Superior Court judge in Elizabeth, New Jersey to the
local Board of Education which had alleged damages caused by
noise interference with the conduct of classes at the William F.
Halloran School after Interstate Highway 278 was constructed next
to it.  In 1965 the Highway Department condemned  2,034 square feet
of the school's property for the highway for which the School Board
was awarded $3,700.   The noise level increased from about 60 decibels
(dB) before construction to approximately 80 dB after construction.
Interference with normal speech commences at the 65-70 dB level.
$94,350 of the -judgment reflected the cost of air-conditioning the
school and $51,000 the cost of sealing the windows.  An expert
witness in the case, Lewis S. Goodfriend, noted the relationship
of speed to noise, saying:  "You get much more noise with traffic
moving at 50 miles an hour than at, say, 35."  The state will
appeal the decision.  See the New__York_T_inies_, October 3, 1971,
p. 66, col. 1.
     O Of)
     JOULewin, supra note 213, at b5.

     381Id. at 57-58.

     382Id. at 58.

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                              2-226
     383Ibid.

     384Id.  at 59.

     385id.  at 60-61.

     386i72  s.E.  2d 42 (1970) .

     387Id.  at 48.

     388Ibid.

     389Id.  at 47-48.
        Lewin,  supra note 213,  at 61.
     391
        In Goldblatt v. Hempstead, 369 U.S. 590 (1962), the Supreme
Court in construing an ordinance regulating sand and gravel excava-
tion pits advanced the following general test:

        The ordinance in question was passed as a safety
        measure... To evaluate its reasonableness we there-
        fore need to know such things as the nature of the
        menace against which it will protect, the availa-
        bility and effectiveness of other less drastic pro-
        tective steps, and the loss which appellants will
        suffer from the imposition of the ordinance.  Id.
        at 593.

The authors Lockhart, Kamisar, and Choper of Constitutional Law; Cases-
Comments-Questions  (1970), ask re this test:  "What is the significance
of the court's reverting to speak in terms of the  'reasonableness1 of
the exercise of the  'police power1, in view of its long abstinence
from such criteria in the due process cases of economic regulation?"
Id. at 491.
            U.S. 558  (1948)

        Id. at 560-561.

     395Id. at 561-562.

     396336 U.S. 77 (1949) .

     397Id. at 79.

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                               2-227
     398Id.  at 79.

     399Id.  at 86-87.

     400ld.  at 88-89.


      01Lewin, supra note 213, at 65.  In the case of Maldonado v.
County of Monterey, 330 F. Supp. 1282 (1971), the U.S. District
Court (N.D.  Cal.), considered the constitutionality of a city
ordinance (An Ordinance Relating to Noise on Highways) which pro-
hibited "Loud and Raucous Noise" and which also defined the meaning
of this standard.  An action was brought by labor organizers seek-
ing a preliminary injunction against enforcement of the ordinance.
The labor organizers were engaged in a strike and asserted that the
only means by which they could effectively communicate with the
workers in the fields was through the use of sound amplification
devices on cars or trucks.  The Court noting that "Loud and Raucous
Noise" was defined by the ordinance as "(3) The human voice or
any record or recording thereof when amplified by any device whether
electrical or mechanical or otherwise to such an extent as to cause
it to carry on to private property or to be heard by others using
the public highways or public thoroughfares," held that the ordinance
was unconstitutional under the First Amendment since it had the
effect of prohibiting any amplification of the human voice above
a normal speaking level from all public highways and thoroughfares
at any time of day or night, stating:

       The Monterey ordinance is not drawn with narrow
       specificity, nor does it reasonably regulate the
       use of loudspeaking devices.  It flatly prohibits
       their use on public roads.  Rather than limiting
       the decibel-level, it effectively bars any sound
       louder than the normal human voice.  Rather than
       restricting the use of such equipment to certain
       periods of the day, it restrains such use at any
       time.  Id. at 1286.

        In a different context, it has been held that denial of a
permit to construct a church for reason of resulting noise and other
inconvenience to residential neighbors has been held to be insuffic-
ient.  See cases discussed in 74 ALR 2d 394.

     403Lewin, supra note 213, at 67.

        See also Kramon, supra note 4, at 93.

     404
        Lewin, supra note 213, at 67-69.  However, in the 1971 Supreme
Court case of Coates v. City of Cincinnati, 91 S. Ct. 1686  (1971), the
majority held a city ordinance invalid which made it a criminal offense

-------
                              2-228
for "three or more persons to assemble...on any of the sidewalks...and
there conduct themselves in a manner annoying to persons passing by..."
The Ohio Supreme Court had affirmed convictions under the ordinance
saying that the word "annoying" is widely used and well understood.
But the Supreme Court majority stated:  "In our opinion this ordinance
is unconstitutionally vague because it subjects the excercise of the
right of assembly to an unascertainable standard,- and unconstitution-
ally broad because it authorizes the punishment of constitutionally
protected conduct."  Id. at 1688.
     405
        Lewin, supra note 213 at 75-76.
     406
     407
See Kramon,  supra note 4,  at 92-94 to this effect.

122 N.E. 2d 28 (1954).
     408
        Id. at 29.
     409
     410
        Id. at 30.
        164 S.E. 2d 607 (1968).
     411
        Id. at 608.
     412
        Id. at 610.
     413
        See People v. Byron, 215 N.E. 2d 345 (1966)("excessive or
unusual noise"); Smith v. Peterson, 280 P. 2d 522  (1955)("excessive
or unusual noise1"); Anderson v. State of Texas, 271 S.W. 2d 814  (1954)
("excessive and unusual noise").
     414
        Del. Super., 270 A. 2d 535 (1970).
     415
        Id. at 536.
     416
        Ibid.

     417
        City of Richmond Heights v. Shackelford, St. Louis Court of
Appeals, 446 S.W. 2d 179 (1969).   (Held city ordinance not in con-
flict with State law.)

     41R
        City of Madison v.  Reynolds, 180 N.W. 2d 7  (1970) .  This
decision involved a complicated interpretation of State statutes, the
court deciding that the Madison ordinance conflicted with State pro-
vision for "free use of all highways"...with certain exceptions.

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                               2-229
     419
        A Guide to the New York City Noise Control Code, New York City
Environmental Protection Administration, 1971.

     420215 N.E. 2d 345 (1966).
                    =
        Id. at 346. §375.

     422Id. at 347.

     423Id. at 348.

     424Ibid.

     425Ibid.  See Smith v. Peterson, 280 P. 2d 522  (1955), 49 ALR 2d
1194.  See also Annotation:  Public regulation requiring mufflers or
similar noise-preventing devices on motor vehicles,  aircraft,  or boats.
49 ALR 2d 1194.

     426
        New York City Environmental  Protection Administration,
Jerome Kretchmer, Administrator  (1971).

     427T,    .  _ -
        Id. at  5-6.

     428
        Compiled for the Attorney  General's Environmental  Task Forces
from Research by Deputy Attorneys  General Jan Stevens,  Gregory Taylor,
Nicholas Yost,  and former  Deputy Attorney General  David Stanton  (March,
1971).
     429
        Program brochure dated January  1, 1970.

     430
        Id. at  3 of Reprint of talk  by  Randall L.  Hurlburt of  April 1,
1971, on "Noise Control Experience in Local Government."   Attention is
invited, however, to a memorandum  from  the Deputy  Attorney General
Nicholas C. Yost, to Members of the  Noise Subcommittee, Los Angeles
Environmental Task Force,  dated May  4,  1971,  re:   Jurisdiction Over
Aircraft and Vehicular Noise,  which  states in part:

        However, as a general  proposition state law  preempts
        local law as it applies on highways.  The  state law
        may be  enforced by both state and local agencies.  In
        the case of vehicular  noise, the California  Highway
        Patrol's regulations concerning methods of noise
        measurement must be used.  Local governments may reg-
        ulate off-highway  noise.   (Emphasis supplied.)

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                               2-230




     431
        From material supplied by California officials relating to new

legislative proposals concerning vehicular noise.  The proposed new

 §23131  (SB.  693) will presumably meet opposition from those who

think local jurisdictions might use this authority to devise "noise

traps" for unwary motorists.
        Stat. Ann. Ch. 95 1/2,  §12-121 (a) (Smith-Kurd, 1971).



     433§27-353(a) .


     414
        Chapter 17,  Art. IV, §7.


                                                          e
        Environmental Protection Act, Public Act 76-2429, §25, Title

VI.


     436
        Chicago City Ordinances, Chapter 36, is illustrative of existing

"Zones of Quiet" municipal provisions.


     4. -37
        Chapter 71-36, Air and Water Pollution Control - Noise,

§403.061 amended.



     438Act 147, §322.



     439HDTMA News Release of July 28, 1971.



     440Id. at 4.



     441Id. at 5.



     442Id. at 10.



     443Id. at 11.



     444359 U.S.  520  (1959) .


     445
        Id. at 523-524.



     446Id. at 527.


     447
        Id. at 528.



     448Id. at 530.



     449Id. at 529-530.



     45074 Cal.  Rptr.  222  (1968).

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                               2-231
     451
        JEd. at 222-223.

     452Id. at 223.
        Id. at 224.

     455
        One well known study report was prepared by the Committee
on Environmental Quality of the Federal Council for Science and
Technology in 1968, Noise - Sound Without Value (September 1968).

        The Noise Around Us, supra note 7, at 145-146.

        A useful article on this general topic is that of Edelman,
"Federal Air and Water Control:   The Application of Commerce Power
to Abate Interstate and Intrastate Pollution," 33 Geo. Wash. L. Rev.
1067 (1965).  Edelman states in part:

        Section 5 of the Clean Air Act does not evidence
        a congressional intention to exceed its constitu-
        tional authority by regulating matters of strictly
        internal concern to the state.  Rather, the section
        must be taken as reflecting congressional determina-
        tion that any air pollution of such magnitude as to
        endanger the health or welfare of persons in the
        state in which it originates is likely to and, indeed,
        does affect interstate commerce.  The pollution which
        Congress wished to regulate, that which endangers "the
        health or welfare of persons only in the State" in
        which such pollution originates, clearly reaches per-
        sons and goods in commerce within that state.

        When Congress has acted to regulate activities which
        appear intrastate in character but which,  taken in
        total effect will probably have an adverse effect on
        commerce, the Court has held that it "will certainly
        not substitute its judgment for that of Congress unless
        the relation of the subject to interstate commerce and
        its effect upon it are clearly nonexistent."  (Citing
        Stafford v. Wallace, 258, U.S. 495, 521 (1922).)  id. at
        1082.

     457See "'Good Guy1 Stalks Polluters," Washington Post, July 25,
1971, p. El, col. 1 and p. E3, col. 1.

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                               2-232
     458Ibid.

     459
        Abraham and Loder,  "The Supreme Court and the Preemption
Question," 53 Ky.  L. Jou.  289 (1965).

     460Id- at 335.

     461Id. at 334.

     462Id. at 320.

     463Id. at 329.

     464Id. at 334.

     465Id. at 333.

        Concerning the "plenary power  (of the Congress) to regulate
the radio industry" see WOKO, Inc. v. FCC, 153 F. 2d 623, 628-629
(1946),  affir'm in FCC v.  WOKO, Inc., 329 U.S. 223 (1946).

     467
        Sentinel Broadcasting Corp., 8 F.C.C. 140, 147 (1940).  See
Chapter 3 of Network Broadcasting (1958).

     468
        320 F. Supp. 172 (1970).  For a discussion of this general
problem area see Note, "Environmental Control:  Higher State Stand-
ards and the Question of Preemption," 55 Corn. L. Rev. 846 (1970).

     469
        320 F. Supp. at 176.

     470Id. at 178.

     471Ibid.

     472Ibid.

     473Docketed for appeal, Feb. 22, 1971, 8th Circuit, #71-1093.
The Wall Street Journal of September 9, 1971, p. 12, col. 2,
reported that the 8th Circuit Court of Appeals had sustained the
District Court decision and that a spokesman for the Minnesota
Pollution Control Agency had indicated that the decision "may be
appealed to the Supreme Court."

     474
        320 F. Supp. 172,  173 (1970).

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                               2-233


     475
        Lee Loevinger, "States Rights in Radiation Control," Science,
at 790, 792 (February 26, 1971).
     476
        This proposition is another restatement of the basic doctrine
of the Cooley case noted in subsection 2.3.1 supra.  The recent case
of Chrysler Corp. v. Tofany, 419 F. 2d 499 (1969), the court considered
whether the National Traffic and Motor Vehicle Safety Act of 1966,
Il03(d), 15 U.S.C.A. §1392(d) precluded the Vermont Commissioner of
Motor Vehicles and the New York Commissioner of the Department of Motor
Vehicles from approving sale of manufacturers'  automobiles equipped with
special auxiliary headlamps.  The opinion stated in part:

        The result which we have reached is consistent with
        recent authority on the general question of federal
        preemption.  As the First Circuit pointed out, llit
        is well-settled that where the state's police power
        is involved, preemption will not be presumed..."

        We have already stated that the express purpose of
        the federal statute before us is the reduction of
        traffic accidents.  Uniformity through national stand-
        ards is of course desirable,  but in these cases it is
        truly a secondary objective.   What is perfectly safe
        on straight roads over the flat terrain of states such
        as Texas, Oklahoma,  and Kansas may be very hazardous
        on hilly, winding roads in Vermont and New York.  If
        traffic safety is furthered by a traditional type of
        state regulation under the police power, as we feel
        that it is here, a narrow construction of the preempt-
        ive effect of the federal Act and Standard No. 108 is
        required.  Id. at 511.

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                             3-1
                 3  THE EFFECTIVENESS OF EXISTING
                    NOISE CONTROL REGULATION
  3.1  THE EFFECTIVENESS OF EXISTING FEDERAL REGULATION


  3.1.1  Aircraft Noise

A.   Enforcement of Part 36 of the Federal Aviation Regulations

     The FAA's type certi'fication of commercial aircraft is the

most significant Federal action to date in control of aircraft-

related noise.  Title 14, Part 36 of the Federal Aircraft Regula-

tions provides noise standards applicable to aircraft wishing their

type certification after December 1, 1969.  Part 36 applies to

turbojet aircraft and subsonic transport craft which are newly

developed or for which there is proposed a change in design that

could alter the noise emitted.  The DC-10, the Boeing 747 (delivered

on or after December 1, 1971), the Cessna Citation Model 500, and

the L-1011 are required to comply with Appendix C of Part 36 of the

FAR.  The Boeing 747 was in the final stages of development when

Part 36 became effective and as a result the FAA extended Boeing's

deadline for compliance until December 1, 1971.  Thus, the Boeing

747 delivered on or after December 1, 1971 will have to meet the

noise specifications outlined in Appendix C, Part 36 of the FAR

before receiving certification.  The effectiveness of Part 36 will

depend primarily on the make-up of the fleet flying at a given time

in the future.  For example, an ATA estimate of the number of jet

aircraft expected to be flying in 1975 demonstrates that out of a

fleet of 2110 aircraft only 393, or 18.6%, of the aircraft will

have to have certification with regard to noise.^  Therefore,

a substantial noise problem will persist well beyond that date.

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                              3-2



     FAA has issued an advance notice of proposed rule-making


(14 CFR Chapter 1) that would require retrofit of aircraft not


regulated under Part 36 (see Section   1).   This would require


that the 81.4% of aircraft not under Part 36 be required by 1975


to have some noise abatement equipment and modification.  There


are substantial problems to be settled with regard to retrofit,


including the technological feasibility and the problem of costs.


These problems have been discussed elsewhere (Section   4).


     Testing of compliance with Part 36 is done by the aircraft


manufacturer and his contractor assigned to carry out the certifi-


cation procedure.  The FAA stipulates the type of instrumentation

          o
to be used  but does not provide the equipment.  Instruments are


necessary for (a) measuring noise emission, (b) stipulating weather


conditions at time of testing, and  (c) tracking the aircraft.  A


crew of 16 persons is necessary to man all the instruments: four


to monitor the microphones, an acoustical engineer to measure


acoustical specifications, a meteorologist to determine exact


weather conditions, and ten technicians to man the three photothe-


odolites used to measure the three angles of the aircraft in flight.


     Part 36 does not require that FAA officials should be present


during certification procedures.  According to Dr. John Waters of


the Hydrospace Research Corporation  (a typical contractor for this


procedure) most Regional Representatives of FAA have no detailed


familiarity with the measuring equipment so that even if an FAA


official is present at certification, his effectiveness as a watch-


dog is limited.

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                              3-3
     Although Part 36 is well administered and enforced, it is new

and limited in impact because of the small number of aircraft to

which it applies.  It is the only Federal rule at present control-

ling emission of aircraft noise at the source.

B.   The Effectiveness of the National Environmental Policy
     Act and the Airport and Airways Development Act in
     Reducing Airport Noise

     Section 102(2)(C) of the National Environmental Policy Act of

1969 (P.L. 91-190) requires Federal agencies to prepare detailed

environmental statements for proposed projects that may signifi-

cantly affect the environment.  The FAA has submitted to CEQ 125

environmental impact statements as of August 10, 1971.   These

statements must be prepared by the local sponsors of any major

airport project that expects to receive Federal aid.  A lengthen-

ing or a repaving of an existing runway is a common example of an

airport project that would need a 102 statement before receiving

Federal support.

     Although excessive noise is an environmental impact, FAA's 102

statement guidelines do not require that a noise survey be conduc-

ted in considering the environmental impact of a proposed project.

Noise forecasts are sometimes conducted for a 102 impact statement

if the proposed project appears to pose a potential noise problem.

These noise forecasts are paper analyses involving a composite

noise rating  (CNR).  The recently developed Noise Exposure Fore-

cast (NEF), also developed by Bolt, Beranek and Newman, Inc., is a

means of predicting a single number rating of the overall noise

surrounding an airport.  The major technical difference between

the CNR and the NEF is that the latter employs EPNL and measures

-------
                              3-4
discrete tones and duration of noise, while the former empirically
measures the PNL to forecast the noise exposure surrounding the
airport.5
     The Airport and Airways Development Act of 1970, Section 16(c)(3),
requires consideration of the interests of communities near airports
where there is a proposed airport development project that includes
the development of a new airport location, the extension of a runway
or development of a new runway.  Section 16(c)(4) states that no
major airport project shall be authorized for Federal aid unless
the project provides "protection and enhancement of the natural
resources and the quality of environment of the Nation."
     No project found to have adverse effects will be authorized
unless the Secretary finds  (in writing) after a complete review,
that no prudent or feasible alternative exists.  Section 16(d) of
the Act establishes a requirement that public hearings be held if
requested so that there may be full consideration of the economic,
social and environmental effects of a proposed airport project.
 (Repaving a runway, for example, would require a 102(2) (c)  state-
ment under the National Environmental Policy Act but would  not fall
under Section 16(d) of the  Airport and Airways Development  Act.)
     These hearings provide an open forum where community members
and local sponsors have the opportunity to raise and respond  to
pertinent questions regarding  the proposed project.  The actual
effectiveness of the public hearings to date has, however,  been
marginal as to noise problems.  Examination of a series of  86 air-
port project proposals on  file at the  FAA  (August 1971) revealed
that in only 25 of these cases were public hearings held  (29.2%).

-------
                              3-5


These hearings for the most part were concerned with economic ques-

tions, not environmental ramifications of the proposed project.

Although hostility to airports has become acute in some sections

of the country, it is still the case that many communities not

already affected by a major hub airport are more alert to poten-

tial economic benefits of new airports than to potential noise

problems.


  3.1.2  Highway Noise

     The Federal Highway Administration has had to submit approxi-

mately 900 environmental impact statements in compliance with Sec-

tion 102 (2) (c) of the National Environmental Policy Act between Feb-

ruary 1, 1971, and August 10, 1971.   These impact statements must

reflect:

      (1)  The environmental impact of the proposed action;
      (2)  Any adverse environmental effects which cannot be
          avoided should the proposal be implemented;
      (3)  Alternatives to the proposed action;
      (4)  The relationship between local short-term uses of man's
          environment and the maintenance and enhancement of long-
          term productivity; and
      (5)  Any irreversible and irretrievable commitments of
          resources which would be involved in the proposed action
          should it be implemented.^

Although this is an important step in terms of a federal law stipu-

lating what must be considered before spending Federal money, the

lack of definitive enforcement standards has so far tended to

minimize the immediate effectiveness of this policy.

     This policy has, however, been strengthened somewhat by the

inauguration of Title 23, Section 109(i) of the 1970 Amendment to

the Federal-aid Highways Act  (P.L. 91-605).  This amendment requires

that the Secretary of Transportation:

-------
                              3-6
       .  .  .  after consultation with appropriate Federal,
       State, and local officials, shall develop and prom-
       ulgate standards for highway noise levels compatible
       with different land uses and after July 1, 1972,
       shall not approve plans and specifications for any
       proposed project on any Federal-aid system for which
       location approval has not yet been secured unless he
       determines that such plans and specifications include
       adequate measures to implement the appropriate noise
       leve1 s tandards.

This law provides a definite procedure of non-approval if a pro-

posed highway (to be built after July 1, 1972) does not meet the

future Department of Transportation standards.

     At present the procedure for planning a proposed Federally

financed highway includes three main stages resulting in several

years leadtime before actual building may begin.  They are:

     (1)   Approval of the location
     (2)   Approval of the design
     (3)   Approval of final construction plans.

The construction must be approved by the State Highway Department;

it is their responsibility to furnish evidence to DOT of consider-

ation of the environmental ramifications of the proposed project.

Present law does not require that a noise forecast be conducted and

included in the environmental impact statement.

     Presently the DOT has a rough draft of the noise guidelines

that are to be issued by July 1, 1972.  The rough draft is in the

form of an outline that offers an explanation of the manner in

which the DOT is preparing to deal with ambient noise levels in

the planning, location, design, construction, maintenance, and

operations stages of a proposed Federal-aid highway.    Each of

the five stages of the project has been further broken down to deal

with the applicability, inventory and survey, analysis and inter-

pretation, and summary and presentation.  These phases in each stage

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                              3-7





will also be analyzed with respect to noise levels.    For example,



stage II (location), phase C (Analysis and Interpretation) includes



"noise prediction" in determinations which are to be made as to the



expected noise levels by analyzing (according to methods prescribed



in NCHRP Report 117)  the projected situations of:  traffic, roadway



characteristics, topography, distance from roadway, and transmission



losses through exterior walls of the particular location site of


                     12
the proposed highway.    It appears then, that if all schedules are



kept, the standards and guidelines to be issued by July 1, 1972 may



bring about a substantial noise reduction in future highways.



     However, information compiled as of June 30, 1971, reveals



that traffic is now moving on 75% of the 42,500 mile National System



of Interstate and Defense Highways, and another 9% is under con-



struction.   Engineering and/or land acquisition is underway on



another 11% with roughly 4% still in a preliminary stage.  This



includes about 250 miles stalled because of public controversy.



Improvement of primary and secondary highway systems, their urban



extensions, and a new urban system, was funded at $1,425 billion



for FY 1972 with $30.71 billion of work completed or underway.



Thus, noise standards will presumably apply to 4% of the N.I.D.H.



system and about 2/3 of the Urban System, most of this being in



areas where noise would impact on very large numbers of people.





  3.1.3.   Occupational Noise



A.   Regulations Pursuant to theWalsh-Healey Public Contracts Act



     The first concrete effort by the Federal government to regulate



sound levels came in the area of occupational health and safety,



with the publication of noise regulations pursuant to the Walsh-

-------
                              3-8
Healey Public Contracts Act in the Federal Register on May 20, 1969.

Even though the Walsh-Healey Act extended only to Federal Supply

Contractors, this was the premise and standard for all other noise

regulating legislation that was to follow in the area of occupa-

tional noise.  The standards in the Walsh-Healey Act do not reflect

the original recommendations for safe sound levels.  The Labor

Department's suggested standard of 85 dBA for an 8 hour workday

came under so much attack by industries that the 90 dBA standard

            14
was adopted.

     Section 50-204.10 of the Department of Labor regulations pur-

suant Walsh-Healey includes Table 1 which prescribes the permis-

sible level of sound exposure for an eight hour workday.

                            TABLE 1

                  Permissible Noise Exposures

     Duration per day, hours        Sound Level dBA Slow

              8	90
              6	92
              4	95
              3	97
              2	100
              11/2	102
              1	105
              1/2	110
              1/4 or less	115

     Exposure to impulsive or impact noise should not exceed
     140 dB peak sound pressure level.-'-^

Also provided in the Act is a formula to compute the overall level

of sound in which an employee is required to work.  The actual

total time of exposure  (Cn) at a certain sound level is divided by

(Tn) the permitted time of exposure for that sound level.  Then

the total exposure to different sound levels is summed  (C1/T1+C2/T2+

-------
                              3-9

.  . . Cn/Tn).    If this sum exceeds 1 then exposure is considered
to be a violation of the standards.
     The regulations provide that employees subjected to sound
that exceeds the prescribed levels in Table 1 must be provided
with sound protection through "feasible administrative or engineer-
ing controls."    Either excessively noisy equipment must be modi-
fied or the amount of time the employee is subjected to that equip-
ment must be limited.  If the utilization of one or a combination
of both means of control fails to reduce the sound level, then
the regulation states that the employee must have "personal pro-
                  1 p
tective equipment"   available to him that assures a substantial
reduction in the ambient level of sound in which he is expected
to work.  Furthermore, if a plant has been found to have noise
levels that exceed those prescribed, then a continuous program
of hearing conservation must be administered to the affected
          19
employees.
     The responsibility for the enforcement of Walsh-Healey was
delegated to the Department of Labor.  The Act provided for seven
regional offices which had enforcement powers that extended to
their particular locality.   Although the Compliance department
within the Department of Labor issued orders to these regional
offices, health and safety inspectors within the regional offices
maintained their autonomy and were responsible to their director
                            20
first and Compliance second.
     The method of enforcing the Walsh-Healey Act with regard to
noise entailed the measurement of the sound level in each working
area.   The measuring was accomplished by the use of a General Radio

-------
                              3-10

sound level meter. •*•  This instrument measures the sound level in
dBA at a slow response.  An impact meter is used to measure a
fast impulse noise.  Both instruments are calibrated each time
before use.  These instruments are required to meet the standards
prescribed by the American National Standards Institute for Sound
Level Meters (a private firm).
     Where a noise level has been measured and found to exceed the
prescribed standard the factory operator is issued a violation.
Receipt of a violation requires the administration of an audio-
metric test to each exposed worker.  From the results of the audio-
metric test a determination may be made upon the possible impair-
ment of the worker's hearing.   If the results of the hearing test
demonstrate aural damage as a consequence of exposure to unlawful
levels of noise, then the factory operator is issued a citation.
The maximum penalty available under the Walsh-Healey Act is a
recommendation by a regional administrator to all government
agencies to the effect that the establishment be prohibited from
bidding on future Government contracts for the following three
      22
years."
     The effectiveness of enforcement of the Walsh-Healey amend-
ment with respect to noise is contingent on the men and machinery
that the Labor Department has at  its disposal.  The Walsh-Healey
Act extends to approximately 75,000 plant locations^ and to circa
27 million workers.24  In May 1969, the Labor Department had a total
of six sound level meters and seven trained health and safety
inspectors who were familiar with the noise meters,2^ they now have
120 meters.  That noise is a substantial safety hazard is not widely

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                              3-11





accepted.  Since the nascence of the Walsh-Healey regulations, noise


                                                               7fi
measurements have been taken in 21% of the locations inspected. °



Thus, noise has a relatively low priority to those in charge of



inspections; generally they are more concerned with health and



safety hazards like faulty machinery.



B.   Enforcement Procedures Adopted for the Occupational

     Safety and Health Act of 1970



     With the inception of the Occupational Safety and Health Act



of 1970 the noise standards as prescribed in Walsh-Healey Act will



be extended to all employers whose businesses affect interstate



commerce.  The Walsh-Healey regulations, adopted in the Occupa-



tional Safety and Health Act of 1970 with respect to noise,



became effective on August 27, 1971.



     According to the Labor Department enforcement procedures for



the Act will closely follow, but expand upon, those guidelines used



to monitor the Walsh-Healey Act.  For example, the seven regional



offices have been expanded to ten.  Hopefully, this expansion will



be adequate to monitor the 55 million new v/orkers affected by the


    27
Act.    Along with the expansion of regional offices, the Labor



Department hopes to increase coordination and centralization of



these offices.



     Other changes include the expansion of man power; estimates of



the eventual figure range between 2,000-3,000.  The increase of



health and safety inspectors necessitates an increase in the number



of sound level meters.  Plans are underway to purchase 400 new



meters to add to the existing 120.28

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                              3-12
C.   Regulations Pursuant to the Federal Coal Mine Health

     and Safety Act of 1969



     Another important outgrowth of the Walsh-Healey amendments with



respect to noise is Subpart F or Part 70, Subchapter 0, Chapter 1,



of Title 30, Code of Federal Regulations, which outlines mandatory



noise standards in underground coal mines.  These regulations pur-



suant to the Federal Coal Mine Health and Safety Act of 1969, (P.L.



91-173) became effective upon publication in the Federal Register on



July 7, 1971.  The regulations outlined in this amendment concern the



manner in which noise is to be regulated in underground mines and



adopt the standards as outlined in the Walsh-Healey regulations.



     Enforcement of the regulations has been delegated to the Bureau



of Mines.  Thus, the Bureau is responsible for the approximately



100,000 miners employed in the 1,900 registered mines across the


       29
nation.



     The regulations include a complicated means of enforcement



which delegate a major part of the responsibility to the mine



operator.  The law requires that each mine have at least one oper-



ator trained to use sound level meters.  The Bureau will train the



operators to take the periodic  (at least every six months) and the



supplemental surveys.  This training consists of a one week course



given by an industrial hygienist from the Bureau.  Training of



these operators began in December 1970, and to date approximately



1,100 have been trained.^0



     The sound level meters used are BNK type 2205 and General Radio



type 1565.  These meters are required to meet the operational speci-



ficiations of the American National Standards Institute for Sound



Level Meters.  They are on the A-weighted network, operate on a

-------
                              3-13





slow response, and must be acoustically calibrated before, during,



and after use.



     The first survey, or the screening survey was due June 30,



1971.  The regulations announcing this deadline were not announced



in the Federal Register until a week later, July 7, 1971.  Bureau



of Mines officials claim that operators therefore will have until



September 30, 1971 to file surveys without penalty under a "no pen-



alty violation notice" now being drafted by the Bureau of Mines.



The screening survey is required to be taken periodically, that is,



once every six months but at no interval of less than three months.



The supplemental survey, which is also to be conducted by the mine



operator, is necessary only if the periodic survey demonstrates



that a miner is working under noise conditions that violate those



prescribed in the regulations.



     These surveys must be administered to each miner for every



piece of work completed during his eight hour shift.  (A piece of



completed work in this context refers to any definable or discrete



operation occurring during a miner's shift — for example loading



a coal cart.)  Five measurements are to be made, and the average of



these five measurements will determine the noise level of the spe-



cific operation measured.  Each measurement is taken for 30 seconds.



     If the initial or periodic surveys demonstrate that a miner



is working in unlawful noise levels then the mine operator is



notified by the Bureau of Mines that he must conduct a supplemental



survey.  This survey must be taken 15 days following notification



by the Bureau.  The noise level for the supplemental survey is meas-



ured during the entire period of each operation the miner performs.

-------
                              3-14


     When the supplemental survey indicates that a miner is work-

ing in noise levels prohibited by law, then the Secretary of the

Interior issues a notice of violation and the operator is required

to institute administrative and/or engineering controls that assure

compliance to the prescribed standard.  These controls may include

the use of protective devices that the Secretary's representative

approves as non-hazardous to the miner, but which are not specified

in the regulations.

     In conjunction with the controls, the regulations stipulate

that the mine operator must submit a continuing program of hearing

conservation to a joint committee of Bureau of Mines and Health,

Education and Welfare.  This program should have provisions for:

     (1)  Reducing environmental noise levels;
     (2)  Personal ear protective devices to be made
          available to the miners;
     (3)  Preemployment and periodic audiograms.

     The coal mining areas in the United States have been divided

into nine regional districts.  Approximately 1,000 trained health

and safety inspectors will be responsible for the monitoring of

the nine districts.  These men are required to make four safety

and health inspections per mine in a year.32  The inspections by

these men will include noise surveys so that there does exist a

means of checking the mine operator's figures.

     The Bureau of Mines has had much opposition to these rules

and regulations from the United Mine Workers of America.  The

major thrust of the criticism has been aimed at the adoption of

the 90 dBA level of cumulative exposure.  W.A.  (Tony) Boyle,

President of the Union, voiced his opinion to Dr. Elburt Osborn,

Director of the Bureau of Mines, in a letter of December 31, 1970:

-------
                              3-15
       The 90 dBA level of exposure is too high.  It is my
       understanding that 30 percent of the workers exposed
       to this level will have impaired hearing at age 60
       whereas only 20 percent of all other individuals
       reaching that age show the same degree of impair-
       ment ... we strongly urge that the eight hour
       standard be set at 80 dBA with a time limitation
       for achieving this level.33

Other objections to the July 7, 1971 rules and regulations include

the lack of a "protective statement that noise levels shall not

exceed 115 dBA."34  The December 9 proposed rule-making did have

a provision to this effect.  The omission of such a statement in

the final rule becomes important when considering the noise levels

reached in dynamiting procedures.  Peak meters may cause electrical

sparks that could explode methane gas in coal mines.  Impact noise

from dynamiting could be measured by using special tape recorders

but these are considered "too expensive for the purpose" ($2000).

Potential injury to hearing from explosions (ruptured eardrums)

differs from the kind of hearing loss with which these regulations

are primarily concerned (injury to hairs of the cochlea caused by

long exposure to noise).

     Another major problem is the manner in which noise levels are

determined.  W. A. Boyle objects to the prescribed methodology of

averaging the five 30-second readings to determine the sound level

of a particular operation.  Boyle proposes the utilization of a

dosimeter to record the cumulative noise level during an entire

eight hour shift.36  The use of a dosimeter would more accurately

determine the severity of a continuing and hazardous noise exposure,

     Other questions might be raised concerning the Bureau of Mines

rules and regulations, such as the advisability of putting the mine

operator in charge of administering the surveys.  The technique

-------
                              3-16
presently in use requires the operator to take the reading and



record that reading.  Potentially this recording could be falsi-



fied given the operator's position.  The effectiveness of this or



any other piece of legislation is primarily contingent upon the



means of enforcing the legislation.  For this reason, these initial



objections to the new rules and regulations are a good indication



of the possible problems that may be encountered in effective



enforcement.

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                              3-17



  3.2  THE EFFECTIVENESS OF STATE LEGISLATION



  3.2.1  State Attempts to Regulate Airport Noise


A.   California Airport Statute


     The issue of Federal preemption of regulatory action over air-


craft noise is a serious one  (Section 2).  Nevertheless, driven


by the widespread protests against noise around airports, some


states have moved toward attempting to set overall noise limits


for airports; California has adopted the first and most comprehen-

                                                             *3 *y
sive legislation which was passed by the Legislature in 1969. '


This law (as discussed in 1.2.2A) directed the State Aeronautics


Board to set limits on airport noise, using two criteria (1) the


level of noise acceptable to a "reasonable person living in the


vicinity of the airport" and  (2) constraints which were economi-


cally and technically feasible.  The Aeronautics Board has attempted


to reconcile these two criteria by setting stringent limits to be


achieved, with allowance for stepwise reductions in noise over


a 15 year period in the case of the large hub airports.  Using


a formula involving the number, duration, and time of day of air-


craft operations as well as the level of noise generated, the Board


established a series of Community Noise Equivalence Levels  (CNEL)


expressing various degrees of noise impact in decibels (dB).  A


"noise impact boundary" must be determined for each airport, con-


sisting of the locus of points along which the annual CNEL equals


a "criterion" value stated in the law.  Any airport having a non-


zero noise impact area based upon this boundary must request a


temporary variance to continue operation, and further must initiate

-------
                              3-18


actions to eliminate unacceptable noise impact on residences, by

means such as reducing and rescheduling operations or by buying

houses within the impact boundary.

     The law also directs airport managers to establish single-

event noise limits at least as stringent as those suggested in the

law, the county being responsible for enforcement of that limit.

     Unless the State Legislature intervenes, the regulations estab-

lished by the Aeronautics Board will take effect on December 1, 1971.

Although there is of course no record of enforcement as yet, the

methods of enforcement which have been planned can be examined and

some of the problems of enforcement can be foreseen.

B.   Monitoring and Enforcement of the California Aircraft
     Noise Law

     Noise impact boundaries will be worked out for each airport,

and by counting the number of residences within the boundary (and

by attitude surveys and a history of past complaints for the

affected area) it will be determined for each airport whether it

has a "minor problem," a "severe problem," or no problem.  Air-

ports with minor problems  (e.g., fewer than 1000 residences within

the impact boundary) can depend on occasional monitoring or spot

checks; those with severe problems will be required to maintain a

constant monitoring system using microphones set on utility poles

along the boundary.  Airports with noise exceeding regulatory limits

at their noise impact boundary will be subject to administrative

penalties based on the power of the State Aeronautics Board to

remove their license and/or civil actions.

     Single-event limits will be monitored by microphones off the

end of runways and the airport manager will report violators to the

-------
                              3-19






county prosecutor for enforcement or will assume responsibility.



The penalty for single-event violations is a $1000 fine for each



violation.  The single-event limit is intended only as a control



over excessively noisy operating procedures.  It is deliberately



set slightly higher than the normal noise emission for the heaviest



aircraft operating at the airport.



     Both the Aeronautics Board and individual airport managers



believe that the critical test of technical/economic feasibility



will come at the end of the first five year period (December 31,




1975)  by which time major hubs must achieve a reduction from CNEL=



80 dB to 75 dB at their noise impact boundaries.  The California



Aeronautics Board can grant variances and expects that airports



with severe problems, such as Los Angeles International, will be



given until 1977 to comply).  Nevertheless some officials of Los



Angeles International Airport (LAX) have said that to meet this



standard, LAX would be forced to reduce its operations to 20% of



the current number or to spend billions of dollars to buy residences



within the impact boundary.  It is possible that unless a large



scale program of retrofit is undertaken in the meantime, compliance



with the statute could entail some curtailment of air transportation.



     The constitutionality of this law will be challenged by the



airlines on the grounds of Federal preemption and unreasonable



burden on interstate commerce.  The position of the State is (1)



that this area has not been preempted by the Federal government,



since the only Federal rule-making as to aircraft noise concerns




certification of new aircraft; and (2) that the noise standards



are firmly grounded in the rights of airport proprieters to control
                                I

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                              3-20


the use of their property and the fact that all public airports in

California are licensed by the State.

     A legal hazard in the administration of the Act is the possi-

bility that courts will use the CNEL contours, once established for

a particular airport, as evidence of damages in inverse condemna-

tion proceedings, thus — again as in the case of Los Angeles —

possibly forcing the airport into bankruptcy or seriously disrupt-

ing air transportation in an area which, because of long distances

and the lack of alternative rapid transportation, is heavily depend-

ent on air carrier routes.  This possibility persists although the

Act provides that it shall not be so used.  This matter was con-

sidered at length by the California Law Revision Commission, con-

sulting with the interested parties, and the Commission reached a

conclusion favoring a three-year moritorium on the use of the air-

craft noise standards for purposes other than regulatory enforce-

ment of the standards.  The Commission stated:

       A statutory moritorium will permit the further
       scientific testing and experience needed to assist
       in determining whether the noise regulations of the
       department or similar standards can appropriately
       be utilized in civil damage litigation.  At the same
       time, having the regulations go into effect on sched-
       ule will permit needed testing to be conducted and
       experience to be gained and will permit regulatory
       enforcement, thereby hopefully reducing noise
       pollution.3°

A statute to ensure this moratorium is now under consideration by

the Legislature.

     The above discussion points up a major difficulty in the attempt

to abate aircraft noise.  The dilemma faced by states is reconcil-

ing the Public Interest as defined by the interests of communities

and citizens living near airports, and the Public Interest as
                                  I

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                              3-21



defined by the need for a viable transportation system, in that


the ultimate penalty provided to the State in case of violations


is the threat of removal of the airport's license.  The consequences


of closing down Los Angeles and other large airports are so great


that the threat becomes something of a "paper tiger."  A more prac-


tical penalty would be the levying of a punishing fine for each


day of violation.  The cost to airports of monitoring equipment


required by the California airport legislation is given by the


Department of Aeronautics as ranging from $12,000 for small air-


ports to a maximum of $280,000 for Los Angeles International.


C.   Other Means of Regulation by States of Aircraft Noise


     A few other states have under consideration laws similar to


those of California but are likely to wait for the outcome of this


first attempt.  In general, states which are passing or have passed


noise legislation exempt aircraft noise, except for some prohibi-


tions or limitations on warm-up noise or engine testing noise on


the ground.


     However, 25 states own and operate a total of 700 airports of


which more than 300 are served by air carriers (see Table 2).  The


State, in its proprietary capacity, exercises some control over the


use of its property in regard to noise generation as well as to other


conditions.  The most extensive noise abatement program is that of


the bi-state Port of New York Authority (PONYA), which operates four


airports in New York and New Jersey under the terms of an interstate

        OQ
compact. J  PONYA attempts to control noise chiefly through limita-


tions on take-off noise (maximum limit 112 PNdB at the edge of resi-


dential areas).  This is enforced through the device of requiring

-------
States
                              3-22
                           TABLE 2
                    States Owning Airports
Served by CAB
Certified Air
  Carriers
Not Served by
CAB Certified
Air Carriers
Alabama
Alaska (1)
Arizona
California
Connecticut
Hawaii (2)
Florida
Idaho
Illinois
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Mississippi
Missouri
Montana
Nebraska
New Hampshire
Oregon
Pennsylvania
Rhode Island (5)
South Carolina
Texas
Vermont
Washington

283
1

2
12


1 (3)


1
1
2 (4)

1
1
1



3
1
2

3

4
215

1
3
2
3
30

3
1
2


4


11
5
1
43
2
4
19
3
8
13
1.   Alaska owns and operates all public-owned airports in the
     State except 2.
2.   Hawaii owns and operates all public owned airports and heli-
     ports in the State.
3.   Illinois is constructing a new airport to be owned by the
     State but primarily to serve the Saint Louis  (Mo.) metro-
     politan area.
4.   Massachusetts - two airports are operated by the Massachusetts
     Port Authority but legislation stipulates that the Authority
     is a branch of the State government.
5.   Rhode Island owns and operates all publicly owned airports
     in the State.
Source:  The National Association of State Operating Officials.

-------
                              3-23





each aircraft to request permission to use each airport on the



basis of information supplied by the manufacturer about noise emis-



sions and by the airline about operating procedures.  Take-off



noise is monitored and violations reported immediately to the air-




line for relay by radio to the pilot while still in the air, so



that operating procedures can be reviewed and checked.  Both FAA



and the airlines cooperate in practice, but the airlines have



refused in theory to recognize the regulating authority of the



airport.  One airline refuses to "request" permission but is care-



ful to "notify" PONYA of its intentions and to provide the required



information.  It is widely asserted that many aircraft momentarily



cut power in approaching the monitoring box, thereby evading the



intent of the procedure.



     In terms of the standards which are set, the regulation is



effective; overall approximately 99.5% of take-offs conform to the



noise standard of 112 PNdB, with 80% of them below 105 dBA, although



the percent of violations is much higher for heavily loaded inter-



national jets.  Nevertheless, in terms of noise reduction the



regulation is grossly ineffective.  The number of violations is



low because the standard itself is very lenient.  PONYA takes the



position that lowering of the limit would make compliance tech-



nically unfeasible.



     More importantly, this method of noise control is ineffective



because PONYA as airport owner has no authority to regulate land-



ings, a power exercised exclusively by FAA.  Landings are perceived




as noisier than take-offs because of the long glide-path, and so



produce 80% of the complaints received by the airport.

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                              3-24

     PONYA, and many other large airport owners, opposes prohibi-

tion of night time flights on the grounds that  (particularly for

international flights where time zones are a big factor) transpor-

tation would be seriously curtailed.  Congestion at some airports

has reached the point, moreover, that safety considerations dictate

spreading flights to schedule more, rather than fewer, in off-

peak (nighttime) hours.

     Moreover, buying residences around large hub airports is not

a promising alternative, particularly in New York given the high

demand for housing and the shortage of space in this metropolitan

area.  Nor does it appear to be possible for New York to find space

for a large new jetport to reduce traffic at Kennedy and Lacuardia.

Given these constraints,  it appears doubtful that any attempts by

the Port Authority to control noise around airports will be

effective.


  3.2.2  Vehicle Noise Programs

     Although most states have some legislation pertaining to vehi-

cle noise, in most cases  it is limited to muffler and horn-blowing

laws and no quantitative  standards are involved.  Such laws are

seldom or never consistently enforced, although there is evidence

that strict enforcement of prohibitions on modified or defective

mufflers would significantly reduce highway noise levels.

     In California, in one three-month period, 55,000 passenger

cars and pickup trucks were monitored.  Only 0.03% exceeded statu-

tory limits (plus tolerance) and all but one of these 15 vehicles

had modified or defective exhaust systems.   (Passenger Car Noise

Survey, January 1970, California Highway Patrol).  Further evidence
       V
       A

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                              3-25


 comes  from a California Noise Enforcement Summary Report,  January-

 April  1971:

                      Speeds  35  MPH and Under

 Vehicles         Number of    Percent  Percent with      Percent with
                 Violations            Modified Exhaust  Defective  Exhaust
Trucks
Motorcycles
Passenger Cars
126
26
277
1.9
6.4
0.57
0.008%
23%
32%
60%
35%
28%
                        Speeds  over 35 MPH

 Trucks           1,108          1.3          .0009%            19%
 Motorcycles         87          6.4        46%                  35%
 Passenger Cars     523          0.33      24%                  24%

      The  most comprehensive state  law limiting vehicle noise is  that

 passed  by the California Legislature in 1967,  establishing maximum

 noise emissions  for vehicles operating on public highways.  (Maxi-

 mums  were lowered for  vehicles with gross weights of 6000  pounds

 or more in 1969,  and for all other vehicles  during the 1970 Legis-

 lative  session;  and permissible maximums for heavier vehicles will

 automatically drop again as of January 1, 1973) .  Limits  are speci-

 fied  for  zones with a  speed limit  of 35 mph  or less and for zones

 with  higher  speed limits.   New York State has  a law similar in

 most  respects to California's, and other states have such  laws

 under consideration, but California has the  most experience in

 administration  and enforcement. California  also sets emission

 standards for new vehicles with respect to noise.

 A.   Level of Enforcement

      The level  of enforcement of state vehicle noise stan-

dards  is extremely low  even in California.  There, six 2-man

monitoring teams are responsible for 162,303  miles of highways,

and 11,980,000 registered motor vehicles; and only the Los

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                              3-26





Angeles area team operates full time.  In New York, enforcement



is left to the regular Highway Patrol cars (patrolmen "sometimes"



carry noise meters), and one observer reports that only six summons



have been issued in two years.



     During the first 12 months of enforcement in California,



600,000 vehicles were checked by six teams and fewer than 3000 were



found to violate the permissible limits:  1.2% of the trucks, 0.1%



of passenger cars and pickups, and 2% of motorcycles.  In general



operators are cited for a first offense only where the vehicle has



been deliberately modified.  In cases where a defective muffler



is thought to be the chief factor a mechanical warning is issued,



and removed on proof of repair.   There is no record of the number



of cases carried to the courts,  since this is a minor offense and



the usual penalty is a fine of less than $25, but the Highway



Patrol states there have been "a number of cases" most of which




resulted in convictions.



     There is considerable dissatisfaction with the effectiveness




of the highway noise abatement program as evidenced by a number of



bills now before the State Legislature which would set more severe



standards for operating vehicles, new vehicles, mufflers, and



pneumatic tires.  In general, the Highway Patrol and automobile



clubs oppose stricter limits for operating vehicles  (on the grounds



that compliance is not technically feasible for the operator) but



support standards applicable to manufacturers and others.



     Testing of new vehicles at the present time is done only if a



monitoring officer reports a violation by a new or current-year



vehicle.  In this case the manufacturer is notified and several

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                              3-27






models are tested; since the California Highway Patrol can revoke




the right to sell in that State, manufacturers have once or twice



recalled vehicles for equipment with better mufflers. ^



     Besides California, no other states except Minnesota and Colo-



rado set noise standards for new vehicles.  Colorado's law went



into effect July 1 of this year and so no experience with enforce-



ment can be reported.  The Colorado Act also sets out standards for



operating vehicles which may be adopted by any county or municipal-



ity.  Minnesota's new vehicle law will take effect January 1, 1972.



B.   Limitations on Effective Enforcement



     Reasons for ineffectiveness of vehicle noise legislation are



(1) inadequacy of existing standards,  (2) defects in legislation,



(3) technical difficulties of monitoring vehicle noise,  (4) low



priorities given to noise control by enforcement agencies, and  (5)



the small chance of apprehension of violators and the relatively



insignificant penalties incurred.  The costs of vehicle noise pro-



grams are not large compared to other pollution control programs,



but may nevertheless be a significant constraint in some cases.



     It is widely asserted by California legislators that their



constituents believe existing standards to be inadequate.  Bills



currently before the State Legislature propose reducing the per-



missible noise from passenger cars from 76 dBA in 35 mph zones to



70 dBA.  The Highway Patrol has just completed a survey which



indicates that only 1% of cars and 1% of heavy trucks exceed pres-




ent statutory limits on level urban streets.    This would argue



(especially since most violations are attributed to defective or



deliberately modified mufflers) that existing standards are in no

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                              3-28





way pushing the development of the technology but in fact lag



behind it.  It is expected that the proposed legislation may be



changed to set a standard which is presently exceeded by 5-7% of



vehicles, and the California Highway Patrol will support this




change on the grounds that compliance is technically feasible.



     The legal difficulties of enforcing laws which do not set



quantitative standards have already been discussed  (Section 2).



California's law specifies maximum noise levels for automobiles



in zones with speed limits below  (or above) 35 mph.  This is an



improvement over the New York law which specifies limits for cars



traveling at less than 35 mph, since in California a presumption



can be made about the speed.  In New York since cars are monitored



only in actual operation on highways, it is necessary to pick only



those obviously moving at 3L> mph or less.



     The technical difficulties of monitoring vehicle noise and



separating and identifying specific noise sources are a severe




limitation on enforcement.  California requires that there be 100



feet of open space  (free of tall buildings and other noise sources)



surrounding both the monitoring microphone and the monitored



vehicle; this makes it difficult to select appropriate monitoring



sites on freeways  (particularly for limits of 35 mph or less) and



nearly impossible on urban streets.  California is studying tech-



nical devices for overcoming this difficulty.  In both California



and New York noise must be measured at a distance of 50 feet from



the center line of the highway, which again is difficult or impos-



sible in urban residential areas and center city.  Where enforce-



ment is left to the regular activities of State Police, without

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                              3-29


special monitoring teams, as is the case in New York, the priority

assigned to this activity is inevitably very low, since police

understandably attach more importance to accident investigation

and prevention and to crime prevention and detection.  Some observ-

ers report that patrolmen equipped with noise meters seldom use

them and therefore rapidly lose proficiency with them,which again

reduces the probability of their use.

     Idaho has attempted to put greater force behind its muffler

law (which is of the usual type forbidding defective or modified

mufflers) by amending the law to require that the muffler be

adequate to prevent noise of over 92 dBA 20 feet to the side of

the vehicle.  However, the Head of the Vehicle Inspection section

of the State Highway Department states that this provision is not

enforced because vehicle inspections are carried out in designated

garages which have no sound measuring equipment.

     California reports that noise limits are enforced only with

regard to engine and exhaust system noise, contrary to the statu-

tory provision, yet major factors in vehicle noise are tire noise

and wind noise.  The Noise Survey of Vehicles Operating on Califor-

nia Highways (June 1971, Advance Copy, unedited) notes that:

       (I)t must be concluded that the largest percentage
       of the noise generated by a truck or truck-tractor
       combination moving down the road is running gear
       noise including tires.  For pickup the noise pro-
       duced during acceleration from 45 m.p.h. is less
       than the engine running gear noise at 65 m.p.h.
       cruise-by.

The Survey further notes that:

       (M)ud and snow tires add significantly to the total
       vehicle noise.  For both the pickup and the passenger
       car, the noise measurement while coasting with mud or
       snow tires was 8 dBA and 6 dBA over the noise of coast-
       ing with conventional tires respectively.

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                              3-30


Nevertheless, California does not enforce limits where the major

source of excessive noise is tires, on the grounds that the vehi-

cle operator cannot feasibly reduce this noise.^

     Another reason for the lack of effectiveness of vehicle noise

legislation is undoubtedly the relatively low probability of any

given vehicle being monitored, or of a given operator receiving a

summons, coupled with the relatively small penalties assessed, the

usual penalty levied by California courts being less than $25.  The

rate of conviction in those cases brought to court is, however,

said to be high.

     The low penalties involved may also account for the fact that

the right of California to impose noise limits on operating vehicles

has not been challenged in court, although it could plausibly be

argued that it constitutes a burden on interstate commerce inas-

much as it applies to out-of-state vehicles.  However, it is likely

that the law would be upheld on the same grounds as state safety

regulations.

     The cost of developing and administering a vehicle noise pro-

gram on the level of California's are not unduely large.  Three

pilot programs  (from one to three months in limited areas) were

run and a manual developed; the engineering costs, as estimated by

Ross Little, Acting Commander of the Engineering Section of the

California Highway Patrol, were:

       Engineering time  	  $10,000
       Traffic Officer time  	    18,000
       Total estimated labor charge . .  . .    28,000
       Equipment costs*  	    2,000


                       Total	$58,000

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                              3-31


      *Equipment costs probably represent the cost of modi-
       fying standard equipment, since equipment costs per
       monitoring team, of which there are six, is said to
       be approximately $700.  This consists of a sound
       meter remotely attached to a portable microphone.

     Annual engineering costs for the program are $1,200 for equip-

ment repair and calibration, some administrative costs, and some

engineering costs involved in the New Vehicle Noise program as well.

Total annual budget for the program is $270,000.  No more than two

days is required for training highway patrolmen in the use of the

equipment following the manual developed in this program.

     An American aerospace firm has developed a vehicle monitor-

ing system which involves a computer, and which is said to be

under test in Munich but has not been used in this country.  It

would be much more expensive than the system described here.


  3.2.3  Other Anti-Noise Programs in States

     States as well as cities sometimes have laws on their books

defining noise in terms of general nuisance, disorderly conduct,

etc.  Such laws rarely include quantitative standards and are sel-

dom regularly enforced.  For example, Illinois has had a general

nuisance noise law in some form or other since 1821, with the pres-

ent statute written in 1961, but there is little record of enforce-

ment; two cases are recorded at the appellate level.  There are

probably other cases involving convictions for disorderly conduct,

and there may have been cases where individuals sought to enjoin

a noisy activity, but what is clear is that the statute has never

been used to attack major noise sources like factories or trans-

portation equipment since those cases would be appealed.

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                              3-32


     Many states are beginning to legislate against excessive

noise from boats and other "leisure time" vehicles and equipment,

especially snowmobiles.46  The standards set vary widely, for

example (in the case of snowmobiles):

     Illinois (proposed) 	  80 dBA measured at 5 feet
     Montana	85 dBA measured at 15 feet
     New York	88 dBA measured at 50 feet
     Vermont (pending)	82 dBA measured at 50 feet
     Washington (proposed)  ....  82 dBA measured at 100 feet
     Maine 	  "an adequate muffler"

In some cases conservation officers or game inspectors, who are

most likely to do the major enforcement work against leisure time

vehicles, depend strongly on snowmobile clubs to police their mem-

bership.  The disparity in standards among states will constitute

a big problem for snowmobile manufacturers if this trend continues.

     Some states are now passing more comprehensive noise statutes

(e.g., Hawaii).   Illinois enacted a general environmental protec-

tion statute last year  (Public Act 76-2429, effective July 1, 1970)

which empowers a Pollution Control Board to set quantitative stand-

ards and monitoring procedures for noise, as well as for other

forms of pollution, and the Illinois Environmental Protection Agency

is now in the process of formulating such standards, as is the

Health Department for the State of Hawaii.  In Illinois violators

of the pollution law will be liable for civil penalties up to

$10,000 plus $1,000 for each day of violation.

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                              3-33




  3.3  THE EFFECTIVENESS OF LOCAL NOISE CONTROL ORDINANCES




  3.3.1  Transportation Noise


A.   Aircraft Noise
             "j

     There have been numerous attempts by local governments to pro-


hibit or restrict aircraft noise in various ways.  They have either



been struck down (see Section 2) or they remain on the books but


to no effect.  For example, Santa Barbara, California, in its city



ordinances defines sonic boom as a nuisance and prohibits the pilot-



ing of supersonic planes over the city in such a way as to cause


sonic boom (Section 9.16.030 and 9.16.040) but for obvious reasons



makes no attempt to enforce this ordinance.  Aurora, Colorado, is



presently seeking an injunction against the Denver Airport to ban



overflights as a nuisance.  In a few cases courts have upheld cur-


few laws.  Local governments continue to seek ways to abate air-



craft noise,  in spite of their lack of success in the past; they


are impelled to do so by the indignation of their citizens.  A



measure of this indignation is the fact that the Airport Operators


Council International presently lists 1,040 noise suits pending


against major airports (808 of them against the Port of New York


Authority); 812 of these suits ask for unspecified damages and


the remaining 228 claim damages adding up to nearly four billion


dollars.  As owners and operators of airports, local governments


find themselves the defendents in most of these suits.  In some of



the suits,  however, local governments are the plaintiffs.



B.   Vehicle Noise



     Only a few cities have tried to enforce vehicle noise laws with



quantitative standards.  In Hawaii the state has preempted the field

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                              3-34


and in California and New York the operative assumption is that

the field has been preempted by the state.  Colorado State law

incorporates a set of vehicle noise standards which local govern-

ments may adopt.

     It is widely recognized that vehicle noise is in fact a

significant factor in objectional noise levels in cities and along

heavily traveled highways of all kinds.  It has been a significant

factor in controversies attending the location of the Federal Inter-

state Highway program.  In the vehicle noise area, heavy trucks

are a particularly serious source of noise.  The proposed New

York City Noise Ordinance as first written contained a provision

aimed at controlling truck noise, but this has now been removed

because it is considered to have been preempted by the State law.

     Boulder, Colorado, has an ordinance which prohibits any per-

son from operating "any type of vehicle, machine, device" or carry-

ing on "any other activity" which produces noise in excess ^of 80

dBA as measured at 25 feet from the public right-of-way or from

the property line on which the source is located.  As written the

ordinance applies to vehicles and to all other sources (except

trucks weighing 10,000 pounds or more and operating on prescribed

routes from 7 am to 6 pm, which are limited to 88 dBA).  This

standard "has been tested and found to be legal in Municipal Court,"

and "a written appeal was not accepted by the next higher court.1"*'

The Boulder program is said to be aggressively enforced, and the

Boulder Noise Control Officer, Thomas A. Martin  [Lt. Col.  (Ret.)

USAF] states that:

       Relatively expensive equipment with a graph attached
       has taken the animosity out of the program in addition

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                              3-35
       to a definite distance and noise level established
       by law.  I strongly recommend this type finite
       language be used in any federal legislation.
       (Letter of July 9, 1971).

     Col. Martin further attributes the success which he claims

for this program to "Education as to health facts associated with

noise (which) has elevated the program in Boulder to one of moral

responsibility."

     There are no measurements of effectiveness available in terms

of actual noise levels in Boulder before and after the program,

but there are measures of compliance with the Warning (an order to

fix an offending vehicle), which results in 90% compliance, after

which all legal action ceases, and of compliance with a Summons

(95% compliance).  The city only purchases items which meet the

80 dBA at 25 feet standard.  Monitoring is accomplished by two-

man teams working with a microphone and calibrator. ^

     The standard of 80 dBA used in Boulder was chosen because

"Noise is a health problem, not a nuisance, and must be controlled

the same as any other disease in our society.  HEW figures indi-

cate 80 dBA is that point which creates this health problem,"

according to Col. Martin.  He further comments that this is the

"level of noise which will prohibit normal conversation and was

found to irritate 75% of the people surveyed."

     That standards used in some cities in the United States are

higher than technology would dictate is indicated by the fact that

                                          49
other nations have set stricter standards.

     The technical difficulties of monitoring vehicle noise in

cities are very great due to the difficulties of separating noise

sources, particularly in the confines of heavy traffic and narrow

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                              3-36


streets surrounded by tall buildings which reflect and amplify

noise.  A few cities are resorting to setting standards for the

manufacture and sale of new vehicles, but this is likely to be

of limited effectiveness because of the large number of vehicles

of all kinds which use city streets but are purchased elsewhere.

All metropolitan areas include multiple local governments, and

some straddle state lines.  Under such conditions, new vehicle

standards will be effective only if they are State or nationwide

standards and even then only over a period of five to fifteen

years, and if one disregards the noise resulting from deteriora-

tion of aging vehicles.

     Most cities (and states)  have laws requiring "adequate" muf-

flers or prohibiting modified or defective mufflers.  Evidence has

been presented  (Section 3.2.2) that rigorous enforcement of even

these laws could be partly effective in reducing vehicle noise

even without quantitative standards and without improving the exist-

ing technology.  Enforcement levels in fact vary widely from local-

ity to locality.  The City of Birmingham, Alabama,  (where violators

may be given a  $10 citation by the arresting officer or may suffer

a jail sentence of 180 days or a fine of $100 and court costs)

reports that:

       This section of the code is strictly enforced.  At
       this time, we do not keep records of particular
       categories of this type of violation  (but) a rough
       estimate would amount to about 60 citations a month.

In Billings, Montana  ($12 fine for the first violation), police

estimate 156 citations issued during 1970, and report: "We find

it to be an effective ordinance and have had no difficulties with

it."51  In Billings, the  officer's judgment  is the only method of

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                              3-37


measuring the noise, and the majority of citations are issued in

the evening, in residential areas, some on the basis of observation

by police officers and some as the result of complaints.   (The

population of Birmingham is 325,000 and of Billings, 55,000, which

indicates roughly equal levels of enforcement.)

     Ann Arbor, Michigan, forbids any person to operate a vehicle

producing excessive noise, or to operate a vehicle without a muf-

fler which prevents excessive noise, or to sell or install an inad-

equate muffler, and specifies that "acceptable noise level" is

90 dBA at 25 feet under specified conditions of acceleration and

speed.  The City Attorney, however, comments as to enforcement:

       I am informed by the Police Department that while
       there are often prosecutions for disorderly conduct,
       for the loud playing of radios and phonographs,
       and for inadequate mufflers, not very much use is
       made of the sound meter provisions of the code.
       The reason given for this is that it is difficult
       to have enough officers available so that one
       officer can handle the machine___and_anothe_r can
       apprehend the violator.  The sound meter is some-
       times used, however, to test the noise level at
       particular locations and also to evaluate the
       situation when a citizen claims that he has unjus-
       tifiably been ticketed for improper automobile
       equipment. 2  (Emphasis added)

     But the more general pattern is for a very low level of enforce-

ment of muffler laws, as well as can be determined from the paucity

of available data, since local governments seldom aggregate such

statistics.  In Washington, D.C., to consider a more typical

example, violators of the muffler law are issued a citation in the

form of a ticket or sticker stating that the muffler must be

replaced at the car owner's expense; no other penalty is levied.

Again, the major reason for non-enforcement is the low level

priority attached to vehicle noise reduction by police in the

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                              3-38


context of their other duties, and presumably by citizens, who

are likely to grumble that police should spend their time pursuing

"criminals" instead.

     Enforcement of horn-blowing prohibitions follows the same

pattern, with the additional constraint that an "emergency" or

safety precaution can usually be offered by the offending driver

as a sufficient excuse.  However, Memphis, Tennessee enjoys a wide

reputation as a quiet city, and city officials attribute this in

large measure to strict enforcement of the provision forbidding

horn blowing "except as a danger signal . . . ":

       Many years ago the city inaugurated a. program of
       strict enforcement against unnecessary horn blow-
       ing which was diligently pursued and apparently
       resulted in the education of the driving public
       to omit unnecessary horn blowing from their driv-
       ing habits.  The result is that today many years
       later automobile horns are but rarely heard in the
       city.  The ordinances are, of course, still strictly
       enforced.53

     Noise from mass transit facilities is another major factor in

noise levels in some cities, New York City being a prime example.

The proposed city noise ordinance however, after giving to the

Administrator the power to provide noise standards for new and

existing rapid transit railroads, says:

       With respect to existing rapid transit railroads,
       allowable sound levels and acoustical performance
       standards shall be limited to those which are
       reasonably attainable without additional expendi-
       tures .   (Emphasis added)

The Transit Authority^ reports that this will dictate only a

substitution of materials in one part used on subway trains where

the materials are equal in cost and one may have slightly better

acoustical qualities.  The explanation is, obviously, the economic

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                              3-39





impacts which would follow from a real attempt to reduce noise on



the 750 miles of track, 250 miles of structures, 400 subway sta-



tions, and 6000 cars now owned and operated by the Transit Author-



ity.  The technical constraints on attempts to reduce noise levels



may be suggested by a quick look at the present noise reduction



program with regard to subways.  The program consists of improved



rail anchoring, increased attention to maintenance of rails and



wheels (by polishing, grinding, and truing), and experiments in



improved acoustical treatment for stations, especially barriers



between express tracks and local stations.  Rubber pads between



rails and flooring can reduce noise at adjacent building lines by



5 dBA and inside cars by 3 dBA; all new track and all replacements



are of this kind, but only about 4 miles of track are replaced per



year (750 miles of existing track), 11 miles in all so far.  New



subway cars are all air-conditioned, which reduces noise inside



the car by as much as 10 dBA.  New acoustical treatment of station



walls and barriers, being developed with the support of a HUD Model



Cities Grant, can reduce noise in some stations by 8 or 9 dBA but



development of the material is still struggling to meet the require-



ments that it be fire-proof, cleanable, and impervious to vandalism.



At present no similar method of acoustically treating tunnels them-



selves appears even potentially feasible, since the material is



very expensive (estimate: $1.25 per square foot).






  3.3.2  General Noise Laws



A.   The Nuisance of Noise



     As has been described, many municipalities have ordinances



prohibiting excessive or unusual noises from a variety of sources

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                             3-40





in the form of nuisance laws, or zoning provisions forbidding




excessive noise past property lines.  It is extremely difficult to



obtain hard data on either the level of noise in such places, or



the level of enforcement of the law.  In most cases enforcement is



on the basis of citizens'  complaints, and the level of complaints



varies not only with the amount of noise, but probably to a greater



extent with socio-economic factors, and with the degree of con-



fidence which citizens feel about the effectiveness of their com-



plaints.  In Inglewood, California, 5 a city of 90,000 which has



become acutely noise-conscious over a period of many years because



of its proximity to Los Angeles International Airport, 50% of the



citizens stated "aircraft noise" in response to a special census




question as to what is the biggest problem of their community.



In a different survey, part of a Community Review Program in the



same city, 42% of the citizens complained of noise, and 74% in



response to a specific question, characterized their neighborhoods



as "noisy" or "very noisy."  In New York City, the Noise Abatement



Office, which has no enforcement powers, regularly receives 400



complaints a month, in addition to the hundreds of complaints



which are registered with the police, the health department, the



Mayor's Office, and the Port Authority.  In most localities, how-



ever there is no reliable measure of citizens dissatisfaction with



noise levels because no agency aggregates and collates complaints.



     Response to citizens' complaints in most cities is in the



form of, at best, a warning from the local policeman to offender or



a call from a health department or other agency seeking voluntary



cooperation in reducing noise.  No statistics are generally kept

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                              3-41


concerning even those cases where citations are issued; and since

these are minor cases there is generally no case law codification

to consult.  In general it is safe to say that the level of enforce-

ment is uniformly low.  For example:

       The Legal Division does receive a number of complaints
       from citizens with respect to noises generally. . . .
       However, to my knowledge, our municipal force has not
       prosecuted any such cases in court. . . .   (Daniel U.
       Livermore, Jr., Assistant Counsel, Jacksonville,
       Florida, letter of June 23, 1971.)

       .  . . For our enforcement work, we have purchased a
       sound level meter and it has been very useful to us
       (in connection with a zoning ordinance passed in 1965).
       We have not used it yet to serve anyone with a viola-
       tion notice, but I suspect it will be only a matter of
       time and we will.  (Tom 0. Moore, City Planning
       Director, Rochester, Minnesota.)

       However, passing laws and enforcing them are two very
       different activities and we cannot claim great success
       in the latter.   (Gerald Caffrey, Director of the
       Legislative Reference Bureau, Milwaukee, Wisconsin.)

       Since we have had little if any court tests, and those
       only in city court, we have no body of law to which we
       could refer with regard to the enforcement of these
       laws.   (Ray L. Montgomery, Assistant City Attorney,
       Salt Lake City, Utah.)

       Discussions with the Police Department have revealed
       relatively successful enforcement in regards to
       (unnecessary noise)....  (Office of the City
       Manager, Medford, Oregon.)

       The police have sound meters but are not practiced
       enough for proficiency with them . . . the police
       have other priorities.   (Randall Hurlburt, Office of
       Noise Abatement, Inglewood, California.)

       Enforcement of D.C. ordinances or anywhere else depends
       largely on the courts and the city attorney; that is,
       how seriously they wish the ordinance to be enforced.
       .  . . There has been a 100% increase in complaints of
       noise since the beginning of the Metro construction.
       (Chief Industrial Hygienist, Washington, D.C.)

     It is generally agreed by enforcement agents in local govern-

ments that citizens complaints would be more frequent if they knew

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                              3-42





where and how to register complaints, if they believed that such



complaints would be effective, and if they were not fearful of



becoming involved in ugly and non-productive disputes with neigh-



bors or with "city hall."  Inability to identify the specific



sources of noise keep complaints about transportation noise, indus-



trial complexes, and general ambient noise levels at a minimum.



     Similarly, as Stuart Lewin points out in Law and the Municipal



Ecology,56 private suits are ineffective in reducing noise because



(1) they depend on individual initiative, (2) litigation is expen-



sive, (3) they are useless where separate sources cannot be identi-



fied, (4) courts are obviously reluctant to restrain business,



government, or a government authorized group (e.g., public utility



construction), and (5) litigation can seldom solve the urban, as



distinguished from an individual's, noise problem.



     Where, as is true in the majority of cases, "unnecessary" noise



is not limited by quantified standards, enforcement is difficult



because it must depend on the discretion of policemen or the chief



of police, and in some cases laws have been struck down as uncon-



stitutional on this basis.5^  On the other hand, decibel limits pre-



sent technical difficulties in monitoring, again because of the dif-



ficulties of separating sources of noise and the lack of proficiency



on the part of policemen or other enforcement agents  (such as zon-



ing inspectors) with sound meters.  Excessive noise in the urban



environment may come from multiple sources, no one of which is



technically excessive, or as in the case of moving vehicles, it



may be impossible to measure an individual noise in the context of



which it is a part.

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                             3-43


     The cost of developing and operating a noise abatement pro-

gram need not be very large, as will be discussed later, but it

is a serious constraint on already strained city budgets, in large

part because of the necessity of hiring trained personnel, who are

in very short supply.  A city official in Denver said:

       Although most city officials recognize the need to
       combat "noise pollution1 the problem of funding must
       first be solved.  Denver, like most cities, is find-
       ing it increasingly difficult to finance even the
       most crucial programs.  Consequently, we are not
       optimistic about instituting a program without
       Federal assistance.   (Emphasis added) ~*°

In May of 1969, incidentally, Denver submitted a request to the

Department of Health, Education and Welfare for funds to purchase

test equipment and train personnel for a comprehensive Noise Abate-

ment Program.  This was a joint application from the Health and

Hospitals, Zoning, and Police Departments.  It was approved by

HEW but Congress did not appropriate the necessary funds for

implementation.

     The City of Seattle has had for ten years a Noise Ordinance

which prohibits "loud" or excessive noise from a variety of sources

including motor vehicles and which defines "the allowable level
                                                            59
of noise" as 95 dBA.  A comment by the City Traffic Engineer

points to one of the major difficulties which local governments

have in achieving effective noise control, i.e., the setting of

standards which are both effective and realistic  (this difficulty

will be mentioned again in connection with zoning law enforcement):

       Complaints of excessive noise have been checked by
       the prescribed method set forth in the Ordinance.
       Without exception monitored noise levels have been
       within the acceptable decibel range and no enforce-
       ment has been necessary.

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                              3-44
       In view of the above,  it appears that the 95 decibel
       limit is unrealistically high.  Consideration is there-
       fore being given to reduce the acceptable decibel level.

B.   Comprehensive Noise Ordinances and Offices of Noise Abatement

     The current trend is toward the establishment of municipal

offices of noise abatement which are given full jurisdiction over

comprehensive noise ordinances.  A city with experience in this

area is Inglewood, California, which has a comprehensive noise

ordinance  (Chapter 6, Municipal Code, effective November 6, 1970)

and an Office of Noise Abatement   responsible for its enforcement.

In addition to the usual provisions prohibiting noise which causes

"distress, discomfort, or annoyance" to "a reasonable person of

normal sensitiveness" from a variety of noise sources, the statute

defines the ambient noise level above which excessive noise is to

be measured, as:

           Decibels           Time              Zone

            45 dBA          nighttime        residential
            55 dBA           daytime         residential
            65 dBA           anytime         commercial
            70 dBA           anytime         all other zones

     Enforcement guidelines call for action against  "continuous

noise"  (five minutes in any one hour) when it is 5 dBA above the

ambient level as defined above, "intermittent noise" at 10 dBA

above ambient, and "short duration noise"  (lasting several seconds

and occurring less than about once a minute) at 15 dBA above the

ambient level.  Monitoring is done by the Office of  Noise Abate-

ment at its own initiation or on the basis of complaints, but  the

Office must ask the County Attorney  to  issue a citation where  per-

suasion, warnings, or police warning is not sufficient.  The pen-

alty may be a fine of up to $500 or  six months imprisonment.   In

-------
                              3-45






Inglewood, the police are also equipped with sound meters, but



because of the usual lack of proficiency and lack of time, the



City Council is considering a move to certify the investigators



in the Office of Noise Abatement as policemen so they can issue



citations on their own initiative.



     This Office feels that the enforcement of the general noise



ordinance is workable and would be effective except that in Ingle-



wood it is overwhelmed by the problem of aircraft noise, which is



substantially preempted by the Federal government, and vehicle



noise which is considered to be preempted by the State of Califor-



nia.  Inglewood now has consultants working on improved zoning



and building code provisions to reduce noise, and will attempt in



the near future to place stipulations in all city contracts regard-



ing noise standards for construction and other equipment.



     Other cities in California are following the lead of Ingelwood;




the California League of Cities has drafted a model noise ordinance



which is receiving wide attention.



     The Chicago City Council recently passed a broad new noise



ordinance which has been attacked by some as unrealistic for set-



ting noise levels that industries claim they cannot achieve, and



by others for setting noise levels too high and exempting the two



largest sources of noise in the city, the airports and the Transit



Authority.  This ordinance sets decibel limits for vehicles which



will by 1980 force levels down to 75 dBA, sets decibel limits for



power tools (80 dBA by 1980) and for some domestic tools such as



lawn mowers (65 dBA by 1978) sets limits for recreation vehicles



such as boats (76 dBA by 1975) and dune buggies  (73 dBA) provides

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                              3-46






test measuring procedures and also provides for abatement as a




nuisance.



     The ordinance took effect July 1, 1971.  Before this date the



Department of Environmental Control conducted a public information



campaign.  It notified all manufacturers who sell products subject



to noise limits of the requirements for certifying compliance.  On



June 26 the Department tested cars for citizens who feared that



their vehicles could not meet the new standards.  All trucking



firms were tested at their garages before July 1.



     Two three-man teams consisting of one policeman and two



Department inspectors have been warning citizens  (mostly horn-



blowers) about the new law, which forbids the blowing of horns



when the vehicle is not in motion or in any circumstances except




in cases of emergency.  On the first day of the new ordinance's



effectiveness, 35 truckers and four horn-blowers were given tick-



ets.  There is not as yet any record of the disposition of these



cases or of subsequent enforcement activities.



     The enforcement plans after July 1 are to continue these two



teams and begin giving tickets.  A complaint phone has been estab-



lished and publicized.  However, the Department of Environmental



Control has only 51 inspectors for all kinds of pollution control



activities.  Twenty-one of these inspectors and 24 workers from



other city agencies have received a week's training in noise mea-



surement and in the terms of the ordinance.  The  agency will con-



centrate on motor vehicle noise firs-., with a major emphasis on




horn-blowing.

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                              3-47






     New York City also has an Office of Noise Abatement which has



been in existance for about two years.    It has had no powers of



enforcement but has tried to respond to complaints by seeking vol-



untary abatement (by field inspection and persuasion in major



cases, by letters in minor offenses) and by referring stubborn



cases to the health department or to the police.  At times, the



Office admits, they have been able to trade on the offender's



vagueness about his liability under the law, or his fallacious



belief that the Office has enforcement powers.



     The Mayor of New York has now asked the City Council to pass



a noise ordinance which although patterned on traditional nuisance



law, will set decibel limits "wherever technology allows," most



significantly on construction noise, which is a major offender in



the city.  If this ordinance is passed, the Office of Noise Abate-



ment will proceed as rapidly as possible to formulate standards



for major noise sources (e.g., air conditioners on roofs) and will



set up licensing and inspection stations.  The city is now asking



all city agencies to write noise stipulations into all contracts,



such as construction and services contracts, including refuse col-



lection, urban redevelopment, and others.  The Director of the Office



also hopes to influence planning in redevelopment and to prevent



the building of city housing in acoustically blighted areas.



     The New York City Office of Noise Abatement will, according



to these plans, have an enforcement staff and will not depend on



other agencies for enforcement.  The proposed ordinance goes fur-



ther, however, and would also establish an administrative tribunal,



so that noise citations would not add to the overload of the regu-




lar court system.

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                              3-48






     Experts in New York and California, and elsewhere, generally



agree on the desirability of separating enforcement of noise ordi-



nances from the work of the regular police force, which must give



higher priority to crime and safety.  Some states and municipal-



ities are grouping in one agency the enforcement powers over all



pollution laws.



     The costs of establishing and operating an Office for Noise



Abatement will be of interest to those cities which are consider-



ing alternative mechanisms for noise control.  In Inglewood, a



city of 90,000 population, the Office has consisted of two engi-



neers, with a support staff of one secretary and one part-time



technical assistant.  The yearly budget is $60,000, which covers



salaries, administrative costs, and equipment  (about $50,000 in



equipment purchased over a two and one-half year period), but



which is clearly inadequate.  In New York City, there was no sepa-



rate budget for the Office of Noise Abatement during its first



year, the money being allocated from other agencies.  For the



second fiscal year there was a $50,000 capital budget, salaries



again being carried by other agencies.  In the current fiscal year,



$200,000 is allocated for capital equipment and $100,000 for



salaries and other costs.  The Office has also had a $50,000 plan-



ning grant from the U.S. Department of Housing and Urban Develop-



ment, for the purpose of developing a methodology for carrying out



a comprehensive noise survey of the city as a basis for future pro-



grams.  If the proposed ordinance is passed, the NYC Office of



Noise Abatement hopes to expand over a period of three years to



include an inspection force of 40-50 people  (vocational or tech-




nical school graduates) and five fully equipped mobile laboratories,

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                              3-49
  3.3.3.  Zoning Ordinances and Building Codes

     Some cities have placed in their zoning codes provisions

limiting the generation of noise according to the type zone, or

restricting the level of noise at property lines, or providing

specifically for certain types of operations (for example, Chicago

forbids the operation of any foundary which uses pneumatic hammers

within two hundred feet of any residence).  Such restrictions may

be in terms of prohibiting excessive noise or may set decibel

limits, but in either case the general pattern is most often one

of sporadic enforcement only, usually on the basis of complaints.

In most cases, the enforcement officers, generally building in-

spectors, attempt to achieve noise reduction by persuading the

offender to reduce his noise, and citations appear to be rare.

Those laws which provide decibel limits have usually been added

to the zoning codes only recently; the following remarks are

typical of replies to the survey:

       "To my knowledge we have not prosecuted any cases
       in court or had any significant administrative
       activity in the enforcement of the zoning code per-
       formance standards relating to noise since the
       enactment...in September 1969.  Prior to that time,
       there were no such standards in the zoning law..."
        (Jacksonville, Florida)

       "We haven't had too much experience on the subject,
       our's is a relativity new regulation such that we
       haven't had time to develop factual statistics.  Our
       regulation is jointly administered by this office
        (Division of Building Inspection) and the Health
       Department, principally on a complaint basis."
        (Dallas, Texas)

       "Washington's  (noise standards) provision is virtu-
       ally unenforceable...the  sound reading  since  it  is
       taken from the boundary between the commercial and
       residential area...There exists no case where this

-------
                             3-50
       provision has been enforced."  (James J. Fahy, Assis-

       tant Zoning Administrator, Washington, D. C.)
     In test cases courts have generally allowed noise restrictions



to stand where they are "non-discriminatory," but "unnecessary



noise" provisions may be struck down as vague, while decibel limits



require special equipment and training that building inspectors


             /: n

may not have. *



     Municipalities urgently need guidance in writing into their



zoning ordinances quantitative standards.  Acoustics is a complex



and sophisticated subject and trained personnel are in extremely



short supply especially for local governments with their small



budgets and competing demands.  City ordinances very frequently



incorporate standards which fall into one of two errors:  they



are so strict as to be unenforceable, and hence no real attempt is



made to enforce them; or they are so lax as to be meaningless.



It has already been pointed out, for example  (Section 1.3.1),



that noise limits at property line have been set very low in



Binghamton, New York, so that it is technically illegal to



carry on a conversation across property lines at normal voice



levels.  In fact, however, Binghamton's enforcement officer, the



Building Inspector, does not have a sound level meter at his



disposal (although one has been ordered)^^ and where complaints



of excessive noise are received, he depends on persuasion and



voluntary cooperation to get some noise reduction. Binghamton's



law,  in turn, was patterned on one  adopted in Lake Success, New


     64
York.    In the Village of Lake Success, the need to enforce this

-------
                              3-51





ordinance has never arisen, since all occupants of the commercial



and industrial zone (the only area to which the ordinance applies)



are electronics and computer firms where noise generation is not



a problem.



     Such strict ordinances are useful and affective, however, to



planning commissions or zoning boards which must receive and pass



on new applicants for occupancy of such zones.  In Lake Success,



as a typical example, applicants must furnish evidence that they



will in fact meet all performance standards set out in the zoning



ordinance, including those for noise and vibration, this evidence



to be developed at the expense of the applicant so that the burden



of proof is on him rather than on the planning commission.



     This provision suggests a method of enforcement of noise




ordinances against existing property owners which has been fre-



quently suggested,65 but use of which is not evidenced in statutes




examined for this study.  This would be a statutory provision



that when the city has evidence of violation of noise standards



in the form of complaints, it will issue a warning; the property



owner must then arrange for sound meter measurements by consult-



ants acceptable to both the property owner and the city.  If



proof of violation results from these measurements, the violator



is to pay the cost of the measurement and to correct the violation;



if there is no violation, the city will then assume the cost of



the measurement.  This method, by placing the burden of proof on



the property owner, may be a practical device for enforcement for




small cities with tight budgets, few technically trained personnel,

-------
                              3-52


and a small number of potential offenders.  However, whether

courts would allow this shift of the burden of proof is debatable.

     A number of local officials, in the course of this survey of

noise legislation, expressed the need for national guidance in

writing enforceable standards.  For example, a building official

in Dallas, Texas, wrote:

       As to these regulations in general, they are fraught
       with emotional overtones creating an untenable and
       frustrating situation.  A national standard could
       hopefully be a solution to all our problems.66

     City building codes typically have no provisions at all,

either for external noise exclusion or for internal noise sources

such as air conditioning and heating systems, elevators, appliances,

or wall and floor insulation against noise transmission.  New York

City may have been the first to include noise standards in build-

ing codes.67  This includes a Sound Transmission Classification

for walls (said to be less restrictive than those generally used

in European cities), Noise Criteria for air conditioning and

heating systems and mechanical equipment, and an Impact Noise

Rating for floors and ceilings  (but surveys indicate that the INK

is so high that 75% of tenants express dissatisfaction with the

results).68  No attempt is made to limit noise intrusion from

hallways, lobbies, and noise generated by toilets and appliances.

     The effective date after which applicants for a building

permit for multifamily dwellings had to comply with these standards

was December 6, 1969.  For a year before this, applicants could

choose to be under this code or an old code; needless to say, there

was a rush to get under the older code and since December 6, 1969,

-------
                              3-53

when the new code became mandatory, none of the affected buildings
have been completed and occupied.  Therefore there is no exper-
ience with enforcement of these noise standards.  When the build-
ings are completed each builder will be required to obtain an
independent firm to conduct noise level tests which will be
transmitted to the Department of Buildings.  If not satisfied
with the results or with the manner in which the tests were
conducted, the Department of Buildings may send its own inspectors
to conduct tests.  However, there are only four such inspectors
for the entire city, who were recently given a one-week training
course in testing and enforcement.   After the initial tests, the
code will be enforced only on the basis of tenant complaint.  There
is no money specifically allocated to this program and the Depart-
ment must fit these activities into its other activities and into
its general budget.  Acoustics societies have often advocated
that residential and office buildings should be rated or classified
according to some scheme of noise transmission,^^ but there appears
to be no record of this having been tried.

  3.3.4.  Construction Noise
     Some cities are moving to incorporate in their contracts for
public construction stipulations concerning noise generation
during construction but again they are hampered by the inability
to formulate reasonable standards which are both feasible and
effective.  At this time some cities are including general instuc-
tions to bidders to incorporate the cost of quieter equipment in
job specifications.  Although as a bi-state agency the Port of New

-------
                              3-54





York Authority is immune from the proposed New York City Noise



Ordinance, it will include such specifications in contracts for



expansion of the bus terminal this year, as will the New York



Metropolitan Transit Authority in its lengthening of subways.



However, as yet there is not sufficient experience with such



techniques to say how effective they will be.



     Most cities also have "curfew" laws limiting construction



to daytime hours.  However, in the case of roads, subways, and



the like, construction is often deliberately scheduled during



night hours to alleviate traffic problems, and other construction



too can often get official permission to continue during curfew



hours on a plea of necessity or convenience.

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                              3-55

                           FOOTNOTES


       Air Transport Association, Estimated Number of Jet  (Non-
Propeller) Aircraft in the Scheduled U.S. Airline Fleet^(As of
June 30 for each year), Washington, D.C., (1971).
      2                                        Q
       Federal Aviation Regulations, 14 C.F.R. §36

       Interview with Sam Austin, FAA Office of Environmental
Planning, in Washington, D.C., August 17, 1971.
      4
       Implementation of Sec. 102 (2) (c) of the National Environ-
mental Policy Act, etc. DOT Order 5610.1, October 7, 1970.

       Application, Interpretation and Dissemination of Noise
Exposure Forecast  (NEF) data, FAA Draft Order  (1971).

       Requirement for Public Hearings in the Airport Develop-
ment Aid Program, FAA Advisory Circular 150/5100-7  (January 4,
1971) .

       Telephone interview with Herter Rupert, DOT Office of
Environmental Policy, Washington, D.C., August 10, 1971.
      g
       National Environmental Policy Act of 1969 §102c, 42 U.S.C.
§4332

      9,
      H.  Rupert,  supra  r.  7

      'D
(Draft).
     -"-^Department of Transportation, Noise Guidelines Report
       -n,-^
       Ibid.

       Quarterly Report on the Federal Aid Highway Program, FHWA
601  (June 30, 1971) .

     1433 Fed. Reg. 14259(1968).

       Safety and Health Standards for Federal Supply Contracts ,
34 Fed. Reg. 7949(1969).

     16 Ibid.

     17 Ibid.

     18Ibid.

     19Ibid.

-------
                               3-56
      ^Interview with John O'Neill, Chief of Industrial Standards
Division, Department of Labor, Washington, D.C., July 19, 1971.

      ^Interview with Ray McClure, Industrial Hygienist, Office
of Compliance, Department of Labor, Washington, D.C., July 19,
1971.

      22Ibid.

      2-%.S. Department of Health, Education and Welfare, Environ-
mental Health Planning, Washington, 1971, p. 47.

      2^Report of the Panel on Noise Abatement, U.S.  Department of
Commerce, The Noise Around Us, at 70, (COM 71-00147,  1970).

      2 5
        Telephone interview with A. Maier, Office of Compliance,
Department of Labor, Washington, D.C., August 18, 1971.

       ^Department of Labor, National Summary of Monthly Noise Con-
trol Reports Since May 1969.
                                    Totals thru
                                    Feb.  1971
                                                     Percentages
      A.  Total Inspections
      B.  Inspections Where Noise
         Was Measured
      C.  Total Firms With an
         Acceptable Hearing
         Conservation Program
      D.  Firms Cited for Noise
      E.  Firms Referred to
         Regional Solicitor
      F.  Hearings and Pre-Hearing
         Conferences Held on Noise
      G.  Inspection Reports
         Received in Washington
      H.  Letters of Notification
         or Citation Received in
         Washington

      27J.  O'Neill, supra, n. 20

      28R.  McClure, supra, n. 21
      99
        Interview with Nick Fannick, Industrial Hygienist, from
the Health Division of the Office of Coal Mine Health and Safety,
Bureau of Mines, Washington, D.C. , July 22, 1971.
5979
1259
289
115
14
8
173
100
21
23
9.
1.
0.



1
1
64

                                        115
      ^Mandatory Health Standards - Underground Coal Mines ,
36 Federal Register 12739  (1971).

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                               3-57


      32Federal Coal Mine Health and Safety Act of 1969 §103 (a),
30 USC 803 (1969) .

      33Letter from W. A. Boyle to Elburt F. Osborn is from the
files of Dr.  Lorin E. Kerr, Office of Occupational Health, United
Mine Workers of America.

      34Ibid. , July 20, 1971

      35Telephone interview with N.  Fannick, Id. August 25, 1971.

      36Letter from W. A. Boyle to Elburt F. Osburn, July 20, 1971.

      37Cal.  P.U.C. §21669 as ammended by AB645, September 4, 1969.
Information regarding enforcement and regulation of this Act is
based on discussions with Mr. Joseph Crotti, Director of Aeronautics,
State of California; Mr. Richard Dyer, Assistant Engineer, California
Department of Aeronautics; Mr. Bert Lockwood, Assistant General
Manager, Los Angeles International Airport; and Mr. Nicholas Yost,
Deputy Attorney General, Environmental Affairs, State of California.

      3°Minutes of the California Law Revision Commission, July 15,
16, 17, 1971, p. 2.
      OQ
        Information in this section is based on discussions with
L. Achitoff, A. A.  Odell, H. B. Johnson, D. Daniels, I. Muirhead,
and J. Marshall, of the Port of New York Authority.
      40
        Potter, Stannard M. , "Opening Remarks, Panel on Community
Noise Control, Noise as a Public Health Hazard," Reports of the
American Speech and Hearing Association, No. 4, June 1968.
             section draws on discussions with Mr. Ross A. Little,
Standards Engineer, Engineering Sections, California Highway Patrol.

      42The Highway Patrol has forbidden the sale of 40 motorcycle
models but none as yet on the basis of noise emissions.

      43Noise Survey of Vehicles Operating on California Highways.
(Advance Copy, unedited, June 1971)

      44Mr. David, Head of Vehicle Inspection Section, Law Enforce-
ment Division of the State Highway Department, in a telephone
conversation, July 29, 1971.

      4-^A bill now before the California Legislature AB 1043 would
set noise standards for pneumatic tires manufactured and sold
after January 1, 1972.

      4°Report of the Sub-Council on Leisure Time Product Noise,
National Industrial Pollution Control Council (U.S. Government
Printing Office) , May 1971.

      47Letter from Thomas A. Martin, Lt. Col. (Ret.) USAF, Noise
Control Officer, City of Boulder, July 9, 1971.

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                              3-58


      4 8 "For legal purposes a graph is used which displays the
actual reading of the violations.   A General Radio 1558 electronic
home produced interfact and an Esterline Angus M.A.  DC graph is
used.  General Radio is scheduled to produce this type of equip-
ment for less than $1,000 in the near future." (Ibid. )

      49Baron, Robert Alex, The Tyranny of Noise at 197-200, (1970).

      50Letter from Mr. Jamie Moore, Chief of Police,  July 16, 1971.

       -'-Detective Gene Kiser, Public Relations Officer, for Gerald T.
Dunbar, Chief of Police, July 22, 1971.

       ^Letter from Jerold Lax, City Attorney, City of Ann Arbor,
July 28, 1971.
               from Joseph A.  Canale, Assistant City Attorney, City
of Memphis, Tennessee, July 28, 1971.

      ->4This is a city agency receiving funds from New York City
capital budget, but managed by and receiving operating funds from
the Metropolitan Transit Authority, a state agency.  Information in
this section is based on discussions with Mr. Anthony Paolilli of
the N.Y.C. Transit Authority.

        Information about Inglewood based on discussions with
Mr. Randy Hurlbut, Chief, Office of Noise Abatement.
          e stuart Lewin, Alan H. Gordon, and Channing Hartelius,
Law and the Municipal Ecology, N.I.M.L.O. Report 156, Part II at
55-90 (1970).

      57Ibid.
      C p
        Letter from Lewis J. Alverson, Sergeant, Research and
Development Section, Department of Police, City and County of Denver.

      59Letter from M.R. Mitchell, P. E. , City Traffic Engineer,
Department of Engineering, City of Seattle, Washington, July 28, 1971.

        Now a part of the Division of Buildings, the Office will
soon become the Office of Environmental Standards in the Planning
Department, but it is expected that 90% of the work will still be
concerned with noise abatement.

        Information in this section is based on discussions with
Mr. Royce Young, New York City Office of Noise Abatement.

      °2See Lewin, supra, note 56.

        Binghamton, New York, Zoning Ordinance, December 15, 1969;
also, interview by telephone with Mr. Valado, Director of Planning,
Zoning, and Code Enforcement, Binghamton, New York, July 28,
1971.

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                               3-59


        Also, interview by telephone with Mr.  Douglas Sanford,
Building Inspector, Village of Lake Success, New York, August 2, 1971

      65According to David Portman, Zoning Consultant, Fred Clark
Associates, Rye, New York, telephone interview, July 28, 1971.

      fi 6
        Letter from J. Tom Jones, Building Official, Department of
Public Works, Division of Building Inspection, City of Dallas,
Texas, July 28, 1971.

      67See Baron, supra, note 49, at 125ff.

      68Ibid.

      "Interview with Dr. A.  Young, Assistant Director, Sensory
Sciences Group, Stanford Research Institute, Menlo Park, California.

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                            4-1
            4  PROPOSALS AND PROBLEMS IN THE REGULATION
                    AND ABATEMENT OF NOISE
  4.1  AIRCRAFT NOISE:  PROBLEMS AND POTENTIAL AVENUES FOR
       CONTROL
  4.1.1  Continuing Critical Problem Areas

     It would appear that over the next few years the aircraft

noise controversy may coalesce around several fundamental issues.

While no one can say with certainty how the future will unfold

some suggestions are given below as to what these fundamental

issues might be.

A.   Retrofit

     At the present time Federal aircraft noise type certifica-

tion standards apply only to what might be called the "new gen-

eration" of aircraft — that would include in particular the

Boeing 747, the McDonnel-Douglas DC-10 and the Lockheed L-1011.

In view of the fact that the L-1011 has not yet been certificated

for regular commercial service, the DC-10 has begun regularly

scheduled service only within the last few weeks, and the 747

has been given a two-year exemption from full compliance with
                                 2
Federal aircraft noise standards,  it will probably be some time

before these Federal standards have any significant effect on

aircraft noise abatement.

     In the meantime, nothing is being done to reduce the noise

of the current jet fleet of 707's, DC-8's, 727's and so on, even

though these aircraft will continue to make up a substantial

portion of the commercial jet fleet for a number of years to

come.

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                              4-2



     The National Aeronautics and Space Administration conducted


a three-year research program which demonstrated that applica-


tion of special acoustical material to the engine nacelles of


707's and DC-8's could noticeably reduce the noise of these air-


craft on takeoff and could substantially reduce the noise of


these aircraft on approach.   The Federal Aviation Administra-


tion is currently considering requiring the airlines to "retro-


fit" the engine nacelles on current jet aircraft with this

                            4
special acoustical material,  and a bill has been introduced in


Congress which would, if enacted, require in effect that current


generation aircraft must be acoustically retrofitted or retired


from service by January 1, 1976.   A study of the economic


impact of an acoustical retrofit program has revealed, however,


that such a program could cost the airlines 800 million dollars,


and the airlines, therefore, have strongly opposed it.


B.   Land Use Control Option


     Another approach to the abatement of aircraft noise is the


development of compatible land usage and land use controls in


the more severely noise-impacted areas around the nation's air-


ports.  It has been argued that replacement of noise-sensitive


properties near airports with noise-compatible uses is the only


effective long-term solution to the aircraft noise problem and


that the noise problem would not even exist today if responsible


planning and land use control had been instituted 20 years ago.


     The requirement of assurances from local airport authori-


ties that appropriate action would be taken to "reasonably


restrict" the use of land near airports to noise-compatible uses

-------
                              4-3
has been a part of the Federal-aid-to-airports program since


1964.   The requirement has never been effectively applied, how-


ever.


     Now there is evidence that the Federal Aviation Administra-


tion may be moving toward a tougher position on compatible land


usage around airports.  The FAA held a special meeting with


aviation industry representatives in June, 1971, to discuss an


FAA Draft order which reportedly would officially endorse the


Noise Exposure Forecast methodology as the method for measuring

                               p
noise exposure around airports.   At the present time it is an


open secret that areas within the 30 NEF contour are widely


believed to be excessively noisy and that areas within the 40


NEF contour are widely believed to be not suitable for residen-

              9
tial property.   If the FAA were to adopt these criteria as


official FAA policy, it might force local airport authorities to


acquire large parcels of noise-impacted residential property


near airports, particularly in the 40 NEF areas, or to seek a


reduction in scheduled air carrier operations, as a means of


shrinking noise exposure areas.


     The manager of Los Angeles International Airport has


charged that if the FAA Draft Order is adopted the costs of land


acquisition around L.A. International could exceed three billion

        10
dollars.    The L.A. manager has also stated that in order to


shrink the 40 NEF contours at L.A. the number of daily flights


between Los Angeles International and New York would have to be


cut from 76 to 16 and the number of daily flights between Los

                                                               11
Angeles and San Francisco would have to be drastically slashed.

-------
                              4-4


     The situation at John F. Kennedy International Airport in

New York is reflected in the results of a recent study of that

airport conducted for the MANAPS program, a joint aircraft noise

policy study by the Department of Housing and Urban Development
                                     12
and the Department of Transportation:

       Within the 1975 noise exposed areas, it is estimat-
       ed that it would cost $0.6 billion for the redevel-
       opment (acquisition and demolition) of residences,
       schools and hospitals in the noisiest locations
       (40 NEF)  and $0.7 billion for sound insulation of
       residences, schools, and hospitals in less noisy
       areas (30 NEF).  Also, 50,000 persons would be dis-
       placed from their homes.  If such an area were
       cleared for compatible development, all of the an-
       ticipated industrial development in Brooklyn,
       Queens and Nassau for the next 20 years would-not
       be enough to use the acreage made available.

C.   Production Models and Compatibility of Surrounding Struc-
     tures

     Several suggestions have been made for somewhat more modest

lines of attack on the aircraft noise problem.  Meynell, for

example, would focus immediate attention on noise standards for

yet-to-be constructed aircraft of the medium range class such as

the BAG-111,  the DC-9, the 727 and the 737.  As he points out,

aircraft such as these have at present "indeterminate production

runs ahead of them which bodes ill for the peace and quiet of
                                               14
airport neighbourhoods for many years to come."

     Tondel on the other hand sees a need for land use control of

open space areas near airports:

       There has been a plethora of planning.  Much money
       and effort have been devoted to estimating how many
       miles "noise affected areas" extend beyond the air-
       port.  There have been numerous studies, most of
       which add to the store of knowledge.  However, the
       commonsense approach to this problem — namely,
       keeping open those areas nearest approach paths
       which are still open — has been for the most part
       ignored.15

-------
                              4-5



     In connection with this last suggestion, it should be noted


that the Department of Housing and Urban Development  (HUD) has


been trying for some time to prohibit the creation of noise-


sensitive uses of property near airports.  As early as 1961, the


Federal Housing Administration (now a part of HUD) took official


recognition of the fact that certain high-noise areas around air-


ports were not acceptable for Federally insured home loan mort-


gages for proposed new residential development.    In 1965, the


FHA further took the position that areas falling within Zone 3


of the CNR contours (roughly equivalent to 40 NEF) were not ac-

                                                  17
ceptable for proposed new residential development.    Unfortu-


nately, these actions have not had a substantial impact on the


problem.


     The Department of Housing and Urban Development, however,


has recently issued a policy circular on noise abatement and


control, that applies to all of HUD's programs, including in par-


ticular Federal Home Loan Mortgage Insurance and Urban Renewal,


(See Section   1).  Insofar as aircraft noise is concerned, the


new policy circular declares 40 NEF areas to be "unacceptable"


for new residential construction and 30 NEF areas to be "normally


unacceptable" for new residential construction.  Under the new


circular, exceptions to the above rules will be permitted, in the


case of 30 NEF, only with the approval of the appropriate HUD


Regional Administrator, and in the case of 40 NEF, only with the


approval of the Secretary of Housing and Urban Development.  If


rigorously enforced, this new policy may have a significanteffect


on preservation of open space areas near airports for compatible


uses.

-------
                              4-6


D.   Night Curfews

     Public pressure will continue for the imposition of night

curfews which have the twin virtues of simplicity and effective-

ness.  They are simple in the sense that they require no new pro-

grams or technology, but only an administrative decision by the

appropriate official.  They are effective because they apply to

the most critical hours of the night when people are most noise-

sensitive , and obviously no aircraft noise abatement technique

could be more effective than the simple absence of planes flying

overhead.  The aviation industry, however, strongly dislikes the

restrictive impact of night curfews on system capacity and oper-

ations.  Testimony from the recent case of Lockheed Air Terminal,
                                    18
Inc., et al. v. The City of Burbank,   summarized below by
            19
Christopher,   illustrates the problem:

       Testimony on behalf of one of the air carriers at
       the Burbank trial indicated that if comparable cur-
       few ordinances were imposed upon all airports
       served by that airline, its cost would be increased
       by twenty-five percent to provide the same service.
       The testimony also indicated that forty-eight per-
       cent of the airmail moves during curfew hours, and
       that over forty percent of the air cargo moves
       during those same hours.  Other testimony, based
       upon a study of the Official Airline Guide, showed
       that there were 1009 daily flights from airports
       serving certified air carriers which would have to
       be cancelled if the Burbank curfew were to be im-
       posed on a nationwide basis.

E.   Airport Development

     The Airport and Airway Development Act of 1970 requires

that if an airport development project involving airport loca-

tion, a major runway extension, or a runway location is found

to have an adverse impact on the environment the Secretary of

Transportation can approve such a project only after he has

-------
                               4-7


rendered a finding, in writing, following a full and complete

review, which shall be a matter of public record, that no feasi-

ble and prudent alternative exists and that all possible steps
                                                 20
have been taken to minimize such adverse effects.    Although it

is too early to determine what practical effect this new provi-

sion will have on the aircraft noise problem, it is interesting

to view this provision in terms of the recent decision of the

U.S. Supreme Court in Citizens to Preserve J3yerton Park, Inc. v.
      21
Volpe.

     Overton Park involved an attempt to construct a six-lane

interstate highway through a public park in Memphis, Tennessee.

The action was based on section 4(f) of the Department of Trans-

portation Act of 1966 [and on section 138 of the Federal-Aid

Highway Act of 1968 which is identical to section 4(f)]. Section

4(f) provides as follows:

       It is hereby declared to be the national policy that
       special effort should be made to preserve the natural
       beauty of the countryside and public park and recre-
       ation lands, wildlife and waterfowl refuges, and his-
       toric sites.  The Secretary of Transportation shall
       cooperate and consult with the Secretaries of the
       Interior, Housing and Urban Development, and Agri-
       culture, and with the States in developing transpor-
       tation plans and programs that include measures to
       maintain or enhance the natural beauty of the lands
       traversed.  After August 23, 1968, the Secretary
       shall not approve any program or project which re-
       quires the use of any publicly owned land from a
       public park, recreation area, or wildlife and water-
       fowl refuge of national, State, or local signifi-
       cance as determined by the Federal, State, or local
       officials having jurisdiction thereof, or any land
       from an historic site of national, State, or local
       significance as so determined by such officials un-
       less (1) there is no feasible and prudent alterna-
       tive to the use of such land, and  (2) such program
       includes all possible planning to minimize harm to
       such park, recreational area, wildlife and water-
       fowl refuge, or historic site resulting from such
       use. 22

-------
                              4-8
The very close similarity between section 4(f)  and section 16(c)
                                                      23
(4) of the Airport and Airway Development Act of 1970,   quoted

in full below, is apparent:

       It is declared to be national policy that airport
       development projects authorized pursuant to this
       psrt shall provide for the protection and enhance-
       ment of the natural resources and the quality of
       environment of the Nation.  In implementing this
       policy, the Secretary shall consult with the Sec-
       retaries of the Interior and Health, Education,
       and Welfare with regard to the effect that any
       project involving airport location, a major run-
       way extension, or runway location may have on nat-
       ural resources including, but not limited to, fish
       and wildlife, natural, scenic, and recreational
       assets, water and air quality, and other factors
       affecting the environment, and shall authorize no
       such project found to have adverse effect unless
       the Secretary shall render a finding, in writing,
       following a full and complete review, which shall
       be a matter of public record, that no feasible and
       prudent alternative exists and that all possible
       steps have been taken to minimize such adverse
       effect.24

     In reversing the decision of the Sixth Circuit Court of

        25
Appeals,   which had upheld construction of the highway, and in

remanding the case to the District Court for a "plenary review"

of the factual basis for the Secretary of Transportation's de-

cision to permit construction of the highway, the Court placed

the following interpretation on section 4(f):

       Section 4(f) of the Department of Transportation Act
       and §138 of the Federal-Aid Highway Act are clear
       and specific directives.  Both the Department of
       Transportation Act and the Federal-Aid to Highway
       Act provide that the Secretary "shall not approve
       any program or project" that requires the use of
       any public park land "unless  (1) there is no feasi-
       ble and prudent alternative to the use of such land,
       and  (2) such program includes all possible planning
       to minimize harm to such park..."  23 U.S.C. §138
        (Supp. V); 49 U.S.C. §1653(f)  (Supp. V).  This lan-
       guage is a plain and explicit bar to the use of
       federal funds for the construction of highways

-------
                              4-9
       through parks -- only the most unusual situations
       are exempted."  (Emphasis added)

     In a concurring opinion, Justices Black and Brennan stated

this position even more emphatically:

       It is apparent from the Court's opinion today that
       the Secretary of Transportation completely failed to
       comply with the duty imposed upon him by Congress
       not to permit a federally-financed public highway to
       run through a public park "unless (1) there is no
       feasible and prudent alternative to the use of such
       land, and (2)  such program includes all possible
        Planning to minimize harm to such park..." 23 U.S.C.
        138; 49 U.S.C. §1653(f).  That congressional com-
       mand should not be taken lightly by the Secretary
       or by this Court.   It represents a solemn determina-
       tion of the highest law-making body of this Nation
       that the beauty and health-giving facilities of our
       parks are not to be taken away for public roads
       without hearings,  fact-findings and policy determi-
       nations under the supervision of a Cabinet officer
       — the Secretary of Transportation. ?

     The Overton Park case suggests, therefore, that when Con-

gress states, as it did in the Airport and Airway Development

Act of 1970, that major airport development projects (new air-

ports, or runway locations and extensions) which have adverse

effects on the environment cannot be approved unless the Secre-

tary of Transportation makes a formal finding that "no feasible

and prudent alternative exists and that all possible steps have
                                            2 8
been taken to minimize such adverse effect,"   the Congress is

establishing a very substantial standard by which to measure

administrative decision-making by the Secretary.  Moreover, it

would appear that when a major airport development project (i.e.,

a new airport or runway location or extension) has significant

unavoidable adverse environmental effects, the project normally

cannot be continued and "only the most unusual situations are
          29
exempted."    Whether or not this is the view ultimately taken

-------
                             4-10





by the courts, section 16(c)(4)  of the Airport and Airway Devel-


                  30
opment Act of 1970   should be a productive source of litigation



over the next few years.





  4.1.2  Problems and Perspectives:  Intergovernmental Regula-

         tory Relationships



     A number of interesting and difficult questions are raised



by the efforts of governments at various levels — local, State,



national and international — to regulate aircraft noise.  The



discussion below will deal only with the questions of conflict



and preemption between the Federal government on the one hand



and State and local governments on the other.  It should be noted



in passing, however, that there are a number of interesting



questions involving the relationship of regional authorities to



the State government and to other units of local government and



the relationship of State government to local municipalities in



charter and noncharter states.  These questions are exclusively



a function of State law, and the answers for any particular air-



port situation would depend upon the laws of the particular



state involved.



     It should also be noted in passing that some very perplex-



ing problems may arise if local authorities, particularly local



airport authorities, attempt to apply local aircraft noise regu-



lations to aircraft that are listed on the national registry of



another country and which operate into and out of the United



States.  The Port of New York Authority, for example, has pre-



vented foreign certificated aircraft from landing at John F.



Kennedy International Airport when the air carrier involved

-------
                             4-11
failed to fully demonstrate in advance that its aircraft com-



plied with the Port Authority's noise regulations.    On the



other hand, the Supreme Judicial Court of Massachusetts recently



ruled in an advisory opinion that a bill pending before the



Legislature that would prohibit the landing or takeoff of any



civil supersonic aircraft in Massachusetts that did not meet a



specified maximum noise level involved an attempt by the State of



Massachusetts to exercise powers that had been preempted by the



Federal government  (See Section 2.4.1).  The court noted but



did not decide, however, the question of whether an airport pro-



prietor could exercise this power as the Port of New York Author-



ity has done in New York.



     In any event, where local aircraft noise regulation of for-



eign certificated aircraft is involved it is well to remember, as



Justice Holmes pointed out more than fifty years ago, that the



power of State and local governments stands in a different rela-



tionship to the power of the Federal government when the Federal



government is acting pursuant to treaty obligations of the United



States than when the relationship that exists involves solely the



question of the division of power within the Federal system

                       32
under the Constitutxon.



A.   Federal Government Relationships to Local Governments Not

     Owning or Operating An Airport



     This section discusses the law applicable to aircraft noise



regulations adopted by local government authorities that do not



own or operate the airport in question.  The special rules apply-



ing to airport authorities are discussed below in another section.



     It is well established that local cities and municipalities

-------
                             4-12






adjacent to airports cannot enforce ordinances that effectively



prohibit aircraft overflights because such ordinances directly



conflict with the regulation of the flight of aircraft by the


                   33
Federal government.    In the three cases of this kind that have



come before the courts, two involved city ordinances prohibiting


                                                34
flight over the city below a specified altitude.    The third



involved a city ordinance that prohibited activities generating



noise in excess of specified maximum limits; the court, however,



found that the real effect of the latter ordiance was the same



— to prohibit the flight of aircraft over the city.    In all



three cases, local communities adjacent to airports had




attempted to gain relief from aircraft noise by prohibiting air-



craft overflights.  In all three cases, the city ordinances were



invalidated by the courts on the ground that the ordinances



directly conflicted with the Federal law regulating the flight



of aircraft.  Two of the opinions   also discussed the doctrines



of preemption and burden on interstate commerce.  When a validly



enacted Federal law conflicts with a State law or local ordi-



nance the Constitution specifies that the Federal law must pre-



  •i 37
vail.




     The Lockheed case, also discussed in Section 2.4.1, supra,



raises somewhat different questions.  The City of Burbank, Califor-



nia, had enacted a city ordinance which prohibited jet aircraft



from taking off between the hours of 11 P.M. and 7 A.M. from Holly-



wood-Burbank airport.  The Hollywood-Burbank airport is owned,



not by the City of Burbank, but by Lockheed Air Terminal, Inc.,



a private corporation.  The airport does, however, in effect

-------
serve as a public airport, receiving scheduled air carrier ser-

vice by both interstate and intrastate airlines.

     In an action for declaratory relief and to enjoin the en-

forcement of the ordinance, the U.S. District Court for the cen-

tral district of California ruled that the ordinance was invalid,

on the ground that the power to enact such an ordinance had been

preempted by the Federal government's regulation of air commerce

and on the ground that the ordinance constituted an unreasonable
                              •j O
burden on interstate commerce.

     In finding preemption, the court exhaustively reviewed the

involvement of the Federal government in the regulation of air

commerce and concluded:

       From the broad scope of Federal statutes and regula-
       tions governing and controlling the use of air space
       and of air traffic, it would appear that Congress
       intended to centralize full and dominant control of
       the navigable air space in the Federal Government so
       as to provide for its safe and most efficient use. 9

     The argument of the court is not wholly satisfying, however.

In particular, the court quoted with approval from the following

paragraph contained in the report of the Senate Commerce Commit-

tee40 on H.R. 3400 which ultimately became Public Law 90-411,

the 1968 aircraft noise abatement act:

       The courts have held that the Federal Government pre-
       empts the field of noise regulation insofar as it in-
       volves controlling the flight of aircraft.  Local
       noise control legislation limiting the permissible
       noise level of all overflying aircraft has recently
       been struck down because it conflicted with Federal
       regulation of Air Traffic.  American Airlines v.
       Town of Hempstead, 272 F. Supp. 226 (U.S.B.C., E.D.,
       N.Y., 1966).  The court said at 231, "The legislation
       operates in an area committed to Federal care, and
       noise limiting rules operating as do those of the
       ordinance must come from a Federal source."  H.R.
       3400 would merely expand the Federal Government's

-------
                             4-14
       role in a field already preempted.   It would not
       change this preemption.  State and local govern-
       ments will remain unable to use their police
       powers to control aircraft noise by regulating
       the flight of aircraft. ^

     The court, however, did not discuss or even quote the para-

graph of the Senate Report that immediately followed the one

quoted above.  This second paragraph is quoted below:

       However, the proposed legislation will not affect
       the rights of a State or local public agency, as
       the proprietor of an airport, from issuing regu-
       lations 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 to aircraft on the basis of
       noise considerations so long as such exclusion
       is nondiscriminatory.

In light of this very clear statement of congressional intent, it

is difficult to see how the court could arrive at the conclusion,

at least, insofar as aircraft noise is concerned, that Congress

                                         44
intended to completely preempt the field.

     The court was on much firmer ground in ruling that the Bur-

bank ordinance was invalid because it constituted an unreason-

able burden on interstate commerce.  On this point the court

said:

       The noise problem created by jet aircraft is well
       known and it appears to the Court that a curfew
       Ordinance, if valid, would promptly be adopted by
       virtually all cities surrounding airports.  Con-
       sidered singly, such an Ordinance might not im-
       pose an unlawful interference with interstate
       commerce in all cases.  However, considered on.a
       national level, the Ordinance could not stand.

     To support this conclusion, the court had the fact adduced

from the testimony at the trial that, if curfew ordinances simi-

lar to the Burbank ordinance were imposed at all of the nation's

-------
                             4-15
air carrier airports, 1009 daily flights would have to be can-



celled.    One air carrier serving Hollywood-Burbank airport also



testified that if curfew ordinances; similar to the Burbank ordi-



nance were adopted at all of the airports which it serves, its


                                                            47
costs would be increased by 25% to provide the same service.



Testimony at the trial also revealed that 48% of the nation's


                                                              4 8
airmail moves during the curfew hours and 40% of the air freight.



     Whether or not the court assessed these facts correctly,



they provided a reasonable basis for the court's decision.



B.   Federal and Stace Regulatory Relationships



     California is the only state which has enacted legislation


                                             49

authorizing the regulation of aircraft noise.    An argument



supporting the authority of the states to legislate in this field



may be found in a 1970 Opinion of the Attorney-General of Cali-


       50

fornia.



     The California Attorney-General makes essentially two argu-



ments in support of state authority to regulate aircraft noise:



(1) the Federal government has occupied a portion of but has not



prempted the entire field of regulating aircraft-produced commu-



nity noise, and therefore State and local governments may legis-



late in the field if there is no conflict with federal statutes



or regulations; and (2) State and local governments which are



airport proprietors may regulate aircraft-produced community



noise in their capacity as proprietors despite Federal statutes



or regulations covering the field.     (The California Attorney-



General also makes an argument that State and local governments



may regulate aircraft-produced community noise by land use

-------
                             4-16


controls such as airport siting and zoning, but this point is

generally accepted).

1.   Alternative Perspective Number One

     The California Attorney-General concedes that State and

local laws or regulations in direct conflict with Federal air-

craft noise laws or regulations must yield.  He also notes that

several decisions have contended that the Federal government

has preempted the field of aircraft noise regulation, but he

points out that the California Supreme Court has indicated in
                                                 52
Loma Portal Civic Club v. American Airlines, Inc.   that it is

not convinced that the Federal government has preempted the

field.  The California Attorney-General concludes, therefore,

that in the absence of a court test to resolve the conflicting

and uncertain authorities, preemption of State authority to

regulate aircraft noise where the regulations are not in direct

conflict with Federal law cannot be assumed.

     One difficulty with this argument is that it is hard to

conceive of any State law which, if applied to aircraft in

flight, would not be in direct conflict with Federal law given

the extensive nature of the Federal regulation of the flight of

aircraft.  The extensiveness of this Federal regulation is docu-

mented in the following quotation from Lockheed Air Terminal v.
                    53
The City of Burbank;

       Unless otherwise authorized by FAA Air Traffic
       Control, a pilot operating within an airport
       traffic area must maintain two-way radio commu-
       nication with the control tower  (FAR 91.86(6)).
       He is further required to comply with all clear-
       ances and instructions that may be issued by Air
       Traffic control  (FAR 91.75  (b))	Except when
       in direct communication with the control tower

-------
                             4-17
       each regularly scheduled air carrier is required by
       its Operating Specifications to operate its jet air-
       craft in accordance with FAA Instrument Flight Rules
       ("IFR").  When not under the control of an FAA air-
       port control tower, aircraft operating under IFR are
       under the direct control of an FAA Air Route Traffic
       Control Center and are required to comply with the
       clearances received from that facility (FAR 91.115,
       91.75(a)),54

     In view of this extensive involvement of the Federal gov-

ernment in the regulation of the flight of aircraft, it would

appear that the only area available for nonconflicting State

regulation would be a regulation which, especially in its en-

forcement, applies to aircraft while on the ground and which

does not require flight operations that conflict with Federal

law.

2.   Alternative Perspective Number Two

     The proprietorship concept, while applicable, will be dis-

cussed subsequently.  At this point, however, it is important to

note an argument that has been made concerning the application

of the proprietorship concept to State regulation of aircraft

noise.  It has been suggested   that, assuming arguendo that a

local airport authority has the power to regulate aircraft noise

at its own airport in its capacity as proprietor of the airport,

it does not necessarily follow that the state may direct the

airport authority to do so.  That may be essentially correct.

     On the other hand, if a state could not by some means

(state constitutional amendment, if necessary) direct an air-

port authority to act, it would mean that the local government

owning the airport possessed powers not possessed by the state.

Yet the state is the source of the power, and indeed the very

existence/ of the local government entity.

-------
                             4-18






     It has been held that the Federal government may make a




municipality its licensee and thereby confer upon it powers to



act that have been denied to it by the state, although the ex-



tent of these powers is somewhat uncertain.    It would be a



novel doctrine, however, that suggested that the Federal govern-



ment could by preemption effectively confer powers on a munici-



pality, a creature of the state, while denying those same powers



to the state itself.



     In other words, a local government entity derives its




powers from the state of which it is a part.  In certain cases,



where states have denied to local government entities the nec-



essary incidents of legal existence thereby making it impossible



for a local government entity to act under a valid Federal li-



cense, it may be argued that the license is sufficient authority




to exercise those powers of State law which are necessary for



carrying out the licensed activity.  If it were otherwise, many



Federal-aid programs to cities would be subject to the whirns of



the various states.  Such a doctrine does not change the basic



nature of the Federal system.  It merely prevents the states



from obstructing valid Federal programs.



     The doctrine contended for above, however, would recognize



powers over aircraft noise in local government entities that are



not possessed by the states.  In this case,the Federal govern-



ment would not be merely removing a capricious obstruction to



the normal exercise of State powers by a local government entity



but would actually be conferring Federal powers acquired by pre-



emption of State authority on subordinate political subdivisions

-------
                             4-19


of the state.  Such action would appear to be inconsistent with

the Federal system contemplated by the Constitution.

C.   Proprietary Powers and the Control of Aircraft Noise

     The Senate Commerce Committee in its report   on H.R. 3400
                                          5 8
which ultimately became Public Law 90-411,   the aircraft noise

abatement act of 1968, made the following observations about

the power of local airport authorities to regulate aircraft noise:

       (T)he proposed legislation will not affect the
       rights of a State or local public agency, as the
       proprietor of an airport, from issuing regula-
       tions or establishing requirements as to the per-
       missible 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 to aircraft on the basis of noise consid-
       erations so long as such exclusion is nondiscrim-
       inatory.

     This philosophy is also reflected in the FAA's preamble to

FAR Part 36, the Federal government's aircraft noise type certi-

fication regulations, as published in the Federal Register;

       Compliance with Part 36 is not to be construed as a
       Federal determination that the aircraft is "accept-
       able," from a noise standpoint, in particular air-
       port environments.  Responsibility for determining
       the permissible noise levels for aircraft using an
       airport remains with the proprietor of that air-
       port.  The noise limits specified in Part 36 are the
       technologically practicable and economically reason-
       able limits of aircraft noise reduction technology
       at the time of type certification and are not in-
       tended to substitute federally determined noise
       levels for those more restrictive limits determined
       to be necessary by individual airport proprietors in
       response to the locally determined desire for quiet
       and the locally determined need for the benefits of
       air commerce.^Q

     The proprietorship concept of aircraft noise control by

airport authorities had its genesis with the Port of New York

Authority's 112 PNdB limit on takeoffs at John F. Kennedy Inter-

-------
                             4-20


national Airport.  The basis for the Port Authority's 112 PNdb

limit has been explained by the Port Authority's General Counsel:

       Port Authority restrictions are not based on police
       power considerations but rather upon the inherent
       right of a landowner to control, either by contract
       or otherwise,  the activities of those who use his
       facilities —  activities for which...the airport
       operator might be held liable to property owners in
       adjacent communities.  It seems clear that the Port
       Authority possesses the power to require its airline
       tenants to refrain from using its facilities in such
       a way as to subject it to money damage claims
       brought by airport neighbors or otherwise to engage
       in activities  that will prove detrimental to its good
       name or to that of its airports.  There is, of course,
       no conflict between Port Authority restrictions and
       PAA regulations.  An air carrier must comply with
       both.  In fact, the Port Authority requires air car-
       riers who operate from its air terminals to comply
       fully with all Federal rules and regulations. 1

     The Port Authority's power under the proprietorship doctrine
                                                             f\ O
to control aircraft noise has been tested only once in court,

and even then the test occurred under carefully circumscribed

conditions.  The Port Authority had closed two runways at La

Guardia Airport to permit extensions of the runways to be con-

structed.  When the extension of one of the runways was completed

prior to the completion of the extension of the other runway, the

Port Authority withheld permission to use the first runway until

the second was completed on the grounds that concentrated use of

the single completed runway would create an unacceptable air-

craft noise problem.   When a number of airlines deliberately

used the completed runway in violation of the Port Authority's

directive, the Port Authority sought an injunction to prevent

further violations.

     In granting injunctive relief, the U.S. District Court for

the Eastern District of New York ruled that the Port Authority's

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                             4-21




restrictions on the use of the runway did not conflict with the



regulation of air traffic by the Federal Aviation Administration,


even though the FAA had indicated that it believed that the run-



way could be safely used.    The court stressed the fact, how-


ever, that the Administrator of the FAA had very carefully and


very clearly stated that the FAA was not directing that the com-



pleted runway be used.


     In the only other case touching upon the proprietorship con-



cept, the District Court for the Eastern District of New York



ruled that the power to levy a $25 takeoff fee imposed on general



aviation aircraft at the Port Authority's three air carrier air-



ports for the purpose of stimulating a shift in general aviation


traffic to other airports in the New York area had not been pre-



empted by the FAA's regulation of air traffic and the FAA's spe-



cial air traffic rules for high density airports.



     It would appear, therefore, in light of all of the fore-



going that so long as the Congress and the Federal Aviation Ad-


ministration maintain their positive attitudes toward the regu-


lation of aircraft noise by airport authorities, and so long as


airport authorities do not place themselves in direct conflict


with FAA safety regulations, the regulation of the aircraft



noise by airport authorities is not prohibited, even though the

                                         66
FAA is also regulating in the same field.


     The questions of "conflict" and "preemption" do not neces-



sarily exhaust the inquiry, however.  The Constitution gives the

                                                           67
Congress power to regulate interstate and foreign commerce.

                                          /- Q

The states may also regulate that commerce   but not when such

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                             4-22



                                                              69
regulation directly conflicts with validly enacted federal law


and not when Congress has "preempted" the regulation of that par-

                         70
ticular type of activity.    Yet, even though a particular act of


regulation over interstate commerce is not in direct conflict


with Federal law and even though the area of regulation has not


been preempted by the federal government, the State regulatory


act may be so burdensome on interstate commerce that it is pro-


hibited by the Constitution.    In particular this is true when


the activity being regulated is one requiring national uniform-

                  79
ity of regulation.


     It has already been held by a U.S. District Court that a


night curfew on operations at a single airport must be enjoined


because if it .were adopted at all other air carrier airports


across the country, the free flow of interstate air commerce

                               73
would be substantially impeded.    While this single decision


does not constitute a controlling precedent, the concept is per-


suasive.


     Airlines, because of their complex scheduling arrangements,


are particularly vulnerable to inconsistent local requirements.


Airlines are normally granted routes which require them, for


example, to depart from City A, stopover in City B and terminate


in City C.  If the aircraft which departed from City A could not


land or takeoff at City B because of aircraft noise restrictions,


and if the aircraft which could land and takeoff from City B


could not land and takeoff from City C because the aircraft noise


requirements there were inconsistent with the aircraft noise


requirements in City B, the airline would find itself in a tre-


mendous quandary.

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                             4-23




     The better view would seem to be, therefore, that local air-


craft noise regulations attempting to alleviate local problems


nonetheless have a significant and substantial national impact


and that to prevent the great burdens that would be imposed on


interstate commerce by inconsistent local regulations national

                                     74
uniformity of regulation is required.

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                             4-24





  4.2  PROPOSED REGULATION OF VEHICULAR NOISE





     Vehicular noise constitutes one of the major sources of



noise pollution subject to proposed regulation.  Fortunately,



it appears also to present an opportunity for substantial im-



provement over present regulatory systems.





  4.2.1  Sources of Vehicular Noise



     Noise from a passing vehicle represents a variety of prob-



lems of design and maintenance.  At lower speeds, especially



during initial acceleration, noise emanates primarily from the



internal combustion engine.  With varying degrees of efficiency,



the mufflers and connecting pipes of the exhaust system abate



engine racket on its way to the world outside.  Some acoustical



inefficiency occasionally results from intentionally inadequate



design.  For example, certain of Detroit's "muscle cars" and



many makes of motorcycles are designed to emit greater levels of



noise through factory installed "shorty pipes."  The practice



owes its continued existence to a marketing theory which panders



to subliminal identification of power and virility with the



throaty rumble of a Harley chopper.  In other instances, fire-



trucks and some other special-purpose vehicles are designed with-



out mufflers in an effort to maximize performance.  It is well



known that the back pressure created by noise suppressing devices



downgrades the maximum possible efficiency of the engine.



     Other sources of vehicular noise — horns, tire design, road



surfaces, and aerodynamic aspects of body design — present some-



what more difficult questions as sources of abateable vehicular

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                             4-25




noise.  Body and tire noise, for example, only become significant


at substantial vehicle speeds.  Often in urban areas where vehi-


cles move slowly, tires and body design have little influence on



overall vehicle noise.  Yet, the same vehicle moving rapidly on



a limited access highway through the same area can create consid-



erable noise.




  4.2.2  The Negative Effects of Vehicular Noise



     Like many other sources of noise, vehicular noise causes or



contributes to a wide span of deleterious effects.  Sustained ex-



posure can cause hearing impairment.  Speech disruption in con-



gested traffic is so common in urban areas that it is almost ac-


cepted.  Moreover, traffic noise is among the prime contributors



to ambient noise levels.  Ambient noise in the vicinity of con-


gested arteries or major expressways often reaches intolerable



levels.  The disagreeable quality of this noisy environment in



residential or other areas of incompatible use (e.g. hospital



zones, schools) often is reflected in depressed property values.



While certain cases have recognized the relationship of noise to

                75
property values,   less dramatic effects of vehicular noise pol-


lution tend to be written off as a social cost of increasing ease


of transportation.




  4.2.3  Existing Major Deficiencies


A.   Technological and Economic Deficiencies



     Present efforts to control vehicular noise have yielded less



than impressive results.  (See Section 3.)  As has often been


noted, moreover, "there are no great technical barriers to better

-------
                             4-26


control of vehicle noise."    The explanations of the vehicular

noise problem tend to emerge as shortcomings of the regulatory

scheme and public awareness.

     Foremost among the present deficiencies is the lack of any

realistic market incentive to implement quiet technology.  Since

noise abatement technology rarely adds to the performance value

of a vehicle, it cannot be expected to have intrinsic market

value.  Without uniform maxket-wide pressure to adopt quieter

vehicular technology, it is useless to expect commercial noise-

makers to shoulder the admittedly increased cost of new and quiet

equipment while their competitors opt for cheaper, noisier equip-

ment.  Likewise, unless required by regulation, the average con-

sumer will not prefer quieter technology on a scale which will

justify manufacturer entry into that market.  Purchasers tend to

view noise (or its absence) as a social amenity rather than a

social necessity.

     Often, a manufacturer's heavy investment in existing tech-

nology creates a substantial economic disincentive toward change.

This is especially true when the initial cost cannot be recovered

until the end of the marketing process.

B.   Deficiencies in the Existing Regulatory Effort at the Fed-
     eral Level

     The above discussion suggests the need for an artificial

market incentive for quiet technology created through regulatory

means.  In addition, the broad.integrated scale of vehicular

production drawing on diverse suppliers and a nationwide sales

market must be noted as indices of the scope of the entire pro-

-------
                             4-27


cess.  No less important is the unrestricted nationwide use made

of vehicles by purchasers after the initial sale.  Any realistic

broad scale economic regulation has traditionally come from the

Federal government.

     At present, however, the Federal government is not involved

in any regulation of vehicular noise at the source (except for

aircraft, discussed separately).  Not even through its enormous

bargaining power in procurement does it attempt to induce pro-

duction of quieter vehicles for its own use.  And even if this

technique were employed, only the Federal market would be di-

rectly affected and any spill over into the rest of the market

would remain problematic.

     Perhaps as an unavoidable consequence of the Federal govern-

ment's disinterest in regulation of noise, there is no desig-

nated Federal agency which will permanently research and regulate

vehicular noise.  Only the recent effort by the Environmental

Protection Agency, under the 1970 Clean Air Amendments, Title IV,

shows signs of directing the initial efforts needed to lay a

foundation for effective future regulation.

C.   Deficiencies in the Existing Regulatory Effort at the State
     and Local Level

     Historically, regulation of vehicular noise has found its

greatest expression on the State and local level.  Perceived in

terms of its negative effects, noise pollution has been classi-

fied as appropriate for exercise of police powers to protect the

public welfare.  However, viewed in terms of abatement efficiency,

point source regulation promises the most productive results.

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                             4-28






Given the scale of our economy, however, source control ultimate-



ly involves the states directly or indirectly in the regulation



of interstate commerce.  With this power vested exclusively in



the Federal government, and a well established restriction on



most parallel state activity, State (and local) governmental defi-



ciencies emerge largely as problems of Federalism.



     Thus, while State exercises of police powers abating the



source of vehicular noise may be theoretically valid, they exist




subject to constitutional qualification.  At any time, they may



be challenged as unreasonable restraints on interstate commerce.



Finally, although to a lesser extent,  prospects of Federal gov-



ernment regulation of source control may have had the effect of



stifling State initiative.



     With the specific exceptions of New York, California, Minne-



sota, Idaho and Colorado, all other State level jurisdictions



have failed to develop emission standards based upon objective




criteria.  (See Section 1.2.2.)  It is probably fair to say



that expensive measuring equipment and lack of trained enforce-



ment personnel have contributed to the criteria deficiency prob-



lem.  In place of objective criteria and standards, the State and



local governments have relied on broad standards notorious for



their vagueness and dangerously amenable to selective enforce-



ment.  Such standards do little to control noise and less to pro-



mote community compliance.



     Few states or localities have discrete agencies charged spe-



cifically with quieting such sources of noise as vehicles.  Most




commonly, the charge devolves upon such familiar but overloaded

-------
                             4-29


enforcement patterns and personnel as the courts and police.  If

noise is inherent in the design of a vehicle, police are justly

hesitant to enforce a noise standard against an owner or opera-

tor.  If they do, the resentment engendered usually outweighs

the social value of the citation issued — especially when the

manufacturer is remote and unlikely to feel the impact of the

prohibition.

     Perhaps the aggregation of all these deficiencies has re-

sulted in the most common overall deficiency:  to date, noise

abatement and control has commanded a low priority from both en-

forcement officials and affected participants.  Against this

attitudinal framework, the general phenomenon of rising noise

levels despite existing regulatory schemes should come as no sur-

prise.


  4.2.4  Proposals to Remedy Major Deficiencies

     For complete control of vehicular noise, some areas of tech-

nological development will require research.  One commentator has

observed:

       The current state-of-the-art of automotive design
       probably cannot reduce the noise level from heavy
       trucks below 85 dBA, without a substantialRtech-
       nological breakthrough in muffler design.

Current research is underway to study the relationship of noise
                                          79
produced by tire design to safety factors.

     An awareness of these problems in the abatement of noise and

the need for further research is reflected in many of the legis-

lative proposals recently under consideration at the Federal and

State levels of government.  For example, on the Federal level one

current proposal calls for:

-------
                             4-30


       (3)   determination of the most effective and practi-
            cable means of controlling noise generation,
            transmission, and reception...^

Another Federal proposal aimed at the states authorizes funds to

be appropriated "for the investigation of existing causes of ex-

cessive noise in our environment and research into new techniques
                                                 81
of controlling, preventing and abating noise...."

     On the State level, examples of legislative concern have

typically taken the form of that expressed in a bill before the

Oregon Legislature.  Therein, the appropriate agency is directed

4.  82
to:

       (5)   Conduct or cause to be conducted studies and
            research considered by it to be necessary in
            providing for the prevention and abatement of
            noise pollution.

Similar examples of proposed research into the prevention or

abatement of noise (including vehicular) are before the legis-

                                                 83
latures of Oklahoma, New Jersey and Pennsylvania.

A.   Proposals to Remedy Deficiencies at the Federal Level of
     Regulation

1.   Possible Sources of Authority and Related Problems

     Most proposals which contemplate some sort of Federal govern-

mental regulation of vehicular noise draw upon the commerce

clause of the Constitution as their source of authority.  One

current proposal before the House of Representatives directs the

Administrator of the Environmental Protection Agency to "pre-

scribe as soon as practicable standards, rules, and regulations

applicable to the emission of noise from motor vehicles sold in
             84
commerce...."    Another major Federal governmental proposal

similarly seeks to regulate goods which "move in commerce" and

                                           85
require "national uniformity of treatment."

-------
                             4-31


     While many Federal proposals typically recognize "a growing

                                                                86
danger to the health and welfare of the Nation's population,...'

thereby sounding and functioning like an exercise of State police

power, similar adaptations of the commerce clause have withstood

judicial scrutiny.

       Under the commerce power we find regulations of food
       products, insurance, labor conditions, various mis-
       cellaneous rates, and public morality and safety.

Given this broad range of items regulated by Congress in the past,

regulation of sources of vehicular noise under the commerce

clause of the Constitution should pose no disturbingly new exer-

cise of Federal power.

     Should the Federal government enter the field of regulation

of vehicular noise, a valid source and exercise of Congressional

power will be of critical significance in an all but inevitable

conflict between Federal and State regulation.  As detailed in

Section   1.2, there are already a growing number of states

which have adopted comprehensive codes to regulate vehicular

noise.  At this writing, at least thirty-three state legislatures
                                                        go
have had similar proposals before them in the past year.

Federal entry would raise certain obvious questions, most of

which crystalize into a preemption question.

     Strong policy considerations support the conceptual frame-

work of the preemption doctrine.  Assuming the common desire of

both Federal and state governments to regulate the source of

vehicular noise, these considerations form a guideline to effi-

cient regulation.  A need for national uniformity in a smoothly

functioning and highly integrated economy is the foremost

-------
                             4-32






consideration.  Since vehicles are involved in our economy in




many ways, there are different factual contexts in which uniform-




ity will be needed.



     In manufacturing vehicles, production tends to be a central-




ized activity while distribution is nationwide.  Practical limi-



tations in manufacturing techniques make one uniform standard of



acoustical quality best adaptable to mass production.  Since reg-



ulation limiting levels of emissions of motor vehicles directly or



indirectly requires control over the production process, overall



Federal regulation of this type has obvious benefits.  It can



strike at the source of vehicular noise while maintaining one



standard for the entire economy.



     Once manufactured, motor vehicles form a fundamental part of



our national transportation system.  Commercial or private motor




vehicles operated in regional or nationwide travel simply cannot



be continuously altered or adapted to meet varying state emission



standards.  The impractical!ty of permitting such a regulatory



pattern to develop has been recognized in such similar contexts



as the truck mud-flap cases.  To the extent states would be



willing to exempt out-of-state vehicles from their coverage,



these difficulties might be avoided.  However, to date, exemp-



tions have not appeared in present or proposed regulation.



Exemptions would not only vitiate the state's goal of protecting



its citizenry, but detract from the efficacy of the regulation in



the eyes of those who remained covered.  Again, the advantages



of Federal regulation protecting the general welfare and imple-



menting uniform standards become evident.

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                             4-33





     Certain qualifications must be recognized in support of a



State's right to control vehicular noise.  To date, control of



vehicular noise has been exclusively an exercise of State police



powers.  Their present efforts to become more efficient reflect



the needs and wishes of their citizenry.  In part, State re-



sponse relates to their awareness of acute local problems where



ambient levels require immediate stringent abatement.  Finally,



in the absence of Federal regulatory controls, the states have



no alternative to acting themselves.  Indeed, their recent ef-



forts may be intended in part to goad the Federal government in-



to action.



     Ideally, the preemption question should be anticipated and



resolved without a tedious court contest to clarify the functions



of the various levels of government.  Since Congress is present-



ly considering the appropriate role for the Federal government to




play in the regulation of vehicular noise, there is an excellent



opportunity to clearly define the distribution of the regulatory



powers.  Through careful draftsmanship, for example, it can be



decided whether the Federal government will regulate both the



design of noise sources and their operation or only design, al-



though it is difficult to imagine how only design can be pre-



empted without influencing certain kinds of operation.  Failure



to specify such matters carefully could result in permitting the



states to require indirectly a type of retrofit (i.e. design



change) to meet State operation standards.  Such a situation



would be tantamount to a proliferation of State standards, the



disadvantages of which have been mentioned above.

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                             4-34
2.    Proposals to Assist Development of Uniformity and Clarifi-
     cation of Noise Measurement Criteria

     Practically all proposals for regulation of noise by the

Federal government advocate clarification of the criteria prob-

lem.  Existing regulatory efforts have given birth to a myriad

of numerical criteria such as dBA, EPNdB, NEF and CNR.  While

these have enabled more precise descriptions of noise phenomena,

they have also created some confusion in the minds of affected

participants.

     In terms of vehicular noise, the problem could arise in the

following context.  One type of criterion might be necessary for

measuring point source emission from a single vehicle.  Another

may be needed to measure the effect of that emission over an

eight hour day or as a contributing element in ambient levels.

Federal proposals generally call for needed research and develop

opraent of criteria.  They also seek to organize and coordinate

all such activity taking place at the Federal level of govern-

ment.  S. 1016, for example, instructs the Administrator of EPA

to:

       (D)evelop and publish such criteria for noise as in
       his judgment may be requisite for the protection of
       the public health and welfare....  The Administra-
       tor shall confer with the Secretaries of Health,
       Education, and Welfare, and of Labor to assure con-
       sistency between the criteria published under this
       subsection and criteria and standards for occupa-
       tional noise exposure produced under the Occupa-
       tional Safety and Health Act of 1970.89

     Presumably, once effective criteria have been developed by

the Federal government, the advantages in their use will moti-

vate the states to adopt them.  Since states may often be mea-

suring the same sources as the Federal government — depending

-------
                              4-35
on the role the Federal government chooses to assume in noise

regulation — important steps toward uniformity can be taken.

     One dissenting voice has been raised regarding the criteria

problem by Robert Alex Baron in his recent book, The Tyranny of

Noise.  He asks:

       Does it make sense to worry about the nuances of
       decibels when the receiver is experiencing noise
       in the 90 and 100 decibel range?  Because the pro-
       longed barking of dogs disturbs sleep, we enact
       ordinances to compel dog owners to keep their
       pets quiet at night.  These anti-barking codes do
       not specify the size of the dog, or the decibel
       level of the bark, or even the use of perceived
       barking dog noise decibels  (PBDNdB).  It is ac-
       cepted that sleep must be protected and that bark-
       ing disturbs sleep.  Yet when it comes to jet
       planes or trucks or air conditioners, all of
       which can and do disturb sleep, we are asked to
       wait for the perfect measurement.

Mr. Baron generally feels that as long as our emphasis is

placed on such concerns as developing criteria, little will be

done to actually abate noise.

3.   Proposals for the Promulgation of Standards by the Federal
     Government

     Presumably,  once criteria have been developed, standards will

be promulgated based upon them.   The general dilemma faced in

setting standards has been put thusly by Kramon:

       A well-designed noise control program should be
       based on objectives which are defined in terms
       of the measurable variables of sound.   The per-
       missable maximum should be tailored as closely as
       possible to the needs of human beings.  No program
       which promises to be efficacious can rely on a
       subjective standard for noise.   But no program is
       worth implementing unless it imposes limitations
       which will protect people from the adverse ef-
       fects of sound.91

Mr.  Kramon raises an important difficulty in setting standards.

-------
                             4-36


In the past, standards often left enforcement to vague and ulti-

mately" subjective guides.  Here, he is suggesting that objective

criteria can replace subjective guides in newly promulgated

standards without sacrificing human relevance.  Any forthcoming

Federal regulation will undoubtably follow this approach.
         •
     Setting any standard must inevitably reflect many interests

and weigh several considerations.  Common phrases running through

current Federal proposals include the familiar tests, "economical-

ly reasonable" and "technologically feasible."  Another commonly

adopted phrase requires consideration of whether the proposed

standard is "appropriate for the particular type of motor vehicle
                        92
to which it will apply."

     The "economically reasonable" test consistently has been

subject to criticism similar to that voiced by Jerome Kretchmer,

New York City's Office of Noise Abatement, when he noted:

       This language is a loophole that has too often been
       used to avoid cleaning up pollution problems.  It
       might be argued, for example, that it is not eco-
       nomically reasonable to expect airlines to retro-
       fit their jet engines with admittedly costly sound-
       proofing nacelles.  But this approach ignores the
       fact that the cost of sound reduction is one the
       airlines should have been bearing all along.  By
       not doing so, they have not only been affecting
       human health, but also depleting a resource  (our
       quiet air) that does not belong to them and should
       not be provided to them free of charge.  There-
       fore, the "economically reasonable" test cannot
       be applied to pollution abatement standards without
       making it abundantly clear that all the societal
       costs of allowing the pollution in question to
       continue must form part of the equation.

     The "economically reasonable" test has caused substantial

controversy in other pollution realms where it has been applied.

Environmentalists pressing for the broad equation suggested by

-------
                             4-37



Kretchmer have had to face the prospects of industrial shutdowns


and run away plants.  To date, no one has suggested that abate-


ment of vehicular noise is likely to trigger such consequences,


although this may be attributable to the embryonic phases of the


abatement effort more than to the actual cost of providing a


quiet environment.  As the standard-setting process commences


under Federal or State regulation, the question will get a much


fuller hearing.


     Finally, to the extent that some proposals may call for


stricter standards,  it should be kept in mind that one of the


deficiencies in the  noise regulation has been its low social


priority.  Until that priority position is improved, it is un-


likely that strict tests will be adopted when setting standards


or that the ones proposed will get their broadest possible inter-


pretation.  No matter at what point in the decision making pro-


cess these concerns  are raised, they reflect the ultimate ques-


tion:  to what extent is our society willing to adjust the con-


tradictions between  economic and ecological systems?  That, of


course, is a question of political priorities.


4.   Alternative Enforcement Proposals for Federal Regulation of
     Vehicular Noise


     Various proposals at the Federal level advocate establishing


a single agency to deal with the problems of noise abatement and


control.  While some special interest groups have opposed crea-

                                     94
tion of such a centralized authority,   certain advantages seem


inherent in this organization of the Federal regulatory scheme.


     Since one of the primary problems facing enforcement of


noise regulation appears to be lack of public information and

-------
                             4-38





understanding, centralizing and identifying one Federal agency



will tend to highlight responsibility and authority in the agen-



cy.  This should be especially helpful as citizens' groups and



newly affected participants unfamiliar with the diffuse Federal



bureaucracy enter the noise abatement effort.   It has been sug-



gested in particular that within the Environmental Protection



Agency itself, the Office of Noise Abatement and Control be re-


                   95
tamed permanently.



     Enforcement techniques in current Federal proposals have



raised some interesting questions of an administrative and Con-



stitutional nature.  There is considerable controversy over pro-



posals which recommend giving the Federal administrative authori-



ty its own litigation resources.  Some have argued that all liti-



gation should be channelled through the Department of Justice.



Those favoring independent enforcement resources view the problem



as one in need of singleminded pursuit of noise polluters — a



job they feel can best be performed by in-house counsel.  Propo-



ennts of Justice Department participation argue that broader gov-



ernmental needs for uniform litigation policy favor their method,



A working arrangement giving Justice a voice in policy decisions



arising out of litigation would seem to be an obvious compromise.



     A more difficult question arises around the enforcement



powers which would be vested in the Federal enforcement agent



under some proposals.  One leading proposal, S. 1016, would em-



power the Administrator of EPA to "assess" a "civil penalty" of



not more than $25,000 for each violation.  However, "no penalty



shall be assessed until the person charged shall have been given

-------
                             4-39

                                                       96
notice and opportunity for a hearing on such a charge."    The

obvious virtue of such a scheme lies in the ability to compel

abatement of noise or control violations without resorting to the

cumbersome machinery of a criminal trial.

     Some legitimate objections also may be raised if and when

such a technique is adopted.  The potentially penal character of

this provision may require full due process protections under the

Fifth and Sixth Amendments.  As the Supreme Court noted in Trop

v. Dulles, 356 U.S. 87,(1957):

       Doubtless even a clear legislative classification of
       a statute as 'non-penal* would not alter the funda-
       mental nature of a plainly penal statute.  (At 95.)

But whether S. 1016 may or may not have a procedurally inadequate

enforcement technique is not the question of broadest signifi-

cance.  In any regulatory effort to abate noise, there will be a

strong desire to invest the streamlined and more efficient ad-

ministrative process with the clout of heavy sanctions.  It may

not be possible to merge these concepts within the limits of due

process doctrines.  In establishing any regulatory scheme, great

care must be given to these considerations.

5.   Proposed Implementation Techniques for Federal Regulation
     of Vehicular Noise

     Among the choices of implementation techniques, the most

prevalent proposal for Federal action appears to be centered

around the promulgation of standards which vehicle manufacturers

would be required to meet before their goods would be permitted

in interstate commerce.  Failure to comply with the adopted stan-

dards would result in imposition of a sanction similar to the

type described above.  Standard hearing procedures and publica-

-------
                             4-40





tion requirements are built into most proposals to insure ade-



quate opportunity to affected participants to partake in the de-



cision making process.



     Other proposals have been advanced for Federal control of



Vehicular noise.  The Federal Aid to Highways Act is now used as


                                               97
authority to design quieter vehicular arteries.    The technical



feasibility of this approach has been supported by Beaton and



Bourget who have stated that "inherent differences between vari-


                                                        9 8
ous designs can affect the noise path...10 dBA or more."    While



much of the highway program has been completed, those portions



to be developed in urban areas offer an excellent opportunity to



implement this technique to its full extent.  Moreover, it is



unlikely that the last Federally funded highway will be built



under the authority of this Act.  As new authority and new funds



are appropriated to develop the vehicular transportation medium,



the experience of the present program could serve as a useful



precedent.



     Baron has suggested a streamlined form of social compensa-



tion to those affected by necessary and unabateable noise.  The



so-called "amenity grant" concept provides special funds to in-



sulate homes and businesses damaged by noise in high impact


      99

areas.



     Regardless of what implementation technique looks most at-



tractive for Federal action, a substantial effort at public edu-



cation must parallel the regulatory effort.  In furtherance of



this very much needed facet of the regulatory scheme, S. 1016



will, if enacted:

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                             4-41


       Disseminate to the public information on the effects
       of noise, acceptable noise levels, and techniques
       for noise measurement and control. "0

To the extent vigorous enforcement can habituate the population

into making less noise, it may prove useful.  However, experience

has shown that neither law enforcement officers nor the general

public tend to enforce or obey laws they find subjectively unim-

portant or unrelated to their daily experience.  Perhaps a pre-

lude to any successful Federal involvement in noise abatement

should be the educational effort suggested above.

B.   Proposals to Remedy Deficiencies in Regulation of Vehicular
     Noise by the States

1.   Sources of Authority for State Action and Related Problems

     Many of the deficiencies in the total noise abatement effort

are at levels of the regulatory pyramid other than the Federal

level, and must be so addressed.  Powers necessary for complete

control of noise often are vested in State or local government.

Traditionally, the states have been the level at which broad

police powers have been exercised in the interest of the public

welfare.  The states all have extensive legal frameworks which,

to some degree, seek to regulate vehicular noise.  (See Section

1.2.)

     The most familiar efforts by states in the vehicular noise

area have been those statutes requiring mufflers or merely pro-

hibiting excessive noise.  Their general character and weakness

do not need reiteration.  Whether for reasons of statutory in-

adequacy or enforcement deficiencies, many states have felt the

need to revitalize their noise abatement programs.

     At this writing, 3,1 states have introduced before their

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                             4-42
legislatures a total of over 100 pieces of legislation dealing


directly with noise and often specifically with vehicular


noise.     While a few proposed bills cling to the familiar pat-


terns of regulation employing such broad standards as "exces-


sively" or "unreasonably" loud, a growing number of the states


appear to be moving toward more sophisticated approaches.


2.   Proposed Criteria and Standards for State and Local Regula-
     tion of Vehicular Noise


     A survey of the better State legislation for control of ve-


hicular noise shows two basic types of proposals emerging.  The


first is typified by inclusion of specific standards in the body


of the bill.  New York Assembly bill 3193, for example, uses a


dBA criteria and progressively stricter standards, dropping from


88 dBA (measured at fifty feet) to 80 dBA over an eight year

   •  j 102
period.


     A second type of State proposal, demonstrated by Oregon


House bill 3028, directs the State Environmental Quality Commis-


sion to:


       (A)dopt rules and regulations with respect to the
       permissible limits for the emission of noise by
       motor vehicles....03


Proposals delegating the power to set standards to agencies com-


monly require hearings during which affected participants will


have an opportunity to contribute to the decision making process.


     One of the more striking features of the Oregon bill, and a


feature found occasionally in other state proposals, permits the


agency to vary their standards according to local conditions.


Apparently, the states' great concern with health and welfare


outweighs the benefits of uniformity at. their level.

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                             4-43






     Great concern has been expressed regarding states with



stricter standards than those which might be adopted by the



pending Federal proposals.  Two considerations should be kept in



mind regarding such a development.



     First, the states presently occupy the field of regulation



of vehicular noise.  Whether a state has a vague standard pro-



hibiting "excessively loud" noise or an objective standard pro-



hibiting noise in excess of 88 dBA at fifty feet really makes



little difference in the State's theoretical relationship to the



Federal government; it is far more important to remember that it



is the states who have acted.  The Federal government, having the



power to preempt, and knowing the problem exists, would be noth-




ing short of negligent if it entered the field with anything



less than a clear statement of intent.  The states, for their



part, will have to accept whatever role the Federal government



defines for them.



     Secondly, some obvious practical considerations should be



offered to soften any apocalyptic visions of lenient Federal



standards leaving the states powerless.  Those states using the



vague standards will most likely adopt the Federal criteria and



standards as a definition of what is "excessive" or "unreasona-



ble."  Their statutory structure will not be devastated.  States



using specific objective standards may have to amend their stan-



dards and adopt Federal standards.  This should be considered



since it leaves them with important enforcement options and



powers.  For example, they may still vigorously pursue violators




on occasions where the Federal government is not willing to act.

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                             4-44
     Additionally, it does not appear that the State and Federal gov-


ernments are far apart in their analysis and proposed solution



of noise problems.  For example, a typical standard proposed by



California, one of the stricter states, would adopt a limit for


                                            104
motorcycles of 86 dBA at fifty feet by 1975.     Comparing this



to a recent Department of Commerce proposal to limit motorcycles


                         105
to between 87 and 90 dBA,    it would appear that the State and



Federal governments have reached relatively compatible rather



than conflicting conclusions as to needed regulatory solutions.



3.   Possible Implementation Techniques in State and Local Regu-

     lation of Noise.



     In addition to the type of design-source regulation discussed



thus far, the states and their local partners possess many other



abatement options not available at other levels of government.



Certain techniques, such as zoning, building codes, eminent domain,



and community planning are much used State and local functions.



Undoubtedly, many of the states creating noise control agencies



will explore these alternatives.  Often, these agencies are



charged with coordinating and improving existing governmental



activities to abate noise.



     One emerging technique being employed at the State and local



level sets ambient-level limits which vary according to zonal



activity and time of day.  For example, a commercial activity



zone between the hours of 7 A.M. and 7 P.M. may have an ambient



standard of 65 dBA.  Anything in excess of this is considered an



abatable nuisance or a prohibited act.  New York City's recently



proposed noise control code will establish such ambient zone



standards for the entire city.     Presumably, heavy vehicular

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                             4-45



noise could be controlled or re-routed by the authority granted


under such a proposal.


     House Bill No. 1172 before the Kansas Legislature demon-


strates planning and zoning techniques to control noise.  The


State Health Officer is directed to inspect all highway plans to


determine whether they will create a noise problem.  If such a


problem is evident from his study of the plans, he may order re-


location of the highway.  The same officer may also deny to local


officials the authority to issue permits or to zone where he

                                                 107
finds that such powers will create noise hazards.


4.    Proposed Remedies to Enforcement Deficiencies in State and
     Local Regulation of Vehicular Noise


     Even the best plans and proposals will ultimately depend for


their success on effective enforcement.  In this respect, the


states have both the greatest experience and the gravest defi-


ciencies.   (See Section 3.2.2.)  In too many instances, control


of noise has been dumped on the overloaded police-judicial ma-


chinery.  Amidst hundreds of competing priorities, enforcement of


noise regulation has become an abandoned sanction.


     The same functional remedy which has been put forward on the


Federal level can be adopted on the State and local level.  The


City of New York has underway a demonstration project office


charged with noise abatement and control.  It has the advantages


foreseen in its proposed Federal concomitant.  Centralized focus


and responsibility tend to promote vigorous enforcement.  Discrete


designation encourages uniformity and coordination from such di-


verse functionaries as zoning authorities and highway planners.


     If the states hope to cope effectively with noise, it

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                             4-46
appears essential that a specific governmental agent be charged

with overall responsibility for noise control.  To promote de-

velopment of this contour of the regulatory paradigm, financial

commitment will be necessary.  The traditional Federal grant-in-

aid could provide a promising response to this need.  Grant

money and technical assistance should be provided by the Federal

government to assist the states in establishing and operating

their noise abatement programs.  In addition to providing needed

funds at the State level, Federal grants could be conditioned to

promote uniformity on a nationwide basis where required.  The

states, in turn, would be assured of adequate resources to per-

form the functions they carry out best.

C.   Proposals for Citizen Participation in the Regulation of
     Vehicular Noise

     Among the proposals for State and Federal action on the

noise problem, there have been suggestions that private citizens

be given an enlarged role in the protection of their environ-

ment.     Primarily, these proposals all start with one solid

assumption:  affected individuals will be diligent and vigorous

proponents of noise abatement.

     Most of the proposals for private sector involvement center

around enforcement efforts.  They seek to give citizens access

to the Federal courts regardless of jurisdictional amount.  Two

types of suits are foreseen as necessary tactics to ensure citizen

participation.  The first is a suit directly against a noisemaker

for violation of the State or Federal standard.  Most proposals

require that the party plaintiff give the appropriate govern-

mental authority adequate notice of intent should the government

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                             4-47
wish to take action on the public's behalf.  Such a requirement



would also seem reasonable if the government were working to



bring about voluntary compliance at the time the suit was pro-



posed.



     The other kind of proposed suit would be against the govern-



mental agent to compel performance of duties not of a discre-



tionary nature.  Basically, such suits find their origin in the



common law extraordinary writs.  Like those writs, they will be



limited by interpretation of what is mandatory and what is dis-



cretionary.  They do not seem to substantially augment the gen-



eral regulatory scheme.  Their primary advantage lies in focus-



ing governmental resources which otherwise might be directed



elsewhere.



     Resources to bring suit often raise discouraging barriers to



potential litigants.  Rather than dissipate governmental re-



sources through mandamus suits against the governmental agents,



legislation proposed to create private causes of action should



likewise provide for necessary attorneys" and witnesses' fees as



part of the damages award.  To this can be added the familiar



concept of the bounty or punitive award.  Perhaps half of this



should be paid to the concerned citizen and half be held in trust



by the government to finance its abatement efforts.



     None of these types of suits will be viable if they must



exist in an informational vacuum.  Information held on all levels



of government which relates to standards, testing, emissions and



other necessary subjects must be provided to the public.  Further,



manufacturers should be required to publicly file their plans to

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                             4-48






comply with proposed standards.  There is no reason why the pub-



lic should have to wait for the sale of a defective model when



the noise could be anticipated and abated through proper design



in the planning stages.



     When the Federal government sets out to regulate so broad



and powerful an industry as the manufacturers of motor vehicles,



it faces a political power second to none in this country.  The



past record of the government in securing industry cooperation



on exhaust emission and safety design documents the vulnerabili-



ty of even the best conceived regulatory schemes.  The advantage



of the citizen suit lies not in its technique but in its overall



effect.  In the final analysis, citizens suits are a redis-




tribution of political powers.  They vest rights in people



whose interests are not subject to persuasive erosion by skilled




lobbyists or technological obfuscation by experts both in and



out of government.  What citizens lack in terms of resources



can be provided by regulation.  What they possess in terms of




concern for their environment cannot be provided in any regula-



tory schemes.



     Citizen suits need not degenerate into the quixotic vendet-



tas of "eco-maniacs."  If government shows a willingness to work



closely with both organized and individual citizenry, their ener-



gies can be channelled.  Toward this end, an honest factual ap-



praisal of the noise problem and government efforts to abate it



should become a basic service provided for any citizen engaged in



litigation or community organization around the noise problem.




In the vehicular noise area this may require close communication

-------
                             4-49





with automobile associations, consumer protection groups or



environmental interest associations.  Because government works



closely with industry on environmental problems through the Na-



tional Industrial Pollution Control Council there exists an



understanding of industry's position in the noise abatement field.



While the citizenry is not organized and institutionalized to the



same extent as industry, it is no less in need of the same com-



munication.  If noise abatement is to be recognized as a real



environmental threat, this kind of grass-roots contact between



government and the public must take place.

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                             4-50


  4.3  PROPOSED REGULATION OF NOISE CAUSED BY CONSTRUCTION


  4.3.1  Sources of Noise Caused by Construction

     On any given construction site, the variety of equipment in

use can cause enormous amounts of unwanted and unnecessary noise.

       Diesel engine equipment is the major source of noise
       around most construction sites.  Such engines are
       used to drive generators, compressors, trucks, bull-
       dozers, loaders, scrapers, power shovels and other
       excavating equipment.  Air compressors generate
       noise from both intake and discharge openings and
       also radiate noise directly from cylinder walls.
       Pumps produce a number of sounds which are radiated
       from the pumps themselves and also from piping
       serving the pumps.  The noise of piledrivers, riv-
       eting machines, jackhammers, elevators, cement
       mixers and excavating equipment characterize many
       construction activities.  Residential construction
       involving the use of hammers, power saws, electric
       drills and concrete equipment is an annoyance in
       many communities.


  4.3.2  Negative Effects of Noise Caused by Construction Equip-
         ment

     Like other sources of noise, construction related noise pro-

duces a broad spectrum of negative effects.  For workers exposed

over an eight hour day to excessive emissions, there is risk of

hearing impairment; as a contributor to ambient levels, construc-

tion noise is notorious.  Since the customary working hours in

the construction industry begin earlier than most other occupa-

tions, all too often the early morning din of a building site

disrupts the sleep of members of a community.


  4.3.3  Existing Major Deficiencies in the Abatement of Con-
         struction Noise

A.   Technological and Economic Problems

     It is difficult to assess the technological potential to

-------
                             4-51


abate noise from construction equipment without discussing each

piece of equipment.  However, some evidence of progress can be

cited with regard to at least some major pieces of noisy equip-

ment.  Ingersoll-Rand has developed quieter air compressors, and

improved mufflers are available at present to abate noise from

jack-hammers.  Quiet alternatives also exist for pavement break-

ers and pile-drivers.     Other efforts have proven less pro-

ductive.  Performance degradation has proven some technological

suggestions inefficient.  Quieting techniques theoretically

possible for riveting "do not seem promising since such methods

usually impose a weight penalty."

     Availability of quieter equipment will not guarantee its

use.  Providing a market and incentive to purchase new equipment

appears to be as great a deficiency in abating construction

noise as it has in other noise control areas.  Hildebrand attri-

butes this, in part, to the competitive character of the con-

struction industry.  He has observed:

       Noise control is expensive, and it is as unreason-
       able as it is naive to ask sympathetic construc-
       tion firms and industries to invest in noise con-
       trol measures voluntarily only to let the unsym-
       pathetic companies underbid them on jobs by
       avoiding noise control costs.

While Hildebrand"s observation is quite sensible, the same

reasoning leads to the conclusion that manufacturers would not

risk the same competitive exposure in producing quiet equipment

that builders face in using it, if the production market were

not there.  Since Ingersoll-Rand is producing quieter compressors,

someone must be interested in buying and using them,  The

-------
                             4-52





indications are that while market incentives are still very



deficient, a period of transition may be underway.



B.   Regulatory Deficiencies on the Federal Level



     Seen in one perspective, the Federal government not only



does little to abate noise caused by construction, but ultimately,



is a primary noisemaker.  Direct Federal construction in 1970



(estimate) exceeded in cost the sum of $4.3 billion; another $6.4



billion in Federal funds went into grants for other public


      113
works.     Despite its enormous purchasing power inherent in the



size of its business, the Federal government has done little to



abate construction noise.  It has recently undertaken to regu-



late noise exposure to construction workers on Federal job


      114
sites,    yet it has not considered its position as a contributor



to community noise levels in the locations where it builds.



     Construction noise, like that generated by other noisy tech-



nology, can best be abated at its source, often through modifi-



cation in design at the manufacturing stage.  Since this means



regulation of goods which will inevitably flow in interstate



commerce, only the Federal government has the power to initiate



progress of this sort.  Again, it has not chosen to utilize this



source of authority to regulate noise.



C.   Regulatory Deficiencies on the State and Local Level



     As pointed out in Section 1.2.4, the dominant response of



State and local government to the noise caused by construction



equipment has not taken the form of controlling the source of



noise, but rather the effects of that noise on receivers.  Such



techniques as curfews, spill-over limits, licenses and permits

-------
                             4-53


are not designed to abate noise by changing the design of the

source.  They aim at protecting the receiver from the effects of

the emission.

     For obvious reasons, this is one of the less efficient ways

of controlling noise.  Curfews must often compete or conflict

with other important public interests.  Construction work on

transportation systems used heavily during the day, for example,

can best be carried out at night.  However, a curfew prohibiting

such activity does nothing to change the character of the activi-

ties in conflict.  It forces a choice between two activities,

and in so doing fails to address the question of making con-

flicting activities compatible.  This in many ways is the con-

ceptual downfall of much State and local regulatory activity.

     On the local level, where regulation of construction noise

often occurs, the typical abatement effort has found expression

in the anti-noise ordinance.  But, as Kramon has noted:

       Construction equipment is universally considered
       too noisy, but few communities could single-
       handedly outlaw the use of such equipment.  To do
       so would raise the cost of building in the com-
       munity considerably.

Commenting on the widely adopted NIMLO model ordinance, Baron

cites this deficiency:

       Written to cover 'unnecessary and unreasonable1
       noise, it is a license to pollute....
            That word unnecessary is the fly in the
       ointment.  It is not interpreted as meaning ca-
       pable of being muffled.  An unnecessary noise is
       a noise without a social utility.  Dog barking
       and promiscuous use of the auto horn are deemed
       to be without social utility.  Construction noise
       is the result of a socially useful activity, and
       therefore free from restraint. •'••'•"

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                             4-54
     In short, at all levels of government, the noise from con-

struction goes on virtually unabated.  However, as the ineffec-

tiveness of regulation and the growing noise problem have stimu-

lated renewed political interest, new proposals for more effec-

tive regulation have emerged.


  4.3.4  Proposals to Remedy Major Deficiencies in the Regulation
         of Noise Caused by Construction

A.   Proposals for Introduction of Federal Regulation of
     Construction Noise

     Efforts to introduce effective Federal regulation of noise

caused by construction equipment focus around two distinct ap-

proaches.  Those who see the need for uniform nationwide regula-

tion by direct promulgation of emission standards for construc-

tion equipment have introduced legislation in Congress to that

effect.     Others, perhaps less enthusiastic about the mandatory

approach, have advocated government leadership in a broad incen-

tive type program designed to create a market for quiet technol-

ogy.  Gradually, as older noisier equipment exhausts its product

life, quieter technology would take its place.

     Certain advantages can be found in both approaches.  Manda-

tory regulation has the advantage of reaching all elements of

the construction industry with uniform impact.  Since much of the

industry consists of small builders who never bid on government

work, regulations adopted by a regulatory agency of the Federal

government would reach much farther than voluntary compliance

from large contractors engaged in government building.  Moreover,

since much of the ability to quiet construction equipment appears

well within existing technological potential, immediate gain at

-------
                             4-55
every level of society could be achieved.  Muffled jack-hammers



do not present the same scale of problems as retrofitting jet



aircraft, but their contribution to subjective annoyance certain-



ly compels their expeditious abatement.  In short, in much of the



construction area, there is opportunity for immediate nationwide



gain if mandatory regulation is chosen as the appropriate imple-




mentation technique.



     Perhaps it would be wise to qualify a program of mandatory



regulation of construction noise to the extent of the discussion



of regulatory and intergovernmental problems mentioned in Section




4.3.  Regardless of the source of noise being abated, questions



of intergovernmental relationships remain largely the same.  De-



cisions regarding preemption or appropriate implementation of



powers unique to each level of government may vary with differing




factual situations, but the problems and issues will still re-



quire the same analysis.  Such considerations as uniformity, local



needs, or burdens on commerce, as discussed in Section 4.3, are



equally applicable to regulation of construction noise.



     Some expansion and qualification must be added to those pro-



posals advocating a voluntary program.  The central impetus of



such a program would require contractors doing business with the



Federal government to use quiet technology whenever available on



Federal projects.  Presumably, the size of the Federal construc-



tion market would create a sufficient outlet for new equipment to




allow manufacturers to develop and market new products.  For that



part of the construction industry not involved in the Federal



market, a spill-over benefit would accrue.  As their equipment

-------
                             4-56





required replacement, they would have available the quieter



equipment improved under the Federal incentive market.



     While such a program is voluntary in its initial appearance,



experience indicates that some sort of sanction must be applied



in the voluntary process.  To insure compliance with Federal con--



tract requirements, loss of future contracting privileges present



the most obvious sort of compliance pressure.  A useful compari-



son can be made to the Federal government's experience enforcing



a similar type of incentive-sanction program under the Walsh-



Healey Act.  As demonstrated in Section 3.1.3, the Walsh-Healey



experiment has not proven substantially effective.  It is inter-



esting to note, moreover, that the regulation of occupational



noise by the incentive approach under Walsh-Healey has been sub-



sumed by the direct mandatory regulation of the Occupational



Safety and Health Act of 1970.  This lesson may have significance



transferable to the voluntary compliance proposals advocated for



regulation of construction noise.



B.    Prospects for Improved State Regulation of Construction Noise




     Assuming the Federal government continues it passive role



in the regulation of construction noise, certain improvements are



well within the capability of the states.  While states have no



direct power to control design and noise emission levels of



equipment manufactured outside the state, they can set standards



for equipment sold or used within the state.  Such an exercise of



State power would be limited only by the Constitutional restraints



of the interstate commerce clause.



     Such a program could follow the same implementation patterns



proposed for parallel regulatory schemes at the Federal level.

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                             4-57






Regulations could be adopted after a hearing process considering



the appropriate tests and factors  (such as economic reasonable-



ness and technological feasibility).  Once set, these standards



could be enforced by civil remedy or criminal sanction.



     Already, some states have provided for regulation of con-



struction through zone-type ambient levels.  An appropriate



agency is instructed to develop reasonable ambient level stan-




dards considering the dominant activity of a given area.  Since



construction noise closely parallels industrial noise, it is



often granted the industrial standard of emission in any zone for



the necessary length of the building project.  However, such a



waiver of the zonal standard is usually accompanied by a cur-



few restricting the site operation hours.



     In many ways, such proposals are considerable improvements



over the previous unregulated or random nuisance abatement ef-



forts made by the states.  They show considerable forethought



and study of the noise problem.  Many permit the responsible



State agency to adopt varying standards to reflect local needs and



conditions.  To the extent that these are adopted, they will



represent enormous progress over past State regulatory efforts.



Almost certainly, they should dispense with many of the vagaries



of the private nuisance suit by setting recognizable standards.



     Even if design standards are preempted by the Federal gov-



ernment, the states can still play an important role in the con-



trol and abatement of noise.  Levels of construction noise can



be effectively regulated by the issuance of building permits and



curfews, both uniquely local functions.  Since some of the most

-------
                             4-58





comprehensive proposals on the Federal level reserve for the



states control over use and operation of noisy equipment, it is



foreseeable that the State proposals will have considerable



impact if adopted.  However, until some of these proposals are



incorporated into the existing regulatory structure, it is un-



likely that construction noise will be lessened or abated.  Sub-




stantial progress can be hoped for if the Federal government acts,



Simple advantages of size and distinct powers make this the most



attractive expectation.  But, even if the leadership in abate-



ment efforts comes at the State and local levels, appreciable



gains seem possible.

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                             4-59


  4.4  REGULATORY PATTERNS FOR THE ABATEMENT AND CONTROL OF
       DOMESTIC NOISE

     Prefatory to identification of domestic noise sources it

should be noted that many sources of noise — trucks, jet air-

craft and jack-hammers — do much to degrade the environment of

the home.  However, since they have been treated separately, this

sub-section will concern itself with sources of noise commonly

found in the home coincident with modern living.



  4.4.1  Domestic Noise Sources

     Noise in the home is largely the by-product of modern ap-

pliances and living conveniences.  It may cover a range of elec-

trically powered equipment such as fans, garbage disposals,

blenders, stereo amplifiers,  television sets and air condition-

ers.  All of these noise sources singly or in concert may seri-

ously contribute to a noisy domestic environment.  For example,

it is estimated thrat at normal usage distances, a blender may

emit noise approaching 95 decibels, an air exhaust wall fan 90
                                            •I TO
decibels and a garbage disposal 80 decibels.


  4.4.2  The Negative Effects of Domestic Noise

     Because of its more subtle character and also because the

victim and the polluter are often the same person or persons,

noise in the home has remained a relatively unexplored area.

However, regardless of its source, all noise can be foreseen to

have definite detrimental effects.  In his appearance before the

Senate Subcommittee on Environment, Dr. Jack Westman of the

University of Wisconsin  clearly portrayed the domestic noise

problem:

-------
                             4-60
       One of the functions of the central nervous system
       is to respond to loud noises with protective arous-
       al of the body for fighting or flight.  In the home,
       a loud voice, dishwasher, running faucet or washing
       machine can .produce sufficient sound to mobilize
       bodily responses that cause narrowing of the arte-
       ries, an increase in diastolic blood pressure and a
       decrease in blood supply to the heart.  The sound
       levels produced by shouting, intense arguing, a
       range vent fan, a garbage disposal, an electric
       mixer, a blender or a knife sharpener cause dila-
       tion of the pupils, drying of the mouth, loss of
       skin color, muscular contraction, reduction in
       flow of gastric juices and an increase in heart
       rate.  The combination of any of these sources of
       noise augmented by the background sound of a tele-
       vision set clearly can cause or aggravate a state
       of heightened body arousal and general nervous
       tension.

       Of great significance is the fact that all of the
       above bodily responses to noise can be "tuned out"
       because of the remarkable adaptability of the human
       nervous system.  Physicians, as a result, see house-
       wives who complain of headaches, gastrointestinal
       symptoms and nervous tension resulting from a gen-
       eral feeling of being overwhelmed by their home
       life.  They are unaware of the fact that their symp-
       toms are related to exposure to noise which brings to
       the surface submerged tensions and results in emo-
       tional outbursts, creating friction and conflict
       between family members.

Assuming the accuracy of Dr. Westman's description, it should be

clear that domestic noise is an area ripe for abatement and con-

trol.
  4.4.3  Existing Major Deficiencies in the Regulation of Domestic
         Noise

A.   Technological and Economic Deficiencies

     It is difficult to assess the technological capacity for

quietude in all areas of domestic noise.  However, there are some

indications that technology alone does not present an insuperable

deficiency.  Business Week recently surveyed the potential for

technological abatement and concluded that:

-------
                             4-61
       Improvements have already been made.  Westinghouse,
       for instance, boasts that its new Continental line
       of air conditioners is the quietest on the market
       because the noisy components are placed outside the
       window (presumably becoming the neighbor's problem).
       Whirlpool claims it has cut noise from its clothes
       washers in half with soft rubber mounts that isolate
       vibrations from the motor.  Disposers can now be
       ordered from most manufacturers with an optional glass
       fiber sound shield, which considerably tones down
       their normal ear-piercing level, sometimes as high as
       100 decibels, or roughly equivalent to the roar from
       a power mower.  Many companies now wrap their dish-
       washer tubs in glass fiber, which, along with changes
       in motor design and mounting, has reduced noise ap-
       preciably . 120-

While testifying on current proposals to regulate domestic noise,

the representatives of the Air Conditioning and Refrigeration

Institute indicated progress in their industry saying:

       Effective prediction and control of environmental
       noise is possible only if the sound-generating
       characteristics of particular types of machinery
       located in that environment are known.  Technical
       standards for measuring the sound-generation of
       air-conditioning equipment have been developed
       by the American Society of Heating, Refrigerating,
       and Air-Conditioning Engineers, a technical society.
       These test standards are supplemented by programs
       such as the ARI Standards and Certification Program,
       which have been developed for rating the sound-
       generating characteristics of air-conditioning
       equipment. 12 1

     Unlike economic factors in other areas, cost alone is not

prohibitive in quieting domestic noise.  However, cost must be

viewed in relation to price and the market.  Business Week adds

this point of qualification:

       Ultimately, the cost to stifle noise may prove to be
       the limiting factor.  Noise control has already added
       about $10 to the price of the newer dishwashers, and
       making the machine virtually noiseless could tack on
       another $20 or more.  Some appliance manufacturers
       believe the consumer is not ready to pay the premium.

Competitive positions and the cost-price relationship problem

-------
                             4-62


indicate that if domestic noise is going to be quieted, regu-

lating pressures will be needed to force the additional cost into

the market.

B.   Regulatory Deficiencies at the Federal and State Levels

     For purposes of noise abatement and control, domestic noise

has attracted little attention at any level of government.  In

large part, this is due to a conspicuous lack of public awareness

of the domestic noise problem.  Dr. Westman, a leader in delin-

eating the problem noted:

       Perhaps the neglect of household noise as a source
       of nervous tension in families can be explained by
       the general lack of information about the nature of
       life as it is really lived in American homes.123

Since almost without exception political response awaits public

recognition of a problem, it is unrealistic to define deficiencies

at the Federal or State level of government in the absence of

wider recognition of domestic noise as a pollutant.  In fact,

recent consumer interest in quiet appliances seems to coincide

quite closely with discussion of serious proposals to regulate

such noise.  Finally, there is a strong and historic concept of

privacy surrounding the home and its environment which has un-

doubtedly discouraged regulatory intrusion by government.


  4.4.4  Proposals to Regulate Domestic Noise

A.   Proposed Federal Regulatory Schemes

     The Federal government has come forward with the same regu-

latory scheme for abatement of domestic noise sources as it has

for many other sources.  It has been proposed that following

study and hearings, standards be set by the Environmental

-------
                             4-63


Protection Agency over electrical and electronic equipment.

Introduction into commerce of substandard goods would constitute

a prohibited act subject to enforcement in the courts.  As an al-

ternative to regulation by standards, some attention has been

given to a labelling requirement which would disclose the prod-

uct's noise characteristics for the benefit of the consuming pub-

lic.  Presumably, increasing awareness of the noise problem would

provide sufficient market pressure to give quiet equipment a

preference.

     Since promulgation of Federal standards for control over

domestic noise sources would be wholly innovative at any level

of government, there should be no problem of uniformity of cri-

teria.  Moreover, if the Federal standards follow the general

thrust of other Federal noise abatement efforts, it appears that

there will be no uniformity problem with the states since, in

whole or in part, the Federal government will have preempted the

field.

     The arguments in favor of Federal promulgation and preemption

reflect the concerns of any industry involved in interstate com-

merce.  They were summed up thusly by the representatives of the

Air-Conditioning and Refrigeration Institute:

       We consider it desirable that the bill contain the
       strongest legally permissible preemption provision
       in order to avoid the chaos which would result if
       this industry were forced to meet increasing num-
       bers of widely varying local sound regulations in
       all  parts of the country.  We believe, on the other
       hand, that federal regulations, established by the
       Environmental Protection Agency and protected by a
       strong federal preemption provision, will permit the
       public to continue to enjoy the benefits of mass
       production in their purchase of air-conditioning
       equipment.

-------
                             4-64
       If a multiplicity of divergent state and local regu-
       lations were to be enacted, in lieu of a single set
       of overall federal regulations, manufacturers in our
       industry — and in virtually every other industry
       selling products in interstate commerce — could be
       forced to make numerous special short-production runs
       to meet the requirements of these local rules.  The
       cost to the ultimate consumer would necessarily be
       higher, and there would be less likelihood of ready
       availability of replacement parts. 24

B.   Appropriate Implementation Techniques

     By setting a requisite noise emission level before introduc-

tion into the market, Federal standards would have the advantage

of eliminating competition based on noise.  Since the entire in-

dustry is not convinced of the wisdom of noise abatement, this

may be necessary to assure successful regulation.  Indeed, J.E.

Duff, director of research for the Hoover Co. has commented that

for the Hoover company, excessive noise "is sort of a trade-
      125
mark."     As long as marketing is based on fulfilling a public

demand for noise, voluntary or purchaser-oriented controls seem

inadequate.

     Finally, in regard to labelling, it should be remembered

that in absence of Federal regulations and standards, states may

well adopt a variety of standards.  Since the states undoubtedly

have the power to do this, such action would cancel the benefits

of the more lenient labelling program.  Moreover, it is highly

unlikely that Federal labelling requirements will preempt states

from implementing other techniques of noise control.  For this

reason, efficient regulation would best be served by adopting

the stronger implementation technique at the Federal level.

C.   Enforcement Alternatives

     Enforcement alternatives available on either the Federal or

-------
                             4-55





State level are largely those available for enforcing other types



of noise control.  The appropriate environmental agency could be



charged with enforcement duty.  Most likely, this agency will



have developed the criteria and standards upon which the regula-



tions are based.  Such technical familiarity would give them a



distinct advantage over other enforcement patterns and, probably,



greater concern for vigorous exercise of their abatement authority,



     Since the purchase of domestic equipment peculiarly affects



individual consumers, the citizen suit is likely to figure strong-



ly in enforcement patterns in this area.  The liberal develop-



ment of recent case law has relaxed standing requirements.  It is



conceivable that a class of consumers could now bring a suit to



compel compliance with Federal standards.  Some recent proposals



on the Federal level have expressly created a citizens cause of



action.



     Also, buyer-seller relationships in the sale of goods could



be affected by some types of regulations.  Federal or State stan-



dards could become implied conditions of the sale.  If so, the



warranty provisions of the Uniform Commercial Code might create


                                                              i ? fi
a cause of action for goods whose performance was substandard.



Viewed from the buyers' standpoint, such standards could be used



as a measure of reasonable performance which the goods in ques-



tion should have met.



     A more difficult question arises from the seller's perspec-



tive.  Suppose, for example, a purchaser can show injury from a



product which is not substandard.  Can the seller introduce the



standard as a defense to any cause of action?  Since many of the

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                             4-66





physiological and psychological effects of noise are not fully



known, standards may not reflect the most desirable levels for



human exposure.  Even where the effects are known, other regula-



tory considerations such as "economic reasonableness" may out-



weigh implementation of a stricter standard.  Under these circum-



stances ,  can the standard be introduced as a defense to damages



arising out of the transaction or sale?  The likelihood of such



a case is remote but until standards can be fully relied upon as



adequate protection to the harmful effects of noise, it might be



necessary to legislatively prohibit their use in litigation.



     In conclusion, it seems fair to say that for the reasons



stated earlier — lack of information, privacy, etc. — the



states have not been active in the abatement of domestic noise



sources.   This should not suggest a total lack of State interest.



Testimony of the American Refrigeration Institute suggests this



has not been the case.  They cite experience with local juris-



dictions "as far back as 1958 .  . . seeking to set limits on the



sound produced by air-conditioning equipment operated outside the



home in residential areas.1 ^'



     It is unlikely that the disregard for domestic noise exhib-



ited by the states so far will persist as their increasing atten-




tion to other noise sources augments their technical sophistica-



tion.  As they enter the regulatory pattern, all the questions of



appropriate and efficient relationship to the economy and Federal




government will arise anew.  It would seem expedient to resolve



them now while the question is being fully considered on the



Federal level.

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                              4-67


                            FOOTNOTES

1
 U.S., Federal Aviation Administration, "Adoption of Noise
Type  Certification Standards and Procedures," Federal Register,
XXXIV, No. 221, Nov. 18, 1969, 18355-18379  fas amended by
"Part 36-Noise Standards:  Aircraft Type Certification
(corrections)," Federal Register, XXXIV, No. 229, Nov. 29,
1969) ] .

2
 Ibid.,  p. 18361.

3
 U. S.,  National Aeronautics and Space Administration, Langley
Research Center, NASA Acoustically Treated Nacelle Program,
NASA SP-220, October 15, 1969 (NTIS:  N70-13901 thru N70-13915).

4
 U.S.,-Department of Transportation, Federal Aviation
Administration, Advance Notice of Proposed Rule Making, "Civil
Airplane Noise Reduction Retrofit Requirements" (Docket No. 10664;
Notice No. 70-44), Federal Register, XXXV, No. 215, Nov. 4,
1970, 16980-16983.

5
 S. 1566, 92d Congress, 1st Sess. (1971).   Identical House
Bills:  H.R. 8642, H.R. 8534, H.R. 7812, and H.R. 7523.

6
 U.S., Department of Transportation, Federal Aviation Administra-
tion, Office of Noise Abatement, Economic Impact of Implementing
Acoustically Treated Nacelle and Duct Configurations Applicable
to Law Bypass Turbofan Engines,  FAA-NO-70-11, Contract DOT-FA69WA-
2150, July, 1970.

7
 Seago,  "The Airport Noise Problem and Airport Zoning," 28
U. Md. L. Rev. 120 (Spring, 1968).

8
 Airport Highflights, Airport Operators Council International,
Washington, D.C., June 7, 1971.

9
 Galloway, "Noise Exposure Forecasts as Indicators of Community
Response,"  SAE/DOT Conference of Aircraft and the Environment,
P-37, 2  Vols., Society of Automotive Engineers, Inc., Two
Pennsylvania Plaza, New York, New York 10001, 1971, Part 1,
p. 61 (table).

10
  Airport Highlights, Airport Operators Council International,
Washington, D. C., May 10, 1971.

-------
                              4-68

11
  Ibid.

12
  For a description of the MANAPS program see Broun and
Miller,  "Land Use Strategies for Aircraft Noise Alleviation,"
SAE/DOT Conference on Aircraft and the Environment, supra n. 9,
Part 1,  pp. 64-74.

13
  Ibid., p. 72

14
  Maynell, "International Regulation of Aircraft Noise,"
SAE/DOT Conference on Aircraft and the Environment, note 9
above, Part 1, p. 175.

15
  Tondel, "Federal Regulation of Aircraft Noise, the Legal
Rights of Airport Neighbors, and Legal Aspects of Compatible
Land Use," SAI/DOT Conference on Aircraft and the Environment,
note 9 above, p.197.

16
  Jamaica Bay and Kennedy Airport;  A Multidisciplinary
Environmental Study, 2 vols., Environmental Studies Board,
National Academy of Sciences - National Academy of Engineering,
Washington, D.C. 20418, 1971, vol. 2, p. 108.

17
  Ibid.

18
  Lockheed Air Terminal, Inc., et al. v. The City of Burbank,
318 F. Supp. 914  (1970).

19
  Christopher, "The Legal Role of States, Local Governments
and Airport Proprietors in Regulating Aircraft Noise,"
SAE/DOT Conference on Aircraft and the Environment, supra n. 9,
Part 1,  pp. 183-188 at p. 185.

20
  Airport and Airway Development Act of 1970, sec. 16(c) (4) ;
Public Law 91-258, 84 STAT. 219.

21
  Citizens to Preserve Overton Park, Inc., et al. v. Volpe,
Secretary, Department of Transportation, 401 U.S. 402  (1971).

22
  49 U.S.C. I 1653 (f) (Supp. V).

-------
                              4-69


23
  Airport and Airway Development Act of 1970, supra n. 20.

24
  Ibid,  Sec. 16 (c)(4).

25
  432 F. 2d 1307 (6th Cir.).

26
  Citizens to Preserve Overton Park v. Volpe, supra n. 21.

27
  Ibid., concurring opinion, at 421.

28
  Airport and Airway Development Act of 1970, supra n. 20,
sec. 16 (c)(4).

29
  Citizens to Preserve Overton Park v. Volpe, supra n. 21.

30
  Airport and Airway Development Act of 1970, supra n. 20.

31
  "Airport Noise Rules May Be Top SST Test,"  Aviation Week &
Space Technology, April 12, 1971, pp. 30-31.

32
  State of Missouri v. Holland, 252 U.S. 416 at 433.

33
  American Airlines, Inc. v. City of Audubon Park, Ky., 407 F.
2d 1306 (6th Cir. 1969); American Airlines,  Inc. v. Town of
Hempstead, 398 F. 2d 369 (2d Cir. 1968), (cert, denied)393
U.S. 1017 (1969); Allegheny Air Lines, v. Village of Cedarhurst,
238 F.  2d 812 (2d Cir. 1956).

34
  American Airlines, Inc. v. City of Audubon Park and Allegheny
Air Lines, Inc.  v.  Village of Cedarhurst, supra n. 33.

35
  American Airlines, Inc. v. Town of Hempstead, supra n.  33.

36
  Audubon Park and Cedarhurst, supra n.  33.

37
  U.S.  Const, art.  VI, sec. 2.

-------
                              4-70


38
  Lockheed Air Terminal, Inc.  v.  The City of Burbankf supra n. 18,
at 925.                                               "

39
  Ibid.

40
  Ibid.,  at 925.

41
  U.S.,  Congress, Senate, Aircraft Noise Abatement, S. Kept. 1353
To Accompany H.R. 3400, 90th Cong., 2d Sess., 1968.

42
  49 U.S.C. 1431, 82 STAT. 395 (1968).

43
  Op_. Cit. , p. 6.

44
  Ibid.

45
  Lockheed Air Terminal, Inc.  v.  The City of Burbank, supra n. 18,
at 925.

46
  Ibid.,  at 927.

47
  Ibid.

48
  Ibid.

49
  1969 California Statutes, chapter 1585, as amended by 1970
California Statutes, Chapter 912.

50
  Opinion of the Attorney General of the State of California,
No.  69/216, February 27, 1970.

51
  Ibid.

52
  Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.
2d 582,  39 Cal. Rptr. 708  (1964).

-------
                              4-71


53
  Lockheed Air Terminal, Inc.  v.  The City of Burbank, supra n. 18,

54
  Ibid.,  at 918, 919.

55
  Christopher, supra n. 19, p. 185.

56
  City of Tacoma v.  Taxpayers  of Tacoma, 371 p. 2d 938,  60 Wash.
2d 66 (1962).

57
  S. Rept., Aircraft Noise Abatement, supra n. 91.

58
  49 U.S.C. 1431, 82 STAT. 395 (1968).

59
  Op. Cit., p. 6.

60
  Adoption of Noise Type Certification Standards and Procedures,
supra n.  1, p. 18355.

61
  Goldstein, "A Problem in Federalism, Property Rights in
Airspace  and Technology," Alleviation of Jet Aircraft Noise
Near Airports, A Report of the Jet Aircraft Noise Panel, U.S.
Office of Science and Technology, Executive Office of the
President, Washington, D. C.,  March 1966, p. 136.

62
  Port of New York Authority v. Eastern Airlines, Inc.,  9 Avi.
18310, 259 F. Supp.  795  (E.D.N.Y. 1966).

63
  Ibid.

64
  Ibid.
  9 Avi.  at 18315.

65
  Aircraft Owners and Pilots Association v. Port of New York,
305 F. Supp. 93  (E.D.N.Y. 1969)

66
  Adoption of Noise Type Certification Standards and Procedures,
supra n.  1.
67
  U. S. Const. Art. I, sec. 8, cl. 3.

-------
                              4-72


68
  Huron Portland Cement Co.  v.  Detroit, 362 U.  S. 440 (1960).

69
  U. S. Const, art. VI, sec. 2.

70
  Hines v. Davidowitz, 312 U.S. 52 (1941).

71
  Dean Milk Co. v. Madison,  340 U.S.  349 (1951).

72
  Southern Pacific Co. v. Arizona, 352 U.S. 761  (1945).   See
also Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)
but compare South Carolina Highway Dept. v. Barnwell Bros.,
303 U.S. 177  (1938) .

73
  Lockheed Air Terminal, Inc. v. The City of Burbank, supra n. 18.

74
  Southern Pacific Co. v. Arizona and South Carolina Highway
Dept. v. Barnwell Bro's., supra n. 72.

75
  See Section 2.4.2.

76
  Apps, D., "Cars, Trucks and Tractors as Noise Sources," Noise
as a Public Health Hazard, p. 320; Report Number 4, The American
Speech and Hearing Association  (1969).

77
  P.L. 91-190, 91st Congress,  (Jan 1, 1970)

78
  Young and Woods, "Threshold Noise Levels," p.v. Urban Traffic
Noise Reduction, Research Report Number 166-1, Texas Transportation
Institute, College Station, Texas, (1970).

79
  National Bureaus of Standards Report, Interim Progress Report
of Research Activity, Truck Tire Noise Investigation; NBS Report
10,567,  (1971).

80
  S. 1016, 920 Cong., 1st Sess. Sec. ll(a)(3)  (1971).

81
  H.R. 6301,  920 Cong.,  1st Sess., Sec. 102(a)  (1971).

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                              4-73


82
  H.R. 3028, Oregon Legislative Assembly, 1971 Regular Session,
Sec. 7(4),  (1971).

83
  S. 163, Oklahoma Legislature, 1971 Sess., Sec. 2, (1971);
G.A. 368, New Jersey General Assembly 1970 Sess., Sec. 4(f),
(1970); S. 678, Pennsylvania General Assembly, 1971 Sess., Sec. 5(1)
(1971).

84
  H.R. 6002, 92d Cong., 1st Sess., Sec. 301(a),  (1971).

85
  S. 1016, supra n. 80, Sec. 2(a)(2j and (3).

86
  Ibid; Sec. 2(a) (1) .

87
  Report of the Panel on Noise Abatement to the Commerce Technical
Advisory Board of the U. S. Department of Commerce, The Noise
Around Us, p. 125,   (1970).

88
  Hearings on S. 1016 before the Subcommittee on Environment
of the Senate Committee on Commerce, 91st Cong., 1st Sess.,
Statement by Raymond W. Lucia, Exhibits II and III, (June 30, 1971).

89
  S. 1016, supra n. 80, Sec. 5(a).
90
  Baron, R.A., The Tyranny of Noise, p. 167, (1970).

91
  Kramon, James M.,  "Noise Control:  Traditional Remedies and
a Proposal for Federal Action," reprinted in Hildebrand, Noise
Pollution and the Law, p. 83,  (1970), from Vol. 7 of Harvard
Journal of Legislation (May 1970).

92
  See, for example,  S. 1016, supra n. 80, Sec.  6(a)(3).

93
  Hearings on S. 1016, supra n. 88, Statement by Jerome Kretchmer,
p. 4, (June 29, 1971).

94
  See, for example,  Hearings on H.  R. 5275, before Subcommittee on
Public Health and Environment of the House Committee on Interstate
and Foreign Commerce,  91st Cong., 1st Sess., Statement by Stuart G.
Tipton, p. 7-8, (June 22, 1971).

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                              4-74

95
  Kretchmer, op. ci_t. p. 10.

96
  S. 1016, supra n. 80, Sec. 12(a)(1) and (2).

97
  See Section 1.1.2A.

98
  Benton, John L. and Bourget, Louis, "Can Noise Radiation
From Highways Be Reduced by Design?", Highway Research Record,
p. 2, Number 233, Highway Research BoarcTT (1968) .

99
  Baron, supra n. 90, p. 232.
  For an alternative method of distributing cost of unabatable
noise damage; see,  21 Stan. L. Rev. 1 at 56,  (1968).

100
   S. 1016, supra n. 80, Sec. (11) (c) .

101
   Lucia, supra n.  88.

102
   Assembly 3193, New York State Legislature, 1971 Reg. Sess.,
Sec. 1,  (1971).

103
   H.R. 3028, supra n. 82, Sec. 8.

104
   Assembly 1044, California State Legislature, 1971 Regular
Sess.,  Sec. 1(3) (1971).

105
   Sub-Council Report, National Industrial Pollution Control
Council, Leisure Time Product Noise, p. 16, (May 1971).

106
   A Guide to the New York City Noise Control Code (Proposed),
New York City Environmental Protection Administration, Jerome
Kretchmer, Admin.,  p. 6, (1971).

107
   H.R. 1015, Legislature of the State of Kansas, 1971 Sess.
Sec. 6,  (1971).

108
   See, for example, S. 1016, supra n.  80, Amdt. No. 216.  (1971).
See, also, H.R.  6986, 92 Cong. 1st Sess., Sec. 413, (1971).

109
   State of California Department of Public Health, A Report to
the 1971 Legislature on the Subject of Noise Pursuant to
Assembly Concurrent Resolution 165,  (1970); p. 28.  (1971).

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                              4-75


110
   Baron, supra n. 90, p. 206-207.

Ill
   Mayor's Task Force on Noise Control, New York City, Toward
a Quieter City, p. 49 (1970).

112
   Hildebrand, James L., "Noise Pollution.  An Introduction
to the Problem and an Outline for Future Legal Research", 70
Colum. L. Rev. 652, 672   (1970).

113
   U.S. Department of Commerce, Statistical Abstract of the
United States, 691.  Table 1066 (1969).

114
   See Section 1.1.4, p. 1-40.

115
   Kramon, supra n. 91,  p. 94.

116
   Baron, supra n. 90, p. 122.

117
   See, for example, S.  1016,  Sec. 6(a)(l), supra n. 80; H. R. 6986,
92d Cong. 1st Sess.,  Sec. 411(a)  (1971).

118
   Hearings on S.1016 before the Subcommittee on Environment
of the Senate Committee  on Commerce, 91st Cong., 1st Sess.,
Statement by Dr. Jack Westman, M.D., Table 1, (June 28, 1971).

119
   Ibid, Westman, p. 2.

120
   Business Week, p. 37, (May 22,  1971).

121
   Hearings on S. 1016 before the Subcommittee on Environment
of the Senate Committee  on Commerce, 91st Cogn., 1st Sess.,
Statement by Frederick A. Ballard on behalf of Air Conditioning
and Refrigeration Institute, p. 2 (June 1971).

122
   Business Week, op. cit., p. 51.

123
   Westman supra n. 109, p. 1.

124
   Ballard, supra n.  121, p.  5.

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                              4-76


125
   Business Week,  supra n.  m, p.  37.

126
   Uniform Commercial Code, 2-313,  2-314, 2-315,

127
   Bellard, supra n.  121, p. 2.

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                 Appendix A





FEDERAL-REGIONAL-STATE-AND-LOCAL NOISE CHART

-------
                               A-l





            Federal-Regional-State-Local Noise Chart





     The purpose of this series of charts is to give the reader



information about noise law at the four levels of government in



a rapid but still somewhat detailed manner.  The charts were



designed to be used in the order in which they appear.  The first



chart indicates whether or not a certain level of government has



enacted legislation to control each of the noise sources listed



on the vertical axis.  For instance, if all.four levels of govern-



ment have sought to control a certain noise source then four



colored dots would appear in that row, red for Federal, red-green



for regional, green for state, and blue for local law.  The next



three charts indicate the particular Federal agency, state govern-



ment, or local government (of the 83 responses to a survey of 180



cities from all parts of the United States representing the full



range of population) which has statutory law with respect to



each noise source.



     The final fold out chart attempts to give a rough understand-



ing of the content of each statute.  By following horizontally



across the chart a colored legend of capital and lower case letters



indicate each particular government that has enacted a statute



or regulation with respect to that noise source.  Any gaps that



appear indicate that no law has been enacted for the selected



noise source by the particular government examined.



     Each individual legend may be decoded through the use of the



appended key.  Note that the key is divided into component groups



of the law; authority, standards, implementation technique, coverage

-------
                              A-2





enforcement agent, and penalties/remedies.  A complete law should



have a letter from each of these component groups.  If there is



a component group for which no letter is given in a legend this



indicates an omission from the law of any mention of that component.



Sometimes more than one letter will appear from a component group.



This indicates generally that both letters are applicable; for



instance, of both 0 and P appear this indicates that the standard



that is set is in both the 91-100 range and the 101+ range indicat-



ing either that one range applies presently while the more strict



standard will apply at some time in the future or that one range



applies to one situation and other ranges apply to other situations.



In the case of penalties, fines or jail sentences two or more



letters indicate that discretion is granted to the enforcing body



or that the noise stringent penalty applies to second, third or



subsequent offenses.



     On the state and local level each new vertical column, which



generally will start off with a new capital letter in the first



alphabetical group, indicates a second statute or regulation by



the selected government controlling the chosen noise source.   A  "/"



indicates a new statute in those situations where there is overlap



from the first column.  At the Federal level  a "/" is the only



method used to separate two or more laws  or regulations applying



to one agency.



     Note also that this coding helps to  indicate trends  and



similarities of the laws on a particular  noise source for dif-



ferent governments.  Laws at one level that appear initially

-------
                              A-3





identical but in reality differ in the penalty scheme or enforce-



ment area, as an example, show up quite quickly with this coding



system.  The reader is encouraged to use the chart in the order



of this discussion (note the levels of government at which



regulation exists with potential preemption problems that arise,



note gaps in the legal framework for that noise source, interpret



the individual legends and finally note similarities and differ-



ences at each level with respect to that noise source.)  It is



felt that this approach will quickly acquaint the reader with



the present extent and competency of the regulation of a given



noise source and indicate the direction that regulation of



environmental noise must take to be effective in providing a



noise free society.

-------
                              A-4
                           Definitions
Authority

Regulatory Administrative - A legislature has established an
     administrative agency and directed it to regulate the noise
     source.

Regulatory Non-administrative - A statute which regulates the
     noise source directly without a delegation of power to an
     agency.

Advisory Administrative - An administrative agency is required
     to advise other agencies as to noise regulation.

Research and Development - Money is allotted for research and
     development concerning the noise source.

Standards Setting without Implementation - An agency is required
     to establish standards, but these standards will not have the
     force of law.

Review Administrative/Enabling Legislative - Either of two possi-
     bilities:  review by a higher administrative body or legisla-
     tion transferring the power to regulate a noise source to
     another, lower jurisdictional body.  In the case of this
     being applied to a state, the second definition is the
     correct one and the proper interpretation is that a state
     has passed legislation authorizing the municipalities of
     that state to regulate the noise source.


Standards

Subjective - A non-objective standard such as "unreasonably" or
     "unnecessary."

Objective in dB  ("B" or "C" weighted) - A standard setting a
     decibel limit either emphasizing base tones  ("C") or
     unweighted  ("B").

Objective in dBA - A standard setting a decibel limit measured
     using an A weighted scale.

Objective in dB/dBA loss - A unit, used primarily in building
     characteristics, requiring a certain amount of insulation
     in terms of the reduction in noise level in transit through
     the building material.

Objective in PNdB - A standard setting a PNdB limit.

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                              A-5
Objective in EPNdB - A standard setting an EPNdB limit.

Composite Unit - Some unit other than a decibel-related unit is
     used in the measurement of the noise.

Range 30-40 - The range of the unit used above is 30-40, e.g.,
     30 dBA.

Range 41-50 - The range of the unit used above is 41-50.

Range 51-60 - The range of the unit used above is 51-60.

Range 61-70 - The range of the unit used above is 61-70.

Range 71-80 - The range of the unit used above is 71-80.

Range 81-90 - The range of the unit used above is 81-90.

Range 91-100 - The range of the unit used above is 91-100.

Range 101+ - The range of the unit used above is over  10
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                               A-6


Coverage

Citizens in General - The law applies to all persons.

Owners,  Operators, and/or Agents - The law applies to persons in
     these positions.

Manufacturers/Industry - 'The law applies to manufacturers and
     industrial operations.

Contractors - The law applies to private contractors generally on
     construction operations or contractors with a government.


Enforcement Agent

Administrative Action - The law is enforced by some action taken
     by an administrative agency.

General Police - The law specifies that the police of the state
     or municipality shall enforce the law.

Special Noise Control or Environmental Police - The law is
     enforced by a special group of agents set up specifically
     to enforce this law or environmental laws in general.

Private Groups or Individuals - Private individuals may act as
     agents for enforcement.  An example of this is a private
     suit for civil damages or a qui tarn action.


Penalties and Remedies

Civil Damages - The law provides for the remedy of civil damages
     against the polluter.

Cessation of Operations - The law provides that a violation will
     result in cessation of operations or an injunction or
     restraining order is an appropriate remedy.

Criminal Fine ^-$50 - The law specifies a fine the maximum of which
     may not be greater than $50.

Criminal Fine $51-$150 - The law specifies a fine the maximum of
     which may not be less than $51 nor greater than $150.

Criminal Fine $151-$300 - The law specifies a fine the maximum of
     which is between $151-$300.

Criminal Fine $300+ - The law specifies a fine the maximum of
     which is above $300.

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                                A-7


Criminal Imprisonment -30 days - The law specifies that a viola-
     tion subjects the polluter to imprisonment the maximum
     duration of which is less than or equal to 30 days in jail.

Criminal Imprisonment 31-90 days - The law specifies that a viola-
     tion subjects the polluter to imprisonment the maximum duration
     of which is less than 90 days and greater than 30 days.

Criminal Imprisonment 91 days - The law specifies that a viola-
     tion subjects the polluter to imprisonment the maximum
     duration of which is greater than 90 days.

Action Against Certificate/Permit - The law provides that a viola-
     tion may result in the revocation of the certificate or that
     if the standards are not met, the certificate will not be
     issued.

Confiscation of Noise Source - The law provides that a violation
     will result in the noise source being removed from the control
     of the polluter.

Warning and Forced Repair - The law specifies that a violation may
     result in a warning being issued and/or the polluter being
     forced to repair the source.

Denial of Funds - The law specifies that a violation or a failure
     to meet prescribed standards will result in denial of funds
     for the noise-producing activity.

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                                KEY




                                A-8
     Authprity
A    Regulatory Administrative




B    Regulatory Non-administrative




C    Advisory Administrative




D    Research and Development




E    Standards Setting without Implementation




F    Review Administrative/Enabling Legislation






     Standards
G    Sugjective




H    Objective in dB( "B" or "C" weighted)




I    Objective in dBA




J    Objective in dB/dBA loss (STC, INK, etc.)




K    Objective in PNdB




L    Objective in EPNdB




M    Composite Unit (NEF, CNR, CNEL)




N    Range 101+




0    Range 91-100




P    Range 81-90




Q    Range 71-80




R    Range 61-70




S    Range 51-60




T    Range 41-50




U    Range 30-40




V    Measuring Distance 0-40 Feet




W    Measuring Distance 41-60 Feet




X    Measuring Distance 61+ Feet

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                                  A-9
     Implementation Technique
Y    Certification




Z    License or Permit




a    Curfew




b    Zonal




c    Property Line Spill-over Noise Limit




d    Accessory Device to Muffle (e.g. muffler laws)




e    Anti-degradation






	Coverage




f    Citizens in General




g    Owners, Operators, and/or Agents (Public or Private)




h    Manufacturers/ Industry




i    Contractors (Public or Private)






	Enforcement Agent	




j    Administrative Action




k    General Police




1    Special Noise Control or Environmental Police




m    Private Groups or Individuals






	Penalties and Remedies	




n    Civil Fines/Damages




o    Cessation of Operations




p    Criminal Fine = $50




q    Criminal Fine  $51  - $150




r    Criminal Fine  $151 - $300




s    Criminal Fine  $300+




t    Criminal Imprisonment  = 30 days




u    Criminal Imprisonment  31-90 days

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                                 A-10






     Penalties and Remedies (cont.^
v    Criminal Imprisonment  90 days +




w    Action Against Certificate/License/Permit  (Revoke, Amend, Deny)




x    Confiscation of Noise Source




y    Warning and/or Forced Repair




z    Denial of Funds

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                               A-ll

NOISE REGULATION BY JURISDICTIONAL LEVEL
GENERAL
TRANSPORTATION
      Aircraft
    Automobile
       & Truck
    Motorcycle
         Boats
    Snowmobile
   Operational
        Limits
COMMERCIAL
Nonadvertising
   Advertising
INDUSTRIAL
CONSTRUCTION
    Site Noise
      Building
     Acoustics
OCCUPATIONAL
DISTURBERS of
the PEACE
DOMESTIC
SOUND EQUIPMENT
(noncommercial)
ANIMALS
* Regional level, regulation of
  Aircraft Noise is by the
  Port of New York Authority

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                                         A-12
FEDERAL  LEVEL
GENERAL
TRANSPORTATION
Aircraft
Automobile
& Truck
Motorcycle
Boats
Snowmobile
Operational
Limits
COMMERCIAL
Nonadvertising
Advertising
INDUSTRIAL
CONSTRUCTION
Site Noise
Building
Acoustics
OCCUPATIONAL
DISTURBERS of
the PEACE
DOMESTIC
SOUND EQUIPMENT
(noncommercial
ANIMALS












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                                                       . S. GOVERNMENT PRINTING OFFICE: 1972^169-796/683

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