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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
Paqe
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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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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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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(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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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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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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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
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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,
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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: ,
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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,
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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-
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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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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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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
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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
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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
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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
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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,
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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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1.1.3 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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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
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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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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. 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
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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
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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
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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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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
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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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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
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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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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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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
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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
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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
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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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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
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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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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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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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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
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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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1.1.5 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,
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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
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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
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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
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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
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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
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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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1.2 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
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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.
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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.)
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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
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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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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.
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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
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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
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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
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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
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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
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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
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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.
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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. °°
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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
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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
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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
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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:
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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
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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.
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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,
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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.
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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.
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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
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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
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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
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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
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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.
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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"
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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.
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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.
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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
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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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1.3 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
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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,
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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.
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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
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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
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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
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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:
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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
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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,
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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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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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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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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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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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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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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
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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
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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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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
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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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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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).
-------
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
ColoradoRules and Regulations pertaining to Occupational
Health § OH 2.10.
DelawareLetter from Franklin B. Drumheller, Director, Depart-
ment of Labor, State of Delaware, to Hon. James Hodgson, Secretary
of Labor, April 14, 1971.
IdahoMinimum Safety Standards and Practices for Sawmill, Wood-
working and Allied Industries, ch. 1, § 7.8.
KansasLetter 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).
MaineDepartment 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.
MississippiState Board of Health Regulations.
New JerseyN.J.A.C. 12:173.
Norht CarolinaState Board of Health Regulations.
PennsylvaniaDepartment 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.
WashingtonDepartment of Labor and Industries, Division of
Safety Regulations.
West VirginiaOccupational and Industrial Health Regulations
Ch. 5, Art. 1.
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1-158
252
CaliforniaDivision of Industrial Safety, General Industry
Safety Orders Group 6.1, art. 55.
OregonWorkmen's Compensation Board, Oregon Safety Code for
Places of Employment § 22-018.
UtahIndustrial 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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)
-------
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
-------
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
-------
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
-------
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)
-------
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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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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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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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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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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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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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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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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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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2.1.2 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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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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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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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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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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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
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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
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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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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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2.2 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. . .
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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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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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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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2.3 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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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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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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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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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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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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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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aircraft are invalid, under the particular circumstances, in
112
that the ordinances conflicted with Federal statutes.
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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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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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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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(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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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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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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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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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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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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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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2.4 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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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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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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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
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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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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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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
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(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
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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
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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 -
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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.
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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
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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
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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
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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
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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.
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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
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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:
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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
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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
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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-
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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.
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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, ,
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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
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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
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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 sourcei.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.
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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,
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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
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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
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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
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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,
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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
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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 aircraftnoise,
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.
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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
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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,
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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. '-*
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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
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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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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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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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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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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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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 toolscon-
demnation authorities, police powers, program controls, and/or
financial assistance by Federal and State aovernmentswill
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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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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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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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 slowedand it must be
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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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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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2.4.2 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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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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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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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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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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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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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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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
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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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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
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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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(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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"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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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
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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:
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(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
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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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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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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
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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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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.
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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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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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
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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).
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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
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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
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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
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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
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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
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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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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
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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
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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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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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?
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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?
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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
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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?
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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
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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 noiseproducing 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
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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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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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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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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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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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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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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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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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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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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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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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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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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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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
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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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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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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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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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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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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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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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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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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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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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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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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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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:
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"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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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
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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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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
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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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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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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.
-------
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.
-------
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.
-------
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.
-------
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."
-------
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.
-------
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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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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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
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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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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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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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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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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.)
-------
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).
-------
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.
-------
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).
-------
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
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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%).
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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:
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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-
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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+
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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
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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
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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.
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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:
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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
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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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3.2 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
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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
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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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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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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.
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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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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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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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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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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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*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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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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3.3 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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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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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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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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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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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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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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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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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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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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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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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
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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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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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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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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
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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,
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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,
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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).
-------
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.
-------
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.
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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
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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
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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
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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
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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
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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
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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
-------
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
-------
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.
-------
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.
-------
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
-------
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.
-------
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
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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:
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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."
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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
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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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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
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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.
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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
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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
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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
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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-
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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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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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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
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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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4.3 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
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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
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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
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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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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
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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
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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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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
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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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4.4 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:
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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:
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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
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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
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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.
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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
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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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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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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.
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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).
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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.
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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).
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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.
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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
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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
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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
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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.
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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
. S. GOVERNMENT PRINTING OFFICE: 1972^169-796/683
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