EPA 550/9-80-425
     GUIDANCE MANUAL FOR
STATE AND LOCAL PROSECUTORS

   NOISE VIOLATIONS
       U.S. Environmental Protection Agency
      Noise and Radiation Enforcement Division
          Washington, D.C. 20460

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         DOCUMENTATION
         PAGE
  1. REPORT NO.
    EPA 550/9-80-425
3. Recipient's Accession No.
 *• Title and Subtitle

  NOISE  VIOLATIONS:
  PROSECUTORS
                                                     5. Report Date
GUIDANCE MANUAL  FOR STATE &  LOCAL
 7. Author(s)
                                                                              8. Performing Organization Rept. No.
 9. Performing Organization Name and Address
   Aspen Systems  Corporation
   1600 Research  Boulevard
   Rockville    Maryland    20850
                                                     10. Proiect/Task/Work Unit No.
                                                     11. Contract(C) or Grant(G) No.

                                                     (0
                                                                                68-01-4914
                                                                             (G)
 12. Sponsoring Organization Name and Address

   U.S.  ENVIRONMENTAL  PROTECTION AGENCY
   NOISE &  RADIATION  ENFORCEMENT DIVISION
   WASHINGTON D.C.   20460
                                                     13. Type of Report & Period Covered
                                                     14.
 15. Supplementary Notes
 16. Abstract (Limit: 200 words)
   The purpose of this  manual  is  to provide guidance  to prosecutors  who choose to  take  lega
   action  against violators  of State or  local  noise control  regulations;  its intent is  to
   assist  prosecutors preparing for and  conducting a  trial -  from  drafting  the complaint
   to  submitting  jury instructions.
 17. Document Analysis  a. Descriptors
    NOISE  VIOLATIONS
    NOISE  CONTROL
    PROSECUTORS  GUID/.NCE MANUAL IN  NOISE  VIOLATIONS


    b. Identlfiers/Open-End«d Terms
   c. COSATI Field/Group
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                          TABLE OF CONTENTS
Preface


CHAPTER 1:
INTRODUCTION TO NOISE CONTROL

   SUMMARY
   THE PROBLEM OF NOISE
   MAJOR SOURCES OF NOISE
   EFFECTS OF NOISE
   Hearing Loss
   Non-Auditory Pysiological  Response to Noise
   Social  Impacts
   Other Impacts
   Environmental Impacts
   Noise Measurement
   Description of Equipment
                                                                            1
                                                                            2
                                                                            2
                                                                            5
                                                                            5
                                                                            6
                                                                            7
                                                                           9
                                                                           9
CHAPTER 2:  PUBLIC NUISANCE
               MODEL ORDINANCE:  ARTICLE IV
               SUMMARY
               COMMON LAW AND STATUTORY DEFINITIONS OF
                 PUBLIC NUISANCE
               ELEMENTS OF CAUSE OF ACTION
               Common Law Public Nuisance
               Statutory Public Nuisance
               TYPES OF EVIDENCE TO SATISFY ELEMENTS
               Scientific Evidence
               Medical Evidence
               BURDEN AND ORDER OF PROOF
               Burden of Proof
               Order of Proof
               REMEDIES
               Injunctive Relief
               Traditional
               Damages
               DEFENSES
               Criminal  Remedies
11

11
11
13

15
15
16
17
17
19
20
20
20
21
21
21
21
22
CHAPTER 3:  PROPERTY LINE STANDARDS
               MODEL ORDINANCE:  ARTICLE VIII
               SUMMARY
               ELEMENTS OF CAUSE OF ACTION
               TYPES OF EVIDENCE TO SATISFY ELEMENTS
               Scientific Evidence
               Testimony of- the Officer Monitoring Sound Level
                 Meter
               Sample Questions for the Officer Monitoring  Sound
                 Level  Meter
                                                              26

                                                              26
                                                              27
                                                              28
                                                              28
                                                              28
                                                              29

                                                              30

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CHAPTER III  (Continued)
               BURDEN AND ORDER OF PROOF
               REMEDIES
               DEFENSES
               Procedural Defenses
               Technological Defenses
               Substantive Defenses
31
32
32
32
32
33
CHAPTER IV:  MOTOR VEHICLE CONTROLS
               MODEL ORDINANCE:  ARTICLE IX
               SUMMARY
               ELEMENTS OF CAUSE OF ACTION
               TYPES OF EVIDENCE TO SATISFY ELEMENTS
               Scientific Evidence
               Establishing the Validity of Sound Level Meter
                 Evidence
               Testimony of the Officer Monitoring Sound Level
                 Meter
               Sample Questions for Officer Monitoring Sound
                 Level
               Testimony of the Apprehending Officer
               Sample Questions for Apprehending Officer
               BURDEN AND ORDER OF -PROOF
               Burden of Proof
               Order of Proof
               REMEDIES
               DEFENSES
               Reliability of Equipment, and Qualifications of
                 Monitoring Officials
               Lack- of Required Notice
               Unconstitutionality
               Apprehension of Wrong Vehicle
34

34
35
35
36
36
36

37

38

39
40
41
41
41
41
41
42

42
42
43
CHAPTER V:  TAMPERING PROHIBITIONS
               MODEL ORDINANCE:  ARTICLES VI & IX
               FEDERAL TAMPERING PROHIBITIONS
               SUMMARY
               TAMPERING CAUSES OF ACTION-
               TYPES OF EVIDENCE TO SATISFY ELEMENTS
               Evidence of Statutory Controls
               Proof of Tampering
               Sample Question and Answer Scenario for Manu-
                 facturer's Representative, Mechanic or Noise
                 Technician to Show Tampering
               Evidence of Use of Tampered Product
               Evidence of Motor Vehicle Tampering
               BURDEN AND ORDER OF PROOF
               REMEDIES
44

44
45
46
47
48
48
49
50
52
52
53
54

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CHAPTER V  (Continued)
               DEFENSES
               Statutory Attacks
               Evidentiary Defenses
               Substantive Defenses
               PROBLEMS IN ENFORCEMENT
54
54
55
55
56
CHAPTER VI:  SAMPLE FORMS AND PROCEDURES
               SUMMARY
               CIVIL COMPLAINT:  PUBLIC NUISANCE
               DISCOVERY
               Civil Discovery
               Recommended Order of Discovery  in a Noise
                 Abatement Case
               Penalties for Refusal to Submit to Discovery
               Discovery of EPO/NCO
               Defenses to Discovery
               Civil Discovery Forms
               Plaintiff's First Request for Admission of Facts
                 and Genuineness of Documents/Sample
               Interrogatories to Defendant, Howard Horton
               Plaintiff's Second Request for Admission of Facts
                 and Genuineness of Documents
               Motion to Produce Documents and Tangible Things
               Motion for Physical Inspection of Premises
               Criminal Discovery - Discussion
               Motion for Discovery and Inspection
               NOTICE. OF VIOLATION
               Notice Checklist
               Notice of Violation - Form
               ABATEMENT ORDERS
               Abatement Order - Form
               CRIMINAL FORMS
               Information
               Indictment
57

57
57
59
59
59

59
60
60
60
60

61
64

65
66
66
67
68
68
69
69
70
70
70
71
CHAPTER VII:  TRIAL TECHNIQUES
               SUMMARY
               Preparing the Noise Violation Case
               Presenting the Noise Violation. Case
               Use. of Expert Witnesses
               Selection1 of the Expert
               Preparing the Expert for Trial
               Sources of Information
               Direct Examination of Experts
               Qualifying Experts:  In General
               Sample Questions and Answers on Characteristics
                 of Sound and Hearing
72

72
73
73
74
75
75
76
77
77
78

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CHAPTER VII   (Continued)
               Sample Questions and Answers Showing  Adverse
                 Health Effects of Noise
               Sample Questions and Answers on  Noise Control
                 Techniques
               Questions and Answers to Establish
                 Reliability of Testing Procedures
               SAMPLE JURY INSTRUCTIONS
               Public Nuisance
               Property Line Standards
               Motor Vehicles
               Tampering Sanctions
 80

 83

 84

 88
 88
 89
 91
 92
CHAPTER VIII:  PREEMPTION
               NOISE CONTROL ACT OF 1972
               SUMMARY
               THE. PREEMPTION DOCTRINE AND THE CONSTITUTIONAL  BASES
                 FOR FEDERAL, STATE AND LOCAL NOISE REGULATION
               AREAS OF FEDERAL PREEMPTION AND RESIDUAL  STATE  AND
                 LOCAL AUTHORITY
               Transportation Noise
               Product Noise Control
 95

 95
 95
 96

 97

 97
101
APPENDIX A - GLOSSARY'OF KEY TERMS.
APPENDIX B - BIBLIOGRAPHY  '
APPENDIX C - MODEL COMMUNITY NOISE CONTROL ORDINANCE
APPENDIX D - NOISE CONTROL ACT OF  1972 (As Amended by Quiet
               Communities Act of  1978)
 A-l
 B-l
 C-l
 D-l
TABLE 1-1 -  NOISE SOURCES RANKED BY PERCENT OF URBAN POPULATION
               ANNOYED
TABLE 1-2 -  OTHER SOURCES RATED HIGHLY ANNOYING
TABLE II-l - COMPARISON OF NUISANCE ACTIONS
   4
  12

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                           PREFACE

     This Guidance Manual  for state and local  prosecutors  was  prepared
for the Noise and Radiation Enforcement Division of the United States
Environmental Protection Agency (EPA)  as part  of its mandate under the
Noise Control Act of 19721 to assist state and local  noise control  pro-
grams.  The purpose of this Manual is  to provide guidance  to prosecutors
who choose to take legal action against violators of state or  local  noise
control regulations; its intent is to  assist prosecutors preparing for
and conducting a trial—from drafting  the complaint to submitting  jury
instructions.
     The Manual has as its point of departure  the language of  the  EPA  Model
Community Noise Control Ordinance (Model Ordinance); it does not attempt
to address each of the numerous and diverse ordinances in  effect in  many
jurisdictions.  Drafted in 1975 by the National  Institute  of Municipal  Law
Officers in conjunction with EPA, the  Model Ordinance was  intended to  pro-
vide localities with a current and comprehensive model law  to control
noise problems.
     Chapter 1 briefly discusses the problems  and effects  of noise and
the technology of noise measurement.  Chapters 2 through 5 outline the
major causes of action available under common  law and the  Model  Ordinance,
describing in turn, common law and statutory public nuisance,  property
line standards, motor vehicle controls, and tampering prohibitions.
For each of the causes of action addressed, the Manual provides details
on definitions, elements of the cause  of action, types of evidence to
satisfy those elements, sample direct  examination of witnesses, burdens
  42 U.S.C. §4901 et seq. as amended by Quiet Communities Act of 1978,
  42 U.S.C.1 §4905 TTupp. 1978)

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and order of proof, remedies, defenses, and special problems that may be
encountered in the course of prosecution.
     Chapter 6, on forms and procedures, is a guide to drafting complaints,
motions, interrogatories, requests for admissions, depositions, discovery,
and jury instructions.  Chapter 7 offers tips on pretrial and trial
technique, primarily through the use of question and answer scenarios
designed to establish essential  points of proof, from the reliability
of sound level  meters to the adverse health effects of noise.
     Chapter 8 deals with a subject which, while outside the direct pur-
view of state and local prosecutors, may affect their decision to bring
legal  action. It discusses the interaction between Federal  and local
noise regulation and identifies  areas where states and localities may be
preempted by Federal  noise enforcement.
     Where applicable, each chapter begins with the Model Ordinance pro-
vision relevant to the discussion following.   Each chapter' also begins
with a concise summary of the issues and solutions presented in that
chapter.
     Finally, the Manual provides a Glossary  Of Key Terms and several
appendices of supplemental  information, including the text  of the Model
Ordinance, the Noise Control Act of 1972, and the Quiet Communities Act
of 1978.

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               CHAPTER 1:  INTRODUCTION TO NOISE CONTROL

SUMMARY
     People increasingly view exposure to excessive noise as a health hazard.
Although a number of major noise sources have been identified, the true dimen-
sions of the health effects of noise other than hearing loss are still  uncer-
tain .  Hearing loss, particularly if permanent, is one of the most serious
physical effects of noise on humans.
     Noise may cause a range of physiological and psychological  injuries.   Noise
may trigger undesirable social behavior, and this effect may be  increased  with
physical fatigue.  A number of close associations have been demonstrated between
cardiovascular diseases and noise exposures.  Noise may also be  a causitive agent
in other medical problems such as high blood pressure, col-itis,  ulcers, and mi-
graine headaches.  Furthermore, noise may have less obvious secondary effects in
addition to. its more direct-effects, for example, impairment of  learning or job
performance and interference with other activities such as communication and
sleep.
     Scientific and medical  evidence may need to be brought to bear to  prosecute
noise violators successfully.   For that reason, the prosecuting  attorney should
be familiar with the technical nature of sound measurement and the equipment
used to perform those measurements.   Different types of noise measurements are
often taken for different types of activities, e.g., roadway noise and aircraft
noise.  The time of day or night may also figure in the significance of these
measurements.
     A sound level  meter is the basic noise measuring device.  Different meters
have different indicating characteristics and weighting network  tolerances de-
pending on the sophistication of their circuitry.
                                     1

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THE PROBLEM OF NOISE
     In 1972, Congress declared a policy of promoting for all  Americans an en-
vironment "free from noise that jeopardizes their health or welfare."^  The
House Committee Report2 recommending enactment of the Noise Control Act of 19723
noted that noise--unwanted sound—had a significant impact on  more than 80 mil-
lion Americans; of that number, one-half risked serious health hazards from
exposure to excessive noise levels,  primarily traffic and aircraft noise.  About
21 million more Americans faced a similar problem with construction-related
noise.  The Committee Report concluded that noise was increasing in urban areas
at such a pace that the average person's exposure would double by 1982.  As for
what the public thinks about the problem, the Bureau of Census'  1977 Annual Sur-
vey found that Americans ranked noise as first-of all the undesirable conditions
of their neighborhoods.^
MAJOR SOURCES OF NOISE
     In a 1977 survey, the Environmental Protection Agency (EPA) identified
vehicles such as motorcycles, trucks, and cars and construction activity of
various kinds as- serious noise sources.5  The survey ranked annoying noise
sources as illustrated in Tables 1-1 and 2.
1 Noise Control Act of 1972, 42 U.S.C. §4901 et _seq.  (Supp.  1978).
2 H.R. REP. No. 842, 92d Cong., 2d Sess.  6 (1972).
3 42 U.S.C. §4901 _et _seq.  (Supp. 1978).
4 Bureau of Census, Department of Commerce,  Annual  Housing Survey: 1977
  (1979).                                   	
5 Office of Noise Abatement and Control,  EPA, The Urban Noise Survey
  39 (Table III-5); 41 (Table III-6).                         :

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                         TABLE 1-1*





               NOISE SOURCES RANKED BY PERCENT

             OF URBAN POPULATION HIGHLY ANNOYED
RANK
1
2
3
4
5
6
7
8
9
10
11
*Tables
SOURCE
Motorcycles
Large Trucks
Autos
Construction
Sports Cars
Helicopters
Constant Traffic
Airplanes
Small Trucks
Buses
Power Garden Equipment
1-1 and 1-2 are taken from The Urban
% Highly Annoyed
11.7
6.9
6.5
5.8
5.4
4.0
3.9
3.4
3.1
2.8
1.9
Noise Survey, supra, note
5, at 39, 41.  This survey questioned 2,000 people at 24 sites in 7
cities.  These urban sites were intentionally selected to avoid signifi-
cant airport and highway noise exposure.

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                     TABLE 1-2*
         OTHER SOURCES RATED HIGHLY ANNOYING
Rank
1 .
2
3
4
5
6
7
8
9
10
11






Source
Sirens
Fire Trucks
Ice Cream Trucks
Trash Pickup
Gun Shots
Trains
Burglar Al arms
Auto Horns
Chain Saws
Hot Rods - Drag Racing
Defective Mufflers
Defective Pump
Refrigerator Truck
Air Conditioner
Model Airplanes
Cement Mix Truck
Welding Equipment
Number
of Sites
8
7
5
4
4
4
2
3
3
2
1
1
1
1
1
1
1
Number of
Mentions
14
12
6
4
4
4
4
3
3
2
1
1
1
1
1
1
1
Note accompanying Table 1-1.

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EFFECTS OF NOISE
     Although many of the health effects of noise are not yet clearly under-
understood or quantified, there is little doubt that noise can contribute to a
range of physical and psychological injuries.  Even noise that may cause no
direct permanent physical health repercussions may still cause annoyance, sleep
loss, and other forms of mental distress.
Hearing Loss -- Hearing loss is the most quantifiable physical effect of noise
on humans.  Sound enters the outer ear and initially reaches the eardrum, a
thin membrane protecting the middle and inner ear.  The eardrum conducts sound
vibrations across the middle ear by way of the ossicles—three small bones re-
ferred to as the hammer, the anvil, and the stirrup because of their shapes.
Vibrations of the eardrum are passed mechanically to the inner ear by way of
the oval window separating the middle and inner ear-  The principal parts of
the inner ear are the cochlea and the semicircular canals.  The cochlea contains
fluid which is set into vibration by the movement of the oval window.  Inside
the cochlea is a membrane to which are connected the roughly 30,000 hair cell
nerve endings whose shearing action upon fluid movement electro-chemically send
signals to the brain.
     The ear's only protective device is the "acoustic reflex" which is a sudden
muscle contraction allowing the ossicles to lessen the impact of loud sounds
and thus protect the inner ear.  This natural protective device is limited since
it functions best for low frequency loud sounds and since the reflex sound con-
tinues and is effective only at lower frequencies.
     Hearing ability may vary based on age and sex.  Women generally have better
hearing ability than men, possibly because men experience more occupational
noise exposure in their early and middle years.  Hearing ability may decline
with age — called presbycusis.

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      Loud  noise  can  have  an  immediate  effect  on  hearing  and  equilibrium.
 Noise in the  135-140 dB range  and  above  may produce  actual pain  and  can  damage
 hair  cells  in the  cochlea.   Progressive  loss  of  hair cells will  result  in  a
 progressive loss of  hearing, frequently  evidenced by the  inability to detect
 high  frequency sounds.  Noise  is considered hazardous above  75 dB for 8-hour
 exposures.
      Temporary hearing loss  caused by  hair cell  fatigue may  result from  long
 term  exposure to moderate or high  levels.  A  temporary hearing loss  stemming
 from  lower  levels  of exposure  generally  can be reversed if the ear is given
 time  to recuperate.
 Non-Auditory  Physiological Response to Noise
      Noise may cause  serious physiological effects on the human  body which
 range  beyond  deafness to enhanced risk of heart  disease to adverse effects on
 fetal  nervous  systems.
      Noise acts on the body to produce stress.   At approximately the 75-80,  or
 lower, decibel (dB)  range, a number of short-term physical reactions take place
 Heart  rhythm  and blood pressure changes  occur, blood cholesterol levels  rise,
 pupils of the  eye dilate,  and stomach acid secretion may change  leading  to gas-
 trointestinal   malfunctions.  Some automatic physical reactions such as blood
 vessel constriction may continue for some period even after  the  noise stops.6
 However, the extent  of long term physiological effects is still  not known.
     The physiological effects on special populations such as the unborn,
 children,  the   physical or mentally handicapped,  and the aged who possibly may
 be more susceptible  to noise exposure is still under scientific scrutiny.
6 See generally, Environmental Protection Agency, Public Health and Welfare
  Criteria for Noise, 7550/9-73-002 (1973).

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 Social  Impacts
     Noise may trigger unpredictable psychological  behavior-   Because of their
 subjective character, adverse psychological  effects of noise are more difficult
 to document than physical  effects.   Nevertheless,  there is  some scientific  evi-
 dence indicating that noise may increase irritability, argumentativeness,  anxi-
 ety, nervousness, and general aggressive tendencies,  and decrease helping  be-
 havior.''
      Noise sometimes appears to have a psychological  impact  on  human conduct in
 disproportion to the actual physical characteristics  of the  sound.   Sounds  that
 convey distress or alarm,  such as a patrol  car siren  or a fire  engine bell,  may
 have greater psychological  effects  than sound associated with some advantage or
 necessity, such as a lawn  mower or  a garbage disposal  unit.^
     Noise experts stop short of directly linking psychological  effects of  noise-
 to clinical mental illness.^  Rather than claiming a  direct  cause and effect
 relationship, some experts suggest  that based on their studies  of mental  illness
 and of psychological effects, noise may merely aggravate a  pre-existing mental
 condition.  On the other hand, one  study indicated higher rates of admission to
 psychiatric hospitals among people  living close to airports.^
 7 See Environmental  Protection Agency,  Public Health and Welfare Criteria
   for Noise (1973);  Donnersteirt and Wilson,  "Effects of Noise and Perceived
   Control on Ongoing and Subsequent Aggressive Behavior," 34 J.  Personality
   and Soc. Psych. 774 (1976).
 8 Cohen, "Effects of Noise on  Psychological  State," Proceedings  of
   National Conference on Noise as a Public Health Hazard (Report No.
   4) Washington, D.C. (1969).
 9 See McLean and Tarnopolsky,  "Noise, Discomfort and Mental  Health,"
   TTsych. Med. 19 (1977).
10 I. Abey-Wickrama,  M. A'Brook, F. Gattoni,  and C. Herridge, "Mental-
   Hospital Admissions and Aircraft Noise," Lancet 1275, December 13,
   1968.

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     Actual hearing loss, especially in children, may also produce secondary
psychological effects, particularly if parents or peers equate impaired  hearing
with low-level  intelligence and attach a stigma to such impaired hearing.   Hear-
ing loss creates additional emotional and psychological problems for  adults as
we! 1.
Other  Impacts
       Sound loud enough to interfere with conversation or mental concentration
may have adverse secondary effects in the educational or work environment.  For
example, reading and language development in school children may be impaired by
a noisy environment if a child is unable to distinguish certain sounds or if the
noise  distorts  speech.  Distractive noise may reduce worker productivity and
even become a workplace safety hazard where noise prevents a worker from hearing
warnings of potential  danger.  Disturbing noise levels may also reduce the en-
joyment of recreational activities through communication interference.
Environmental Impacts
     The physiological reaction of animals to noise is very similar to that of
humans.  Hearing loss  or damage to the auditory system is the best documented
physiological  effect of noise on test animals.  Experiments also show evidence
of change in the urinary, adrenal, and reproductive functions of animals under
certain noise conditions.  Animals may even experience disruption of breeding,
nesting, and' migratory habits.
     Noire and induced vibrations can adversely affect structural  materials.
Cracked plaster and broken windows and dishware left in the wake of a sonic
boom are the best known examples of damage from excessive noise levels,  but
they are not the only  examples.   Heavy construction equipment operation  may
cause  damage to neighboring structures.   Noise induced vibrations  can  also
damage  delicate scientific and health care instruments.

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Noise Measurement
     There are three key variables in sound measurement:  intensity; frequency;
and duration.  The decibel (dB or dBA) is a unit for measuring the intensity of
sound.  Its reference level is roughly that of the weakest sound audible to the
human ear at 1000 feet.  The decibel scale is logarithmic, not arithmetic, so
that sound intensity multiplies by ten with every ten-decibel  increase.  In
other words, a 60 dB sound level corresponds to an intensity 1 million times
that of the sound pressure reference level.  Similarly, a 60 dB sound intensity
is ten times that associated with 50 dB.
     Since a pure decibel measurement reflects the intensity and not the "loud-
ness" human beings typically assign to various sounds, different scales or
weightings must be applied to the decibel level.  Several weighting scales exist,
but most EPA noise criteria and standards are based on the A-weighting scale.
The A-weighting scale  is a frequency-weighted scale which adjusts for the fact
that the ear does not respond equally to low, medium, and high range frequencies.
     Different descriptors, conforming weighting with time and weighting fre-
quency content, are used in particular noise contexts:  the long term equivalent
level (Leq), an A-weighted measure often used to measure roadway noise, gener-
ally over a 24-hour period; the day-night sound level (L(jn), a variation of
Leq which penalizes night time noise by assigning it a heavier weight (often
used in environmental  impact statement evaluations); and two descriptors used
primarily to measure aircraft noise—the perceived noise level (Lp^j) and its
refinement, the effective perceived noise level (L^p^).
Description of Equipment
     A sound level meter is the basic sound measuring device often used for
municipal noise measurement.  The meter consists of a microphone, amplifier,
weighting scales  (e.g., A-scale), and output meter.  Meters may or may not  have

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a graphic  level  recorder or a magnetic tape recorder, either of which can  pro-
vide permanent documentation of noise levels.  Meters may be hand held or  mounted
on a tripod.
     Different meters have different indicating characteristics and weighting
network tolerances depending on the sophistication of their circuitry.  The four
different  types  of sound level meter instrumentation are:  Type 1 (Precision);
Type 2  (General  Purpose); Type 3 (Survey); and Type 4 (Special Purpose).11
Noise control ordinances typically specify only that the particular sound  mea-
suring  equipment used must meet standards set by the American National Standards
Institute  (ANSI).  However, calibration of the sound-level meter should also be
performed with instruments which meet ANSI standards.  Manufacturer's specifica-
tions accompanying a sound level meter will  indicate whether or not the instru-
ment meets these standards.
     Measurements may vary depending on the source measured and on surrounding
conditions.  Wind,  humidity,  temperature, and precipitation are critical  factors
that also may affect the reliability of the readings.  In measuring automobile
noise levels, the microphone  location and general  topography, including the pres-
ence of possible sound reflecting surfaces,  are important to accurate measurement.
11 D.  Lipscomb & A.  Taylor,  Noise Control:   Handbook of Principles and
   Practice 34 (1978).
                                     10

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                  CHAPTER 2:  PUBLIC NUISANCE


MODEL COMMUNITY NOISE CONTROL ORDINANCE:  Article IV, Prohibited Acts

            6.1  Noise Disturbances Prohibited

                 No person shall unreasonably make,
                 continue, or cause to be made or
                 continued, any noise disturbance
                 [defined as "any sound which
                   (a) endangers or injures the
                       safety or health of humans
                       or animals, or
                   (b) annoys or disturbs a reason-
                       able person of normal  sensi-
                       bilities, or
                   (c) endangers or injures personal
                       or real property." 3.2.20].  . .

SUMMARY

     The current trend toward a regulatory approach to noise abatement (e.g.,

Model Ordinance), has not meant abandoment of traditional common law (nonstatu-

tory) remedies for noise control.  The public nuisance action continues to play

a significant role in noise control.

     The common law or statutory public nuisance action is an effective vehicle

for controlling noise in several instances:  1) in jurisdictions where specific

maximum decibel levels have not been adopted; and 2) in cases unsuited to con-

trol through enforcement of maximum decibel levels, e.g., barking dogs, loud

parties, and other intermittent noises.  To distinguish public from private

nuisance, Table II-l compares public and private nuisance actions at common law

and as they are now developing in modern statutory  law.

     A cause of action for common law public nuisance must establish:  (1) that

an interference with a right common to the general  public occurred; (2) that

the interference was unreasonable; and (3) that the public right was a substan-
                                     11

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                          TABLE II-l

                COMPARISON OF NUISANCE ACTIONS
     Public Nuisance
Private Nuisance
       Common Law
1.  Affects entire community.
2.  Generally criminal.

3.  Generally brought by public
    official.

4.  Citizen can bring if special
    damages are shown.

5.  Laches, prescriptive rights,
    statute of limitations,
    estoppel do not apply.'
       Current Trend

1.  Does not have to affect
    entire community.

2.  May be civil.

3.  States are expanding citizen
    standing, eliminating special
    damage requirement.

4.  Not limited to property
    rights.
   Common Law

1.  Affects individual or
    small group of
    individuals.

2.  Generally civil.

3.  Brought by private
    individual.

4.  No need to prove
    special damage.

5.  Must be an unrea-
    sonable and sub-
    stantial interfer-
    ence with use and
    enjoyment of pro-
    perty.

   Current Trend

1.  May affect a large
    number of people.
                                12

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tial  one.  Intent to harm is not an element, although it may be relevant to show
show whether the interference was unreasonable.
     Scientific and medical evidence may be the most useful  to show the unreason-
ableness and substantiality of interference.  Lay testimony  about the annoying
characteristics of noise may not of itself support a finding of public nuisance.
     A cause of action for statutory public nuisance requires evidence of a stat-
ute prohibiting the noise nuisance and proof of the violation.
     The prosecutor carries the burden of proof by a preponderance of the evidence
except where a jurisdiction characterizes public nuisance as a criminal  offense.
In the latter case, each element must be proved beyond a reasonable doubt.
     Injunctive relief is one of the most important remedies appropriate to a
noise nuisance action because if granted the nuisance is stopped, either perma-
nently or at least temporarily during litigation.  The prosecution can anticipate
a number of defenses, including business necessity, compliance with administra-
tive regulations, cost of abatement and, in certain cases,  Federal preemption.
For the most part, however, these defenses are neither absolute nor sufficient
to block a well-founded noise nuisance prosecution.
COMMON LAW AND STATUTORY DEFINITIONS OF PUBLIC NUISANCE.
     At common law, a public nuisance was a "criminal interference with a right
common to all members of the public."^  It was considered a  criminal offense
and encompassed a diversified group of minor offenses against the public peace,
morals, safety and health—from harboring a barking dog to  operating a noisy
dance hall .2
1 W. Rodgers, Environmental Law 103 (1977).
2 Restatement (Second) of Torts §8218, Comment b, at 88 (Tent. Draft
  No. 17, 1971).
                                     13

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     The inherent vagueness of the "crime" of public nuisance has led to several

changes in the law defining that offense.   The first change was to codify the

common law crime in state statutes.   That development brought on two more recent

trends:  First, the replacement of broad and ambiguous statutory public nuisance

provisions by a series of more specific laws declaring certain specific actions

to be public nuisances and, as such,  crimes; second, a shift toward characteriz-

ing public nuisances as civil  offenses.3

     Modern trends in public nuisance law have not diminished the usefulness

of this cause of action as a tool  for state and local officials to combat noise
  The concept of public nuisance as a tort action—rather than an action
  in criminal  law—has been accepted by the American Law Institute.   Ac-
  cording to the Restatement (Second) of Torts §8218 (Tentative Draft No.
  17, 1971):

  *  A public nuisance is an unreasonable interference with a right  common
     to the general  public.

  *  Factors conducting toward a determination that an interference  with a
     public right is unreasonable,  include the following:

     a)  The circumstance that the  conduct involves the kind of
         interference with the public health,  the public safety,
         the public  peace, the public comfort  or the public con-
         venience which sufficed to constitute the common law
         crime of public nuisance;

     b)  The circumstance that the  conduct is  proscribed by a
         statute, ordinance or administrative  regulation;  or,

     c)  The circumstance that the  conduct is  of a continuing
         nature or has produced a permanent or long-lasting ef-
         fect upon the public right,  is substantial,  and in con-
         nection with which the actor knows or has reason  to
         know of the effect.
                                     14

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 violations.4  Even at common law,  a public nuisance could often  be remedied

 by  civil  injunctive relief as well  as by criminal  sanctions.   In those  cases

 where conduct clearly falls within the scope of a  criminal  provision,  the

 prosecutor may well find the more  effective strategy to be one of quick abate-

 ment of the noise violation through injunctive relief rather  than resort to

 criminal  sanctions against the violator under the  more stringent criminal

 burden of proof.   If the criminal  provision does not expressly authorize in-

 junctive relief as a remedy, the common law of public nuisance provides the

 needed authority.^

 ELEMENTS OF THE CAUSE OF ACTION

 Common Law Public Nuisance

      To prove an action for public nuisance, the following elements  must be

 established:

      *  That an interference with a right common to the general  public

         occurred;
4    Public nuisance actions to control  noise have been maintained against
  a variety of sources:  Harrison v. Indiana Auto Shredders,  Inc.  528
  F.2d 1107 (7th Cir. 1975) (automobile  shredding and recycling plants);
  Firth v. Sherzberg 336 Pa. 443,77 A.2d 443 (1951)  (truck terminals);
  Yanderslice v. Shawn 26 Del. Ch. 225,  27 A.2d 87 (1942)  (aircraft
  overflights).

     Private nuisance actions have been  maintained against a  series of
  other noise sources which presumably could have been prosecuted  as
  public nuisances had they affected a wider population.  These include:
  Friedman v. Keil, 113 N.J.Eq. 37, 166  A. 194 (1933) (bakery noise);
  Proulx v. Busbanes, 354 Mass. 559, 238 N.E.2d 531  (1968) (laundry &
  drycleaning plants); Braddock v. Barbecue Cottage,  Inc., 69 Dauph.
  Co. (Pa.) 221 (1956) (fast food restaurant); Guarina v.  Bogart,  407
  Pa, 307, 180 A.2d 557 (1962) (drive-in theater); State ex.  rel-  Towle
  v. Eyen, 130 Neb. 416, 264 N.W. 901 (1936) (tavern); Gustafson v.
  Cotco Enterprises, Inc., 42 Ohio App.  2d 45, 328 N.E.2d 409 (1974)
  (racetrack); State ex. rel. Fuller v.  Stillwell, 114 Kan. 808, 220
  P. 1058 (1923) (barking dog).

5 Restatement (Second) of Torts §821B (Tent. Draft No. 17, 1971).
                                      15

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      *  That the interference was unreasonable; and
      *  That the public right was a substantial one.
      A right common to the general public is one that affects an entire commun-
 ity rather than one or a few individuals.  Both the unreasonableness of the
 interference and the substantiality of the right interfered with are defined by
 using the reasonable person standard.6
      Intent to harm is not an element of the public nuisance cause of action
 because a violation exists if certain conduct is prohibited by statute.  Never-
 theless, intent is relevant to show whether the interference was unreasonable.
 Under general tort law principles, interference with a public right may be con-
 sidered unreasonable if the conduct is intentional, negligent, reckless, or
 involves abnormally dangerous activites.   On the other hand, in actions for in-
 junctive relief, intent or knowledge is less persuasive because injunctions are
 granted when:  (1) no adequate legal remedy exists; (2) irreparable harm otherwis.
 will ensue; (3) the court finds that ordinary legal principles would not afford
 relief.
 Statutory Public Nuisance
      To satisfy the elements of a cause of action for statutory public nuisance,
 the prosecutor must establish the existence of a statute prohibiting the noise
 nuisance and prove that the defendant violated the statute.  Under some noise
5 The Restatement (Second) of Torts lists a number .of factors tending to
  substantiate a claim that an "unreasonable" interference has occurred.  See
  footnote 3, supra.  However, this list is not all inclusive.   As the Reporter
  of the Tentative Draft noted in comment e, some courts have recognized inter-
  ference with aesthetic values or with established principles  of conservation
  of natural  resources as amounting to a public nuisance.
                                      16

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nuisance statutes, neither the unreasonableness of the noise nor the intent to
interfere with a public right are elements of the offense.
     Under those state statutes modeled after the Model Ordinance or the common
law, however, the unreasonableness of a noise nuisance may still be an element
subject to proof requirements.
     Under Model Ordinance-type language, the prosecutor need not prove criminal
intent.  Again, however, intent would be relevent to the unreasonableness of
particular conduct.  Where it is unclear whether a particular state statute re-
quires a showing of criminal intent, case law supports the view that the nces-
sity of proving intent depends on the nature of the case.''
TYPES OF EVIDENCE TO SATISFY BURDEN OF PROOF
     To satisfy the burden of proof on the three elements of a public nuisance
action, the prosecutor most likely will need to rely on some combination of lay,
scientific, and medical testimony.
     Lay evidence will be helpful in proving the unreasonableness and substan-
tiality of interference.  The standard applied is that of the reasonable person.
However, a noise prosecution may also rely heavily on certain types of scientific
and medical evidence.
Scientific Evidence
     Scientific evidence may consist of:
     *   Expert testimony by acoustical engineers;
     *   Sound measuring devices;
     *   Noise measurements;
     *   Tape recordings of the noise;
     *   Graphs comparing decibel levels;
  66 C.J.S. "Nuisances" §10 (1950).

                                     17

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     *   Maps indicating the location of the noise, including distinc-
         tions between residential and industrial zoned areas.
     Recordings by sound level meters, and other sound measurements are import-
ant pieces of scientific evidence to use to demonstrate that a particular  noise
level constitutes a health threat.  Seldom will statements from members of the
public about the annoying characteristics of the noise be sufficient of them-
selves to support a finding of public nuisance.8   Rather, the prosecutor  must
attempt to show that the noise at issue created a threat or hazard to the  health
or safety of the community.
     Local procedural rules and practice may indicate whether local courts  have
taken judicial  notice of the reliability of sound measuring devices or whether
they require an offer of proof.  However, proof must be offered' that the sound
meter actually used in a noise test functioned properly at the time the critical
reading was taken.  This can be established through the use of expert witnesses
or the operator of the machine to establish that:
     *   The device was functioning properly at the time of the reading;
     *   The operator was competent to operate the machine;
     *   The recording was authentic and correct; and
     *   Calibration of the equipment itself was made proximate to the
         time and place of the noise.9
8 See_ Harrison v. Auto Shredders, Inc., 528 F.2d 1107 (7th Cir. 1975) (trial
  court reversal  because there was no competent evidence offered to demonstrate
  that the operation of a noisy automobile shredding and recycling plant was a
  public nuisance).
9 U.S. Noise Enforcement Division, Environmental Protection Agency, State and
  Local Hornbook  (Draft, May 1, 1978).
                                     18

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     It may also be necessary to introduce evidence of a continuous chain of

custody record showing the equipment used for the sample, the time, the date, the

name of the person taking the measurements, and the custodian of the record.10

(All data should be recorded in ink at the site.)

Medical Evidence

     Medical evidence may consist of:

     *   Expert testimony by a physician, audiologist, psychiatrist,

         or other appropriate health professional;

     *   Medical records;

     *   Medical charts.

     Loss of hearing and damage to the auditory system are serious injuries

caused by excessive noise.  Although the medical and scientific communities are

not in agreement about the exact physiological effects of noise on the body,

there is strong evidence suggesting a link between continuous noise exposure and

the development of heart disease.H  Noise may also cause stress reactions such

as nervous tension and irritability from lack of sleep.

     The best method for proving psychological stress is to have both the com-

plaining witness and a psychiatrist testify.   Medical testimony is appropriate

to prove injury.  For example, in a case involving a hearing loss, a medical

expert should be called to testify on the nature of the injury, the proximate

cause of injury, and the likelihood of recovery.
10 V. Taylor, Environmental Law - Cases and Text 626 (1974).

11 Office of Noise Abatement and Control, Environmental Protection
   Agency, Noise:  A Health Problem (1978) ("Noise causes stress and
   the body reacts to that with increased adrenaline, changes in heart
   rate, and elevated body pressure.")
                                     19

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BURDEN AND ORDER OF PROOF
Burden of Proof
     The burden is on the prosecutor in a public nuisance action to prove each
element of the offense.   Under the Model  Ordinance and other noise control stat-
utes that have removed the element of criminality from the concept of public
nuisance, each element must be proved by  a preponderence of the evidence.  In
jurisdictions that maintain the concept of public nuisance as a criminal offense,
each element must be proved beyond a reasonable doubt.
Order of Proof
     Although some types of evidence may  not be necessary in a particular nui-
sance case,  the following is the suggested order of proof for a nuisance case.
     *   PHYSICAL FACTS -- Proof of the location of the source of the noise;
         receptor; types of activities conducted in the area; structures; and
         the topographic and geographic characteristics.
     *   SCIENTIFIC FACTS -- Nature of noise and the effect on the public health,
         safety, or peace.
     *   MEDICAL FACTS -- Testimony and exhibits demonstrating a public health
         hazard.
     *   PROPER MEASUREMENT TECHNIQUES — Testimony by expert witnesses on
         noise measurements taken.
     *   SOURCE -- Evidence to establish  and prove the source of the noise and
         to  identify the party in control of the source.
     *   UNREASONABLENESS AND SUBSTANTIALITY — Evidence that the noise emanat-
         ing from the source was unreasonable and that it substantially inter-
         fered with the community's health, safety, peace,  comfort,  or conveni-
         ence.  (Witness testifying to a  nuisance.)
                                     20

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     *   REMEDIES -- Proof of facts necessary to substantiate the request for
         appropriate remedies.   Proof of imminent and irreparable injury should
         accompany requests for injunctive relief.   Justification for amount
         and duration should accompany requests for court imposed fines.
REMEDIES
Injunctive Relief
     An injunction requiring a defendant to abate a noise nuisance remains  one
of the most important remedies available in a public nuisance action—regardless
of whether the conduct is considered a crime or a tort.
     Section 11.4(a) of the Model Ordinance suggests that where the enforcement
officer has the power, the first line of offense in a noise pollution case
should be an administratively issued compliance order and injunctive relief.
     The traditional equitable requirements of proof of  imminent and irreparable
harm, and an inadequate remedy at law apply in noise nuisance cases where injunc-
tive relief is requested just as they would in any  other proceeding for injunc-
tive relief.12
Traditional Criminal Remedies
     Under circumstances where the defendant takes  advantage of the possibility
that the cost of abatement may be more than the cost of  compliance with a re-
straining order, criminal sanctions may be necessary to  achieve compliance.
Fines are the most frequently imposed criminal.sanctions under such circumstances
Damages
     Damages rarely are sought or recovered in a public  nuisance noise action.
12 Harrison v. Indiana Auto Shredders, 528 F.2d 1107 (7th Cir. 1975)
                                     21

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     DEFENSES
          The following defenses are available in  public  nuisance  actions,
     but offer limited opportunities for success:^
     *  Exhaustion of administrative remedies
     *  Compliance with statutory control;  conformity  to  regulations issued
        by an administrative agency or conformity  to  a permit or license.
     The following defenses generally are not available in  public
nuisance actions:14
     *  Statute of Limitations
     *  Laches
     *  Estoppel
     *  Prescriptive rights
     The following defenses may be available in particular  cases:
     *  Business Necessity - Business necessity traditionally has  not been  an
        effective  defense.15  in most cases, however,  business necessity may
        carry some weight if the court is persuaded  that the value of continued
        operation  of the business outweighs the harm  suffered by the plaintiff.
     *  Cost of Abatement - The cost of abatement  generally will be one of  the
        elements considered by a court if asked to grant injunctive relief.
        The defendant is more likely to be persuasive in arguing against such
13 See 58 Am Jur 2d, "Nuisances" §§157,  234 (1971);  Schofield v.  Material
   Transit, Inc., 206 A.2d 100 (1960) (existence of  remedy before Air Pollution
   Board does not of itself oust court of chancery jurisdiction,  but primary
   judicial relief may not be applied for when there are administrative remedies
   pending).
14 See 53 Am Jur 2d, "Nuisances" §§167,  168,  225 (1971).
15 See Cat!in v. Patterson, 10 N.Y.  724  (1887).
                                     22

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        relief if the cost of  abatement is  so  severe  that  it  would  put  the  de-

        fendant out  of business,  or  jeopardize the  prosperity of  the  community.-'-5

     *   Coming To The Nuisance -  In  a  majority of jurisdictions,  the  fact alone

        of "coming to a nuisance" (i.e.,  locating in  the vicinity of  an already

        existing nuisance) is  not an absolute  defense or estoppel.  However,

        this factor may be relevant  in determining  whether the defendant's  use

        of property  is unreasonable.   While some courts will  permit a person

        who purchases land or  moves  into the vicinity of a nuisance to  seek

        damages or an injunction  against the nuisance,1'' other courts will  deny

        relief if the plaintiff knew that a nuisance  existed  at the time of

        purchase or if the plaintiffs  obtained the  benefit of the reduced value

        for their property.^

     *   Negligence - Contributory negligence is no  defense when the defendant

        intentionally has created a  nuisance with the knowledge that  it will
                                                     m
        interfere with the plaintiff's use and enjoyment of the land.  However,

        some states do allow this defense to be used  in  nuisance  actions not

        involving intentional  or malicious conduct.  The courts reason  that a

        nuisance can be negligently  created; therefore,  contributory  negligence
16 See Am Jur 2d, "Nuisances" §215 (1971).

17 Annot., 42 A.L.R. 3d 344, 346 (1972).  As the court observed in
   Vowinckel  v. N. Clark & Sons, 216 Cal.  156,  13 P.  2d 733 (1932):  "The fact
   that a plant had municipal consent and  that  its operations were conducted
   in an industrially zoned area, or that it had operated for 17 years jefore
   the plaintiff purchased and established his  home there,  did not constitute
   a defense to the continued operating of the  plant in such a manner as to
   constitute a nuisance to the plaintiff."

18 id. In at least one case a court has held that purchasers of land who have
   knowledge of the existence of damaging  structures will not thereafter be
   allowed to recover for any damages to the land, since they are presumed to
   have obtained the benefit of reduced value by the amount the prior owner
   could have recovered.  See W. Prosser,  Law of Torts 609  (4th ed.  1971).
                                     23

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         may be valid defense.  Assumption of the risk or consent to take
         the risk may also bar the plaintiff's recovery in a noise nuisance
         action.19
      *  Parties [Joint-Tortfeasors;  Single Individual Injury Rule] — A
         noise violation may have been created by more than one defendant.
         Since it may be almost impossible to determine which defendant
         caused the most damage,  the  majority of jurisdictions are likely
         to hold each defendant liable,  under the "single, indivisible
         injury" rule.
         It is not a defense for  individual  defendants to claim that the
         noise they released would not by  itself have caused the noise
         problem,  nor is it a valid defense for them to claim that indivi-
         dually each released noise at different times or places.20
      *   Legislative Authorization --  In  some jurisdictions,  conduct which
         otherwise  would be considered a  public nuisance may  be authorized
         by  the legislature,  subject only  to  due process limitations.
         Generally,  courts  will construe  narrowly any statute that authorizes
         the creation or maintenance of a  nuisance.   This strict scrutiny
         may also be extended to  a review  of  the specific grant of authority
19 W. Prosser, Law of Torts 609  (4th ed.  1971).   In  the majority of juris-
   dictions, the rule of avoidable consequences  is available not. as a defense,
   but in measuring damages.  According  to  this  doctrine, the plaintiff may
   be required to take reasonable steps  to  guard  against further harm.
20 B. Cohen, V. Yannacone and S. Oavison, Environmental Rights and
   Remedies § 6.15 (1972).  ("Where two  or  more independent tortfeasors
   have supplemented each other's actions and concurred in_contributing
   to and producing a single indivisible  injury to the plaintiff,  the
   independent tortfeasors will be regarded by the law as  joint  tort-
   feasors, jointly and severely liable to  the plaintiff,  though  there
   hasn't been concerted action among tortfeasors.
                                     24

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        given to a particular administrative agency.  Legislative authority may
        be a defense against injunctive relief barring operation, but the fact
        that a business is being conducted properly as defined by legislative
        or administrative action does not necessarily preclude recovery of
        damages.21
     *  Preemption — The Model Ordinance, section 11.6, retains common law or
        statutory rights of action.  Preemption may be a sufficient defense in
        limited circumstances where the Federal Noise Control  Act of 1972 has
        partially preempted regulatory authority over an area  as, for example,
        rail road noise.22
     *  Primary Jurisdiction -- There may be jurisdictions that have adopted an
        administrative approach to the enforcement of environmental  laws,
        vesting exclusive jurisdiction over such matters in an administrative
        agency.  Opinion is divided on whether this would preclude maintenance
        of a common law or statutory public nuisance action sounding in criminal
        law.  Primary jurisdiction is not a defense in jurisdictions that have
        adopted the Model Ordinance.23
21 See W. Rodgers, Environmental Law 138-40 (1977).
22 See Consolidated Rail Corp. v. City of Dover, 450 F. Supp. 966
   TDT  Del.  1978).
23 See Model Community Noise Control Ordinance, §11.5 [Appendix C],
                                     25

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                  CHAPTER 3:  PROPERTY LINE STANDARDS
MODEL COMMUNITY NOISE CONTROL ORDINANCE: ARTICLE VIII, Sound Levels By Receiving
Land Use

    8.1 Maximum Permissible Sound Levels by Receiving Land Use

             No person shall operate or cause to be
             operated on private property any
             source of sound in such a manner as
             to create a sound level which exceeds
             the limits set forth for the receiving
             land use category in Table I when
             measured at or within the property
             boundary of the receiving land use.

             TABLE I. SOUND LEVELS BY RECEIVING LAND USE

     Receiving Land Use             Time              Sound Level
         Category	Limit, dBA

                               (A) a.m. -                LI   *
     (Residential, Public          (B) p.m.
     Space, Open Space,
     Agricultural or           (B) p.m.
     Institutional)                (A) a.m.              L2

     C-l, C-2, etc.            At all times              L$
     B-l, B-2, etc.
     (Commercial or
     Business)

     M-l, M-2, etc.            At all times              L4
     (Industrial)
* This section of the Model Ordinance does not provide recommended dB levels.
  However, the Model does include tables of fixed source noise levels allowable
  in residential, business/commercial, and manufacturing/industrial  districts
  taken from a survey of over 100 cities.  See Appendix C.
                                     26

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 SUMMARY
      The  Model  Ordinance's  property line noise control  scheme  is based  on
 references  to  both  receiving  land use categories and by time of day,  a  feature
 not  always  present  in  local noise ordinances.  Receiving land  use categories
 usually are based upon the  following zoning classifications:   open  space,  pub-
 lic  space,  agricultural, residential, institutional, commercial, or industrial.
 See  Table 1-1,  supra.
      Essentially, the  prosecutor of a property line violation  must  show that:
 1) the defendant was responsible for a noise source on  private property; 2) the
 noise level  was above  permissible levels for the period of day or night; and 3)
 the  noise level was above that permitted for particular receiving land uses.
      It may  be  necessary to establish the validity of sound level meter evi-
 dence in  a  property line case.  Some courts take judicial notice of such evi-
 dence; others  require that experts testify with regard  to the  type  and model
 of sound  level measuring devices used in the jurisdiction.^-
      Because the expert testimony of the police or noise control officer moni-
 toring the'  noise level on the property is so significant in property  line cases,
 this  chapter offers a checklist of what the officer's testimony should describe,
 as well as  sample questions aimed at establishing the reliabilty of  the sound
 level measuring tests.
      Proof by a preponderance of the evidence is the typical standard of proof.
Remedies  available for a property line standards violation include  fines, in-
junctive  relief, abatement orders, and an order for corrective action.
1 See Florida v. Aquilera, Dade County (Fla.) Traffic Court, (May 7, 1979).
  £77  "Police Traffic Radar:  Is It Reliable?"  U.S. Dept. of Transportation
  TT980).
                                     27

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     Certain procedural, technological, and substantive arguments can be antici-
pated as defenses, including claims that the officer had no authority to enter
private property, that the sound level measurement was incorrect, or that some-
one other than the party charged operated the noise source.
ELEMENTS OF CAUSE OF ACTION
     To successfully prosecute an action for violation of property line noise
standards the prosecutor must establish that statutory provision exists and
that it was violated.  The prosecutor must be able to prove that:
      *  The defendant operated or caused to be operated on private property
         a source of sound;
      *  The noise exceeded the sound level limits established for the par-
         ticular time of day or evening; and
      *  The noise exceeded the sound level set for the receiving land use
         category when measured at or within the property line.
TYPES OF EVIDENCE TO SATISFY ELEMENTS
        •
Scientific Evidence
     A property  line standards case may require the use of competent scientific
evidence ranging from the expert testimony of noise instrument experts to data
from sound measuring devices.
Establishing the Validity of Sound Level Meter Evidence -- In jurisdictions
where courts have not taken judicial notice of the validity of sound level
meter evidence, a court may require expert testimony regarding the scientific
validity and accuracy of the measuring device itself-2  Experts may be asked
to testify specifically about the accuracy of the type and model of sound level
measuring device used in the particular jurisdiction.
2 See Annot., 47 A.L.R. 3d 822, 827, at n.4 (1973!

                                     28

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      In  all  cases,  whether in  courts  taking  judicial  notice  of  sound measuring

 devices  or in  courts  where no  such  notice  is  taken,  the  prosecutor should dem-

 onstrate that  the  particular equipment  used  in  detecting the noise violation

 was  of the required type,  in proper working  condition, and was  operated  by a

 qualified individual.3

      One source  for expert witnesses  may be  the manufacturer of the  measuring

 device used.   If the  manufacturer also  services the  device,  the testimony of

 the  service  expert  should  be sought on  the question  of the reliability and ac-

 curacy of the  measuring  equipment.  In  all cases, the qualifications  of  the

 expert witness first  must  be established.  (See Chapter  7, Trial Techniques,

 (Qualifying  Experts).

 Testimony of the Officer Monitoring Sound Level Meter

      The  expert  testimony  of the police officer or noise  control officer  who

 .took  the  on-site sound level measurements is  perhaps the  strongest evidence

 that  can  be presented in most  property  line  standards cases.  That testimony

 should describe:

      *    The equipment used to monitor  the sound level,  including  informa-
          tion  identifying  the  manufacturer, model and serial  number,  and  dates
          of last laboratory or factory  calibration according  to manufacturer
          and A.N.S.I, standards;

      *    A field calibration of the equipment, for proper operation and accur-
          acy,  made on the  day  the particular  property line noise violation  data
          was recorded.

      *    The location of the measuring  device at the time of  the alleged
          violation;

      *    The officer's steps in setting up the equipment  according to the  noise
          control  regulations in effect,  the day the noise  violation measurement
          was made;
3 2 Am. Jur. Proof of Facts 2d 545-608 (1974),


                                     29

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     *   The weather conditions (e.g., wind speed,  precipitation),  or other
         unusual  condition, including ambient noise level  that would affect
         the noise level  reading;

     *   The details of the violation including a sketch or diagram of the
         general  site, a  description of the noise source,  and a description
         of the receiving land use (i.e., residential,  commercial,  or indus-
         trial);

     *   The actual  measurements taken of the noise source, recorded in ink
         if done by  hand.

     The results of  sound level measurements should be  introduced  into evi-

dence, along with charts, maps, and photographs of  the  noise source.

Sample Questions for the Officer Operating Sound Level  Meter

     After qualifying the officer, the prosecutor should ask questions designed

to establish violation of a property line standard.  Sample questions follow:

     Q.  Describe the property line standards that  exist in this jurisdiction
         for [residential], [commercial I, or [industrial]  land use-categories.

     Q.  Did you take a noise level reading at [site] on [date]?

     Q.  At what time did you take the reading(s)?

     Q.  What was the exact reading of the noise level?

     Q.  Is that a violation of [jurisdiction] noise ordinance levels
         for [category] of receiving land use?

     Q.  By how many dBA?

     Q.  What is the significance of this difference?

     The following line of questioning aims to establish the technical

reliability of the sound level meter.^

     Q.  Describe the sound equipment used to measure the sound level
        -[manufacturer, model, date of last factory calibration].
  Jack Faucett Associates, Inc., Workbook for Police Enforcement of Noise Regu-
  lations, Final Report, EPA Contract Number 68-01-4701 (Sept. 1978), at I-1--I-3
                                     30

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      Q.   What  type  and  frequency of calibration is performed on this
          equipment  to ensure  its accuracy [field calibration and system
          calibration by certifying laboratory]?

      Q.   Was this equipment set up and located according to procedures
          established in [cite relevant provisions from regulations or
          test  procedures manual]?

      Q.   Was the equipment tested for accuracy on the date of the ob-
          served violation?  If so, how?  [Answer desired is that a daily
          fixed field calibration was done at setup, and a system calibra-
          tion  was certified no more than 6 months earlier].

      Q.   Was (were) the test(s) satisfactory?

      Q.   Were  the results recorded?

      Another series of questions should be aimed at establishing the relia-

 bility of the  sound level  measuring tests by eliminating possible extraneous

 influences.  For example:

      Q.   Describe the set up procedure you used in setting up the sound level
          meter [mounting procedures, distance from noise source, use of wind-
          screen, height and positioning of microphone, and other relevant
          factors].

      Q.   Did you hear any  other noise sources that could have caused an erron-
          eous  reading?

      Q.   Were  there any reflecting surfaces near your monitoring location
          that  would induce an error in your reading?

      Q.   What  were the weather conditions?

      Q.   At what distance  from the property line was the sound meter reading
          taken?

BURDEN AND ORDER OF PROOF

     The  burden of  proof in a civil  case is proof by a preponderance of the

evidence.  If a criminal remedy is sought,  the burden is proof beyond a

reasonable doubt.   The following is the suggested order of proof,  beginning

with the topographic and geographic features of this site:

     *   Physical  Facts -  The location of the noise source,  and  receptor;
         the type  of activities conducted in the area;  and the  structures
          (buildings) present;
                                     31

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     *   Source - Evidence should be entered to establish and prove the
         source of the noise and its connection to the defendant;

     *   Proper Measurement Techniques - Expert witnesses should be called
         to testify about what noise is and how sound level  measurements
         are taken;

     *   Violation - Evidence of statutory or common law provision and a
         violation of such provisions is essential;

     *   Remedies - Appropriate remedies should be requested and substantiated
         by necessary justifications.  For example,  a request for injunctive
         relief should be accompanied by proof of immediate  and irreparable
         harm.   Requests for fines should specify the amount and duration of
         the fine and should otherwise justify such  relief.   (Fines,  if appro-
         priate, usually are spelled-out in the relevant ordinance.)

REMEDIES

     Remedies available for a property line standard violation include fines,

injunctive relief, abatement orders, and an order for corrective action.

     An injunction is a suitable remedy for a violation of property line stan-

dards.  For guidelines to show an immediate threat to health and welfare of cer-

tain sound levels in extreme cases, the prosecutor may wish  to refer to Tables

IV and V of Article XI of the Model Ordinance.

DEFENSES

     A number of procedural, technological, and substantive  arguments may be

asserted as defenses to prosecution for violation of a property line ordinance,

typically to no avail, however-

Procedural Defenses

     Procedural omissions such as failure to obtain  valid authorization to

enter private property where necessary, or failure to preserve the chain of

custody for evidentiary materials, could prompt a successful defense challenge.

Technological Defenses

     The defense may attack the validity of the prosecutor's sound level mea-

surement evidence on cross-examination or present its own opposing expert tesi-
                                     32

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mony.  The defense may challenge, for example, sound level readings taken under
atypical physical  and environmental  conditions.
Substantive Defenses
     A property line case which directly contests the existence of a violation
is the easiest challenge.   Defense counsel  may suggest that the wrong party was
charged with the violation, and question the correctness of the noise source
identification.   If the site is a multiple  unit  dwelling or a business complex,
the proper party must always be identified.   Defenses based on local  zoning pro-
tection for pre-existing uses,  variances, and non-conforming use exemptions
also may be raised in a property  line standards  case.
                                    33

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                          CHAPTER 4:  MOTOR VEHICLES
MODEL COMMUNITY NOISE CONTROL ORDINANCE: ARTICLE IX, Motor Vehicle
Maximum Sound Levels

     9.1     Motor Vehicles and Motorcycles on
             Public Rights-of-Way

             No person shall operate or cause to
             be operated a public or private motor
             vehicle or motorcycle on a public
             right-of-way at any time in such a
             manner that the sound level emitted
             by the motor vehicle or motorcycle
             exceeds the level set forth in Table II.
                            TABLE II
           MOTOR VEHICLE AND MOTORCYCLE SOUND LIMITS
               (MEASURED AT 50 FEET OR 15 METERS)*
                               	Sound Level in dBA	
                                 Speed Limit   Speed Limit  Stationary
     Vehicle Class             35 MPH or Less  Over 35 MPH  Run-up

   **Motor Carrier Vehicle engaged    86           90          88
     in  interstate commerce of
     GVWR or GCWR of 10,000 Ibs.
     or  more

     All other motor vehicles of      A            B
     GVWR or GCWR of 10,000 Ibs.
     or  more

     Any motorcycle                   C            D

     Any other motor vehicle or any   E            F
     combination of vehicles towed
     by  any motor vehicle


 * Federal and many state and local regulations permit use of a sliding
   decibel scale based upon alternative measurement distances.

** These are the Federal standards promulgated by EPA, effective on
   October 15, 1975, 40 C.F.R. §202.20 (1978).
                                     34

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 SUMMARY

      Section  9.1 of  the Model Ordinance is aimed at controlling  the  noisy  opera-

 tion  of motor vehicles and motorcycles on public streets.  What  the  prosecutor

 must  show  in  such cases is proof that the defendant was operating a  vehicle  that

 emitted noise in excess of proscribed limits.  Testimony of the  apprehending

 officer along with scientific evidence likely will play a major  role  in this

 offer of proof.  Not all courts will take judicial notice of the reliability of

 sound measuring devices, in which case a foundation must be laid.  In all  cases,

 however, courts will want some proof that the particular monitoring  equipment

 used  was proper and  in proper working condition and that the person  using  it

 was a  qualified operator.

      This  chapter outlines a series of questions designed to establish proof of

 a motor vehicle violation and proof of the reliability of the sound  level  meter.

 It also details the  types of information that could be asked of  the  apprehending

 officer, if that individual is someone other than the monitoring officer.

      Either the civil (preponderance of the evidence) or criminal (beyond  a rea-

 sonable doubt) standard of proof will  apply, depending on how the particular

 jurisdiction  defines a motor vehicle noise violation.  Remedies  range from notice

 of violation, to abatement orders,  to penalties.  Lack of notice, as in radar

 cases, may be a viable defense in some jurisdictions.

 ELEMENTS OF THE CAUSE OF ACTION

     In order to successfully prosecute a motor vehicle operator, the prosecutor

must be able to show that:

     *  The defendent operated or caused to be operated a motor vehicle
        or motorcycle on a public right-of-way;  and

     *  The motor vehicle  or motorcycle was operated in such a manner
        that the sound level  emitted exceeded the limits established
        in- the ordinance.
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TYPES OF EVIDENCE TO SATISFY ELEMENTS
Scientific Evidence
     As with prosecutions for exceeding permissible receiving land use sound
levels (see Ch. 3), scientific evidence may play a major role in motor vehicle
noise violation cases.
     The use of objective sound level standards and sound level  meters to en-
force motor vehicle noise standards has not been challenged extensively in
court.  However, sound level meters used in noise enforcement are similar to
radar speedmeters used in speed limit enforcement.  As an analogous technology
and mode of enforcement, the legal development of radar speedmeter readings
as admissible  evidence should prove highly supportive in the development of
case law involving the use of sound level meter readings as evidence.1
Establishing the Validity of Sound Level Meter Evidence
     When  data secured by the use of sound level measuring devices are placed
in evidence to show violation of objective noise limits, as in the case of
radar speedmeter data to show violations of speed limits, a court may require
expert testimony on the nature and function of sound level measuring devices
and the scientific principles upon which they are based.2
     Before offering testimony regarding the scientific validity and accuracy
of the sound level measuring device, a  foundation is laid through establishing
the qualifications of the witness.  (See Chapter 7, Trial Techniques, infra.
     This  testimony constitutes the first part of the foundation necessary
before evidence produced by sound measuring devices may be admitted in court.
1 See Annot.,  47  A.L.R.  3d 822  (1973)  (admissibility of  radar  speedmeter
  evidence);  see  also, Chapter  3,  note  1,  supra.
2 See discussion  Chapter 3,  Property Line  Standards, supra.
                                      3-6

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 In courts where judicial  notice  of  sound measuring  device  reliability  has  been

 taken,  this step may  not  be  necessary,  but  the  prosecutor  must  be  able to  demon-

 strate  in all  cases  that  the particular equipment used was  of an appropriate

 type and in proper working condition, and that  the  person  using the  device was

 qua!ified to do so.3

 Testimony of the Officer  Operating  Sound Level  Meter

      The testimony (after qualification) of the officer who monitored  the

 sound level  measuring device should describe:

      *   The equipment used;

      *   The system calibration procedure performed  by a certifying
         laboratory to assure accuracy and proper operation  of the
         equipment;

      *   The field calibration of the equipment  for  proper operation  and
         accuracy,  made on the day the particular measurement for which
         defendant was charged with  exceeding the noise limits;

      *   The  location  of the  monitoring  device;

      *   The  officer's  procedure in  setting up the equipment according  to
         the  regulations in effect in the jurisdiction on the day the
         particular measurement for  which defendant  was charged  with
         exceeding  the  noise  limits  was  made;

      *   Any  environmental conditions that would affect the  noise level
         reading  and any corrective  measures taken,  e.g., use of wind
         screen.

      *   A  description  of  the vehicle involved in the alleged noise ordinance
         violation, including its color, make, and license number;

      *   The  recorded  sound level emitted by the defendant's vehicle
         at the time it was monitored, as shown by the sound level
         meter;

      *   The  conveyance of pertinent information regarding identity of
         the  offending vehicle and noise level reading to the appre-
         hending  officer, where the monitoring officer is not the same
         individual as the apprehending  officer.
3 See 2 Am. Jur. Proof of Facts 2d, 545-608(1974),


                                     37

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Sample Questions for Officer Operating Sound Level  Meter

     After qualifying the officer, the following sample questions  may  help  es

tablish a violation.

     Q.  Describe the noise level standards that are enforced
         in this jurisdiction.

     Q.  At about [time] on [date] did you observe  a [color and
         make of vehicle] with [state] license number	
         near [location]?

     Q.  In what direction was it traveling?

     Q.  In what lane?

     Q.  Did you obtain a noise reading of this vehicle?

     Q.  What was that reading?

     Q.  Is that in violation of [jurisdiction] noise ordinance
         levels for vehicles of that class?

     Q.  By how much?

     Q.  What is the significance of this difference?

     Q.  What did you do after you noted the apparent violation on  the
         the sound level meter?

  [Give testimony regarding observation of vehicle, recording of color,
  make, license number, other identifying particulars,  and of notifying
  officer in apprehending vehicle by radio.]

     Q.  Did you observe officer [give name] give chase and
         apprehend this vehicle?

     Q.  When you noted the apparent violation, were there any other
         vehicles in the measurement zone?

     Q.  Did you note any other noise sources that  could have
         caused an erroneous reading on the vehicle in  viola-
         tion?

     Q.  Were there any reflecting surfaces near your monitor-
         ing location that would induce an error in your
         reading?

     Q.  What was the ambient level  observed at that time?
                                     38

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     Q.  Is this level more than (6dBA/10dBA)4 below your enforce-
         ment level?

     Q.  Why is this difference significant?

  [Give testimony to explain the relevance of ambient noise levels to
  enforcement monitoring readings.   An ambient level of 10 dBA less
  than the maximum permitted ordinance level would add less than .5 dBA
  to the reading if the vehicle emitted noise at the maximum permissible
  level.  An ambient of more than 10 dBA below the maximum would con-
  tribute even less and would be functionally negligible in the total
  reading.]

     Q.  Describe the sound measuring equipment used to record the noise
         level.

     Q.  Where was the equipment located when you measured the
         noise?

     Q.  Describe the procedure for sound level meter set up.

  [Give testimony relating to mounting procedures, distance from
  traffic, use of windscreen, height of microphone, angle of micro-
  phone to traffic, and other relevant factors.]

     Q.  Was this equipment set up  conducted in accordance with
         the criteria established in [cite relevant provisions
         from regulations or test procedures manual"!?

     Q.  What do your regulations require as to factory and field
         calibration of the equipment?

     Q.  How did-you meet these requirements?

     It may be helpful to supply the document which certifies the most recent

calibration by the manufacturer and the field report which documents the field

calibration.  It may also be good strategy to show the judge the equipment and

its dynamic range to illustrate the ease of interpretation of the noise reading

observed.

Testimony of the Apprehending Officer -- The apprehending officer should be

called to testify to facts within his or her own knowledge relating to flagging
4 There is a variation among jurisdictions as to the maximum ambient
  level permissible at the time of vehicle monitoring—from 6 dBA to
  10 dBA below the enforcement level.
                                     39

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 down the vehicle and to issuing the "ticket" or summons.   (If the monitoring

 officer and apprehending officer are the same person,  the sample questions

 presented on the preceding pages of this Manual should suffice.)

      The testimony (after qualification) of the apprehending officer at a

 minimum should show:

      *  Communications from the monitoring officer relating to the offending
         vehicle and its driver, including a description of the alleged
         violator and the color, make,  and license number of the alleged
         violating vehicle;

      *  Conversations with the defendant pertinent to  the excessive
         noise charge, especially those showing defendant's reaction to
         information obtained from the monitoring officer and repeated
         to the defendant.

 Sample Questions for Apprehending Officer

      Q.  At about [time of offense] on [date of offense]  did you
          issue a citation to (.operator "of~offending vehicle],
          operator of a [co1or~a"nd make of vehicle] with [state]
          license numberTnumberJ?

      Q.  Can you now identify that person to whom you  issued the
          citation?  Please point out the individual in this courtroom.

      Q.  Can you describe the events leading to the issuance of
          the citation?

      Q.  What did you say to the defendant at the time you issued the
          citation?

      Q.  Did you conduct a visual inspection of the exhaust
          system of this vehicle?

      Q.  What did you observe?

      Q.  On visual inspection of the equipment of this vehicle's
          exhaust system, was there any doubt in your mind that
          this vehicle was the source of the noise observed in
          violation?

      Q.  Did you then issue a citation to the defendant driver?

     On a finding of guilty, and if local procedures permit, it may be advisable

to move that the defendant be granted a reasonable period of time in which  to

correct the malfunction and to have it tested.
                                      40

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 BURDEN AND ORDER OF PROOF

 Burden of Proof

      In order to gain  a  conviction  under  this  provision  in  jurisdictions that

 treat violations as criminal  actions,  each  element  of  the offense  must be proven

 beyond a reasonable doubt.5   Otherwise, the civil standard  of  proof  (preponder-

 ance of the evidence)  applies.

 Order of Proof

      The suggested  order of  proof follows the  order of testimony to

 the  effect that:

      *  The sound level  measuring device was properly  set up;

      *  The sound level  measuring device was working and the meter
         reading  was accurate;

      *  The sound level  measuring device and apprehending vehicle were
         in sight of each other but  separated by a reasonable distance
         (in jurisdictions where this is required);

      *  Calibration  tests for accuracy of the  sound level measuring
         device were made;

      *   The sound level  meter operator had  seen and heard the  suspect
         vehicle;

      *   The proper  defendant was apprehended and given the  "ticket", the
         notice to appear, and the summons.

REMEDIES

      Potential remedies  available for violations of motor vehicle noise pro-

visions  include  notice of violation, abatement orders, and  penalties.  For

specifics, _see Model Ordinance, Article XI,  Enforcement [Appendix C].

DEFENSES

     Prosecutors  can expect several  defenses to be raised in a prosecution for

violation of a noise control  ordinance provision relating to motor vehicle
5 C. Torcia, Wharton's Criminal Evidence §11 (13th ed.  1972!


                                     41

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operation.  Some of these defenses have been advanced in radar speedometer
cases but have met with little success.
Reliability of Equipment, and Qualifications of Monitoring Officials
     The defense may attack the direct testimony of the expert witness and mon-
itoring officer, or the defense may bring in their own expert to testify that
the sound measuring device might give erroneous readings under certain condi-
tions.  Well-documented evidence and expert testimony regarding the proper
testing and operation of the monitoring equipment used to help apprehend the
defendant should serve to minimize the impact of this defense, however.
     Similarly, a defense question on the qualifications of police officers who
operate the monitoring equipment may be rebutted by careful presentation of the
officers' training and experience.
Lack of Required Notice
     Some jurisdictions require the posting of readily visible signs to provide
notice that radar, for example, is in use in the vicinity.   Communities may be
advised to do this in regard to motor vehicle noise enforcement.  The City of
Bloomington, Minnesota, for example, posts roadway s.igns that read:  "Noise
Ordinance Enforced - City of Bloomington - Ord. 10.29.015."  In jurisdictions
where such a requirement exists, it will be necessary to present evidence of
compliance with the notice requirement to counter defense claims of lack of
notice.
Unconsti tuti onali ty
     Statutes allowing the use of radio microwaves and other electrical devices
to determine motor vehicle speed have been attacked on constitutional grounds
as violative of rights under the Due Process Clause of the Fourteenth Amendment
Courts have held, however, that radar results can be accepted as prima facie
                                     42

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evidence of the speed of a motor vehicle without contravening the Fourteenth

Amendment.6

     If the evidentiary relationship between a noise level meter reading and

the actual noise emission level of the motor vehicle can be demonstrated and a

reasonable (through rebuttable) presumption raised that a reading in excess of

limits indicates a noise violation, due process problems should be minimal.7

Apprehension of Wrong Vehicle

     The "mistake" argument might be raised in cases where traffic was heavy at

the time .of the violation and where more than one vehicle might have been in

the "zone of influence" of the sound meter at the time the defendant's vehicle

was being monitored.   However, since it is good measurement practice that en-

forcement officers not cite a vehicle moving in heavy traffic, mistaken identity

should not create such a problem.
6 See, e.g., Dooley v.  Commonwealth,  198 Va. 32, 92 S.E. 2d 348 (1956)
  ("The test for constitutionality of statutes making proof of a certain
  fact prima facie or presumptive evidence of another fact is whether
  there is a natural  and rational evidentiary relation between the fact
  proven and the fact presumed.")

7 Noise Enforcement Division, U.S. Environmental Protection Agency,
  State and Local  Hornbook (Draft, May 1, 1978).
                                     43

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              CHAPTER 5:  TAMPERING PROHIBITIONS


MODEL COMMUNITY NOISE CONTROL ORDINANCE:  ARTICLE VI, Prohibited Acts

          6.2.18 Tampering

               The following acts or the causing
               thereof are prohibited:

               (a) The removal or rendering inop-
               erative by any person other than for
               purposes of maintenance, repair, or
               replacement, of any noise control de-
               vice or element of design or noise
               label of any product identified under
               Section 4.3.6.  The EPO/NCO may, by
               regulation, list those acts which
               constitute violation of this provision.
               [b. The (intentional) moving or rend-
               ering inaccurate or inoperative of
               any sound monitoring instrument or
               device positioned by or for the EPO/
               NCO, provided such device or the
               immediate area is clearly labeled, in
               accordance with EPO/NCO regulation,
               to warn of the potential illegality.]
               (c) Use of a product identified,
               under Section 4.3.6, which has had a
               noise control device or element of
               design or noise label removed or ren-
               dered inoperative, with knowledge
               that such action has occurred.

MODEL COMMUNITY NOISE CONTROL ORDINANCE:  ARTICLE IX, Motor Vehicle Maximum
Sound Levels

          9.1.1  Adequate Mufflers or Sound
                 Dissipative Devices

               (a) No person shall operate or cause to
               be operated any motor vehicle or motor-
               cycle not equipped with a muffler or
               other sound dissipative device in good
               working order and in consistent opera
               tion;
               (b) No person shall remove or render in-
               operative, or cause to be removed or
               rendered inoperative, other than for
               purposes of maintenance, repair, or re-
               placement, any muffler or sound dissi-
               pative device on a motor vehicle or
               or motorcycle;

                                     44

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                (c) The EPO/NCO may, by (guidelines)
                (regulations subject to approval by
                	), list those acts which
                constitute violation of this section.1

FEDERAL TAMPERING PROHIBITIONS

     The Environmental Protection Agency has promulgated emission standards
for portable air compressors2 and medium and heavy duty trucks.3 These regula-
tions require that labels be attached to such products; labels that plainly
reflect EPA prohibitions against tampering.4
1 The Uniform Vehicle Code has been used as a guide for motor vehicle laws by
  most states and almost all states have adopted this particular section which
  requires vehicles to be equipped with adequate mufflers.  Some states go even
  further; California requires that the muffler be properly maintained and pro-
  hibits modification of a vehicle's exhaust system in a manner that increases
  noise emission.  The muffler requirement is an effective tool for controlling
  motor vehicle noise.  Most of the citations issued by the California Highway
  Patrol and by local police departments are issued under these sections re-
  quiring adequate mufflers.  Even though a sound level meter is used, the
  section establishing maximum permissible noise levels is rarely cited.  See,
  e.g., UNIFORM VEHICLE CODE §12-402:

          § 12-402--Noise prevention,  mufflers

          (a) Every vehicle shall  be equipped, maintained and operated so
          as to prevent excessive  or unusual  noise.  Every motor vehicle
          shall  at all times be equipped with a muffler or other effective
          noise suppressing system in  good working order and in constant
          operation, and no person shall use a muffler cut-out, bypass or
          similar device. (REVISED, 1971.)

2 EPA Noise Emission Standards for Construction Equipment; Portable Air
  Compressors,  40 C.F.R. Part 204  (1978).

3 EPA Transportation Equipment Noise Emission Controls; Medium and Heavy
  Trucks,  40 C.F.R.  Part 205 (1978).

4 For example,  air compressor labelling regulations require, this statement:
     "This Compressor conforms to  U.S.  E.P.A. regulations for Noise
     Emissions  Applicable to Portable  Air Compressors."  The following
     acts  or causing thereof by any person are prohibited by the Noise
     Control  Act of 1972:

     (A)   The removal or rendering inoperative,, other than for the
          purpose of maintenance,  repair, or replacement, of any noise
          control  device, or element of design (listed in the owner's
          manual)  incorporated into the compressor in compliance with
          the Noise  Control  Act.

     (8)   The use of this compressor after such device or element
          of design  has been removed or rendered inoperative."
          (40 C.F.R. §204.55-8)

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SUMMARY
      Model Ordinance Section 6.2.18 is a general tampering prohibition provision,
 while section 9.9.1 specifically applies to motor vehicle tampering.
      A tampering prosecution generally involves either one or both of two types
 of conduct:  1) removing (or making inoperative) a noise control  device;  and 2)
 using the device or vehicle whose noise control system no longer functions.
 Separate causes of action apply to each type of conduct.
      An element common to both a product and a motor vehicle cause of action
 for removing or making inoperative a noise control device is the requirement
 that repair, maintenance or replacement was not the purpose of such conduct.
 However, when use of a tampered product or motor vehicle is the allegation,  a
 difference in proof requirements appears under the Model Ordinance.  A prose-
 cution for use of a tampered-with product requires proof that the defendant
 knew that the device had been tampered with.  A prosecution for use of a
 tampered-with motor vehicle, on the other hand, does not require similar  proof
 of knowledge.
      Proof of tampering should endeavor to show that the product or motor
 vehicle was in a condition proscribed by a tampering statute and its regulations.
 Pages 50-51 provide question and answer samples for direct examination of a
 manufacturer's representative, mechanic, or noise technician to show tampering.
      The most difficult element to prove in a product use prosecution is  the
 defendant's knowledge of the tampering.  The prosecutor might link tampering
 and subsequent use allegations together in the same complaint since proof that
 the defendant tampered with a product will also fulfill the knowledge element
 of the "use" prosecution.
      The remedies for tampering violations are standard remedies like those
 described in the Model Ordinance (Article XI)[Appendix C].   Certain statutory,

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evidentiary, and substantive defenses are described on pages 54-56 of this
chapter.
TAMPERING CAUSES OF ACTION
     There are two types of conduct that may lead to prosecution for tampering:
1) the removal (or rendering inoperative) of noise control  devices or labels;
and 2) the use of a product or vehicle that has been tampered with.
     To successfully prosecute a case of tampering with a product that is not a
motor vehicle the prosecutor must show that:
     *  The product allegedly tampered with was required by law to have a noise
        control device, element of design or label,  and was listed, as under
        Section 4.3.6 (Model Ordinance), as a product for which a tampering
        action may be brought;
     *  The defendant removed, rendered inoperative, or caused to be removed a
        noise control  device, element of design, or label;
     *  This removal  or rendering inoperative was not for the purposes of repair,
        replacement or maintenance of the product; and
     *  The tampered-with product exceeded noise emission limits (applicable
        only to actions based on Federal tampering regulations).
     A separate action for the use of a tampered product also lies.  It has
three elements:
     *  The product alleged  to have  been used improperly was required by statute
        to have a  noise control  device, element of design,  or noise label,  and
        was listed as  under Section 4.3.6 (Model Ordinance),  as a product for
        which  a tampering action may  be brought;
     *  The defendant  made use of a product whose noise control  device,  element
        of design,  or  noise label  had been removed or rendered inoperative;  and
                                     47

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      *  The defendant knew that the noise control  device, element of design,
         or label  had been removed or rendered inoperative.
      Because a single defendant may be guilty of both tampering and of the
 subsequent use of the tampered product, a prosecutor's best course of action
 may be to charge the defendant with both violations in the same complaint.
 With these charges linked together, proof that the defendant tampered with a
 product would also fulfill the knowledge element of the "use" prosecution.
      Prosecution of a motor vehicle tampering case follows a similar
 pattern.  Two elements must be proven:
      *  The defendant removed, rendered inoperative, or caused to be removed  or
         rendered inoperative a muffler or sound dissipative device; and
      *  This removal, rendering inoperative or causing thereof was not for
         purposes of repair, maintenance or replacement.
      The operator using a motor vehicle that has been tampered with can also  be
 prosecuted, based on proof that:
      *  The defendant operated or caused to be operated a motor vehicle;  and
      *  The motor vehicle at issue lacked a muffler or other sound di'ssipative
         device in good working order or in constant operation.
      Again,, it may be sound trial strategy to join both motor vehicle violations
 in the same complaint.  Note that the motor vehicle provisions of the Model
 Ordinance do not require a showing that the defendant knew that the vehicle had
 been tampered with or knew that the muffler was defective.
TYPES OF EVIDENCE TO SATISFY ELEMENTS
Evidence of Statutory Controls
     The prosecutor's task of proving a tampering case is made easier in circum-
stances where product standards or state and local  regulations specifically
require that a noise control device, element of design, or label be attached  to
                                      48

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the product.  The owner's manual accompanying certain products, for example, may
carry a list of activities that constitute "tampering" with the product.  Such
lists are compiled by EPA after submission by the manufacturer of a proposed
tampering list and are updated from time to time.
     Having established that product regulations are in effect, the prosecutor
must further show that the defendant's product is of a model year that was regu-
lated.
Proof of Tampering
     It is unlikely that a noise control officer will directly observe a defendant
tampering with a product or a motor vehicle.   More likely, the officer will
encounter potential  noise violations indirectly during the course of daily enforce-
ment duties.  However discovered,  to demonstrate that someone has removed or
altered a noise control device, the prosecutor must be able to show that the
product was in a condition prohibited by a tampering statute or its regulations.
That should not be difficult in a  case, for example, where a noise control officer
has observed that a muffler no longer is attached to an air compressor and could
so testify on direct examination.   In other cases where an alteration affected
an element of design or was otherwise less apparent, additional witnesses may
be necessary.  A noise technician  from the Noise Control  Office (or a police
lab technician), for example, could testify regarding the deviation between
manufacturer's specifications and  the present state of the tampered product.
      Other techniques to describe the tampering activity to the court might
 include the use of photographs.  Photographs could be taken of properly installed
 product noise control equipment and contrasted with photographs of the tampered
 product.   In most jurisdictions these photographs would  need to be authenticated
 or verified by a witness who had  observed what the photographs purported to
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show and who could affirm that the photographs fairly depicted what the witness

observed.

Sample Questions and Answers for Manufacturer's Representative, Mechanic or
Noise Technician to Show Tampering

     Qualify the witness as an expert on product design and construction.

Stress experience, or exposure to noise control devices, mechanical or environ-

mental engineering background, and other technical education.  If the witness

is a product salesman or mechanic, focus on the length of employment and training

with the particular company, responsibilities, and depth of knowledge with

product  lines and design:

Q.  Are you familiar with the product (or photograph of the product) I am
    showing you now?
A.  Yes.

Q.  Could you identify  it for the court?
A.  Yes, it is a portable air compressor, sold by the ABC Company
    under the model name Pressure Builder, Model Mo. Series 2001.

Q.  J\re you familiar with design and construction of this product?
A.  Yes.

Q.  Does it contain any device or element of design to control noise
    emissions?
A.  Yes, starting with  Models in 1977 all portable air compressors were
    required to have noise control devices.

Q.  Could you describe  them?
A.  Yes.  There are a number of features incorporated to reduce noise.
    I  have the product  blueprints with me to help explain these features.
    [Lay foundation for these and enter  into evidence.]

Q.  Could you describe  the nofse control devices found on the  Pressure
    Builder air compressor?
A.  There are two baffle type mufflers,  insulated exhaust pipes, and a specially
    designed exhaust manifold as the primary noise control system.  The  compressor
    has  rubber rather than chain belts in the  drive train and  uses a special
    transmission with nylon gears.

Q.  Were these features manufactured into all  Pressure Builder air compressors
    of the model, year  and series we are discussing?
A.  Yes, to comply with Federal performance standards.
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Q.  Were  buyers of this product informed about these features?
A.  Yes.  The air compressor has a label which informs purchasers of the manda-
    tory  incorporation of noise control devices.  In addition, the instruction
    manual, given to purchasers at time of sale, describes the noise control
    devices, gives maintenance schedules and techniques and includes a list of
    prohibited activities with regard to the noise control aspects of each
    product.

Q.  Did you have cause to examine a Pressure Builder air compressor for the
    police/NCO?
A.  Yes,  at the request of Sgt. Boomer of the Police Evidence Laboratory, I
    accompanied him to examine an air compressor on January 1, 1979, at the
    Police Impoundment Lot.

Q.  What  was the serial number, make, model, and year of this compressor?
A.  (Referring to notes)  It was a 1978 "Pressure Builder" air compressor,
    Serial Number G00007.

Q.  Was there anything unusual about this particular compressor?  What was its
    condition?
A.  The compressor was in most respects normal, reflecting a little wear and
    tear.  However, three modifications had been made to the noise control
    equipment.

Q.  What  were they?
A.  The two mufflers had been removed and in their place a piece of straight,
    non-insulated tailpipe had been welded.   Secondly,  the rubber belt had been
    replaced with what appeared to be a bicycle chain and the pulley replaced
    with  a toothed sprocket.   Additionally,  a standard transmission lubricant
    was in the gear box.

Q.  What  if any, effect would these modifications have on the performance of
    the air compressor?
A.  They  would make the product appreciably louder.   I  operated the air compressor
    at the Police Impoundment Lot and the noise it produced was deafening—far
    louder than a properly equipped air compressor.

Q.  Were  any of these alterations specified as improper alterations in the
    operations manual you mentioned earlier?
A.  Yes,  all  three.

Q.  Are the replacement parts required for this compressor stocked, and on hand
    at the ABC dealership?
A.  Yes,  these are standard parts, interchangeable among several  ABC products.
    A sizeable inventory of each is maintained at the ABC warehouse.

Q.  Thank you  very much.  No  further questions.

    The presentation in court of a tampered product and its unmodified counter-

part is useful  to show the tampered status of a product,  but it will  not show

who the actors were  in this tampering activity.  Direct evidence  that links the
                                     51

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tampered status of a product with actions of the defendant owners may be diffi-
cult to find.  Circumstantial evidence, therefore, will be critical.  This
might include testimony:  1) from product distributors stating that at the time
of sale the product contained a noise control device; 2) from the product owner,
that the product had been continuously possessed since purchase; and 3) from
any intervening borrower as to the condition of the borrowed product.  The
goal of such evidence is to show that the product has been within the defendant's
control since purchase, allowing the reasonable inference that any changes to
it were caused by (or were made with the consent of) the defendant owner-
Evidence of Use of Tampered Product
     Proof of a defendant's violation of the prohibition against use of a tampered
product is relatively straightforward, with one exception.  Testimony by the
noise control or police officer should be sufficient to show that the defendant
operated a product that, by other testimony, has been shown to have been tampered
with.  The most difficult element to prove will be that the defendant had
knowledge that the product had been tampered with.
Evidence of Motor Vehicle Tampering
     Motor vehicle noise violations usually are not as difficult to proved  Tam-
pering prohibitions generally are directed against the removal of mufflers or
other sound dissipative devices.  The presence of (or absence of) a muffler can
be spotted easily and the testimony of an apprehending officer should be conclus-
ive.  Photographic evidence can provide additional support.  When the identity
  The judicial rationale offered is that "motor vehicles are operated daily
  within the view and hearing of citizens even in sparsely populated areas, and
  that any ordinary and interested person would have no difficulty in determining
  whether or not exclusive and unusual noise or offensive or excessive exhaust
  fumes were being emitted from a particular motor vehicle." Department of Public
  Safety v. Buck, 256 S.W.2d 642 (1953).
                                     52

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of the tamperer cannot be proven directly,  ownership and circumstantial evidence
may be available to create a presumption as to who the tamperer is.
BURDEN AND ORDER OF PROOF
     The burden of proof will  vary for each of the above violations  depending
on whether individual  jurisdictions decide  to handle the violation as criminal
or civil in nature.
     The order of proof will  depend on the  facts involved in each case.
Generally, the following guidelines are suggested:
     *  Establish the  regulatory context—i .e.,  the specific activities that
        are proscribed by regulation;
     *  Establish that the defendant's product or motor vehicle is subject to
        these provisions;
     *  Establish defendant's  control, use  or operation of product or motor
        vehicle.
     *  Establish the  physical  condition of the  defendant's product  through
        technical  testimony by  the NCO, noise technician,  manufacturer's
        representative, or shop mechanic.
     *  Establish the  distinction between physical  condition of defendant's
        product and unaltered  new product by introducing manufacturer's
        specifications (and/or  manufacturer's representative's  testimony),
        testimony of MCO, noise or police  lab technician.
     *  Establish,  for use violation,  defendant's operation of  tampered product
        or vehicle by  apprehending NCO or police testimony.
     *  Establish,  for product  use violation, defendant's  knowledge  of tampered
        condition of product (not applicable to  motor vehicles)  by proving
        possession  of  knowledge in fact.
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     *  Establish (for removal allegation for products or motor vehicles)
        defendant's responsibility directly or through inference of possession.
     *  Specify remedies requested and the proof of facts necessary to support
        the request.
REMEDIES
     The remedies available for violations of tampering provisions are the same
as those for other provisions of the Model Ordinance.  They range from penalties,
to abatement orders, to' injunctive relief where the circumstances warrant such
relief.  See Model Ordinance, Article XI, Enforcement [Appendix C].
DEFENSES
     There are several defenses that the prosecutor should anticipate in a
tampering or use case.  These may be categorized in the following three groups:
     *  Statutory defenses -- preemption, unconstitutionality;
     *  Procedural and evidentiary defenses -- illegality of search; gap in
        chain of custody; failure to state a cause of action;
     *  Substantive defenses — removal for repairs; compliance with statutory
        controls; lack of knowledge; inadequacy of products.
Statutory Defenses
     An argument that Environmental Protection Agency has preempted all local
tampering regulation of products and vehicles will be ill-founded where the
described activities which constitute tampering at the local level are identical
to those identified in the Federal regulations or concern products not covered
at the time of sale by Federal regulation.
     A second possible defense might be to challenge the constitutionality
of tampering provisions.  Section 9.1.1(a) of the Model Ordinance is particularly
susceptible to such an attack because of its arguable vagueness.  It prohibits
persons from operating vehicles which do not have mufflers in "good working
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condition and in constant operation."5  However, if a jurisdiction has promulgate-1

vehicle performance standards and the muffler provisions are tied to them, this

vagueness argument should be much less persuasive.

Evidentiary Defenses

     Standard evidentiary attacks,  common to other trials, may arise in tampering

cases as well.  For example, the defense might move to suppress certain evidence

obtained by a noise control  or police officer without a search warrant.

Substantive Defense

     Several arguments may be made  to counter the proof of elements presented

by the prosecutor.   One is built into the Model  Ordinance to the extent that it

provides that tampering is not at issue if the noise device was removed for

repair, maintenance, or replacement.   However, intent to repair a product or

vehicle operated in the interim between removal  and replacement should not be

sufficient to defend against a use  violation charge.   A defendant may also
5 Such language has been upheld in challenges  to state muffler statutes,
  but while tied to other language directed to the prevention of
  "excessive and unusual  noise."   For example, an Alabama statute provides:

      Every motor vehicle shall  at all  times be equipped with a
      muffler in good working  order and in  constant operation to
      prevent excessive  or unusual  noise	Ala.  Code  §39(a)(1958).

  In upholding a similar law,  a  Texas court stated the following rationale:

      ...[t]he term "excessive and unusual  noise" as used refers to  noise
      in  excess of the usual noise which would necessarily result from
      the operation of a motor when reduced to a minimum by a muffler
      in  good working order and  in constant operation....  We overrule the
      contention that the statutes in question are invalid for indef-
      initeness.

  The court found the phrase "good working  order'and constant operation"
  a  sufficiently specific standard to define excessive noise.   Ex parte
  Trafton,  271 S.W.  2d 814 (Tex.  1953)  appeal  dismissed,  348 U.S.  301
  (1954).                               —	
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attempt to explain how a product came to be tampered with by shifting the blame

to a repair shop.  The subsequent purchaser of a used product might also allege

the prior tampered condition of a product.  These assertions conceivably could

undermine proof of causation and/or knowledge to defeat a product tampering or

use prosecution.  However, such assertions would not be effective as defenses

to motor vehicle provisions, since knowledge and causation are immaterial to

the use of a vehicle with an inadequate noise control system.

     Other possible defenses a defendant might raise include a defense of

compliance with statutory controls, and a defense that although tampering

occurred, the end result was a noise level still within the noise standard.

Statutory interpretation will most likely control the success of these defenses.

PROBLEMS IN ENFORCEMENT

     The following are unique problems for a prosecutor bringing a

tampering action:

     * A lack of Federal, State, or locally promulgated tampering pro-
       hibitions upon which localities can base tampering actions;

     * Difficulty in proving the link between tampering and the perpe-
       trator.
  See "Constitutionality of Auto Muffler Statutes:  Comments on Noise
  "Pollution Laws," 48 J. of Urban Law 755 (1971).
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                 CHAPTER 6:  SAMPLE FORMS AND PROCEDURES


SUMMARY

    Chapter 6 contains a variety of sample forms and procedures as pretrial  and

trial drafting aids for the prosecutor.  Sample civil  forms include:

     Civil Complaint:  Public Nuisance (p. 58)
     First (p. 60) and Second (p. 64) Requests for Admissions
     Interogatories (p. 61)
     Motion to Produce Documents (p. 65)
     Motion for Physical Inspection of Premises (p. 66)
     Notice of Violation (p. 69)
     Abatement Orders  (p. 70)

Sample criminal forms  include:

     Information  (p. 71)
     Indictment (p. 72)

This chapter also offers a discussion of the uses of civil  and criminal  discovery

procedures.

CIVIL COMPLAINT:  PUBLIC NUISANCE



                        STATE OF IDAHO

                     In the Supreme Court
STATE OF IDAHO
              Plaintiff                        No.    8976
     vs.
New Motor Company
               Defendant
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                                   COMPLAINT

     The State of Idaho, plaintiff herein, by its Attorney General brings this
civil action against New Motor Co., defendant herein, and for its cause of action
complains and alleges as follows:
1.  That this action is brought by the Attorney General, Idaho, in the name of
    the people of the State of Idaho.
2.  That defendant is owner of the factory [building] located at Ninth Street in
    the city of Boise, State of Idaho, more particularly described as Lot No. 6
    at the corner of Main and South Streets.
3.  That defendant for a considerable  period of time has kept and occupied, and
    now keeps and occupies, said factory.
4.  That defendant has been operating  said factory since July 4, 1963, in such a
    manner as to cause excessive noise to emanate from the plant.
5.  That said-'noise has impaired the health of the plaintiffs making them nervous
    and irritable, and has unreasonably interfered with their sleep.
6.  This loud and offensive noise continues during the day and into the late
    hours of the night.
7.  Such noise is a public nuisance and interferes with the health, safety,
    welfare, and peace of the public.

     Wherefore plaintiff demands that  the defendant, its officers, ser-
vants and agents and all persons under its authority and control be
temporarily enjoined from maintaining  and continuing to maintain a
public nuisance, and that on final  hearing the temporary injunction be
made permanent.
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Date:  July 10, 1963
                                              (signature of attorney)
                                                   Joe Marks
                                                   Attorney General
                                                   State House
                                                   State of Idaho1
DISCOVERY
Civil Discovery
     The principal tools of civil discovery are:  1) requests for admissions of
fact and genuineness of documents; 2) interrogatories directed at a party;  3)
production of documents and tangible things, including inspection of premises;
and 4) depositions of witnesses, especially of the opposing party's agents  or
employees.
Recommended Order of Discovery in a Noise Abatement Case
    *First Requests for Admissions of Fact and Genuineness of Documents
    •^Interrogatories to Defendants
    *Motion to Produce
    ^Depositions
    *Second Request for Admissions of Fact and Genuineness of Documents
    *The Pre-Trial Conference
 Penalties for Refusal to Submit to Discovery
      The precise rule controlling penalties for refusal to submit to discovery
 will differ from court to court but will generally follow the Federal  pattern.
 Penalties range from a default judgment to imposition of costs.   To invoke a
 penalty, the usual  procedure is to file a Motion To Compel the discovery sought
 and then to obtain on Order compelling the discovery.  If that Order is disobeyed,
 another Motion for Contempt is needed to impose penalties.
   5 Carmody-Wait 2d §§29:671, -:684, -:686 (1966).
                                      59

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Discovery of EPO/NCO

     Discovery is available to all parties in a civil action and can be a two-

edged sword.  The EPO/NCO should be prepared to submit to discovery.  However,

certain items such as reports from independent expert consultants not to be

used at trial, where the expert was retained by the prosecutor (not the EPO/NCO),

may be protected from "discovery as part of an attorney's work product.

Defenses to Discovery

     Except as to matters which come within the ever-narrowing ambit of privileged

information, most facts are discoverable if they are relevant.   Even irrelevant

facts are discoverable if they lead to discovery of relevant facts.   Some

defendants may resist discovery for fear that things discovered in a civil

proceeding could be incriminating and used against them in a subsequent criminal

prosecution.  Such fears, however, are easily allayed by the entry of a Protective

Order, limiting the use of such information to the civil  action.

Civil Discovery Forms

Plaintiff's First Request for Admission of Facts and Genuineness  of
Documents/Sample

     Plaintiff, through counsel, under the provisions of Rule 5 requests that

the defendant, Howard Korton, make the following admissions for purposes of

this action only:

     A.  That the following documents,  copies of which are attached as exhibits

hereto,  are genuine:

     1.1  Scale map or drawing of the defendant's premises (plant,
vehicle)  and surrounding vicinity;

    1.2  Photographs- of defendant's premises (plant, vehicle, or device;

       1.3 Table (Table IV or Table V  from Model Ordinance) from  official
EPA publication no. 	 (or 42 C.F.R § 	 );

     B.  That the following facts are true:
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     2.1 That from August 1 to August 3, 1979, the defendant operated at 330
Jackson Street, Northampton, Mass, a certain power saw which produced sound;

     2.2 That such sound was broadcast from that point daily for 8 hours per
day;

     2.3 That the document listed in request No. 1.1 above is an official,
true, and accurate map (or drawing) as prepared and published by the [City of
Northampton] and is admissible in evidence under the provisions of [Fed. R.
Evid. 902.(5) or local rule];

     2.5 That the documents listed in request No. 1.3 above are official govern-
ment publications published by the U.S. Environmental Protection Agency in the
conduct of its official duties and are documents which that agency is required
by law to publish (or, result from findings made by that agency pursuant to its
official duties) and are admissible in evidence under the provisions of [Fed.
R. Evid. 902(5) or local rule];

                                         (signature of attorney)
                                          John Jones
                                          340 Main Street
                                          Northampton, Mass.

Interrogatories to Defendant, Howard Horton

TO:    [defendant] Howard Horton
      c/o [Defendant's attorney]

     TAKE NOTICE that the following interrogatories are submitted to you under
the provisions of [Federal Rule 33 or local rule],

     When used in these Interrogatories the term "defendant"  or any synonym
thereof is intended to and shall embrace and include in addition to said de-
fendant all agents, employees, representatives, private investigators and others
who are in possession of or who have in any way obtained information for or on
behalf of the defendant.

     These interrogatories are deemed continuing and supplemental answers
shall be required immediately on receipt of further or different information
if the defendant directly or indirectly obtains such information from the time
answers are served to the time of trial.

     1. State all sources of sound emanating from your (premises) between the
dates [ March 1-6, 1972 ] .   State with respect to each:

        (a) The nature of the source, specifically identifying the
            machine, device, or other source by name, description
            and use;

        (b) The location of each such source;

        (c) The frequency of times per day or per week when each is operative.
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     2.  With respect to each source listed in Answer to No. 1 above, state
whether any tests,  recordings,  observations,  samples or estimates of the sounds
generated by it have ever been  made.   If so,  state:

        (a) The type of tests done;

        (b) The dates on which  they were done;

        (c) The names and addresses of all  persons who did them;

        (d) The names and addresses of all  persons who now have cus-
            tody of the originals or copies of the reports of same.

     3.  State whether defendant or anyone known to it has ever conducted any
tests, samples, recordings,  observations or estimates of ambient sounds outside
its (plant, premises).   If so,  state:

        (a) The type of tests done;

        (b) The dates on which  they were done;

        (c) The names and addresses of all  persons who did them;

        (d) The names and addresses of all  persons who now have cus-
            tody of the original  or copies  of the reports of same.

     6.  State with  respect to the defense alleged in paragraph [	]  of
defendant's Answer, each and every fact or opinion which is relevant to the
allegation that the excessive sound levels  complained of result from activities
of persons other than this defendant.   Identify by name, address, and nature of
sound produced, each other alleged sound source.

     7.  With respect to any  other sources listed  in  Answer to No. 6  above,
state whether defendant or anyone to  its knowledge,  has ever conducted  any
tests, samples, recordings,  observations or estimates of the sounds  produced by
such other sources  or their  contribution to ambient sounds.  If so,  state:

        (a) The nature, type and location where each was made;

        (b) The dates on which  they were made;

        (c) The names and addresses of the  persons by whom they were
            made;

        (d) The names and addresses of all  persons who now have custody
            of the  originals or copies of the reports.of same.

     8.  With respect to the  defense alleged in paragraph [	]_ of your  Answer,
state with particularity all the methods, devices, and programs you  have used
to avoid and prevent excessive  sound emanating from your (premises).  Also
state with respect  to each:
                                     62

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        (a) When each was installed and/or made operative;
        (b) Who designed each;
        (c) Who constructed each;
        (d) The cost of each.
     9. Has defendant ever had professional  consultation with respect to sound
control measures, devices, equipment or programs which have been made operative
or which are now proposed to be made operative? If so, state:
        (a) The name and address of each such person;
        (b) The data or dates of such consultations;
        (c) The purpose and subject matter of such consultations;
        (d) The names and addresses of all persons who now  have
            custody of the originals or copies of the  reports of
            such consultations.
     10. Has anyone ever recommended to defendant the  installation or imple-
mentation of sound abatement equipment, devices or programs other than those
already installed or implemented?  If so, state:
        (a) The names and addreses of all such persons;
        (b) When such recommendations were made;
        (c) What was recommended;
        (d) The names and addresses of all persons who now  have custody
            of the originals or copies of the reports  of such recom-
            mendations.
     11. Has anyone ever recommended any changes or alterations of the sound
control, damping, or abatement equipment, devices or programs which defendant
has been or now is using?  If so, state:
        (a) The names and addresses of the persons making such recom-
            mendations;
        (b) When such recommendations were made;
        (c) What changes or alterations were recommended;
        (d) At whose request such recommendations were made;
        (e) Whether such changes were made.   If so, by whom, when, and
            at what cost.  If not, state why the changes were not made.
                                     63

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        (f)  The names and addresses of all  persons who now have custody of the
            originals or copies of the reports of such recommendations.

     12.  State the address(es), title(s),  and capacity in which employed by
defendant of the person signing the Answer to these Interrogatories.   If such
person is an expert who has made any opinions or conclusions expressed in the
above answers, state what kind of expert and his or her qualifications.

     13.  State the names, addresses, and names of employers of all  other persons
who participated in the preparation of the Answers to these Interrogatories.
With respect to each such person, state his or her expert qualifications if any
and identify by interrogatory number the question or questions that each partici-
pated in  answering.

     14.  State whether defendant will, without a Motion To Produce, furnish to
plaintiff's  attorney at plaintiff's expense, copies of all documents  and tang-
ible things  referred to in answer to Nos.  2, 3,  4, 5,  7,  9, 10 and  11.  If so,
attach same  to the Answers to these Interrogatories or state at what  date and
place they will be furnished.  If not, state specifically all  objections to
such production.

                                          (signature of attorney)
                                            John Jones
                                            340  Main Street
                                            Northampton,  Mass.

Plaintiff's  Second Request for Admission of Facts and Genuineness  of  Documents

     Plaintiff, by its attorney, under the provisions  of  [Federal  Rule 60 or
local  rule]  requests the defendant to make the following  admissions for the
purposes  of  this action only:

     A.   That the following documents, copies of which are attached or have
been previously furnished to defendant are authentic and  genuine:

     1.1  Overlay to map, chart or diagram  previously attached to request l-.l
of Plaintiff's First Requests for Admissions, said overlay showing  the location
of sound  monitoring sites and sounds recorded,, calculated or estimated;

     1.2  Compilation of data showing recorded sounds stated places  and times
taken by    Stan Cole   on behalf of plaintiff;

     1.3  Compilation of data showing recorded sounds at stated times  and places
taken for defendant by   Bill Bell   ;

     1.4  Correspondence from defendant to    Jeff Hall    dated   Feb.  26,
 1972  containing admissions by defendant'concerning sound emissions;
     B.   That each of the following  statements  are true:

     2.1 The documents referred to  in 1.1,  1.2  and 1.3 above are summaries or
 compilations of data, the basis for which  are  known  to and have been made
 available for inspection by defendant and  are  admissible in evidence under the
                                     64

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 provisions of Fed. R. Evid.   803 (6)  ;
     2.2 The correspondence items listed in 1.4 and following above contain
admissions by defendant and are admissible in evidence under the provisions of
  Fed. R. Evid. 802(d)(2)
                                           (signature of attorney)
                                            John Jones
                                            340 Main Street
                                            Northampton, Mass.
                          Affidavit of Service

       Peter Smith  on oath states:  on   December 21   1978_, I served this
                                                            _
notice by mail ing a copy to each person to whom it is directed.
Motion to Produce Documents and Tangible Things

     State of New York, Plaintiff herein, by its [Attorney General/City Attorney]
moves the court for an order directing defendant to produce the following docu-
ments and tangible things relating to the merits of the matter in question in
this case for inspection and to be copied or photographed.  The documents and
articles are:

[Designate specifically the documents and/or things to be produced]

     1.  Lawn mower that is in possession of the defendant;

     2.  Sales receipt for lawn mower;

     3.  A list of the names of witnesses expected to be called by
         defendant's attorney at trial on this matter;

     Said documents and/or things shall be produced on June 15, 1979,
at 10:00 A.M. at Room 6, the Courthouse, Tenth Street, Butler City.
     Dated this 5th day of June, 1979.
                                                 (signature of presiding judge)
                                                Judge Ted Wright
                                                Superior Court.
                                                  of Bay County3
2 i Illinois and Federal Civil Practice Forms 746,  (2d ed.  1965)

3 j_d., at 756.


                                     65

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Motion For Physical Inspection of Premises
     State of Missouri, plaintiff herein, by its Attorney General, moves the
Court for an order authorizing the plaintiff, plaintiff's attorney, or plain-
tiff's duly authorized representative to enter upon Lot No. 3 located at the
corner of Magnolia and Meeting Streets [specifically designate the land or
property] and to inspect the factory [designate the property, object, or opera-
tion thereon] on the 10th day of February 1968 at 2:00 o'clock in the afternoon
(morning/noon)
of that day.
     Dated:  February 2, 1968_.
                                           Enter:  Judge Art Gibbes4
Criminal Discovery - Discussion
     Although criminal  discovery is now more limited than civil  discovery,
there is a definite trend toward expanding its scope.5  Depending on local
rules, discovery procedures for the prosecution in a criminal  case may be both
limited and reciprocal, i.e., if the defense requests  discovery  of certain
items, then the prosecution may move for similar items that are  in the control
of the defendant.6  Some jurisdictions may grant discovery to  the prosecution
independent of any prior request for discovery by the  defendant.?  Other juris-
dictions allow only the defendant to discover.
     A trend appears to be toward encouraging discovery by the parties them-
selves, without the necessity of a court order.  However, since  this trend is
4 _Id.,  at 757.
5 Practicing Law Institute, The Prosecutor's Sourcebook 302 (1969).
6 13A Bender's Forms of Discovery §8.01 (1968).
7 Fed.  R. Cr. P. 16, 18 U.S.C.A., Notes of Committee on the Judiciary, House
  Report No. 94-247.
                                     66

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 not necessarily uniform, a form for a motion to compel discovery and inspection

 is included in this chapter.

 Motion For Discovery and Inspection

      Pursuant to the authority of Article	, Texas Code of Criminal  Proced-
 ure, the District Attorney moves the Court to order the defendant to permit the
 District Attorney to inspect and copy or photograph the following documents
 and tangible objects which are in the possession of the defendant:

      1. The certificate of title and registration of defendant's motor vehicle;

      2. The muffler that was removed from defendant's motor vehicle;

      3. The names of any witnesses who heard the noise caused by the
         tampered muffler;

 NOTE:  [Some jurisdictions may require that the party moving for dis-
         covery show that the documents and tangible objects that are
         sought to be discovered are material and relevant to the cause
         of action.  Reasons for discovery must be included in the motion
         in order to limit the scope of discovery and prevent "fishing
         expeditions."]

      As the basis for this Motion, the District Attorney states that the objects
 requested are material for the following reasons:

      1. The certificate of title and registration is necessary to determine
         ownership of the motor vehicle.

     2.  The muffler is needed so that the prosecution can inspect it and de-
         termine whether it has been tampered with.

      3. The names of witnesses are needed so that it can be determined whether
         the operation of the motor 'vehicle exceeded the sound level.

      The District Attorney would further show that the items sought are in the
 possession of the defendant and cannot be examined prior to trial except by
 court order.  The materiality of the items requested will be further shown at
 the hearing on this motion.  This motion is made in good faith and not for the
 purpose of del ay.8

                                          Respectfully submitted,


                                            (signature of attorney)
                                            John Jones
                                            District Attorney
                                              of Dallas County, Texas
                                            Records Building
8 2 Tex. Crim. Forms §44.02 (1976).


                                      67

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                          Certificate of Service-

      I  hereby certify that a copy of the foregoing Motion has been  personally
 served  upon James Smith, attorney for defendant, 100 Fifth Avenue,  Dallas,
 Texas,  on  this, the 10th day of May 1979.


                                           (signature of attorney)
                                           John Jones
                                           District Attorney
                                             of Dallas County, Texas
                                           Records Building
NOTICE OF VIOLATION

     Section 11.3 of the Model Ordinance provides:

    [Except where a person is acting in good faith to comply with
     an abatement order issued pursuant to Section 11.2 (a)],
     violation of any provision of this ordinance shall be
     cause for a (notice of violation) ... to be issued by the
     EPO/NCO or other responsible enforcement (agency official)
     according to procedures (which the EPO/NCO may prescribe)/
     set forth in	).

Note that a notice of violation is not applicable to a public nuisance
action.9

Notice Checklist

     The following checklist will  assist enforcement officials in drafting a

notice of violation.   Include:

     *Name and address of person to be notified.

     *Name and address of person giving notice.

     ^Reason for giving notice.
      —required by statute
      --required by rules of court

     *Statement of facts subject to receiving notice.

     *Statement of authority requiring notice (if necessary).

     *Date by which action required by notice,  if any,  is  to be completed.
9 58 Am Jur 2d, "Nuisances"  §57 (1971).
                                     68

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     *Date of notice.

     ^Signature of person giving notice or his agent.

     *Acknowledgment or other authentication.10

Notice of Violation - Form

     To:  Larry Morgan [name]
          110 Madison Street [address]
          City of Cactus, Arizona


1.  You are hereby given notice by the City Attorney [public authority] of the
    City of Cactus, County of Tree, State of Arizona, that you have violated
    and are continuing to violate a provision of the Cactus Noise Control  Ord-
    inance.

2.  Pursuant to Section 6.1 of the Ordinance, it is necessary that such noise
    be discontinued or the following remedial method or procedure will  be  em-
    ployed:  A Civil Action will be commenced against you.

3.  In the event of your failure to"comply with the requirements of this notice,
    you will be liable for a fine not exceeding 50 dollars ($50.00) for each
    day [week, month] that the noise continues.

    Dated:    September 11   . 1979_.
                                       Signature  Janet Cleveland
                                       Official Title City AttorneyH
ABATEMENT ORDERS

     Section 11.2 of the Model Ordinance provides:

        (a) Except as provided in subsection (b), in lieu of issuing
            a notice of violation as provided for in Section,II.3,
            the EPO/NCO or other (agency/official) responsible for
            enforcement of any provision of this ordinance may issue
            an order requiring abatement of any source of sound or
            vibration alleged to be in violation of this ordinance
            within a reasonable time period and according to guide-
            lines [to be approved by appropriate authority] which
            the EPO/NCO may prescribe.

        (b) An abatement order shall not be issued:  (1) for any vio-
            lation covered by Section II.1 (b); (2) for any violation
            of	; or,  (3) when the EPO/NCO or other
10 13 Am Jur Legal Forms 2d §186.13  (1973).

11 13 Am Jur Legal Forms (2d) §188:17  (1973!
                                     69

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            enforcement (agency)  / (official)  has reason to believe
            that there will  not be compliance  with the abatement orderJ

Abatement Order - Form

     TO:  Hugh Black [name]
          206 Airport Drive  [address]
          Sioux City, Iowa

1.  You are hereby required  to abate the excessive noise that you have created
    and maintained or are continuing coming from a lawnmower [source of sound
    or vibration].

2.  The creation of this noise is in violation of §6.2.1.  of the Sioux City
    Noise Control  Ordinance.

3.  The noise must be abated  within 2 [number] days [weeks, months] from the
    date of this order either by  discontinuance or by the  following described
    remedial  method:  [	].

4.  In the event of your failure  to comply  with this abatement order,  you will
    be liable for a fine not  exceeding fifty dollars ($50)  for each day  [week
    or month] the noise continues.

     Dated:     August 10  ,  1979
                                                 (signature of attorney)
                                                  Kenneth Moore
                                                  City Attorney
                                                  City Hall
                                                   Sioux City, Iowal2

CRIMINAL FORMS

Information

     Richard Alexander, prosecuting attorney, in and for the county of
Harris, for and in behalf of the people of the Commonwealth of Virginia,
comes into said court, in the second term thereof,  in the year 1976,
and gives the court to understand and be informed,  that David Gary
[defendant] .of 80 State Street [address] in said county of Harris~and
Commonwealth of Virginia, heretofore, to: wit: On the 20th day of March,
1976_,13 David Gary [defendant] in said county of Harris intentionally
removed and rendered inoperative a noise control device on a lawn mower
[set forth essential allegations of offense]  contrary to the form of
12 13 Am Jur Legal  Forms 2d §188:17 (1973).

13 where offense is of a continuing nature (such as nuisance),  add:  "and
   on diverse other days and times between the day and the          day of
   	,19	" [alleging the first date when the offense is  claimed to
   have been committed].  Mich. Crim. Proc.  Forms, Form Mo. 108.
                                     70

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the statute in such case made and provided and against the peace and
dignity of the Commonwealth of Virginia.

                                               (signature of attorney)
                                               Richard Alexander
                                               Prosecuting Attorney in and
                                                for the County of Harris,
                                                Commonwealth of Virginia

State of   Virginia

County of   Harris

Richard Alexander prosecuting attorney in and for said county, being
duly sworn, deposes and says, that he knows the contents of the fore-
going information by him subscribed, and verily believes the same to
be true as therein set forth.

                                                 Robert Scott
     Subscribed and sworn, to before me this   25th   day of   March
1976_.

                                        Cleric of Supreme Court for

                                        Harris County, Virginia
Names of witnesses for People, indorsed on this information by
at the time of filing the same:	
Indictment


     The Grand Jurors of the State of Maine, County of Young, upon their oaths
present that   Michael Taylor  on the 13th day of  _0ctober 1979, in the city of
Royal in the county of Young and within the jurisdiction of the court, unlawfully,
wil1 fully and maliciously did tamper with and damage the noise control device
of a certain automobile belonging to   Brian Smith   with the intent to remove
said device contrary to the provisions of the Maine Noise Control Statute and
against the peace of this State, the government and dignity of the same.


                                             (signature of attorney)
                                              Edward Hall
                                              Attorney General
                                              State House
                                              Augusta, Maine

Date:    November 5   1979
                                     71

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                       CHAPTER 7:  TRIAL TECHNIQUES

SUMMARY
     At the pretrial stage, the prosecutor is advised to tap the skills of a
variety of expert consultants to develop a clear understanding of the techni-
calities that certain types of noise prosecutions present.  Considerable atten-
tion is paid to the details of selecting experts and on how to prepare them for
trail.  The text also points out the information available on noise, its causes
and effects, and how existing research can be brought to bear on a noise prose-
cution.
     At trial, an initial task for the prosecutor is to qualify the expert(s)
chosen; page 78 provides a checklist of characteristics and qualifications for
experts.  Once qualified, these experts (e.g., acoustical  engineers, medical
doctors, noise control officers) can contribute to the development of the testi-
monial evidence needed to support the requisite level of proof required on each
of the various elements of the cause of action pursued in the noise prosecution.
     Chapter 7 contains a series of question and answer scenarios designed to
establish the parameters of proof needed to:  1) demonstrate the characteristics
of sound and hearing (p. 79); 20 show the adverse effects of noise (p. 81);
3) illustrate noise control techniques (p. 84); and 4) demonstrate the reliability
of testing procedures (p. 85).  This chapter also provides concrete guidance on
still another phase of trial, that of instructing the jury.  It offers sample
jury instructions appropriate for the following causes of action:  1) public
nuisance (p. 89); 2) property line standards (p. 90); 3) motor vehicles (p.
92); and 4) tampering (p. 93).
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Preparing the Noise Violation Case
     An interview with the noise control officer/police officer who investigated
the alleged violation should help the prosecutor develop a clear understanding
of the available scientific evidence—evidence likely to play a key role in
successfully prosecuting a noise violator.   In such an interview the prosecutor
should:
     * Review the facts of the case;
     * Ask the officer to draw a diagram indicating the location of
       the noise source, the neighboring streets, and other site
       features;
     * Ask the officer to explain the mechanics and operation of the
       noise measurement device used.  (This line of inquiry will
       solidify the prosecutor's understanding of the available scien-
       tific evidence and also 'allow the prosecutor to assess the
       potential- of the officer as a trial  witness);
     * Study and understand the noise measurement readings;
     * Determine what written reports or other documentation the officer
       has prepared;
     * Determine whether the officer has ever testified in court;
     It is often helpful during trial preparation to designate as  chief consult-
 ant one expert witness who has had trial  experience and who is familiar with
the broad spectrum of issues in the case.   The primary functions of the expert
consultant at this stage will be to help the attorney understand and coordinate
all the data gathered; and to determine what other data will  be. needed by way
of tests,  samples, and research to fill in  the gaps between the facts on hand
and those to be required at trial.
Presenting the Noise  Violation Case
     Because a noise  case involves a substantial  amount of technical and scien-
tific evidence, the risk of jury confusion  must be anticipated.   Demonstrative
and testimonial evidence will assume a critical  role.
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     Typical demonstrative evidence for a noise prosecution might include:
     * A map of the area involved;
     * Tape recordings of the noise;
     * Records of recordings from the sound  level meters;
     * A diagram of the human ear in cases where hearing loss is an
       issue; and
     * The muffler or noise control device tampered with.
     Lay testimony generally will also be important in the typical noise pros-
ecution.  Lay witnesses are permitted to describe what they have heard and
whether the noise seemed to be excessive.  They may describe the effect on their
hearing and the annoyance, inconvenience, and discomfort caused by the noise.
     Noise control officers and police officers may be considered expert wit-
nesses, depending on local law.  Appropriate expert witnesses usually include
acoustical, structural or mechanical engineers, instrument experts,  and medical
doctors (audiologists and psychiatrists), and psychologists.  The medical  witness
typically completes the presentation of the case since much of the technical  evi-
dence together with lay testimony will form the foundation for the hypothetical
questions posed to the medical witness.•"•
Use of Expert Witnesses
    'Experts may be used effectively at both the pretrial and trial  stage.  Ini-
tially, the expert may help to educate the prosecuting attorney on the technical
issues.  The expert may also assist in securing and developing demonstrative
evidence for use at trial.  In noise prosecutions, as in others, expert testimony
may be based either on actual observation or hypothetical constructs.  An expert
might also be used effectively to demonstrate the operation of the sound meter
  Practicing Law Institute, Civil Litigation and Trial Techniques 95
 (1977).
                                     74

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or other sound measuring equipment to the judge and/or jury.  Another important
use of experts is in dissecting evidence presented by the defense.2
Selection of the Expert
     In noise prosecutions, as in other cases involving a great deal of scien-
tific and technical  evidence,  the testimony of the expert witness can be a
crucial, perhaps deciding, factor in the outcome of the case.3  The selection
of an expert should involve an assessment of the expert's professional  experi-
ence in a particular noise-related discipline, previous publications, previous
courtroom experience, and whether a court is likely to regard the expert as
impartial.4  The ability to communicate complex ideas using simple, easily
understood language is essential.  Although it may be necessary to use  more
than one expert to present the prosecutor's case, generally it is advisable to
use a single expert as the principal pre-trial consultant and witness.5
Preparing the Expert for Trial
     Just as the expert witness prepares the attorney for trial by explaining
the scientific problems, the attorney must prepare the expert for trial.  Even
though the expert may have previously testified in a noise prosecution, he or
she should be counseled as to  the exact nature of the specific case, the facts
2 In addition to some of the more standard texts and reference materials
  on the use of experts, two valuable sources include M.  Kraft, Using
  Experts in Civil  Cases (1977),  and Fleming, "Environmental  Litigation:
  An Analysis of Basic Strategies,  Procedures,  Substantive Rights and
  Their Effects," 9 St.  Mary's L.J.  749,  774-779 (1978).
3 See Harrison v. Indiana Auto Shredder Co., 528 F.2d 1107 (7th Cir.
  1975).
4 Fleming, "Environmental Litigation:  An Analysis of Basic Strategies,
  Procedures, Substantive Rights  and Their Effects," 9 St. Mary's L.J.
  749,775 (1978).                                      	
5 R. Keeton, Trial  Tactics and Methods 310 (1954).

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which must be brought out to prove the prosecution's case, and the types of

questions to anticipate on cross-examination.

Sources of Information

     Information on noise, its causes and effects, is available to interested

persons through Federal, state, local and private sources.  Appendix E identi-

fies Federal agency sources.  Potential sources of state and local information

are identified in the following paragraphs.  These sources may contain informa-

tion directly related to the particular matter under investigation or may simply

provide background material on analogous fact situations.

     Communities that have adopted the Model Community Noise Control  Ordinance

may assign regulatory responsibility to a number of local entities.   For example,

the Model Ordinance suggests that a hearing board or administrative  court be

established to hear ordinance violation cases, with local courts being utilized

only for administrative appeals.  These administrative hearings are  potential

sources of information as are worker compensation, occupational safety, or zon-

ing hearings.

     The Model Ordinance also recommends various application, review, and plan-

ning procedures, all of which may generate documentary evidence, for example:

     * Records and measurements reported by the owner or operator of a
       commercial or industrial activity;

     * Sound level maps and long term noise control plans;

     * Noise impact analysis of capital improvement programs;

     * Application for a special variance and application for extension
       of time;

     * Application for a variance in time to comply; and application
       for extension of time;

     * Applications to begin construction;

     * Reports of an independent testing agency certifying that sound
       attenuation measures have been incorporated into  the design and
       construction of a structure;


                                     76

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     * Full land site reports;
     * Sound analysis reports included within zoning ordinance or com-
       prehensive plan approval;  and
     * Written disclosure of excessive noise levels upon the sale or
       rental  of a structure or property to be used for human habita-
       tation.
In addition, the Environmental  Protection Officer may be charged with various
review, recommendation and inspection responsibilities, all  of which should
produce some form of written documentation.
     By Federal  law, a comprehensive environmental  impact statement (EIS) is
required for all major Federal  actions significantly affecting the environment.
Many states and some communities  have adopted similar requirements.   The compre-
hensive information contained in  an EIS may help a judge or jury appreciate the
overall significance of noise problems and may help them relate noise to other,
more widely understood types of environmental  pollution.  The EIS document may
contain charts or diagrams useful  in the courtroom, a's well  as information on
noise experts familiar with the local area.
Direct Examination of Experts
Qualifying Experts:  In General
     The following facts and circumstances brought out in the testimony of the
witness tend to establish the qualifications of any expert:
     * Educational qualifications;
       --colleges attended and degrees obtained
       --fields in which degrees  are obtained
       --academic honors awarded
       --postgraduate studies and degrees obtained
       --subjects of theses or dissertations
       --memberships in honor societies^
6 18 Am Jur 2d Proof of Facts, §21, at 152 (1974)

                                     77

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Sample Questions and Answers Showing Characteristics of Sound and Hearing

     An acoustical engineer, audiologist, or otolaryngologist may be an appro-

priate expert witness to testify about the characteristics of sound and hearing.

Q.   We have here a case in which excessive sound emissions are alleged.  What
     exactly is "sound"?

A.   Sound is a vibration in matter, in a substance of some kind.  We usually
     speak of sound as traveling in :'waves," similar to the waves on the ocean.
     (The water itself does not travel, but the wave motion does.)  Similarly,
     sound waves travel as successive vibrations through a substance.  There
     must always be a substance of some kind.

Q.   What kinds of substances transmit sound?
A-   Anything in which the molecules can "bump" against each other.  Sound will
     travel  in air, of course, but also in water, in iron (as in a railroad
     track)  and in most matter.  In fact, it can travel better in a solid, like
     the railroad track, than it can in air-

Q.   Is there a science which is concerned with sound waves?
A.   Yes, the area of science which is concerned with the production, propaga-
     tion, reception and control of sound waves is called "acoustics."

Q.   What types of sounds are there?
A.   The word "sound" is usually thought to mean only things that people hear,
     but actually there is a wide range of sounds, most of which we cannot
     hear.  There are sounds of low frequency that are inaudible, "but they may
     be felt.  At the other extreme, there are notes so high that humans cannot
     hear them, although dogs and other animals may hear them quite well.

Q.   How is sound described?
A.   Sound has speed, frequency, intensity, and duration.  The speed of sound
     in air depends on the density of the air.  As a convenient base, we usually
     say that sound travels 1,130 feet per second in dry air at 70 degrees F.
     and a barometric pressure of 29.92 inches of mercury.  That is, about 770
     m.p.h., although that speed is rarely achieved since we rarely find perfectly
     dry air in nature.

Q.   How do you define frequency and intensity of sound?
A.   The frequency of sound is sometimes called its "pitch," and is what we
     often refer to as "high" notes and "low" notes.  Frequency is actually
     the rate at which the sound waves arrive at a place, such as the ear.
     Again, picture waves in the ocean, but now they are washing against a
     shore.   If the waves are far apart and only one hits the shore each minute,
     then we can say the wave rate is one per minute.  If the waves start coming
     ashore more frequently, say three per minute, then we can say that the
     "frequency" of the ocean wave pattern is three per minute.  Note that I
     didn't say how big the waves were. They could be huge tidal waves, or tiny
     ripples.  The size or power.or the wave is its "intensity."
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Q.   What are the frequencies of sound waves?
A.   Sound waves are measured according to the number of waves that strike the
     ear (or recording instrument) in a second.  Between the peak of two waves
     there is a valley, and these waves and valleys repeat in cycles, so we can
     refer to frequency measurement as cycles per second, or c.p.s.  The scien-
     tific term for this is "Hertz" (Hz).

Q.   What range of frequencies can be heard by the normal human ear?
A.   A good human ear can hear sounds with frequencies from 20 Hz to 20,000 Hz,
     but the extreme ends are hard to hear.  The most sensitive range is from
     about 500 Hz to 5,000 Hz.

Q.   What is a decibel?
     It is not a fixed absolute value, like an inch or a frequency.  Rather,  it
     is simply a ratio, telling by what proportion one value is greater or less
     than, another.  To give a decibel  system a base, it is presumed that an
     acoustic pressure of 0.0002 dyne per  square meter is zero decibels.  This
     is about the intensity of the faintest sound at 1000HZ that a normal  young
     person can hear under the best listening conditions.  This would have to
     be an extremely faint high note,  almost as high as the highest note on a
     piano.  What is further complicated about decibels is that the decibel
     scale is not a straight-1-ine measurement, but is logarithmic.  Thus,  a
     10-fold increase in acoustic power above the faintest sound that a young
     person, could hear is measured as 20dB.  A 100 times increase in pressure
     is 40dB, and so forth.

Q.   What range of decibels can humans hear?
A.   That depends on the frequency.  We hear, for example, sounds that have a
     pitch in the top one-third of the piano keyboard better than other tones.
     We hear treble better than bass.   You might hear a soprano voice at lOdB
     but a bass would have to hit you with 35dB to be audible.  For this reason
     some decibel scales are "weighted," that is, the measurement system is al-
     tered somewhat to fit a particular purpose.  The difficulty in measuring
     decibels is that an instrument must be made to measure what we hear.   An
     instrument would usually sense all sounds equally, no matter what the
     pitch, while the human ear does not.   To us, a treble note at 40 dB might
     sound "louder" than a low tone at 40  dB, but to an instrument recording
     only pure acoustic pressure, it would show the same.

Q.   What can be done about that?
A.   What we do is alter the decibel scale to fit the job.  For example, we
     usually use a measurement system called the "A-weighted" decibel  scale,
     abbreviated dB(A), so as to show sound intensity levels as sensed by the
     human ear.   Another factor considered in the "weighting" of a decibel
     scale is the complexity of sound and  the fact that it is almost never
     pure.

Q.   So a sound-measuring device can be made to compensate for this problem?
A.   Yes, this and others.   When more than one frequency is present, the meter
     reads the over-all sound level.  It gives a result according to its cali-
     bration, and if using the dB(A) scale, it adjusts its A-weighting pressure-
     frequency receptions to give a decibel readout approximating what the
     human ear would hear in total loudness.
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Q.   What is noise?
A.   Noise is highly subjective.  But in general when we say noise we mean a
     composite sound, consisting of many combined frequencies and qualities,
     and that the composite sound is undesirable.

Q.   Is loud noise more harmful than loud music?
A.   If a sound is loud enough to be harmful, it makes no difference whether
     it is a noisy jumble of frequencies without form or pattern, or a loud
     pure tone.  However, there may be a secondary psychological difference.
     Music at 100 dB(A) may be exciting and stimulating, but so-called "noise"
     at that level may be extremely annoying.

Q.   At what point does a sound become harmful?
A.   That depends on many things, including the kind of person involved.   No
     tests are available that enable us to say with scientific certainty  what
     sound levels will always be harmful or what levels are always safe for
     everyone.  We do know what sound levels will cause discomfort and pain.

Q.   How is sound propagated?
A.   Sound waves usually spread out evenly in all directions from the source.
     If you toss a pebble in a quiet pool, the ripples spread out evenly  in all
     directions, in concentric circles from the source.  Sound waves do the
     same, although in concentric spheres, or cone-shaped broadcasts.

Q.   Do sounds change in frequency and intensity as they travel?
A.   Frequencies which come from a stationary source usually remain the same,
     barring acoustical reflections, etc., and assuming the hearer is not moving
     either.  However, the power or intensity of the sound is dissipated  as it
     travels.  There is a mathematical formula by which one can calculate the
     spreading of the intensity of a sound wave.  The intensity of a sound wave
     diminishes in proportion to the inverse square of the distance from  the
     source.  In layman's terms, it is less loud the farther away you are.

Q.   Does distance from the sound make it more tolerable?
A.   No, not always.  It is very rare to find a sound emitted in the middle of
     a spherical space.  A noise made just above the ground really only has one
     half of a sphere of air to travel in.  And the science of acoustics  has
     demonstrated that many changes can occur to a sound as it dissipates.

Sample Question and Answers Showing Adverse Health Effects of Noise

     The following questions would be appropriate to elicit information on the

adverse effects of noise.  A qualified otolaryngologist could bring out these

facts, although other experts with similar background might be equally appropri-

ate.

Q.   Doctor, can exposure to loud sounds be harmful to humans?
A.   Yes, if the sounds are loud enough, and/or the exposure long enough.
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Q.   How loud must sounds be to be harmful?
A.   It is a function of intensity and frequency and time of exposure.  A very
     loud forceful sound, like the firing of a cannon while standing next to it
     can destroy a man's hearing in a single burst.   But hearing can become
     impaired also by sounds of less intensity, volume, and loudness, if the
     person is subjected to them long enough.

Q.   Does a sound have to be loud enough to be painful  in order to cause damage?
A.   No.  Sound usually becomes painful  at about 140 dB.   Levels of 150 dB or
     more may be found near the exhaust of jet engines  and rockets, and expo-
     sures to such sounds will  cause rapid injury.   That is why most line crew-
     men at jet airports wear ear protection.   For less severe exposures the
     damage takes longer.  Nonetheless,  such exposures, day after day and week
     after week, year after year perhaps, can  cause  temporary hearing loss, and
     if further continued, that hearing loss can become permanent.

Q.   How do you determine whether a person is  likely to sustain a hearing handi-
     cap from sound exposure?
A.   We know the percentage risk of developing a hearing handicap based on age
     and the noise-exposure index in decibels.   Research has been done on this
     and data are available.

Q.   What is a decibel exposure index?
A.   Simply put, it is a measure of the total  amount of sound to which the per-
     son has been subjected.  We know that one measure  of noise-induced hearing
     loss is the total amount of sound received.  The index is a function or
     calculation of the exposure time to the sounds  and the energy of dB of the
     sound.  We call  it the 3 dB(A) rule, because every increase of 3 dB(A) in-
     dicates a doubling of the energy of the sound.   What this rule says is
     that listening to a sound level of 90 dB(A) for 4  hours, for example, has
     the same effect as listening to a level of 93 dB(A)  for 2 hours.  The
     noise-exposure index would be the same for both.  So, a lifetime noise
     exposure index would reflect the total  amount of energy the ear has been
     subjected to, expressed as the equivalent continuous sound level in dB(A).

Q.   Then you are using an average of all the  various sound levels and hearing
     times?
A.   Not an average.   It is hard to explain, but let me use an example.  Suppose
     a person is exposed 20 hours per week to  a sound level of 100 dB(A).  A
     calculation by the 3 dB(A) rule gives that a total sound level of 500.  The
     equivalent continuous sound level would be 97 dB(A).  The effect of the
     ear would be the same as if he was exposed to 97 dB(A) for the whole time.

Q.   What is the effect?
A.   Exposure to loud noises, even though not  for very  many hours a week, if
     continued long enough, can have effects as damaging to hearing as extremely
     loud or painfully loud sounds have in a shorter time.

Q.   What kind of hearing loss can occur because of  noise exposure?
A.   The first losses are temporary.  Usually  what happens first is loss of the
     ability to hear the high tones, the trebles, say between 4,000 and 6,000
     Hz.  If the loss is caused by sounds in a particular frequency range, as
     in a rock musician for example, the first loss  is  usually in the ability
                                     81

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     to hear sounds about 1/2 octave above the exposure notes.  With repeated
     exposures, these temporary losses become more permanent, the disability
     spreads to lower tones, until eventually it gets down to 3S000 Hz and
     lower, which is within the frequency range of human speech.   Then we begin
     to have a real critical impairment, a difficulty in understanding speech,
     a partial  deafness.

Q.   Can noise-induced exposures produce a permanent hearing loss that can
     affect communication by speech?
A.   Yes.  Such loss may be temporary, permanent, or both.  It is caused by
     destruction of certain inner ear structures which are impossible to replace
     or repair, the so-called organs of Corti.  The amount of loss varies from
     person to person.

Q.   Are the sound energies and frequencies recorded at point A here harmful?
A.   Do you mean physically harmful, likely to cause hearing loss?

Q.   Yes, at least let me begin with that question.
A.   I can only say that the sound level at A creates a risk of inner ear damage
     and resultant hearing loss, if imposed upon certain kinds of people long
     enough.

Q.   Of the type of people who are exposed to this noise,  can you calculate
     what the hearing handicap risk is at A?
A.   Yes.  Using the recorded noise levels and knowing that the largest group
     of adults exposed to those sounds about 	  hours per week, and that it
     has been there for over 10 years, we can calculate the equivalent continu-
     ous sound level in dB(A) at 100.  Of those who have been hearing that
     sound that often for 10 years, we can determine that slightly over 20% now
     have the risk of suffering noise-induced hearing loss.

Q.   If we have proof here that there are 326 people who have such exposure,
     how many are likely to suffer harm?
A.   I would say the risk is that about 65 people will suffer some degree of
     hearing loss because of the defendant's noise broadcast.  I  am talking
     about actual physical organic inner ear hearing loss.  Many  more would
     suffer adverse effects which are not objective medically but nonetheless
     real .  They may suffer from the psychological effects.

Q.   What are those?
A.   These are things like annoyance and discomfort, nervous tension, sleep-
     lessness, and the like.  Noises can cause these symptoms even though not
     intense enough to cause actual physical damage.

Q.   Are these kinds of effects nonetheless real?
A.   They may be more real to the victim of the sound than are the subtle,
     slowly "building effects of organic hearing loss.  When a person cannot
     sleep properly because of noise, that person often becomes  irritable and
     cranky.  Sometimes resistance to disease is lowered.   Continuing high
     noise levels can be quite bothersome and actually interfere with the qual-
     ity of life.  It is not a coincidence that we associate relaxation, happi-
     ness, and serenity with "peace and quiet".  Noise and confusion, especially
     noise in large, long doses, definitely leads to irritability, temper flare-
     ups, nervousness and antisocial behavior.


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Q.   Are these kinds of things permanent?
A.   There are many possibilities; I'll  describe two.  Suppose, due to excessive
     sound levels, a person cannot get the proper amount of sleep for many
     days.  Suppose also that this person is made nervous and irritable because
     of the noise, and complains about it often.  Now suppose that as a result,
     resistance to disease sets in and the person gets some infection, such as
     a virulent flu, pneumonia or the like.  Such a disease might leave perman-
     ent residual  difficulties.  Or,  a person with high blood pressure might
     find it aggravated by exposure to continuous or repeating loud noises.

Q.   What are the percentage risks of such subjective effects to a population
     subjected to high noise levels?
A.   We cannot say.  We know that more people complain about this kind of thing
     than actually have objective hearing loss.   Again, it depends on the indi-
     vidual -- age, time of exposure, living habits, and condition of health.
     Also, if the noise is a constant one, some people become acclimated to it.

Q.   So if a person can become used to the noise, and adjust to it,  it is no
     longer a problem?
A.   It may be worse, in the long run.  A- person who is annoyed by the sounds
     may take self-protective measures if available, and try to reduce the
     sounds being heard, thus protecting and preserving the inner ear.  But the
     acclimated individual may just subconsciously ignore the noise  in his
     head, not knowing that the ear is hearing the noise anyway, and slowly but
     surely causing a hearing impairment.

Sample Questions and Answers to Show  Noise Control Techniques

     An acoustical engineer would be  qualified to discuss the techniques, avail-

able for controlling noise.

Q.   What can be done to prevent or reduce excessive sound levels?
A.   Well, there are a number of approaches.   First is personal  protection,
     which means some way of covering the ears to keep the sound out.   The
     second way is by environmental  control.

Q.   What do you mean, environmental  control?
A.   Keeping the sound levels down in the affected environment.   What we are
     talking about is reducing the amount of noise produced by the source,
     reducing the amount of noise transmitted through air or buildings,  and
     revising operational  procedures.

Q.   How can revising operation produce  reduced noise effects?
A.   Simple, according to the 3-dB rule, for every halving of the exposure time,
     doubling the energy (i.e., an increase of 3 dB) is permissible  without in-
     creasing the risk.  Suppose you  have a machine which cannot be  operated
     without producing 98 dB, no matter  what one does, but it can be made more
     efficient and can be run only 8  hours per day instead of 16 through effi-
     cient management and time utilization.  Cutting the time in half has the
     same effect on those exposed as  if  the sound produced was reduced to 95 dB.
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Q.   How can one achieve the other two types of environmental control?
A.   The control techniques are similar in each type.  On one hand we try to
     reduce the sound coming from the source, and on the other we try to reduce
     the sound traveling to the injury risk area.

Q.   What are some ways to control sound in the environment?
A.   We use the same laws of acoustics that can cause excessive noise, only we
     turn them to our advantage.  What we do is get the sound to dissipate its
     energy harmlessly.

Q.   Tell us some ways this can be done.
A.   Well, distance is one way.  Keep noisy things far away, because sound de-
     creases its energy with distance.  Damping devices and barriers are another
     approach.  Things like thick fabrics, fiberglass, cork, acoustic tiles,
     all serve to "soak up" sound.  What they actually do is break up the sound
     waves and get them reflecting and refracting in tiny microscopic spaces
     between the fibres, until they dissipate their energy.

Q.   How would you recommend the reduction of sound levels to tolerable
     levels?
A.   Well, there is nothing we can do about pure distance, without moving either
     the source or the affected place, but we can make the sound move farther
     in getting there by installing baffles that the soundwave must pass around.
     The offending sources can be surrounded with absorbing panels and baffles.
     The walls in defendant's premises can be coated with a damping substance.
     The large walls can have separations in them, or portions made of a differ-
     ent material, to impede sound waves from making a "sounding board" amplifi-
     cation in them.  Wherever there are vents or stacks which cause a rushing,
     roaring and similar sound, these should be equipped with muffling devices,
     like a car muffler.  These devices serve to break up the soundwaves and
     lengthen their travel distance to the outside.

Q.   Are these remedies feasible with today's technology?
A.   Yes.  All are within the current state-of-the-art knowledge and capabili-
     ties.  They are on the market, or easily fabricated.

Q.   Is there any reason why defendant could not have installed noise control
     measures such as these 7 years ago?
A.   The technology was available at that time.

Q.   Thank you.  Defense counsel may cross-examine.

Questions and Answers to Establish Reliability of Testing Procedures

     Either the acoustical engineer, the noise control officer or police officer

(assuming the latter two have appropriate background and training) may testify

as to appropriate and/or actual testing procedures.  The following facts and cir-

cumstances, among others, tend to establish that a scientific device, process,
                                     84

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or technique is sufficiently reliable that evidence resulting from its use may
be admitted in court:
     * Manner in which the device works;
     * Range of uses of the device;
     * Theoretical  possibility of errors  in design, manufacture, maintenance,
       or operation of the device;
     * Nature and relevance of errors that may occur;
     * Routine maintenance, quality  control procedures, and other precautions
       against errors;
     * Results of tests of reliability and accuracy of device;
     * Validity of statistical evidence of reliability;
     * Opinion of expert as to reliability.7
     Testimony eliciting this type of information constitutes the first part of
the foundation necessary before evidence  produced by sound measuring devices
may be admitted in court.   In courts where judicial notice of sound measuring
device reliability is taken, this step may not be necessary,  but it must be dem-
onstrated in all cases that the particular equipment used by  the officers was
of an appropriate type and in proper working condition, and that the person
using the device was qualified to do so.   Testimony to bring  out these factors
in an officer's testimony is discussed on page 30, supra.
Q.   Have you seen the noise sources complained of here?
A.   Yes.
Q.   Do you know what the characteristics of sounds from that place are?
A.   In a general way, yes.  I cannot trace for you the path  and changes in
     each and every sound wave, but that  is not necessary for an evaluation of
     the site as a sound source.
Q.   What is your evaluation of the  place as a sound source?
A.   It is definitely a source of sound.   As has been  admitted,  the facilities
     there are of a large number and emit sounds of various kinds.  These sounds
     come from different points,  but to a distant listener, they seem blended
7 2 Am Jur 2d, Proof of Facts, §3, at 545 (1974)

                                     85

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     together, and in a large part they are.  The structure of the place and
     its surroundings are not acoustically designed, and do little to reduce
     the dB levels.

Q.   How do you find out to what extent this is true?
A.   The best way is not by trying to trace and calculate each sound, but simply
     to measure it at different places.

Q.   Have you done this?
A.   Yes.

Q.   When?
A.   On 	 19	and	we conducted
     tests as selected places in the vicinity.

Q.   Where were these done?
A.   We put instruments at the locations indicated on the map there.

Q.   What kind of instruments did you use?
A.   We used	which are the commonly accepted standard
     instruments used to measure sounds in this kind of sampling network.

Q.   Do these have to be calibrated prior to being used?
A.   Yes, they are checked out prior to use by taking readings on them from a
     known sound source, a series of pitches and intensity that we create elec-
     tronically, to make sure that the instrument is reading correctly.

Q.   Who did this?
A.   I did it, together with a technician who worked under my supervision.

Q.   Why did you select those particular locations for the samplers?
A.   We selected location A because it is in the center of the area where we
     were informed the most complaints came from.  We put other instruments at
     B, and at C, in line with A and the suspected source to check the intensity
     levels and dispersion of the sound.  We put one at D, in another direction,
     85 compass degrees from the suspected source, as a control.

Q.   Were you able to find any sound levels?
A.   Yes, there were sound levels of some type all the time.  We were interested
     in the type of sound and its source.

Q.   Were you able to find the source of any sounds?
A.   Yes, there were some general background noises, such as birds, leaves
     rustling in the winds, local auto traffic and such, and there were sounds
     which came from defendant's facility.

Q.   How were you able to find the source of the latter sounds?
A.   In three ways.  First, we ran the instruments at night, on weekends, and
     other times when the defendant was not operating.  We found increased
     sound levels on all instruments when it was operating as compared to when
     it was not.  Second, two of the instruments, at A and D are capable of
     sensing the direction from which the sounds come.  When the levels con-
     sisted only of background noise, i.e., when defendant was not operating,
     the sounds did not come from any one direction more than others, particu-


                                     86

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     larly.  But when defendant's operation started up, the increase in sound
     levels showed as coming from a definite direction. At A they came from
     the direction shown by the green arrow here on the map.  Point D is 85%,
     almost at right angles on the compass, from A.  The instrument at D showed
     the source of the excess sound to be from the direction shown by the blue
     arrow.  By extending these two vector arrows until they cross, as here,
     [demonstrating] we see that they pinpoint the source of the sound, here,
     right on the defendant's premises.

Q.   What is the third way to find this?
A.   By experience and in the scientific literature, and from what has been
     discovered about defendant's operations,  we know certain kinds of sounds
     to be typical of its kind of activities.   We found that the sounds we
     recorded fit these characteristics.

Q.   Did you record the sounds so they can be  played back?
A.   I made graphic recordings, showing  the sounds as patterns on a graph paper
     roll.

Q.   You have referred to the sound from defendant's premises as "excessive"
     noise.  What do you mean by that?
A.   I mean that it is not only more sound than the usual  background noise, but
     it is sound which may have had adverse impacts on human health and welfare.

Q.   In what areas?
A.   At point A, over 	% of the time,  we recorded sound at levels for which
     adverse health impacts have been noted.

Q.   What about other places?  What levels did you record?
A.   Well you see here on this table the various sound levels taken from each
     location on the dates stated.  On this other exhibit we have made a graph
     showing the average recorded levels in dB(A) at each place.  Note how it
     is highest at A, and shows the average sound levels at A to be 	dB(A)
     when defendant was operating.

Q.   Why are the levels higher at A than at C  when C is actually closer to the
     plant?
A.   There are several explanations for  this.   First, much of the sound from
     the plant comes from its upper level  and  roof portions.  The bulk of the
     building itself tends to shield recordings at C from the direct energy of
     these sounds.  They get to C by diffraction and reflection.  Further, we
     see on this photograph that there are trees and shrubs close to C which
     tend to absorb sound waves.  Mow take A in contrast.   It is stands in a
     direct line from the upper sound sources.  The building further out has a
     wall, here, which is hard and smooth and  makes a very good reflector,
     bouncing sound back towards the source.   Also, we noted that instrument C
     is in the "green belt."  During the nighttime operation especially, the
     temperature of the air, and its density,  is often quite a bit different
     there than right at the source.  I  have the opinion that this causes a
     refraction of sound waves from sources near the surface, before they get
     here to C.  Some of these are reflected downward to be absorbed by the
     lawn and shrubs, but others are refracted upward, where they join with
     those from the upper sources.  The  net result of all  these is that the
     vicinity of A is a "hot spot" of noise,  so to speak,  where sounds coming


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     from defendant's sources are modified and amplified by the environment to
     produce a very unpleasant and annoying, if not dangerous, sound level.
SAMPLE JURY INSTRUCTIONS
Public Nuisance
              Plaintiff's Requested Instructions
                I. Plaintiff's Theory and Claim
      The State (plaintiff) theorizes and claims that the defendant created ex-
cessive noise which emanated from its plant and which caused a public nuisance
within the meaning of the laws of this State.  According to the plaintiff's
claim, the public nuisance existed from August 1962 to August 1963.  The State
further claims that this pollution created a hazard to the health and safety of
the public.

               II. Public Nuisance - Definition
      A public nuisance is defined as an activity, or conduct, or a set of cir-
cumstances that causes significant interference with or damage to the health,
safety, peace, convenience, or comfort of the public.  A public nuisance cons-
titutes interference with a right common to the general  public.
      Under the Taw of this state, when a manufacturing establishment unreason-
ably creates any sound which endangers the health or safety of any person or
property or a sound which injures any person or property, that manufacturer
is creating a public nuisance.

           III. Public Nuisance - Elements of Proof
      The State has the burden of proving by a preponderance of evidence that
the defendant caused a public nuisance.
      The elements of public nuisance which the State must prove by
a preponderance of the evidence are:
     1. That interference with a right common to the general public took place;

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     2. That the interference was unreasonable; and

     3. That the public right is a substantial  right.

     If you find that these three factors existed at the time in question and

that the public health, safety,  peace, convenience or comfort was endangered,

then you must find that a public nuisance exists.


              IV. Nuisance - Evidence of Muisance

                    Violation of Ordinance

     You are instructed that:

      No person shall unreasonably make, continue, or cause
      to be made or continued, any noise disturbance.
      Noise disturbance means:  any sound which (a) en-
      dangers or injures the safety or health of humans or
      animals,  or (b) annoys or disturbs a reasonable per-
      son of normal sensitivities, or (c) endangers or in-
      jures personal  or real property.

      If you find from the facts that the defendant was engaged in any of these

prohibited activities, then you may find that the defendant has committed a pub-

lic nuisance.
                                  * * *

Property Line Standards

              Plaintiff's Requested Instructions

     I. Property Line Standards - Violation of Ordinance

     You are instructed that:

           No person shall operate or cause to be operated on
           private property any source of sound in such a man-
           ner as to create a sound level which exceeds the
           limits set forth for the receiving land use category
           in Table I below when measured at or within the
           property boundary of the receiving land use.
                        TABLE I.   SOUND LEVELS BY
                           RECEIVING LAND USE

               Receiving Land                Sound Level
               Use Category        Time      Limit, dBA
               R-l,R-2,etc.        (A)a.m.-       Lj.
                                     (B)p.m.

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             (Residential.Public
             Space, Open Space,
Agricultural or
Institutional )
Ol,C-2,etc.
B-l,B-2,etc.
(Commercial or
Business)
M-l,M-2,etc.
(Industrial )
(B)p.m.-
(A)a.m.


At All
Times
At All
Ti mes
L2




L3

L4
      If you find from the facts that the defendant was, during any of the time
in question, in violation of the terms of that statute, then you may consider
the evidence of property line standards.

         II. Property Line Standards - Elements of Proof
     The State has the burden of proof [by a preponderance of the evidence/beyond
a reasonable, doubt] that the defendant caused a source of noise to exceed the
limits set forth for certain receiving land use categories.
     The elements of a property line standards violation which the plaintiff
must prove [by a preponderance of the evidence/beyond a reasonable doubt] are
the following:
     1. That a person operated or caused to be operated on private property a
        source of noise;
     2. That if the noise occurred in a residential zone or in a public space,
        agricultural or industrial  zone, the noise exceeded the sound level
        limits for the day or evening; and
     3. That the noise exceeded the standard set for the receiving land use
        category when measured at or within the property line.
     If you find that these three facts occurred at the time in question, then
you must find that the defendant violated the property line standards provision
of the statute.
                                  * * *
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   Motor Vehicles

                 Plaintiff's Requested Instructions

             I. Motor Vehicles - Violation of Ordinance

         You are instructed that:

           No person shall operate or cause to be operated a public
           or private motor vehicle or motorcycle on a public right-
           of-way at any time in such a manner that the sound level
           emitted by the motor vehicle or motorcycle exceeds the
           level set forth in Table II.

        If you find from the facts that the defendant was, during any of the time

   in question, in violation of the terms of that statute, then you may consider

   the evidence of motor vehicle violation.


                                   TABLE II

                              MOTOR VEHICLE AND
                           MOTORCYCLE SOUND LIMITS
                            (MEASURED AT 50 FEET
                                OR 15 METERS)
                                                  Sound Level  in dBA
Vehicle Class
Motor Carrier Vehicle
engaged in interstate
commerce of GVWR or GCWR
of 10,000 Ibs. or more

All other motor vehicles
of GVWR or GCWR of 10,000
Ibs. or more

Any motorcycle

Any other motor vehicle
or any combination of
vehicles towed by any
motor vehicle
Speed Limit
  35 MPH
  or Less
    86
     C

     E
Speed Limit
  Over 35
    MPH
Stationary
  Run-up
    90
    88
     D

     F
                                        91

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                   II. Motor Vehicles - Elements of Proof

     The State has the burden of proving [by a preponderance of the evidence/

beyond a reasonable doubt] that the defendant violated the law of this State by

operating a motor vehicle in excess of the sound level set by the statute.

     The elements of proof which the State must prove [by a preponderance of

the evidence/beyond a reasonable doubt] are:

          1.   That the defendant operated or caused to be

              operated a motor vehicle or motorcycle on a

              public right-of-way; and,

          2.   That the motor vehicle or motorcycle was

              operated in such a manner that the sound

              level emitted exceeded, the limits set

              forth in the ordinance.

     If you find from the facts that these two conditions existed at the time
                                         «
in question,  then you must find that the defendent violated the motor vehicle

provi si on.

                                   * * • *

Tampering Sanctions

                    Plaintiff's Requested Instructions

         I. Tampering Sanctions - Violations of Ordinance

     You are  instructed that:

     The following acts or the causing thereof are pro-

     hibited:

       (a)  The removal rendering inoperative by any
            person other than for purposes of maintenance,
            repair, or replacement, of any noise control
            device or element of design or noise label of
            any product identified under Section 4.3.6.  The
            EPO/NCO may, by regulation, list those acts which
            constitute violation of this provision.
                                     92

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        (b)  The  (intentional) moving or rendering  naccurate
            or inoperative of any sound monitoring instrument
            or device positioned by or for the EPO/NCO, pro-
            vided such device or the immediate area is clearly
            labeled, in accordance with EPO/NCO regulations,
            to warn of the potential illegality.

        (c)  The  use of a product, identified under Section 4.3.6,
            which has had a noise control  device or element of
            design or noise label removed or rendered inoperative,
            with knowledge that such action has occurred.

      If you find from the facts that the defendant was, during any of the time

in question, in  violation of the terms of that statute, then you may consider

the evidence of  tampering.


           II. Tampering Sanctions - Elements of Proof

     The State has the burden of proof [by a preponderance of the evidence/beyond

a reasonable doubt] that the defendant removed or rendered inoperative a noise

control device.

     The elements which the State must prove are the following:

     1.  The product alleged to have been  tampered with,  was

         required by law to have a noise control device,  ele-

         ment of design or label;

     2.  The defendant removed, rendered inoperative,  or caused

         to be removed a noise control  device, element of design

         or .label; and

     3.  This removal  or rendering inoperative was not for the

         purpose or repair, replacement or maintenance of the

         product.

     A separate action for the use of a tampered product also lies.   The following

elements are needed:
                                     93

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           1.  The product alleged to have been used improperly
               was required by statute to have a noise control
               device, element of design or noise label;  and
           2.  The defendant made use of a product,  whose noise
               control device, element of design or noise label
               had been removed or rendered inoperative.
     If you find that these factors existed at the time in question,  then you
must find the defendant in violation of the tampering prohibition.
                                     94

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                      CHAPTER 8:  FEDERAL PREEMPTION

NOISE CONTROL ACT OF 1972. 42 U.S.C. 4901 et seq.:
             ...[w]hile primary responsibility for control  rests
        with the state and local governments, federal  action
        is essential to deal with major noise sources in commerce,
        control  of which require national uniformity of treatment.
SUMMARY
     Often, a state or local prosecutor of noise violations will confront the
issue of the interaction between Federal and local authority for noise control.
The Noise Control Act of 1972 stated the intent of Congress that noise coatrol
be a cooperative effort between the Federal and local  governments.  That Act
placed primary authority for control of noise with State and local governments
subject, however, to preemptive Federal authority in particular contexts where
a pervasive scheme of Federal noise regulation was in existence.
     In general, the test of whether both Federal and local noise regulations
may operate, or whether local regulations must give way, is whether both regu-
lations can be enforced without interfering with the Federal regulations in the
field, and not whether Federal or local regulations are aimed at similar or
different objectives.
     Federal preemption of noise control is most pervasive in the area of air-
craft noise, although even here some noise controls may be applied by states
and localities,  provided that these controls are not discriminatory and do not
substantially interfere with interstate commerce.
     Interstate rail and motor carriers also fall within the potentially preemp-
tive umbrella of Federal noise controls.  However, local enforcement authority
may be exercised in those circumstances where local noise  standards are identical
to those prescribed by Federal regulation.

                                     95

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     Federal preemption also touches products regulated by  the Environmental
 Protection Agency as major noise sources, although this preemption  is  not  as
 pervasive as it  is in the case of aircraft or interstate rail and motor  carrier
 noise.
 THE PREEMPTION DOCTRINE AND THE CONSTITUTIONAL BASES FOR FEDERAL, STATE  AND
 LOCAL  NOISE REGULATION        '
     The preemption doctrine has its roots in the Supremacy Clause  of  the
 Constitution:1
     This Constitution and the Laws of the United States which shall
     be made in  Pursuance thereof;... shall  be the supreme Law of the
     Land; and the Judges in every state shall be bound thereby, any
     Thing in the Constitution or Laws of any State to the Contrary
     notwithstanding.
     In short, where state regulation interferes with or is contrary to  the laws
 of Congress, it must yield.2  Yet,  the field of noise regulation is one  in which
 both the Federal  and state governments have  solid constitutional  bases for in-
 volvement.  The police powers reserved by the Constitution to the states (and
 delegated to local jurisdictions by state enabling legislation) afford strong
 support for state and local  efforts to protect the public health and welfare
 through regulation of noise.
     As state police powers  infringe upon Federal  regulation of commerce, how-
 ever, the likelihood of preemption  increases.   The Supreme Court enunciated the
 classic preemption test in Cooley v.  Board of Wardens.3  The essential  determin-
 ant is whether commercial  regulation by a state "admits of only one uniform sys-
 tem or plan of regulations."   If this is the case, regulatory power is exclusively
1 U.S. Const. Art. VI, cl.  2.
2 Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 186 (1824!
3 53 U.S. 298, 12 How. 298  (1851).
                                     96

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Federal.  But, where subjects of commerce require "that diversity [of regula-

tion] which alone can meet local necessities," concurrent efforts at all levels

are appropriate, under the Cooley test.4

     The Noise Control Act of 1972, as amended by the Quiet Communities Act of

1978,5 envisions joint enforcement responsibilities for the Federal  and state

governments.  With some exceptions, Federal noise control  efforts center on

identifying noise sources in commerce and on establishing product performance

standards for manufacturers.  In contrast, state and local  efforts under nuisance

theory (see_ Chapter 2, supra) and local noise ordinances usually have focused

on the control of environmental  noise through zoning, operational  restrictions,

and other prohibitions (both subjective and objective) against excessive noise

rather than on setting specific requirements for new articles in commerce.   Where

a state or Tocal Noise«Control Ordinance employs performance standards for  new

products at the time of sale, the standards are not preempted if they are ident-

ica'l with Federal limits, and thus assure uniformity.

AREAS OF FEDERAL PREEMPTION AND RESIDUAL STATE AND LOCAL AUTHORITY

Transportation Noise

Aircraft and Airport Noise Regulation -- The area where Federal  preemption  of

noise control  has generated the most controversy and uncertainty is  airport and

aircraft noise.  Much of the controversy stems from the fact that while extensive
4 This balancing of national uniformity versus local  sensitivity has been
  expanded in subsequent cases.  For example, in Mines v. Davtdovitz, 312
  U.S. 52, 67 (1941), preemption of local  regulation was dependent upon a
  showing that the law in question was "an obstacle to the accomplishment
  and execution of the full purposes and objectives of Congress."  Similarly,
  in Florida Lime and Avocado Growers, Inc. v. Paul,  373 U.S. 132 (1963),
  congressional intent was deemed to be dominant in deciding on the coexis-
  tence of Federal and state regulations..

5 42 U.S.C. §4901 et seq., as amended (Supp. 1978).


                                     97

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Federal aviation regulations apply to airports and aircraft,6 few airports are

Federally owned and operated.  In fact,  states, or elements of local governments,

own and operate most of the airports around the country-

     In 1962 the Supreme Court held that municipal airport operators could be

held liable for noise-related disturbance and damage under the theory of inverse

condemnation.7  In part to reduce their  liability exposure, some localities re-

sponded with curfews, weight limitations, minimum altitude standards, and even

absolute landing prohibitions.   Most of  these efforts failed under judicial

scrutiny, however, as courts held that the municipal  police power must yield to

the pervasive scheme of Federal  aviation regulations."

     Subsequent court decisions  have created a "proprietary" exception to Feder-

al preemption of aircraft noise  control, allowing certain limited restrictions

which are non-discriminatory, reasonable, and focus on reduction of land impacts
6 The Federal aviation regulations that generally supplant state airport
  noise initiatives are based on the Federal  Aviation Act of 1958,  49 U.S.C
  §1301 et seq.,  as amended by the Noise Control  Act of 1972,  42 U.S.C
  §4901 et seq.   Under this- scheme, the Federal  Aviation Administration
  (FAA) is required to set rules and standards "to provide for the  control
  and abatement of aircraft noise and sonic boom," and to incorporate
  these standards into aircraft certificate requirements.
      The FAA has set operational requirements for jet aircraft, prohibiting
  airspeeds which would cause sonic booms (Air Traffic and General  Operating
  Rules, 14 C.F.R. §91.55), and has issued advisory guidelines on takeoff
  and approach procedures.  The FAA has issued numerous aircraft noise per-
  formance standards, the most significant being  Federal  Aviation Regulations
  (FAR) Pt. 36 (14 C.F.R. Pt. 36), commonly referred to as FAR 36.   The Environ-
  mental Protection Agency through a six-step procedure,  may consult, recom-
  mend, submit standards, and request that they be reviewed (49 U.S.C.
  §1431(b)(2), as amended (Supp. 1978).

7 Griggs v. Allegheny Co., 369 U.S. 84 (1962).

8 See» e-9-> City °f Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624
  TW3TT'
                                     98

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rather than on aircraft flight.9  The essential argument is that as a concomit-
ant of being liable for aircraft noise, the airport proprietor should have some
authority to control it.
     In sum, Federal control of airplane noise performance continues to be per-
vasive, although allowing some room for state or local enforcement of noise
limits.  Imposition of aircraft weight limits and interference with flight paths
generally are outside the scope of state and local  noise regulation.   As pro-
prietors of airports, however, localities may exert some control  over hours of
operation and initiate other procedures to minimize noise in residential  areas
that are non-discriminatory and not overly disruptive of interstate commerce.
That these latter activities have been allowed suggests that a more permissive
view of state and local airport noise regulation may be evolving.
     Land use controls establishing permissible activities in zones of land
are well within state and local perogative.  Thus,  receiving land use
actions envisioned under Article VIII and X of the  Model Ordinance [Appen--
dix C] are immune from any assertion of preemption.
Interstate Rail Carriers and Motor Carriers -- Interstate carriers such as rail-
roads, trucks, and buses, are covered by the Noise  Control Act of 197210 and by
 9 See National Aviation v. City of Hayward, Cal.,  418 F- Supp.  417 (N.D.  Cal.
   1576) (city ordinance prohibiting aircraft exceeding a certain noise level
   from landing upheld); British Airways Bd. v. Port Authority of New York,
   558 F.2d 75 (2d Cir. 1977) (Port Authority has  authority to abate, through
   temporary ban, Concorde-generated noise); San Diego Unified Port Oist.  v.
   Gianturco, 457 F- Supp. 283 (S.D. Cal. 1978) (preliminary injunction granted
   to local airport proprietor against State of California which had sought
   to impose an aircraft curfew as a condition to  issuing a variance from
   noise standards applicable to airports).
 0 42 U.S.C. §4917 (1977) (regulation of motor carrier noise emissions);
   42 U.S.C. §4916 (1977) (regulation of surface rail carriers).
                                    99

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Environmental  Protection Agency and Department of Transportation regulations.11

     The preemptive character of Federal  involvement in interstate carrier

noise regulation is as follows:  state and local  authorities are not permitted

to adopt or to enforce standards covering the same operations the Federal stand-

ards control unless those standards are identical to Federal standards, without

the EPA Administrator's approval.  The Noise Control  Act is explicit:12

     No State  or political  subdivision thereof may adopt or enforce any
     standard  applicable to the same operation of such motor carrier,
     unless such standard is identical to a standard applicable to noise
     emissions resulting from such operation prescribed by any regulation
     under this section.

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

The above language applies to motor carriers but  is  nearly identical  to the

rail  carrier preemption section.13

     EPA's approach to interstate  carrier noise regulation leaves some flex-

ibility to state and local  authorities to address site specific problems on a
11 EPA, after consulting with the Department of Transportation,  is responsi-
   ble for establishing noise emission standards for motor carriers.   See
   40 C.F.R.  202.10 et seq.   These standards have been incorporated in
   Table II of section 9.1 of the Model  Ordinance (Appendix C).   The  Noise
   Control  Act places primary enforcement responsibilities on the Department
   of Transportation.  See 49 C.F.R.  325.1 et seq.

   For noise  standards for railroad equipment and facilities, see 40  C.F.R.
   201.10 et  seq.

12 42 U.S.C.  §4917(C)(1) & (2)  (1977).

13 42 U.S.C.  §4916(C)(1) & (2)  (1977).
                                     100

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case-by-case basis, without Federal interference.  On the one hand, where the
Federal government has established standards for interstate rail and motor
carriers, state and local authorities cannot adopt or enforce any standard, for
operations of the same equipment and facilities covered by the Federal  standard,
unless it is identical with the Federal standard.  On the other hand, where a
local situation demands a stricter noise regulation, EPA may permit state and
local authorities to establish and enforce such standards or controls and take
other necessary action provided there is no conflict with Federal regulation.
In this latter case, however, EPA must approve the contemplated action  prior to
its taking effect.
     Consolidated Rail Corp. v. City of Dover,^ illustrates one judicial re-
sponse to the preemption sections of the Noise Control  Act.   Here,  the  City of
Dover enacted an ordinance that prohibited "unnecessary and unusually loud
noise" in the context of railroad operation between the -hours of eleven p.m. and
seven a.m.  which either "annoys, disturbs, injures or endangers...."  Noting
that the comparable Federal standard was expressed in terms of decibels,  the
court struck down the local ordinance as not "identical" and, therefore,  pre-
empted by Federal law.  Moreover, under the same rationale,  the city was  not
permitted to bring a common-law nuisance action for noise against the interstate
carrier-
Product Noise Control
     Federal' preemption also touches products identified and regulated  by EPA
as major sources of noise.  The EPA administrator is authorized to proscribe
noise standards for products which fall into the categories of construction
14 450 F. Supp. 966 (D. Del. 1978).
                                     101

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equipment, transportation equipment (including recreational  vehicles), electric-

al or electronic equipment, and motors or engines, and which have been identified

by EPA as major sources of noise susceptible to feasible noise emission standards,

     The preemption flows from the following provision of the Noise Control

Act:15

     "Mo State or political subdivision thereof may adopt or enforce --

          (A)  with respect to any new product for which a regulation has
      been prescribed by the Administrator under this section, any law or
      regulation which sets a limit on noise emissions from  such new product
      and which is not identical to such regulation of the Administrator; or

          (B)  with respect to any component incorporated into such new
      product by the manufacturer of such product, any law or regulation
      setting a limit on noise emissions from such components when so in-
      corporated.

      (2)  Subject to sections 4916 and 4917 of this title,  nothing in this
     section precludes or denies the right of any State or political  sub-
     division thereof to establish or enforce controls on environmental
     noise (or one or more sources therof) through the licensing,  regulation,
     or restriction of the use, operation, or movement of any product or
     combination of products.

     To date, final  standards for new product emission standards have been issued

for air compressors,^ medium and heavy duty trucks,1'' and truck mounted solid

waste compactors.^  EPA has also issued final  labeling regulations for new

hearing protectors.19
15 42 U.S.C. §4905(e)(l)  (1977).

16 Noise Emission Standards for Construction Equipment,  Portable Air Com-
   pressors, 40 C.F.R.  §204.50 et.  seq.  (1979).

U Noise Emission Standards for Construction Equipment,  Transportation Equip-
   ment, Noise Emission Controls,  40 C.F.R.  §205.50 et.  seq.  (1979).

^ Noise Emission Standards for New Truck-Mounted Solid  Waste Compactors,
   40 C.F.R. §205.200 (1979).

19 Noise Labeling Requirements for Hearing Protectors, 40 C.F.R.  211  (1979).
                                     102

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     EDP has issued proposed new product emission regulations for buses,20 motor-
cycles, 21 and wheel and crawler tractors.22
     Conflicts may arise between Federal noise performance standards for products
and local environmental controls where the latter are so stringent as to exclude
the use of products which already have met Federal standards.  However,  such ex-
clusion would be appropriate and reasonable in areas such as hospital zones or
libraries, where operation of noise sources such as snowmobiles or motorcycles
is incompatible, regardless of the sound reduction achieved under Federal  regula-
tions.
     In addition, the Quiet Communities Act amended the Noise Control Act to
permit state and local jurisdictions to petition EPA to promulgate more  stringent
new product emission  standards.-23
     Additional Federal sanctions against tampering with noise control  devices
on regulated products are enforceable by states and localities.
20 42 Fed. Reg. 45776 (September 12, 1977)
21 43 Fed. Reg. 10822 (March 15, 1978).
22 42 Fed. Reg. 3580 (May 27, 1977).
23 42 U.S.C. §4905 (Supp. 1978).
                                     103

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APPENDIX A

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                     GLOSSARY OF KEY TERMS



     This glossary is designed to help the prosecutor understand key

terms that are likely to appear in noise violation prosecutions at some

point or other.  The glossary selects and defines important terms from

the acoustical, medical, and engineering fields, drawing on the defini-

tions used in a number of EPA publications.*  It also incorporates some

of the more generally applicable definitions used in the Model Community

Noise Control Ordinance.  Terms unique to the Model Ordinance are

not repeated in the glossary but may be found in Appendix C (Article III)
    , Public Health and Welfare Criteria for Noise, (1973); EPA, About
Sound, (1976); EPA, Workbook for Police Enforcement of Noise Regulations,
7T97B").
                               A-l

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A-WEIGHTED SOUND LEVEL -- An adjusted measure of sound pressure level.
    The ear does not respond equally to all frequencies, but is less
    efficient at low and high frequencies than at medium or speech
    range frequencies.  Thus, to obtain a single number representing
    the sound level of a noise containing a wide range of frequencies
    in a manner representative of the ear's response, it is necessary
    to reduce the effects of the low and high frequencies with respect
    to the medium frequencies.  The resultant sound level is said to be
    A-weighted, and the units are dB.  A popular method of indicating
    the A-weighted units is dBA or dB(A).   The A-weighted sound level
    is also called the noise level.  Sound level meters have an A-
    weighting network for measuring A-weighted sound level.

ABSORPTION -- A property of materials that allows th'ose materials to
    reduce the amount of sound energy reflected.  The introduction of
    an "absorbent" into the surfaces of a room will reduce the sound
    pressure level in that room by virtue of the fact that sound energy
    striking the room surfaces will not be totally reflected.   The
    effect of absorption merely reduces the resultant sound level  in
    the room produced by energy that has already entered the room.

ABSORPTION COEFFICIENT -- A measure of the sound-absorbing ability of a
    surface.  This coefficient is defined as the fraction of incident
    sound energy absorbed or otherwise not reflected by the surface.
    Unless otherwise specified, a diffuse sound field is assumed.   The
    values of the sound-absorption coefficient usually range from
    about 0.01 for marble slate to almost 1.0 for long absorbing wedges
    such as are used in anechoic rooms.

ACOUSTICS -- (1) The science of sound, including the generation, trans-
    mission, and effects of sound waves, both audible and inaudible.
    (2) The physical  qualities of a room or other enclosure (such  as
    size,  shape, amount of noise) that determine the audibility and
    perception of speech and music.

ACOUSTIC TRAUMA -- Damage to the hearing mechanism caused by a sudden
    burst of intense noise, or by a blast.   Note:   The term usually
    implies a single traumatic event.

AMBIENT SOUND LEVEL -- The noise associated with a given environment,
    exclusive of the particular noise being tested, being usually  a
    composite of sounds from many sources  near and far, exclusive  of
    intruding noises from isolated identified sources.

ANEMOMETER -- An instrument used to measure the wind speed at  the  test
    site.   The anemometer should have an accuracy of +_ 1.2 miles per
    hour at true wind speeds of up to 12 miles per hour to be  considered
    reliable.

AUDIO FREQUENCIES -- The frequency of a sound wave within the  normal
    range  of hearing,  usually from 20 to 20,000 Hz.
                               A-2

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AUDIOGRAM — A graph showing hearing acuity as function of frequency.

AUDIOMETER -- An instrument for measuring hearing loss.

AURICLE (pinna) — The outer ear, including the opening to the ear
    canal.

BACKGROUND NOISE -- The total of all noise in a system or situation,
    independent of the presence of the desired signal.  In acoustical
    measurements, strictly speaking, the term "background noise" means
    electrical noise in the measurement system.  However, in popular
    usage the term "background noise" is often used with the same
    meaning as "residual noise." or "ambient sound level."

BAFFLE — A baffle is a shielding structure or series of partitions used
    to increase the effective length of the external transmission path
    between two points in an acoustic system.

BROADBAND NOISE -- Noise with components over a wide range of frequen-
    cies.

C-WEIGHTED SOUND LEVEL (dBC) — A quantity, in decibels, read from a
    standard sound-level meter that is switched to the weighting net-
    work labeled "C".  Occasionally used when there is reason to think
    that the low frequency energy content of a source is being overly
    discriminated against by low frequency roll-off of the A-weighted
    filter.

COMMUNITY NOISE EQUIVALENT LEVEL — A scale (CNEL) that takes account
    of all the A-weighted acoustic energy received at a point, from
    all noise events causing noise levels above some prescribed value.
    Weighting factors are included that place greater importance upon
    noise events occurring during the evening hours (7:00 p.m. to
    10:00 p.m.) and even greater importance upon noise events at night
    (10:00 p.m. to 6:00 a.m.).

COMPOSITE NOISE RATING -- A scale (CNR) that takes account of the total-
    ity of all aircraft operations at an airport in quantifying the
    total airport noise environment.  A CNR value is calculated by
    beginning with a measure of the maximum noise magnitude from each
    aircraft flyby and adding weighting factors that sum the cumulative
    effects of all flights.  The scale used to describe individual
    noise events is perceived noise level (in PNdB); the term accounting
    for number of flights is 10 log ]_QN. (where N is the number of
    flight operations), and each night operation counts as much as 10
    daytime operations.  Very approximately, the noise exposure level
    at a point expressed in the CNR scale will be numerically 35-37 dB
    higher than if expressed in the CNEL scale.

CONTINUOUS SOUND SPECTRUM -- A sound spectrum composed of components
    that are continuously distributed over a frequency region.

CYCLES PER SECOND -- A measure of frequency numerically equivalent to
    Hertz.
                               A-3

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DAMPING -- The dissipation of energy with time or distance.  The term
    is generally applied to the attenuation of sound in a structure
    owing to the internal sound-dissipative properties of the structure
    or owing to the addition of sound-dissipative materials.

DAY-NIGHT AVERAGE SOUND LEVEL (Ldn) — The 24-hour energy average of
    the A-weighted sound pressure level, with the levels during the
    period 10:00 p.m. to 7:00 a.m. increased by 10 dBA before averaging.

DECIBEL — A measure (abbreviated "dB") on a logarithmic scale, of the
    magnitude of a particular quantity (such as sound pressure, sound
    power, intensity) with respect to a standard reference value (0.0002
    microbars for sound pressure and 10-12 watt for sound power).

DOPPLER EFFECT (DOPPLER SHIFT) -- The apparent upward shift in frequency
    of a sound as a noise source approaches the listener (or vice
    versa), and the apparent downward shift when the noise source
    recedes.  The classic example is the change in pitch of a railroad
    whistle as the locomotive approaches and passes by.

DOSIMETER -- An instrument which registers the occurrence and duration
    of noise exceeding a predetermined level  at a chosen point in the
    envi ronment.

EFFECTIVE PERCEIVED NOISE LEVEL (EPNL) — A physical  measure designed
    to estimate the effective "noisiness" of a single noise event,
    usually an aircraft fly-over; it is derived from instantaneous
    Perceived Noise Level (PNL) values by applying corrections for
    pure tones and for the duration of the noise.

EQUIVALENT A-WEIGHTED SOUND LEVEL (Leq) — The constant sound level
    that, in a given situation and time period, conveys the same sound
    energy as the actual  time-varying A-weighted- sound.

FAR FIELD — Describes a sound source region in free space.   At a suf-
    ficient distance from the source, the sound pressure level  obeys
    the inverse-square law (the sound pressure decreases 6 dB with
    each doubling of distance from the source).  Also,  the sound particle
    velocity is in phase with the sound pressure.  This region is
    called the far field of the sound source.   Regions  closer to the
    source,  where these two conditions, do not hold, constitute the
    near field.   In an enclosure, as opposed to free space,  there can
    also sometimes be a far field region if there is not so much
    reflected sound that the near field and the reverberant field
    merge.   See also,  "reverberant field."

FREE SOUND FIELD (FREE FIELD)  — A sound field in which the effects  of
    obstacles or boundaries on sound propagated in that field are
    negligible.

FREQUENCY -- The number of times per second that the sine-wave  of sound
    repeats  itself,  or that the sine-wave of a vibrating object repeats
    itself.   Now expressed in Hertz (Hz), formerly in cycles per second
    (cps).
                               A-4

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HAIR CELL — Sensory cells in the cochlea which transform the mechanical
    disturbance of sound into a nerve impulse.

HEARING IMPAIRMENT -- Hearing loss exceeding a designated -criterion.
    The Occupational Safety and Health Act defines as compensable
    hearing loss 25-dB average hearing loss at 500, 1000, and 2000 Hz.

HEARING LOSS -- At a specified frequency, an amount, in decibels, by
    which the threshold of audibility for that ear exceeds a certain
    specified audiometric threshold, that is to say, the amount by
    which a person's hearing is worse than some selected norm.   The
    norm may be the threshold established at some earlier time  for
    that ear, or the average threshold for some large population, or
    the threshold selected by some standards setting body for audio-
    metric measurements.

HERTZ — Unit of measurement (Hz) of frequency, numerically equal to
    cycles per second.

IMPULSIVE SOUND -- Sound of short duration, usually less than one
    second, with an abrupt onset and rapid decay.  Examples of  sources
    of impulsive sound include explosions, drop forge impacts,  and
    the discharge of firearms.

INFRASONIC -- Sounds of a frequency below the audiofrequency range.

INVERSE-SQUARE LAW -- A description of acoustic wave behavior in which
    the meansquare pressure varies inversely with the square of the
    distance from the source; this behavior usually occurs in free-field
    situations, so that the sound level  decreases 6 dB wih each doubling
    of distance from the source.

LEVEL — The logarithm of the ratio of a sound pressure being measured
    to a reference sound pressure when expressed in decibels.

LINE SPECTRUM -- The spectrum of a sound whose components occur at a
    number of discrete frequencies.

LOUDNESS — The judgment of intensity of a sound by a human being.
    Loudness depends upon the sound pressure and freqency of the
    stimulus.  Over much of the frequency range it takes about a
    threefold increase in sound pressure (approximately 10 dB)  to
    produce a doubling of loudness.

NEAR FIELD -- The sound field very near to a source, where the sound
    pressure does not obey the inverse-square law; see "far field."

NOISE -- Any sound which annoys or disturbs humans or which causes or
    tends to cause an adverse psychological or physiological effect on
    humans.

NOISE DISTURBANCE -- Any sound which (a) endangers or injures the  safety
    or health of humans or animals, or (b) annoys or disturbs a  reasonable
    person of normal sensitivities, or (c) endangers or injures  personal
    or real property.

                               A-5

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NOISE EXPOSURE FORECAST -- A scale (analogous to CNEL and CNR) that has
    been used by the Federal government in land use planning guides
    for use in connection with airports.   In the NEF scale, the basic
    measure of magnitude for individual noise events is the effective
    perceived noise level (EPNL), in units of EPNdB.  This magnitude
    measure includes the effect of duration per event.   The terms
    accounting for number of flights and  for weighting by. time period
    are the same as in the CNR scale.

OCTAVE -- The interval between two sounds having a basic frequency
    ration of two.   For example,  there are 8 octaves on the keyboard
    of a standard piano.

OCTAVE BAND -- All  of the components,  in  a sound spectrum, whose fre-
    quencies are between two sine-wave components separated by an
    octave.

PERCEIVED NOISE LEVEL (PNL)  -- A  quantity expressed in decibels that
    provides a subjective assessment of the perceived "noisiness" of
    aircraft noise.  The units of Perceived Noise Level  are Perceived
    Noise Decibels, PNdB.

PNdB -- See perceived noise  level.

PRESBYCUSIS — Impaired hearing due to old age.

PURE TONE -- Any sound which can  be distinctly heard as a single pitch.
                                  *
REFRACTION — A bending of the direction  of travel and sound wave from
    its established path, caused, for  example, by a wind, a barrier, or
    a temperature gradient.

RESIDUAL NOISE LEVEL -- The  noise that exists at a point as a result of
    the combination of many  distinct sources, individually indistinguish-
    able.  In statistical terms,  it is the level  that exists 90 percent
    of the time.   In popular usage the term "residual  noise" is often
    used interchangeably with "ambient noise."  See also, "background
    noise."

REVERBERANT FIELD -- A sound field in  which sound is significantly
    affected by obstacles,  reflecting  surfaces,  and boundaries, charac-
    terized by multiple echoes; the opposite of "free field."

ROOT-MEAN-SQUARE (RMS) — A  term  describing the mathematical process to
    determine an "average"  value  of a  complex signal.

SHIELDING -- The attenuation of a sound by placing walls, buildings, or
    other barriers  between  a sound source and the receiver.

SONE -- The unit of measurement for loudness.  One sone is the loudness
    of a sound whose level  is 40  phons.
                               A-6

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SONIC BOOM -- The pressure transient produced at an observing point by
    a vehicle that is moving past (or over) it faster than the speed
    of sound.

SOUND -- An oscillation in pressure, particle displacement, particle
    velocity or other physical parameter, in a medium with internal
    forces that causes compression and rarefaction of that medium.
    The description of sound may include any characteristic of such
    sound, including duration, intensity and frequency.

SOUND INSULATION -- (1) The use of structures and materials designed to
    reduce the transmission of sound from one room or area to another
    or from the exterior to the interior of a building.   (2)  The degree
    by which sound transmission is reduced by means of sound  insulating
    structures and materials.

SOUND LEVEL -- The weighted sound pressure level  obtained by  the use of
    a sound level meter and frequency weighting network,  such as A,  B,
    or C as specified in American National Standards Institute specifi-
    cations for sound level meters (ANSI SI.4-1971, or the latest
    approved revision).  If the frequency weighting employed  is not
    indicated, the A-weighting is implied.

SOUND LEVEL METER -- An instrument which includes a microphone, ampli-
    fier, RMS detector, integrator or time averager, output meter,  and
    weighting networks used to measure sound pressure levels.

SOUND PRESSURE -- The instantaneous difference between the actual  pres-
    sure and the average or barometric pressure at a given point in
    space, as produced by sound energy.

SOUND PRESSURE LEVEL -- The root-mean-square value of sound pressure,
    expressed as the logarithm of the ratio of that sound pressure  to
    a reference sound pressure (20 microPascals)  in decibels  (dB).

SPEED (VELOCITY) OF SOUND IN AIR -- The speed of sound in air is 344
    m/sec or 1128 ft/sec at 78 degrees F.

STEADY-STATE SOUNDS -- Sounds whose average characteristics remain
    reasonably constant in time.  An example of a steady-state sound
    is an air conditioning unit.

TEMPORARY THRESHOLD SHIFT (TTS) — A temporary impairment of  hearing
    capability as indicated by an increase in the threshold of audibil-
    ity.  By definition, the ear recovers after a given period of time.
    Sufficient exposures to noise of sufficient intensity, from which
    the ear never completely recovers, will lead to a permanent threshold
    shift (.PTS), which constitutes hearing loss.

TINNITUS -- Ringing in the ear or noise sensed in the head.  Onset may
    be due to. noise exposure and persist after a causative noise has
    ceased or occur in the absence of acoustical  stimulation (in which
    case it may indicate a lesion of the auditory system).
                               A-7

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TONE -- A sound of definite pitch.   A pure tone has a sinusoidal wave
    form.

WAVELENGTH -- For a periodic wave (such as sound in air),  the perpendic-
    ular distance between analogous  points on  any two successive waves.
    The wavelength of sound in air  or in water is inversely proportional
    to the frequency of the sound.   Thus,  the  lower the  frequency,  the
    longer the wavelength.

WINDSCREEN -- A porous device to  cover the microphone of a  sound level
    measurement system and  intended  to minimize the affects of winds  and wind
    gusts on the sound levels being  measured;  typically  made of reticulated
    (open cell) polyurethane foam and spherical  in  shape.
                             A-8

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APPENDIX B

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                         BIBLIOGRAPHY
Abey - Wickrama I., A. Brook, M.F., Gattoni,  F.E.G. and C.F-  Herridge,
     "Mental Hospital Admissions and Aircraft Noise," Lancet,  1275.
     (December 13, 1968).                             ~

About Sound, Environmental Protection Agency, Office of Noise  Abate-
     ment and Control, Washington, D.C. (1976).

Acoustic Terminology Guide, Environmental  Protection Agency, Washington,
     D.C., Government Printing Office (1978).

"Aircraft Noise Abatement:  Local Versus National  Control," Law and
     the Social Order 678 (1970).

An Administrative Handbook for the NYC Noise  Control Code,  Environ-
     mental Protection Agency, Washington, D.C., Government Printing
     Office.

Anthrop, D.F., Noise Pollution (1973).

Anthrop, D.F., "Environment Noise Pollution:   A New Threat  to  Sanity,"
     25 Bulletin Atomic Scientists 11-16 (1969).

"Automobile Noise - An Effective Method for Control," 4 University
     of Richmond Law Review 297 (1970).

A.D. Bampton, "Legislation of Noise and Exhaust Emission and the
     Effects on Commercial Vehicle Engines,"  Transportation Engineering,
     (1972).

K. Boger, "The Common Law of Public Nuisance  in State Environmental
     Litigation,"  4 Environmental Affairs 367 (1975).

G.M. Betz,  "Legal Actions to Control Noise,"   8 Trial 51 (1972).

C.R. Bragdon, "Community Noise Ordinances,"  36 Journal of  Environ-
     mental Health 313 (1974).

J. Bryson and A. Macbeth "Public Nuisance, the Restatement  (Second)
     of Torts and Environmental Law," 2 Ecology Law Quarterly  241
     (1972).

A. Cohen, "Effects of Noise on Psychological  State," Proceedings of
     National Conference on Noise as a Public Health Hazard,  Report
     No. 4, American Speech and Hearing Association, Washington D.C.
     TI96T).

J.D. Collins, "California Tackles Highway Noise,"  Civil Engineering,
     (November 1973).
                                3-1

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 Cohen  and  Sharon,  "Noise and the Law:  A Survey," 11 Duquesne  Law
     Review  133  (1972).

 "Commonly-Used Terms and Definitions for Understanding Noise Reg-
     ulation," 139 Environmental Control and Safety Management 26
     (1970).

 "Community Noise," 26 AmJur. Proof of Facts 181 (19  ).

 "Constitutionality of the Auto Muffler Statutes:  Comments on  Noise
     Pollution Laws," 48 Journal of Urban Law 755 (1971).

 J.F. Deits,  "Noise Control  in Oregon:  Government Regulation and
     Private Remedies, 10 Williamette Law Journal  198 (1974).

 Donnerstein  and  Wilson, "Effect of Noise and Perceived Control on
     Ongoing and Subsequent Aggressive Behavior," 34 Journal of
     Personality and Social Psychology 774 (1976).

 "The Expensive Sound of Silence," Business Week, July 20, 1974.

 Federal Environmental Law,  Environmental Law Institute (1979).

 "Federal Preemption of Local Airport Noise Regulation," 25 Catholic
     University  Law Review 580 (1976).

 P.A. Franken, and D.G. Page, "Noise in the Environment," 6 Environ-
     mental Science and Technology 124 (1972).

 "Guidelines for Preparing Environmental  Impact Statements on Noise,"
     National Academy of Sciences (1977).

 F.P. Grad, Treatise on Environmental  Law (3 vols.) (1974).

 A.G. Greenwald,  "Law of Noise Pollution,"  Monograph No. 2, 1 Environ-
     ment Reporter (Monographs)  (1970).

 A.G. Greenwald, "Local  Control:   Nonstationary Noise Sources"  BNA
     Noise Regulation Reporter (Jan.  2,  1979).

 C. Harris, Handbook of Noise Control  (1957).

 M. Hatfield,  "Compilation of State and Local  Ordinances on Noise
     Control,"  115 Congressional  Record,. 32178-32259, October  29,
     1969.         	

J.L. Hildebrand (ed.) Noise Pollution and the Law (1970).

J.L. Hildebrand,  "Noise Pollution:   An Introduction to the Problem
     and an Outline for Future Legal  Research," 70 Columbia Law
     Review 652 (1970).
                                8-2

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G.F. Houle, "Toward the Comprehensive Abatement of Noise Pollution:
     Recent Federal and New York City Noise Control Legislation,"
     4 Ecology Law Quarterly 109 (1974).

Industrial Noise and Hearing, National Safety Council  (1975).

"Injunctive Relief Against Noise," 25 University of Virginia Law
     Review 465 (1939).

J. Kaufman, "Legal Aspects of Noise Control," 115 Congressional
     Record, October 29, 1969.

Laws and Regulatory Schemes for Noise Abatement, Environmental
     Protection Agency, Washington, D.C., Government Printing
     Office (1971).

N. Landu, and P. Reingold, The Environmental Law Handbook (1971).

W. Lloyd, "Noise as a Nuisance," 82 Pennsylvania Law Review 567
     (1934).

E.K. McLean and A. Tarnopolsky, "Noise Discomfort and  Mental  Health,"
     7 Psychological Medicine 19 (1977).

"Noise and Its Measurement," Environmental Protection  Agency,
     Office of Public Affairs, Washington, D.C.

Noise Control in New York Building Code, N.Y. Admin. Code,  ch.  26
     Sec. C26-1208.1 et seq.

"Noise Abatement at the Municipal Level," 7 University of San
     Francisco Law Review 478 (1973).

Noise:  A Health Problem, Environmental  Protection Agency (August,
     1978).

"Noise and the Law," 2 Duguesne Law Review 133 (1972).

Noise Control Act of 1972, Public Law No. 92-574, 86 Stat.  1234,
     42 U.S.C. Sec. 4901 et seq.

"Noise Pollution," 70 Columbia Law Review 652 (1970).

Noise Regulation Reporter, Washington, D.C., Bureau of National
     Affairs.

Public Health and Welfare Criteria for Noise, Environmental Pro-
     tection Agency (July 27, 1973).

Report to the President and Congress on Noise, Environmental  Pro-
     tection Agency (December 31, 1971).

A. Reitze, Environmental Law Vol. I (1972).
                                B-3

-------
W. Rodgers, Environmental Law (1977).

Standards and Measurements Methods, Legislation and Enforcement
      Problems, Environmental Protection Agency Public Hearings. Vol.
      IV, U.S. Government Printing Office, Washington, D.C. (1971).

State and Municipal Noise Control Activities, Environmental Protec-
      tion Agency (January 1976).

M. Stein, "The Effect of the Federal  Pre-Emption of Noise Control and
     Air Pollution on Local  Initiative:   Can Prometheus Be Unbound?",
      38 Journal of Air Law 42 (1972).

"Towards a Quieter City," NYC Report, NYC Department of Health (1970).

Tunney, Senator John, "Regulation - Local,  State and Federal,"
     Natural Resources Lawyer 301 (1974).

The Urban Noise Survey,  Environmental  Protection Agency (August,  1977),

Warren, "Nuisance Law as an  Environmental  Tool," 7 Wake Forest Law
     Review 211 (1971).

J.S.  Winder, "Peace and  Quiet in Our  Time:   The U.S.  Federal  Noise
     Control Act,"  Environmental  Policy  and'Law, 2,  130 (1976).

J.C.  York,  "Controlling  Urban Noise Through  Zoning Performance
     Stan-dards,"  4  The Urban Lawyer 689  (1972).

T.C.  Young,  "A Balanced  Approach  to Noise  Abatement  (motor vehicle
     noise),"  Automobile Engineer (September 1972).
                               B-4

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APPENDIX C

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Preamble   to


Model   Community


Noise  Control


Ordinance


This model noise control ordinance was
drafted by the U.S. Environmental Protection Agency
and the National Institute of Municipal Law Officers.





Contents

                            Page
Introduction   	 1
Purpose 	
Background  	,. .	
Interrelationship of  Various Provisions
General Provisions   	
Policy  Regarding Levels 	
Pre-emption  	 2
Hearing Board and Advisory Council. . 3
Specific Provisions 	 3
Article  Ill—Definitions 	 3
Article  IV—Powers  and Duties 	 4
Article  VIII—Defining Land use Dis-
  tricts  	 J
Article  X—Land Use	 6
Article  XI—Enforcement 	 7
Format  	 7


Figures
Figure.  I  Fixed Noise Source Levels
          at Residential Bound-
          aries  	
Figure  II  Fixed Noise Source Levels
          at Business/Commercial
          Boundaries 	
Figure III  Fixed Noise Source Levels
          at Manufacturing/ In-
          dustrial  Boundaries ... 6
First printing November 1975
Reprinted September iv7ft
     U.S. Environmental Protection Agency

     Wasnmgton 3.C. 20^60
                   C-l

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INTRODUCTION
Purpose
  The  Model  Community  Noise  Control
Ordinance  (model  ordinance)  is intended
to b« a basic tool which communities, both
large and small, can use lo construct noise
control ordinances suited to  local  needs  and
conditions.  The  complete  model  ordinance,
including  optional  provisions,  is  perhaps
most suitable for larger communities, with
populations  of  about  100,000  or   more.
Smaller communities and large  communities
with limited  resources  may wish  to  adopt
only those provisions  which address  their
most pressing noise  problems.  It  is  impor-
tant that the  community  ensure that  all
provisions adopted are  realistic in relation
to local needs and conditions;  that all pro-
visions are consistent with  one another, with
other local law,  and with  State  and  Fed-
eral law; and. finally, that all provisions are
clear  and otherwise  well  drafted so  that
enforcement  problems  will  be  minimized.

Background

  This model ordinance is an outgrowth of
the Federal Noise Control Act  of 1972 (49
U.S.C.  §§  4901  et  seq-.)  and  the tremen-
dous  increase  in  interest   regarding  noise
abatement  and control  which  the Act  has
precipitated.   Many  existing   community
noise ordinances are  based on  outmoded
model  ordinances and/or  the  common  law
approach  to  noise control which  relies ex-
clusively on  difficult to  enforce nuisance
provisions.  While the model ordinance  pre-
serves  common  law  with  Article VI  provi-
sions prohibiting  noise  disturbances,  it  also
contains definitive   performance   standards
for  motor vehicles  and  other sources  of
community noise. The  increase  in reliable
monitoring equipment available  to local gov-
ernments, coupled with definitive  standards
incorporated  into  local  noise  control  ordi-
nances, should result  in  ordinances  which
are more easily enforceable  than many have
been in the past.
  It is anticipated that  an  anaiagous  model
ordinance will form  pan of a workbook on
community noise abatement and  control to
be  published  by  the   U.S.  Environmental
Protection Agency during late 1977.   In ad-
dition  to containing  the  model  ordinance
(perhaps with  discussions of a number of
alternative  provisions),  the  workbook may
contain chapters  on  the legal basis of noise
control, the health effects  of noise and vari-
ous enforcement  approaches.
  Although the  model  ordinance will stand
alone as a legal  document, for proper en-
forcement the City/County  must  additional-
ly have a code of recommended practices or
rules  and  regulations  which   give general
specifications  for  sound  measuring   equip-
ment and  measurement  methodology.  This
document should al.so provide detailed pro-
cedures for measurements to be  taken for
certain provisions of  the ordinance, such as
motor  vehicles  and stationary  sources. To
assist communities  in the development  of  a
code of recommended practices, EPA is pre-
paring a  model code which, when completed.
will  be  sent  to recipients  of  the  model
ordinance.

Interrelationship of Various
Provisions

  An overview of the mcdel  ordinance can
most  readily  be obtained  hy  reading  the
List  of Provisions.  When a community de-
termines  which  activities it wishes to regu-
late, the  appropriate model provision i.r pro-
visions can  be located bv  referring to this
list.
  A glance through  the List of  HrovisK-ns
suggests  that certain acts may be  prohihi'ed
jy  more than  one  provision.  For
use of a noisy go-can couUl  violate Sii
9.2  ("Recreational  Vehicles   Operating Off
Public Rights-Of-Way"), as wcil as Section
6.1  (Noise Disturbances)   It  may be that  d
community  desires  such  muitipls icverrg-:.
In this case, enforcement against  the owner
or operator of a noisy  go-cart  would prob-
ably come under the provision  more  easily
enforced, but could come  under  both pro-
visions violated, at  the discretion of the en-
forcement agency  If a community, does not
desire such  multiple coverage, it can either
omit  certain  provisions  or it  can exempt
acts covered by other provisions from  mul-
tiple coverage.  Such modifications deserve
careful consideration, however,  jo that  they
do  not  modify the  ordinance  more  than
desired or otherwise jeopardize enforcement.


GENERAL PROVISIONS

Policy Regarding Levels

  In  this model ordinance,  recommended
values  for sound levels  in  the performance
standards have been omitted  in  most cases.
Suggested  times  for  the  curfews on  the
hours of  the conduct of activities or the op-
eration  of  equipment have  also  generally
been omitted. The  reason for  these omis-
sions is that the drafters of  the ordinance
feel that  there is no single  number that can
be chosen for each  provision  that would be
appropriate  for all  types  of  communities.
Each community has  its own  set of environ-
mental,  health,  economic  and  other  goals
it wishes  to attain. Each community also has
its own configuration of  noise sources  and
their impact which it  wishes to control.  The
level  and e.Ttent of  such  control is   fully
wuhin  the  purview of  local  decision.  Of
course, localities will wish to consider the
                                          C-'l

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tecnmcal  practicality and  economic  reason-
ableness of sound  levels chosen. However, in
the regulation of noise pollution, the protec-
tion of  public health and welfare  is the ma-
jor legal basis for control and  must be care-
fully considered in the determination of per-
formance  standard noise levels and hours of
curfew. For a specification of national maxi-
mum noise  exposure guidelines, consult  In-
formation on the Levels of Environmental
,Vorr«  Requisite  to   Protect Public  Health
and Welfare with an Adequate  Margin  of
Safety   (U.S.   Environmental   Protection
Agency, March 1974).

Pre-Emption
  Under the Noise Control  Act of 1972 (49
U.S.C. §§  4901 et ;eq.), certain areas of lo-
cal  authority will become  pre-empted  on
the effective date of regulations  developed
by  the   U.S.   Environmental   Protection
Agency pursuant  to  Sections 6. 17  and  18
of this Act. In this  discussion,  we will  pre-
sent the scope of Federal  pre-emption  and
indicate the provisions of  the model  ordi-
nance  which  were  drafted  wholly or  par-
tially  to respond to the  issue of pre-emption.
  An over-all requirement  to  monitor Fed-
eral pre-emptive  regulations and to respond
to them in  the local noise ordinance is con-
tained in  Section 4.3.6(b).  This  subsection
provides that, at  such time as  Federal  regu-
lations  become effective  which are  by law
pre-emptive of the  laws of  State  and  local
government,  the  Environmental  Protection
Officer(r)/Noise  Control  Office(r)  (EPO/
NCO) shall review the provisions of the lo-
cal ordinance  which may  be   affected  and
make   appropriate   recommendations   for
changes to the city  council/legislative body.
  The purposes of  including such  a provi-
sion in this  ordinance  are to  facilitate  the
coordination of the  local  noise control  ef-
forts  with the Federal  noise  program  and
to reduce the possibility of defendants  rais-
ing  Federal pre-emption  as a  defense  to
charges of local law  violations.
  With regard  to  the scope of  pre-emption,
the pre-emptive  provision  of  Section  6  of
the Noise Control Act  differs  considerably
from  those of Sections  17  and  18. The Sec-
tion 6  provision   is  relatively  narrow,  pre-
empting local  laws   covering  new  product
noise emission  levels which are directed  at
the manufacture or  sale of such  products.
The preemptive  provisions  of  Sections   17
and  18 are  very  broad, pre-empting  local
noise laws which  affect the operation of in-
terstate motor  and  rail  carrier vehicles.
  In Section 6, subsection 6(e)(l) provides
that,  after the   effective  date  of an  EPA
regulation prescribing noise emission levels
for a specific new  product  or component,
no State or  political  subdivision thereof may
adopt or enforce  with  respect  to  that  par-
ticular new  product  or component any law
or  regulation which sets  a noise  emission
limit  on such product  (or component)  en-
forceable against  the manufacturer of  the
product, applicable  at the time of  sale,  un-
less  such law or  regulation is identical to
the Federal  regulation.  Thus, the  preemp-
tion  is  against State and  local laws  which
regulate the  noise levels  of  a  new  product
(i.e..  a  product which has  not  yet been sold
to the first  retail  purchaser) and which, at
any  time, impact  the manufacturer of  the
product.
  State and  local governments,  under sub-
section  6(e)(2), retain  authority  to control
products by all other available means. This
subsection  states   that nothing in  this sec-
tion  precludes or  denies  the  right of State
or local governments  to  establish  and  en-
force  controls on  environmental  noise and
sources  thereof through the licensing, regu-
lation, or restriction  of the use, operation or
movement of any product or combination of
products.
    Thus, although  a local government may
not enforce  a non-identical local law regard-
ing the  noise level of an EPA-regulated new
product  which  affects the  manufacture  or
sale of  such  product, the local government
may  regulate  the  product  noise  impact
through  regulations  enforceable against  the
owner or operator of the product  by pro-
viding,  for example,  maximum noise  levels
for operation, curfews  on operation,  pro-
hibition  of  use  in  a  residential  neighbor-
hood  or hospital  zone, or  requirements  for
periodic  inspection  and  licensing  of  the
product.
  Broader pre-emptive coverage is found in
Sections 17(c)(l)  and 18(c)(l).  These sec-
tions  provide  that,  after  the  effective date
of an EPA  regulation applicable to noise
emissions from interstate  rail or  motor car-
riers,  no State or political  subdivision  there-
of may adopt or  enforce  any  standard  ap-
plicable  to  the  same noise  source  unless
such  standard  is  identical to the  Federal
standard. However,  Sections  17 (c)  (2) and
18(c)(2) provide thai nothing in these sec-
tions  shall  diminish or  enhance  the right
of State and local governments to establish
and enforce standards or controls on levels
of environmental noise or to control, license,
regulate or  restrict  the  use,,  operation  or
movement  of any regulated product if  two
conditions occur:

   1)  the  EPA Administrator,  after consul-
tation with  the Secretary  of the Department
of Transportation, determines  that  such  lo-
cal law is necessitated by  special  local con-
ditions, and

  2)  if  he  determines  that  such local  law
is  not in conflict with the EPA regulations.

  Thus, on the effective  date of the EPA
rezulations  under Section  18  (October  15,
                                          C-3

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 1975) and Section 17 (undetermined as yet).
 local governments should review  any ordi-
 nance  provisions  applicable  to  noise  emis-
 sions resulting from the use or operation of
 motor  vehicles with a gross veh'-'.s or com-
 bination weight rating of greater than  10,000
 Ibs. operated  by an interstate motor carrier
 and  of interstate  surface  railroad locomo-
 tives and  cars. Local regulations  providing
 standards  on  noise emissions resulting from
 operations  subject  to Federal  regulations
 must be identical to the  Federal regulation.
 Such identity applies not only to the  stand-
 ard but also to the core measurement  meth-
 odology which  defines the  standard.   Non-
 identicnl standards may not be enforced, and
 should  be  declared ineffective, as of the ef-
 fective  date of the Federal regulation.  For
 this reason. Section IS standards have been
 incorporated into  Table  II of Section  9.1 in
 the model ordinance. The  appropriate  meas-
 urement  methodology  should  be   incorpo-
 rated intu  the  community code of recom-
 mended practices.

   In general, we  can classify the  pre-emp-
 tive effect  of  these  sections on  local  law
 into  three categories. First,  any local  law
 \\hich  sets noise  emission  levels  for  inter-
 state motor vehicles  and  rail locomotives
 and cars  must be  identical  to  the Federal
 standard.  Xo special local condition or other
 factor can exempt  this requirement. Second,
 local laws  which regulate or  restrict the  use,
 operation,  or movement of interstate motor
 rail carriers by  such  means  as curfews  and
 truck   routes  (see  Section  4.3.4,  Truck
 Routes  and  Transportation  Planning)  will
 not be  subject  to pre-emption  if  (1)  the
 principal purpose  of  such  regulation is not
 to  control noise, or  (2)  the principal pur-
 pose  is  to control  noise but  the regulation
 has been  approved by the EPA as necessi-
 tated by special local conditions  and not in
 conflict with  Federal regulations.  For ex-
 ample,  truck  routes  designated  solely  on
 the basis of noise must be submitted to  EPA
 for determination of a special local condi-
 tion.  Truck routes based on additional  fac-
 tors,  such  as  the  safety of  children,  maxi-
 mum load, on  street  surfaces,  etc.,   will
 not  need  EPA  approval   Third,  general
 noise regulations,  such  as  the  property  line
 noise emission  standards  of Article  VIII,
 will not be affected by  these  pre-emption
 provisions  except  in  rare  cases. Thus,  the
 property line levels may  be applied to  noise
 emissions  caused  by interstate motor car-
 rier vehicles at  a loading  terminal so  long-
 as  means  of abatement  are possible which
 do  not  require  controlling  the noise  emis-
 sion level  of the motor  vehicle itself.  Such
 other means of abatement can include, for
 example, installation of noise  barriers at the
 perimeter  of the  terminal  and creation of
 buffer zones of land between the  terminal
and the noise-impacted areas.
 Hearing Board and Advisory
 Council
   A  City/County  with a  large  EPO/NCO
 may  prefer  to  utilize a  Hearing Board (or
 an administrative  court)  to hear  cases re-
 garding ordinance  violations. Under this ap-
 proach, the Hearing Board would decide the
 case and determine the penalty. Local courts
 would  be utilized  in appeals  of the  deci-
 sions  of the board.   This  approach  avoids
 overburdening existing courts.
   The  City/County may also  wish  to use  a
 Hearing Board  to  make determinations on
 Special  Variances  (Section 7.?"/  and  Vari-
 ances  for Time to Comply (.Section  7.3).
 This would free EPO/NCO personnel  to per-
 form other tasks under (he ordinance. How-
 ever, the EPO/NCO  could  still be consulted
 on technical matters.
   If  the  City/County  decides  to  have   a
 Hearing Board, the terms  of  existence and
 operation  of the Board should be  specified
 in the  ordinance.
   A Noise Control Advisory Council should
 also  be considered  by  the City/County.  The
 functions of  this council could include  pro-
 viding  (1)  advice  on  development  of the
 noise  control  program;  (2)  recommenda-
 tions on which provisions of the model ordi-
 nance   should  be  included  in  the  City/
 County ordinance;  (3)  recommendations on
 sound  level values and  curfew periods for
 the various provisions; and  (4) stimulation
 of public interest on  noise  abatem«nt.  This
 Council  could .also be responsible for writ-
 ing the periodic reports, specified  in Section
 4.3.9, concerning the  progress  of the  local
 noise control program.


 SPECIFIC  PROVISIONS

 Article III—Definitions
 1. Section 3.2.16, Definition ot "Motorboaf
   A  community which serves as an  interna-
 tional  port may wish to explicitly  exclude
 vessels  in international commerce from the
 definition  of motorboat. since many  such
 vessels would  be effectively prohibited from
 using the port (under Section 6.2.15, Motor-
 boats).
 2. Section 3.2.29, Definition of "Sound"
  The  term  "sound"  is  generally  used as
 the operative word in  this ordinance rather
 than- the term "noise." This is to avoid the
 problem of associating "noise" with  a sound
 that  is  "disturbing"  or  "unwanted",  with
 the attendant possibility that  in order to
 prove  a violation of  the  ordinance,  proof
 must  be given  trial the sound  had  indeed
been "disturbing" or "unwanted."  Because
 the substantive provisions of the  ordinance
have been narrowly drawn and often  con-
 tain  objective criteria,  proof  of  an  addi-
 tional subjective element is  unnecessary.
                                          C-4

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 3. Section 3.2.22, Definition of "Person"
   The definition of person does not include
 Federal agencies and  departments.  This is
 because legal decisions  have not yet deter-
 mined  th«  extent  of a  locality's authority
 10 bring action against  the Federal  govern-
 ment  for noise  control violations.
   Section  4 of  the  Noise Control  Act of
 1972  requires  that all  departments, agen-
 cies, and instrumentalities  of  the executive
 legislative, and judical branches  of the Fed-
 eral  Government   comply  with  Federal,
 State, interstate, and local  requirements  re-
 specting control  and abatement  of  environ-
 mental noise to the same  extent that  any
 person is subject to such requirements The
 Federal Courts of Appeals, deciding cases
 under  identical language in the  Gean  Air
 Act, have  disagreed  as  to  whether  this
 language  extends to  administrative  as well
 as  substantive  requirements.  See State  of
 Alabama  v. Seeber, 502 F.  24.  1238  (5 Cir.
 1974);  Commonwealth  of  Kentucky  v.
 Kuckehiiaus. 497 F. Id. 1172, (6  Cir.  1974).
 Kentucky v. Ruckelshaui is pending before
 the  Supreme Court, and a resolution of the
 issue is likely.  Further  questions  exist is to
 whether a  State or  local  government can
 bring  an  action against  the Federal Gov-
 ernment for violations of  their  noise con-
 trol  laws,  regulations and  ordinances. Ac-
 cordingly, the key  definition of "person" in
 the  model  ordinance,  which serves as  an
 applicability  section,  does  not  include  the
 Federal Government.
   Sn the  absence  of  such specificity, Sec-
 lion 4  of the Noise  Control Act continues
 so  require  that the  Federal  Government
 comply with the local ordinance. However,
 it  is  left  to  each community  to  determine
 the  position  it  will  take with respect to  the
 relevant issues,  juch as  whether the Fed-
 eral  Government  must  comply  with  ad-
 ministrative provisions, and  whether penal-
 ties, orders,  and  enforcement  actions will
 be directed  at the  Federal Government un-
 der  Article  XI (Enforcement).


 Article IV—Powers and Duties
 of The (Environmental Protec-
 tion)/(Noise Control) Office(r)
 Resolving Inter-Departmental Conflict]
  Section 4.2.4  (Review of Actions of Other
 Departments):  Section  4.2.5  (Review   of
 Public and  Private  Projects). Section 4.3.4
 (Truck Routes   and  Transportation  Plan-
 ning)  and  Article  V (Duties and Respon-
sibilities of  other  Departments)  have the
potential of causing inter-departmental uon-
flicts since there is shared  responsibility. The
community may wish  to specify  in the ordi-
nance  a method  for  resolving  such con-
flicts, perhaps by authorizing the  city coun-
cil, county board of supervisors, mayor, etc..
 to  negotiate  differences  and  make  a
 decision.
 Education

   Section 4.2.2 authorizes the Environment-
 al  Protection  (Noise  Control)  Office (r) to
 educate the public  on methods of control-
 ling noise and on the  provisions of the ordi-
 nance.  The EPO  may wish to exercise cau-
 tion, however,  in  providing  specific advice
 on solving  a  particular  noise  problem.  For
 instance, if the EPO were to advise  a com-
 mercial  establishment on a method of re-
 ducing  noise  from its air conditioning unit
 ind this method  failed  to  be effective, the
 commercial establishment may  try  to  use
 this fact as a  defense  in any  action brought
 against   it  by  the EPO. The  EPO  officer
 should  use  his  discretion  in  handling  mat-
 ters of  this type.
 Review of Public and Prfrate Projects
  Section 4.2.5  grants the  EPO the power
 to  review public  and  private  projects  over
 which another department has  authority in
 order to determine  whether they will com-
 ply with the ordinance. This applies to such
 matters  as  licensing  a race track,  approv-
 iny a housing project, or granting  a  permit
 for a construction site, if required to be ap-
 proved  by  a department other than that of
 the EPO/NCO and if  likely to create sound
 levels or sound exposures  in vi6lation of  the
 ordinance.
  Some  communities  may  wish to  exparjd
 this section to  authorize the EPO  to  rec-
 ommend to other  departments appropriate
 modifications to projects if the EPO believes
 such  projects  will violate the ordinance- or
 to allow him  veto  power over projects sig-
 nificantly impacting  the  noise environment.
  This  provision does not  set  criteria for
 determining  whether  a  proposed  project
 must  be reviewed  by the EPO/NCO.  If the
 City/County  wishes  the  EPO/NCO  to  re-
view  every  proposed project, such  criteria
 are not  necessary,  but this policy may create
an unnecessarily large  burden on. the EPO/
NCO. If the  City/County  wishes  to limit
situations where the  proposed project is sub-
ject to noise impact review, criteria can be
either included in  the  language  of this pro-
vision, or the EPO/NCO  can develop cri-
 teria  in  consultation with affected  depart-
ments. Such criteria may include, for ex-
ample,  minimum  monetary or  time limits
for  the  review of activities or specification
of the types of activities  which are  likely to
produce sound in violation of the ordinance.
Inspections
  Section 4.2.6 concerns inspections.  To be
constitutionally  permissible,   administrative
searches or  inspections conducted by muni-
cipal inspectors on private property must be
made using  i  warrant  procedure  (Camara
 v.   Municipal Court, 337  U.S. 523  (196T);
                                          C-5

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See v.  Seattle. 387 U.S. 511  (1967)). Thus,
if a private property holder  refuses to allow
his  premises  to  be  inspected  by  a City/
County official,  the  official  must  obtain a
search  warrant for the premises before he
may inspect  them.  The .Court in See  also
held that there  is no  distinction  between
the rights of  a residential  property holder
and those of a commercial  property holder
concerning  searches  or  inspections.  Both
types of  property are  thus treated  the same
in Section 4.2.6(a).
  Violations  of Article  VIII (Noise Levels
by Receiving Land Use)  and most  Article
VI  (.Prohibited Acts;  violations can be  de-
termined  without  an  inspection  on   the
premises on which the sound source is situ-
ated, so  a search warrant is not needed in
these situations.

Article VIII—Sound Levels by
Receiving Land Use (Defining
Land Use  Districts)
  Article VU1 sets property line sound kmits
for the broad receiving land use categories
of residential,  commercial  and  industrial
Many  communities  are  employing  this type
of quantitative  limit   to  provide  stronger
fegai control  over undesirable  sound levels
                        than  is attainable  with  an  ordinance con-
                        taining  only  nuisance  provisions.
                          If the community  land use/zoning  code
                        accurately reflects the actual  use of the  land.
                        then the designations  used  by the city for
                        zoning categories may  effectively be plugged
                        into the three Article  VIII  categories (with
                        the corresponding definitions placed  in  Ar-
                        ticle III). On the other hand,  if there arc
                        numerous discrepancies between the way the
                        land is zoned and the way it  is actually used
                        (e.g.. commercial establishments  in  a  resi-
                        dential  zone), or if there are  large  tracts
                        of unzoned  land, the  community may pre-
                        fer  to base property line  limits on  the actual
                        use of  the  land.  This would  provide greater
                        protection for impacted  properties.
                          A related matter  to  be considered in con-
                        trolling  property line noise is that  of the oc-
                        casional non-conforming  land  use.  An ex-
                        ample  is the case of a single  residence lo-
                        cated in an  industrial  area.  It may  not b*
                        possible for  several manufacturers  impact-
                        ing the  residence to lower their noise levels
                        tt  meet the limit  specified  for  residential
                        B»es.  Situations  of this type will require
                        tMpc discretion in enforcement
                          Figures  i,  II,  and III summarize grapm-
                        cally the property line levels set .by current
                        municipal  noise  ordinances.
    40-
    35-
    30-
 I25'
    20-


    15-


    10-
                                       FIGURE I
                      FIXED SOURCE NOISE LEVELS ALLOWABLE AT
                          RESIDENTIAL DISTRICT BOUNDARIES
       90
 Daytime Levels
 Nighttime Levels<
30      75       70      65      60
        A-Weignted Sound Level in dSA

             Average Day-56.75
             Average Night—51.76
                                                                   50
                                                                           45
                                                                                   40
117 cities—daytime limits
118 cities— nighttime limits
                                         C-6

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    .10-
  ~. 25-
                                     FIGURE II
                    FIXED SOURCE NOISE LEVELS ALLOWABLE AT
                  BUSINESS/COMMERCIAL DISTRICT BOUNDARIES
                                         D
                                               •
                                               a
     0.3
       90
  Daytime Levels  •
  Niuhmme Levels,
1


80
-5     70     65     60      55
 A-Weighted Sound Level in dBA

     Average Day-63.22
     A-erage Night-59.21
           45
                 40
                                       104 cities — daytime limns
                                       iCWcities —nighttime limns
                                     FIGURE III
                    FIXED SOURCE NOISE LEVELS ALLOWABLE AT
               MANUFACTURING- INDUSTRIAL DISTRICT BOUNDARIES
   lii-
    ,v        *
      4t*      M)
                                    '0      o5    60
                                     Sound Level m dBA
                              	:  _•   ••_  _L_
                              •Z*Z *GZ        •
                                     55     50      45
 D.iynmc
           Average Day—67.54
           Average Night —W 24
112 cities —daytime limits
113 cities— nighttime limits
Article X—Land Use

  Uic h.iMC  purpose of the Article X land
n^o  planning provisions is  to ensure that no
new  residences, institutions or  recreational
                      areas are constructed in high noise  areas.
                      as determined by  the appropriate sections.
                      Although the  Article  was drafted to stand
                      independently  from the existing community
                      land use planning  or  zoning  systems, it is

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 important for  a community considering  en-
 actment of this Article to study the inter-
 action of Article X with the land use plan-
 ning and/or zoning laws and to reconcile
 them svhere necessary.  It may be better,  for
 example, to enact Article X  as an  amend-
 ment to an existing  land use law rather than
 as  a pan  of  the noise  control  ordinance.
 Furthermore, because this Article effective-
 ly rezones land subject to  its provisions,  the
 community may want or  need to take spe-
 cial measures before enactment of  this  Ar-
 ticle. These may include a general identifica-
 tion  of  rhe areas that  \vill  be  affected  by
 these provisions.

 Article XI—Enforcement
   Provisions in  this  Article are more likely
 to need  revision to  conform with local law
 than  other provisions  of  the  model ordi-
 nance. For example, the  City/County may
 wish  to  make   violations of  the  ordinance
 "infractions." similar to minor traffic viola-
 tions, rather than misdemeanors, due to the
 stigma attached to such violations.
  The City/ Countv  may »ish to ensure that
 the public is reasonably well-informed of ac-
 tivities prohibited by the  ordinance before
 fully  effectuating  its enforcement program.
 For  example, the City/County may utilize
 a discretionary  policy of issuing  an abate-
 ment order  fur a first violation, followed  by
 a citation  for the original violation, if  the
 abatement order is  not complied uuh.  This.
 approach is provided for in  Section  11.2
 (Abatement Order), and would be used for
 violations that   are  presumed  to be  unin-
 tentional. The  EPO/NCO  may  wish   to
 establish  guidelines  for  use  of  the abate-
 ment order, indicating,  for   example, ap-
 propriate types  of violations  for  which  an
 order may  be   issued  and  maximum time
 period of an order.
  The enforcement   scheme   contained  in
 this ordinance also includes a  provision for
 citizen suits (Section 11.5).  The  advantage
 of the citi?en suit approach  is  that  many
 violations of the ordinance which  the EPO.
 NCO has insufficient resources to prosecute
 can be legally dealt with by persons affected
by  the   violation. Provisions   under  which
one citizen  can  sue  another  are limited  to
 those listed  in   Table VI,  to  minimize the
 possibility of "harassment" suits.
  Section 11.3  (Notice-  of  Violation)  is  in-
complete in  several respects for easy adapta-
 tion  to the local law of the particular City/
 County.
  Section   11.4    (Immediate  Threats   to
Health and Welfare)  provides  the  EPO/
NCO  with the authority to force immediate
abatement  of  sources  producing  sound  in-
 tensities  that not only violate  the  ordinance
but are  also unquestionably harmful  to the
health of the public exposed  to  them.  The
      levels  regulated  (see Tables  IV and
 V)  are  deliberately set high, because there
 is no procedure in this provision  for balanc-
 ing  public  health with economic  or  other
 considerations; public health is the sole de-
 terminant. The health and welfare criterion
 for  the  levels set is a temporary threshold
 shift of  30'dB at 4 kHz.
   Subsection  (b)  limits the  applicability of
 this provision to  impacts on members of the
 general public who are involuntarily exposed
 to  the sound.  Employee  exposures at their
 workplace are exempted  because employee
 sound exposure levels are regulated under
 the  Occupational  Safety  and  Health  Act
 C9  U.S.C. §§ 669 et seq.  (1970)).
   Severe  sanctions for noncompliance with
 the  order are  provided   for  in  subsection
 (d). so that  the sound will  not continue  to
 be a  detriment   to  public  health.  If  the
 order  is unjustified,  a court can  invalidate
 or suspend :t  soon after the order is issued,
 in  a  mandamus  type   proceeding.  This
 remedy is contained in subsection  (e), which
 may need  to  be  modified  to conform with
 local procedure.
   Under  Section   11.6  (Other Remedies),
 common law  and statutory  remedies previ-
 ously used to regulate excessive  sound will
 still  remain available. It  is  desirable  to  re-
 tain  such remedies to allow private persons
 the  possibility of recovering  damages  or
 other remedies for  the effects  of excessive
 sound  since  private  recovery  is  not  pro-
 vided  for  under  the  ordinance.  The  ordi-
 nance  is intended to expand  existing  sound
 control law. not to limit it.

 FORMAT	
   [n  reading  the model" ordinance_  it  is
 essential  that  certain typographical symbols
 and  format  be  understood.  Several  brief
 rules  have  been followed  in  drafting. These
 are:
 •  The material contained  in square brack-
 ets  [    ]  is  optional,  depending  on  the
 needs and conditions of a  given community.
 (Of  course,  communities  developing  ordi-
 nances may decide that any  given provision
 should be deleted.)
 •  Parenthesis (    )  are  generally  used  to
designate  alternative  choices,  but in  some
cases  contain  explanatory  information, de-
 pending on  the  context.
 •  Blanks	must be filled in by the com-
 munity with  appropriate  information.
 •  Wherever  the  term  EPO/NCO appears,
the title  of the community's  lead noise en-
forcement agency  or official  should  be in-
serted.
                                          C-8

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Model
Community
Noise Control
Ordinance
]

Article I
Article II

Article III

Article IV



4.1
4.2


4.2.1
4-2.2
4.2.3

4.2.4
4.2,5
4.2.6
4.2.7
4.2.8
4.2.9


4.2.10

4.3


4.3.1

4.3.2

4.3.3
4.3.4

4.3.5

0.6

-1st of Provisions
Page
Short Title 	 11
Declaration of Findings
and Policy" Scope ] ]
Definitions and Standards. 11

Powers and Dunes of the
(Environmental Protec-
tion)' iNoise Control)
Officfifr) . 13
Lead (Agency/ Official)
Powers of The (En-
vironmental Protec-
tion)/ (Noise Con-
trol) Office(r)
Studies
Education
Coordination and Co-
operation
Review of Actions of
Other Departments
Review of Public and
Private Projects
Inspections
Records
Measurements by The
Owner or Operator
Product Performance
Standard Recom-
mendations
Noise Sensitive Zone
Recommendations
Duties of Environmental
Protection (Noise Con-
trol) Office* r)
Standards, Testing Meth-
ods, and Procedures
Investigate and Pursue
Violations
Delegation of Authority
Truck Routes and Trans-
portation Planning
Capital Improvement
Guidelines
State and Federal Laws
and Regulations


4.3.7

4.3.8

4.3.9

Article

5.1
5.2
5.3
5.4
•5.5
5.6

5.7
Article
6.1
6.2
6.2.1

6.2.2
6.2J
6.2.4

6.2.5
6.2.6
6.2.7

6.2.3

6.2.9

6.2.10

6.2.11
6.2.12
6.2.13

6.2.14



Planning to Achieve Long
Term Noise Goals
Administer Grants,
Funds and Gifts
Periodic Report

_V Duties and Responsibilities
of Other Departments 	 14
Departmental Actions
Departmental Cooperation
Departmental Compli-
ance With Other Laws
Project Approval
Contracts
Low Noise Emission
Products
Capital Improvement Program
VI Prohibited Acts 	 14
Noise Disturbances Pro-
hibited
Specific Prohibitions
Radios, Television Sets,
Musical Instruments
and Similar Devices
Loudspeakers/ Public
Address Systems
Street Sales
Animals and Birds

Loading and Unloading
Construction
Vehicle or Motorboat
Repairs and Testing
Airport and Aircraft
Operations
Places of Public Enter-
tainment
Explosives, Firearms,
and Similar Devices
Powered Model Vehicles
Vibration
Stationary Non-Emer-
gency Signaling Devices
Emergency Signaling
Devices
              C-9

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  6.2=15  Motorboats
  6.2.16  Noise Sensitive Zones
  6.3.17  Domestic Power Tools
  6.2.18  Tampering
Article VII  Exceptions and Variances
  7.1     Emergency Exception
  7.2     Special Variances
  7.3     Variances for Time to
           Comply
  7.4     Appeals

Article VIII Sound  Levels by Receiv-
            ing Land Use	
  8.1     Maximum  Permissible
           Sound Levels by Re-
           ceiving Land Use
  8.2     Correction for Char-
           acter of  Sound
  8.3     Exemptions
13
Article IX  Motor Vehicle Maximum
           Sound Levels	
  9.1     Motor Vehicles and
           Motorcycles on Pub-
           lic Rights-of-Way
  9.1.1   Adequate Mufflers or
           Sound Dissipative
           Devices
  9.1.2   Motor Vehicle Horns
           and Signaling Devices
  9.1.3   Refuse Collection
           Vehicles
  9.1.4  Standing Motor
           Vehicles
  9.2     Recreational Motorized
           Vehicles Operating off
           Public Rights-of-Way
Article X Land Use  	
   10.1   General Provisions
   10.2   Construction  Restrictions
           for Habitable and
           Institutional Structures
   10.3   Recreational  Area Re-
           strictions
                                     19
                                      :o
  10.4   Site Study Requirement
  10.5   Commercial and Indus-
           trial Construction
  10.6   Sound from New Road-
           ways in Residential
           Areas
  10.7   Equivalent Measurement
           Systems
  10.8   Zoning Ordinance or
           Comprehensive Plan
  10.9   Truth in Selling or Renting
  10.10  Appeals

Article XI  Enforcement  	
  11.1   Penalties
  11.2   Abatement Orders
  11.3   Notice of Violation
  11.4   Immediate Threats to
           Health and Welfare
  11.5   Citizen Suits
  11.6   Other Remedies
  11.7   Severability
  11.8   Effective Date
                                             23
                         Tables
        Table I     Sound Levels by Receiving
                      Land  Use  	  19
        Table n    Motor Vehicle and Motor-
                      cycle Sound Limits  ....  19
        Table in   Recreational Motorized
                      Vehicle Sound Limits . .  20
        Table IV   Continuous Sound Levels.  23
        Table V    Impulsive Sound Levels. .  23
        Table VI   Provisions Under Which
                      Civil Actions May By
                      Commenced  	  24
                                        C-10

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ARTICLE  I   Short Title
       This  ordinance  may  be  cited as the
       "Noise   Control  Ordinance  of  the
       (City/County)  of	"

ARTICLE  II   Declaration of Findings
               and Policy; Scope	
2.1   Declaration of Findings and Policy
       WHEREAS  excessive sound  and vi-
       bration are  a serious hazard to the
       public  health   and   welfare,  safety,
       and  the quality of life; and
       WHEREAS  a  substantial  body  of
       science   and  technology  exists   by
       which excessive sound and vibration
       may  be substantially  abated; and,
       WHEREAS  the  people  have  a  right
       10 and should be ensured an environ-
       ment free  from excessive  sound  and
       vibration that  may  jeopardize  their
       health or  welfare  or safety  or  de-
       grade the quality  of  life; and,
       NOW, THEREFORE, it is the policy
       of the (City County) of  	
       10 prevent excessive sound  and vibra-
       tion  which  may jeopardize the health
       and   welfare or safety  of its  citizens
       or ciecrade  the  quality of life.

2.2   Scope
       This  ordinance  shall apply  to  the
       control   of  ail  sound and vibration
       originating  within  the  limits  of the
       (City/County)  of  	


ARTICLE  III  Definitions	
3.1   Terminology
       All  terminology  used  in this  ordi-
       nance, not defined below,  shall be in
       conformance with applicable  public-
       cations   of   the  American National
       Standards Institute (ANSI) or  its  suc-
       cessor body.
3.2.1   -A-Weighted Sound L«vel" Means
       The sound  pressure level  in decibels
       as measured on a sound level meter
       using the A-weighting  network.  The
       level  so  read is designated dB(A) or
       dSA.
3.2.2   "Commercial Area" Means
       f(As defined in  the community (com-
       prehensive  plan)/fzoning  ordinance)).
3.2.3   "Construction" Means
       Any  site preparation, assembly, erec-
       tion,  substantial repair, alteration, or
       similar  action,  but excluding demoli-
       tion,  for or of  public  or  private
       rights-of-way, structures, utilities or
       similar  property.
3.2.4   "Day-Nieht Average Sound Level
       |L,n)~ Means
       The   24-hour energy  average  of  the
      A-weighted  sound   pressure   level,
      with   the  levels  during  the  period
      10:00 p.m. to  7:00  a.m.  the follow-
      ing day increased by 10 dBA  before
      averaging.

3.2.5  "Decibel (dB)" Means
      A  unit for measuring  the volume of
      a sound,  equal  to  10  times the  lo-
      garithm to the base 10 of  the  ratio
      of the pressure  of  the sound  meas-
      ured to the reference pressure,  which
      is 20 micropascals  (20 micronewtons
      per square meter).
3.2.6  "Demolition" Means
      Any  dismantling, intentional destruc-
      tion  or removal  of structures,  utili-
      ties,   public  or  private  right-of-way
      surfaces, or similar  property
3.2.7  "Emergency" Means
      Any   occurrence  or set  of  circum-
      stances involving  actual or imminent
      physical trauma  or  property damage
      which demands immediate  action.
3.2.8  "Emergency Work" Means
      Any  work performed for the purpose
      of preventing or alleviating the  physi-
      cal   trauma   or   property   damage
      threatened or caused  by  an  emer-
      gency.
3.2.9  "Environmental Protection Office
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       than one second, with an abrupt onset
       and rapid decay. Examples of sources
       of impulsive sound include explosions.
       drop forge impacts, and the discharge
       of firearms.
3.2,13   "Industrial Area" Means
       ((As defined in  the community (com-
       prehensive plan)/ (zoning ordinance) >.
3.2.14   -Motor Carrier Vehicle Engaged
        in Interstate Commerce ' Means
       Any  vehicle  for which   regulations
       apply pursuant  to Section 18  of  the
       Federal Noise Control  Act  of  1972
       (P.L. 92-:574).  as amended, pertain-
       ing to motor carriers engaged in inter-
       state commerce.
3.2.15   "Motor Vehicle" Means
       (As defined in the motor vehicle code
      of the State)/(Any  vehicle which is
      propelled  or  drawn  on  land  by a
       motor, such,  as,  but  not  limited  to,
      passenger  cars,  trucks,  truck-trailers,
     •semi-trailers,  campers, go-carts, snow-
      mobiles,  amphibious  craft  on  land.
      dune buggies,  or racing vehicles,  but
       not including  motorcycles.)
3.2.16   "Motorboat" Means
      Any vessel which operates on  water
      and which is  propelled by  a motor,
      including,  but not limited to.  boats.
      barges,  amphibious  craft,  water  ski
       towing devices and  hover  craft.
3.2.17   "Motorcycle" Means
       (As defined in the motor vehicle code
      of the  State)/(An unenclosed  motor
      vehicle having a saddle  for  the  use
      of the  operator and  two  or  three
      wheels in  contact with the  ground,
      including,  but not limited to,  motor
      scooters and  minibikes.)
3.2.18   "Muffler or Sound Dissipative
        Device" Means
      A device  for  abating  the sound of
      escaping  gases of an  internal com-
      bustion engine.
3.2.19   "Noise" Means
      Any  sound which annoys  or  disturbs
      humans or which causes or tends to
      cause   an   adverse  psychological  or
      physiological effect on humans.
3.2.20   "Noise Disturbance" Means
      Any  sound  which (a)  endangers or
      injures the  safety or  health of   hu-
      mans  or  animals, or (b)   annoys or
      disturbs a reasonable  person of normal
      sensitivities, or  (c)  endangers  or  in-
      jures personal or real property.
3.2.21   "Noise Sensitive Zone" Means
      Any area  designated pursuant to  Sec-
       tion 4.2.10 of this ordinance for  the
       purpose of ensuring exceptional quiet.
 3.2.22   "Person" Means
       Any individual,  association,  partner-
       ship, or corporation, and includes any
       officer, employee, department, agency
       or instrumentality of a Slate or any
       political subdivision of a State.
 3.2.23   "Powered Model Vehicle" Means
       Any self-propelled  airborne, water-
       borne,  or  landborne plane, vessel, or
       vehicle, which  is  not designed to carry-
       persons, including, but not limited to.
       any  model  airplane,  boat,  car,  or
       rocket.
 3.2.24   "Public Right-of-Way" Means
      Any  street, avenue,  boulevard, high-
      way, sidewalk or  alley  or similar place
      which is  owned  or  controlled by  a
      governmental entity.

 3.2.25  "Public Space"  Means
      Any   real  property  or   structures
      thereon  which  are  owned  or  con-
      trolled  by  a governmental entity.
3.2.26  "Pure Tone" Means
      Any  sound which  can  be distinctly
      heard  as  a single  pitch or a set  of
      single  pitches.  For  the purposes  of
      this  ordinance,  a  pure tone shall exist
      if  the  one-third  octave band sound
      pressure level  in  the  band* with  the
      .tone exceeds the arithmetic  average
      of the  sound pressure levels  of  the
      two  contiguous  one-third octave bands
      by 5 dB for center frequencies of 500
      Hz and above and by 8 dB for center
      frequencies between 160 and  400 Hz
      and  by 15 dB  for center frequencies
      less than or equal to 125 Hz.
3.2.27  "Real Property  Boundary" Means
      An  imaginary  line along the  ground
      surface,  and  its  vertical  extension,
      which  separates   the  real  property
      owned by one person from that owned
      by another person, but not including
      intra-building real property  divisions.
3.2.28  "Residential Area" Means
       ((As defined in the community (com-
      prehensive  plan)/ (zoning ordinance)).
3.2.29  "RMS Sound  Pressure" Means
      The  square root of the time averaged
      square of the sound pressure, denoted
      Pr»..
3.2.30  "Sound"  Means
      An  oscillation  in  pressure,  particle
      displacement,   particle  velocity   or
      other physical  parameter, in a medi-
      um  with  internal forces  that  causes
      compression and  rarefaction  of  that
      medium.  The  description of  sound
      may include any characteristic  of such
      sound,  including  duration, intensity
      and  frequency.
                                        C-12

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 3.2.31  "Sound Level" Means
       The  weighted  sound  pressure  level
       obtained  by the use of a sound level
       meter and  frequency  weighting  net-
       work, such as  A. B, or C as specified
       in  American National  Standards  In-
       stitute  specifications for sound  level
       meters (ANSI Sl.4-1971, or the latest
       approved  revision   thereof).  If   the
       frequency weighting employed is  not
       indicated, the A-weighting shall apply.
 3.2.32  "Sound Level Meter" Means
       An  instrument  which   includes  a
       microphone, amplifier, RMS detector,
       integrator or  time  averager, output
       meter,  and  weighting  networks used
       to  measure sound pressure levels.
 3.2J3  "Sound Pressure" Means
       The  instantaneous difference between
       the actual  pressure  and the  average
       or  barometric  pressure at  a given
       point in space,  as produced by sound
       energy.

 3.2.34  "Sound Pressure Level" Means
       20  times  the logarithm to the  base  10
       of  the  ratio of the RMS sound pres-
       sure  to  the  reference  pressure of  20
       micropascals  (20xlO~*  NVnr).   The
       sound pressure  levsl is denoted L,  or
       SPL  and  is expressed in decibels.
 3.2.35  "Vibration" Means
       An oscillatory motion  of solid bodies
       of  deterministic or random nature  de-
       scribed by  displacement, velocity,  or
       acceleration  with respect to a given
       reference point.
 3.2-36  "Weekday" Means
       Any  day Monday  through  Friday
       which is  not a  legal holiday.

 ARTICLE  IV  Powers and Duties of the
                (Environmental Protec-
                tJoo)/(Noi5e Control)
	 Office(r)	
4.1  L«ad (Agency/Official)
       The noise control program established
       by  this ordinance  shall  be adminis-
       tered by  (title  of municipal  agency
       or  lead official).
4.2  Powers of Toe (Environmental
     Protection)/(Nois« Control Office(r)
       In  order  to  implement  and enforce
       this ordinance  and  for  the general
       purpose of sound and vibration abate-
       ment  and  control,  the EPO/NCO
       shall  have,  in  addition  to  any other
       authority  vested in it, the power to:
4.2.1   Studies
      Conduct,  or  cause to  be conducted,
      research,   monitoring,   and   other
      studies related to sound and vibration.
 4.2~2  Education
       (a)  Conduct programs of public edu-
       cation regarding:
         (1)  the  causes, effects and general
       methods of abatement and control of
       noise and  vibration; and,
         (2)  the  actions  prohibited by  this
       ordinance  and  the  procedures for re-
       porting violations; and
       (b)  Encourage  the participation  of
       public interest  groups  Ln  related pub-
       lie  information  efforts.
 4.2.3  Coordination and Cooperation
       (a)  Coordinate  the noise  and  vibra-
       tion control activities of  all municipal
       departments:
       (b)  Cooperate  to  the  extent  prac-
       ticable with ail appropriate State and
       Federal agencies;
       (c)  Cooperate or combine to the ex-
       tent  practicable   with   appropriate
       county and municipal agencies;  and,
       (d)  Enter  into  contracts  [with  the
       approval of the  (appropriate author-
       ity) ] for  the provision  of  technical
      and  enforcement services.
4.2.4  Review of  Actions of Other
       Departments
      Request  any  other  department  or
      agency responsible  for  any  proposed
      or final standard, regulation or  sim-
      ilar  action  to consult  on the advisa-
      bility of  revising the action, if  there
      is reason to believe that  the  action is
      not  consistent with  this  ordinance.

4.2.5  Review of  Public and Private
       Projects
      Review  public  and  private  projects,
      subject to  mandatory  review or  ap-
      proval by other departments,  for com-
      pliance with  this ordinance, if such
      projects are likely to cause sound or
      vibration in  violation of  this  ordi-
      nance.
4.2.6  Inspections
       (a)  Upon presentation of proper cre-
      dentials, enter and inspect any private
      property  or  place,   and  inspect any
      report  or  records at any  reasonable
      time when  granted  permission by  the
      owner, or by some  other person with
      apparent  authority  to  act  for  the
      owner. When permission  is refused or
      cannot be obtained, a  search warrant
      may  be  obtained  from  a  court of
      competent  jurisdiction upon showing
      of probable cause  to  believe that a
      violation  of this ordinance may exist.
      Such inspection may include admin-
      istration of any necessary  tests.
       [ (b) Stop  any  motor vehicle, motor-
      cycle,  or  motorboat operated  on a
                                          C-13

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      public  right-of-way,  public space, or
      public  waterway reasonably suspected
      of violating any provision of this ordi-
      nance, and issue a notice of violation
      or abatement order  which may  re-
      quire the motor  vehicle,  motorcycle
      or motorboat to be inspected or tested
      as the  EPO/NCO may reasonably re-
      quire.]

4.2.7   Records
      Require the  owner or operator of any
      commercial  or industrial  activity to
      establish  and  maintain records  and
      make such reports as the  EPO/NCO
      may  reasonably prescribe.

4.2.3   Measurements by The Owner or
       Operator
      Require the  owner or operator of any
      commercial  or industrial  activity to
      measure  the  sound  level  of  or the
      vibration from any  source in accord-
      ance with the methods and procedures
      and at  such locations and times as the
      EPO/NCO may reasonably  prescribe
      and  to furnish reports of the  results
      of such measurements to the  EPO/
      NCO.  The  EPO/NCO  may  require
      the measurements to be conducted in
      the  presence  of  its  enforcement
      officials.

4.2.9   Product Performance Standard
       Recommendations
      (a) Develop   and  recommend  for
      promulgation fto  the appropriate au-
      thority) provisions regulating the use
      and operation of any  product, includ-
      ing  the  specification  of  maximum
      allowable  sound  emission levels  of
      such product.
      [(b)  Develop  and  recommend for
      promulgation fto  the appropriate au-
      thority)  provisions  prohibiting  the
      sale  of  products which  do not  meet
      specified  sound emission levels,  where
      the sound level of the product is not
      regulated  by the United  States En-
      Environmental   Protection   Agency
      under Section 6 of  the Noise Control
      Act  of 1972.]

4.2.10  .Noise Sensitive Zone Recom-
        mendations
      Prepare  recommendations, to be  ap-
      proved by (the appropriate authority),
      for the designation of noise sensitive
      zones  which  contain  noise  sensitive
      activities. Existing  quiet  zones shall
      be  considered noise sensitive  zones
      until  otherwise   designated.    Noise
      sensitive activities include, but are not
      limited  to,   operations  of   schools,
      libraries open to the public, churches,
      hospitals, and nursing homes.
4.3  Duties of ("Environmental Protection)/
     (.Noise Control) Officeyitems. such as  truck  routes within
      the community:  determine areas  with
      sensitivity  to   sound  and  vibration
      caused by transportation;  recommend
      changes  or  modifications  to  trans-
      portation  systems  to  minimize   the
      sound  and vibration  impact on  resi-
      dential areas and  noise sensitive zones.
      (b)  Assist  in  or  review  the  total
      transportation planning of  the com-
      munity, including planning for  new
      roads and  highways,  bus routes, air-
      ports,  and other systems  for public
      transportation,  to ensure that  the im-
      pact of sound  and vibration  receives
      adequate consideration.
4.3.5   Capital Improvement Guidelines
      Establish  noise assessment  guidelines
      for  the evaluation of  proposed  im-
      provements for  the capital improve-
      ments budget and  program pursuant
      to  Section 5 5.  These guidelines  shall
      assist in the determination of the  rela-
       tive priority of  each improvement in
      terms of noise  impact.
4-3.6   State and Federal Laws and
       Regulations
       (a)  Prepare and publish  [with  the
      approval of  	] a list  of
       those products  manufactured  to  meet
      specified noise  emission  limits under
       Federal. State,  or community  law for
      which-"tampering"  enforcement will
      be  conducted; and,
       (b) Make recommendations for modi-
                                         C-14

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        fications or amendments to  this ordi-
        nance to ensure consistency with all
        State  and Federal  laws and  regula-
        tions.
[4.3.7]  Planning to Achieve Long Term
        Noise Goals
        [Develop a  generalized sound  level
        map of the (city/county), a long term
        plan for achieving  quiet in the (city/
        county),  and  [with the approval of
         	]  integrate  this plan
        into  the  planning process  of  the
        (city/county;.]
 4.3.3  Administer Grants.  Funds and Gifts
        Administer noise program grams and
        other funds and gifts from public and
        private sources,  including  the  State
        and Federal  governments.
[4.3.9]  Periodic Report
        [Evaluate and  report, every  	
        >ear(s)  following  the  effective  date
        of this ordinance, on the effectiveness
        of  the  (city/county)  noise control
        program and make  recommendations
        for  any  legislative  or  budgetary
        changes   necessary  to   improve  the
        program.  This  report  shall  be  made
        to  the   (Noise  Control   Advisory
        Board)/(appropriate authority) which
        may amend it  after consultation with
        the EPO/NCO, and then submit it to
        the   (appropriate   authority),   for
        approval.]

ARTICLE V   Duties  and Responsibilities
	of Other Departments	
  5.1   Departmental Actions
        All departments and agencies shall, to
        the fullest extent consistent with other
        law, carry out  their programs in such
        a manner as to further the policy of
        this ordinance.
  5.2   Departmental Cooperation
        All departments  and  agencies  shall
        cooperate with the  EPO/NCO  to the
        fullest  extent  in enforc;n-.-    -. ordi-
        nance.
  5.3   Departmental Compliance with Other
       Laws
        All departments  and  agencies  shall
        comply  with Federal  and State laws
        and regulations and the provisions and
        intent of this ordinance  respecting the
        control and abatement of noise to the
        same extent that any person is subject
        to  such  laws and regulations.
 5.4   Project Approval
        All  departments whose  duty it  is to
        review  and approve new  projects or
        changes  to  existing  projects, that re-
        sult, or may result,  in the production
        of  sound or   vibration  shall consult
      with the EPO/NCO prior to any such
      approval.

5.5  Contracts
      Any  written  contract,   agreement,
      purchase  order, or other  instrument
      whereby  the  (city/county)  is  com-
      mitted to  the expenditure  of  	
      dollars or more in return for goods or
      sen-ices shall contain provisions  re-
      quiring  compliance  with  this  ordi-
      nance.
5.6  Low Noise Emission Products
      Any product which has been certified
      by  the  Administrator of the  United
      States    Environmental    Protection
      Agency pursuant  to Section 15 of  the
      Noise  Control Act  as  a  low  noise
      emission product and  which he deter-
      mines is suitable  for  use as a  substi-
      tute, shall be procured  by the  city/
      county and used in preference to any
      other product,  provided  that  such
      certified product  is reasonably avail-
      able and   has a  procurement  cost
      which  is  not more  than  (125)  per-
      cenrum  of the least expensive  type  of
      product for which it  is certified as a
      substitute.
5.7  Capital Improvement Program
      .All  departments   responsible   for  a
      capital improvements  budget and  pro-
      gram shall prepare an analysis of  the
      noise impact  of   any proposed  im-
      provements  in accordance  with  noise
      assessment guidelines  established  by
      the  EPO/NCO pursuant  to  Section
      4.3.5. Proposed capital improvements
      include land acquisition, building con-
      struction,  highway improvements, and
      utilities  and fixed  equipment installa-
      tion.

ARTICLE VI   Prohibited Acts	
6.1  Noise Disturbances Prohibited
      No  person shall  unreasonably make.
      continue,  or  cause  to  be made  or
      continued,  any   noise  disturbance.
      Non-commercial public speaking and
      public  assembly  activities  conducted
      on any public space  or  public  right-
      of-way shall  be exempt from  the  op-
      eration  of this Section.
6.2  Specific Prohibitions
      The following acts, and  the  causing
      thereof, are  declared  to be in viola-
      tion of  this ordinance:
6.2.1   Radios, Television Sets, Musical
       Instruments and Similar Devices
     • Operating, playing or permitting  the
      operation  or playing of  any radio,
      television, phonograph,  drum,  musi-
      cal  instrument, sound  amplifier,  or

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      similar device which produces  repro-
      duces,  or amplifies sound:
      (a) Between the hours of  . -  . .  p.m.
      and  ...  .  a.m.  the following  day in
      such a  manner  as to  create  a noise
      disturbance  across  a   real  property
      boundary  or within a  noise sensitive
      zone, [ex.-ept for  activities onen  to
      the public and for which a permit his
      been  issued by  (appropriate  author-
      ity)  according  to  criteria  set  forth
      in 	];
      (bi In such a manner a-> to create  a
      noise  disturbance  at   50  feet   (15
      meters;  from  such device,  when  op-
      erated in or on  a motor vehicle on  a
      public  right-of-way  or public  space.
      or in a boat on  public  waters: or.
      (o In such a manner as to create  a
      noise disturbance to any person other
      than the operator of the device, when
      operated by any passenger on a com-
      mon earner:
      (d)  This  section  shall  not apply  to
      non-commercial  spoken language cov-
      ered under Section 6.2.2.
6.2.2  Loudspeakers/Public Address
      Systems
      (a) Using or operating  for any  non-
      commercial    purpose   any    loud-
      speaker,  public   address  system,  or
      similar device between the hours  of
      10:00 p.m. and  3:00 a.m. the follow-
      ing day, sucrr that  the  sound there-
      from  creates  a  noise  disturbance
      across   a   residential  real   property
      boundary  or within a  noise sensitive
      zone.
      (b) Using or operating for any com-
      mercial purpose  any loudspeaker, pub-
      lic address system, or  similar device
      (I)  such  that   the  sound  therefrom
      creates  a  noise  disturbance across  a
      real  property  boundary or within  a
      noise sensitive zone: or (2) between
      the hours of	p.m. and  	a.m.
      the following  day on  a public  right-
      of-way or public space.
6.2-3  Street Sales
      Offering for sale  or selling anything
      by shouting or outcry within any resi-
      denthi  or  commercial  area of  the
      (>.i:y, county [except by permit  issued
      by  (appropriate authority)  according
      to criteria set forth in  	  and/or
      except between  the hours of ... .a.m.
      and . .. .p.m.].
6.2.4   Animals and Birds
      Owning, possessing  or harboring any
      animal  or  bird which  frequently or
      for continued duration,  howls,  barks.
      meow-s.  squawks,   or   makes  other
      sounds  which create a  noise disturb-
      ance across a  residential real property
      boundary or uithm ;i  noise  sensitive
      zone. [This proMbion shall not  apply
      to public zoo*  ]
6.2.5   Loading and Unloading
      Loading,  unloading,  opening, clo-irii;
      or  other li.nuiling  of  boxes, crate--.
      containers.  building materials   s::ir-
      bage  c.m<. or Mniiljr objects  tvtueeti
      '.he ho.sr- of .  .   p.m.  and .      .1 m.
      the following Ua>  in such a manner
      as ;o ^au>e  a noise disturbance  acro^
      a  residential real property boundary
      or uithm a noi»o sensitive zone.
6.2,6   Construction
      Operating or permitting the operation
      of  any  tools  »r  equipment  ustfd  in
      construction,  drilling,  or demolition
      u.ork:
      iai  Between the hours of ...   .p.m.
      and    .   .a.m.  the  following day on
      tieckdu)* or  at  any  time on   (Sun-
      days, weekends)   or  holidays,  such
      that  the  jound  therefrom creates a
      noiMO di:>:urban(.e across  a residential
      real   property   boundary  or  within a
      noise ~ensiti\ e  /.one. except for emer-
      gency «.ork of public service utilities
      or by >pecial variance issued pursuant
      to .Section 7 2',
      (b) At any other time such  that  the
      sound level .it  or across  a re.il  prop-
      erty bonndnr\  exceeds an L.-., of ....
      dBA for  the daily period of operation.
      (o This section shall not apply  to the
      use of domestic  power tools subject
      to Section  6.2.17.
6.2.7  Vehicle or Motorboat Repairs and
      Testing
      Repairing, rebuilding,  modifying, or
      testing any motor vehicle, motorcycle,
      or motorbout in >uch a manner  as to
      cause  a  noise  disturbance  across  a
      residential  real property boundary or
      within a  noise sensitive zone.
6.2.3  Airport and Aircraft Operations
      fa) The  EPO/NCO  shall  consult with
      the airport  proprietor to recommend
      changes in airport operations  to  mini-
      mize  any noise disturbance which the
      airpon owner may  have  authority to
      control in its capacity as proprietor.
      (b) Nothing in  this section  shall be
      construed  to  prohibit,  restrict,  pen-
      alize, enjoin, or in any manner  regu-
      late  the  movement of aircraft  which
      are  in  all  respects   conducted  in
      accordance  with,  or  pursuant , to.
      applicable Federal laws or regulations.
6.2.9   Places of Public  Entertainment
      Operating, placing or permitting the
      operation or  playing  of  any  radio,
      television,  phonograph,  drum,  musi-
      cal instrument,  sound  amplifier,  or
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      similar device which produces, repro-
      duces, or amplifies .sound in any place
      of public entertainment  at  a sound
      level  greater  than  	dBA  as
      read by the  slow  response on  a sound
      level me:cr  at  any point  thai is nor-
      mally occupied by a customer, unless
      a  conspicuous  and  legible  sign   is
      located  outside such place,  near each
      public   entrance,  stating  "WARN-
      ING.  SOUND  LEVELS  WITHIN
      MAY     CAUSE    PERMANENT
      HEARING  IMPAIRMENT."
6.2.10   Explosives, Firearms, and Similar
        Devices
      The  use or firing of explosives, fire-
      arms, or similar  devices which create
      impulsive sound so as to cause a noise
      disturbance   across  a  reil  property
      boundary or  on  a public  space  or
      right-of-way,  without  first  obtaining
      ;i special  variance  issued pursuant to
      Section 7 2  [Such  permit need  not
      be obtained for licensed game-hunting
      activities  on   property  where  such
      activities  are  authorized.]
6.2.11   Powered Model Vehicles
      Operating or permitting the operation
      of pov. ered  mode! vehicles  so  as to
      crene a  noise disturbance  across  a
      residential real property boundary,  in
      a public space or within a noise sensi-
      tive  zone between the  hours of	
      p.m. and  . . . .a.m. the following day.
      Maximum  sound levels  in  a  public
      space during  the permitted period of
      operation *hall conform  to  those set
      torth for residential land use  in Table
       1 of Suction 3.1 and shall be measured
      at a distance  of	  feet (meters)
      from any  point  on the  path of the
      vehicle.  Maximum  sound  levels for
      residential  property and noise  sensi-
      tive  zones,  during   the  permitted
      period of operation. 
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      of any sound  within any  noise sensi-
      tive zone designated pursuant to  Sec-
      tion 4.2.10. so as to disrupt the activi-
      ties normally  conducted  within   the
      zone,  provided that conspicuous signs
      are displayed indicating the  presence
      of the zone; or
      (b) Creating or causing the creation
      of any sound  within any  noise sensi-
      tive zone, designated pursuant to  Sec-
      tion   4.2.10,  containing  a  hospital,
      nursing  home, or  similar  activity,  so
      as to  interfere with the functions  of
      such activity or  disturb or annoy the
      patients in  the activity, provided  that
      conspicuous signs  are  displayed  indi-
      cating the presence of  the zone.
6.2.17   Domestic Power Tools
      Operating or permitting the operation
      of any   mechanically  powered   saw,
      sander, drill, grinder. lawn or garden
      tool,  snowblower,   or  similar device
      used outdoors in residential areas be-
      tween  the  hours  of  	p.m.  and
      	a.m. the following day so as  to
      cause a  noise  disturbance across .1
      residential real property boundary
6.2.18   Tampering
      The  following  acts or  the  causing
      thereof are prohibited:
      (a) The  removal  or rendering inop-
      erative by any person  other than for
      purposes  of maintenance, repair,  or
      replacement, of any noise control de-
      vice  or   element  of design or noise
      label  of  any  product identified under
      Section  4.3.6. The  EPO/NCO  may.
      by  regulation,  list  those  acts which
      constitute violation of this provision.
      [b. The  (intentional)  moving or  ren-
      dering inaccurate   or  inoperative  of
      any sound  monitoring instrument  or
      device positioned by or for the EPO/
      N'CO.  provided  such  device  or   the
      immediate  area  is  clearly  labeled,  in
      accordance  with EPO/NCO  regula-
      tions, to  warn of the potential illegal-
      ity.]
       (c) The use of a  product, identified
      under Section 4.3.6. which  has had a
      noise control device  or  element  of
      design or noise label removed or ren-
      dered  inoperative,  with   knowledge
      that such action has occurred.
ARTICLE VII   Exceptions and Variances
7.1  Emergency Exception
      The provisions of this  ordinance shall
      not apply to (a) the emission of sound
      for the purpose of alerting persons to
      the existence of an emergency, or (b)
      the  smission  of  sound in  the per-
      formance of emergency work.
7.2  Special Variances
      (a)    The    (EPO/NCO)/(Hearing
      Board)  shall have the authority, con-
      sistent   with this section,  to  grant
      special  variances which may  be re-
      quested  pursuant to  Sections  6.2.6
      (Construction)   and  6.2.10  (Explo-
      sives, Firearms, and  Similar Devices).
      (b)  Any person seeking  a   special
      variance pursuant to this section shall
      file an  application  with  the   (EPO/
      NCO)/(Hearing  Board).  The  appli-
      cation   shall   contain   information
      which demonstrates that bringing the
      source  of sound  or activity  for which
      the special  variance  is sought  into
      compliance with  this ordinance would
      constitute an  unreasonable hardship
      on the  applicant, on  the community,
      or on  other  persons.  [Notice  of an
      application   for   a  special  variance
      shall  be published according to  (juris-
      dictional procedure).] Any  individual
      who claims to be adversely affected by
      allowance of the special variance may
      file  a   statement  with  the  (EPO/
      NCO)/(Hearing   Board)  containing
      .my information  to support  his  claim.
      If'the (EPO/NCO)/(Hearing Board)
      finds   that   a  sufficient   controversy
      exists regarding an application,  a  pub-
      lic hearing may be held.
      (c)  In  determining  whether to  grant
      or deny  the  application,  the  (EPO/
      NCO)/(Hearing  Board) shall balance
      [he  hardship  to  the  applicant, the
      community,  and  other persons  of not
      granting  the special  variance  against
      the  adverse   impact  on the  health,
      safety,   and  welfare  of   persons
      affected,  the adverse  impact on  prop-
      erty affected, and any other adverse
      impacts of granting  the special vari-
      ance. Applicants for special  variances
      and persons  contesting special vari-
      ances may be required to  submit any
      information  the  (EPO/NCO)/(Hear-
      ing Board; may reasonably require. In
      granting  or  denying  an application,
      the   (EPO/NCO)/(Hearing Board)
      shall  place  on public file a copy of
      the decision  and the reasons  for deny-
      ing or  granting the special  variance.
      (d) Special variances shall be granted
      by notice to the applicant containing
      all necessary conditions, including a
      time  limit on  the permitted activity.
      The-  special   variance  shall  not  be-
      come effective until all conditions are
      agreed  to by the  applicant.  Noncom-
      piiance  with any condition of the
      special  variance shall terminate  it and
      subject the person holding it to  those
      provisions of this ordinance regulating
      the  source  of sound  or activity  for
                                          C-18

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      which   the   special   variance   was
      granted.
      (e)  Application for extension of time
      limits specified in special variances or
      for  modification of other substantial
      conditions shall be treated like appli-
      cations  for  initial  special  variances
      under subsection  (b).
      (0    The    (EPO/NCO)/ (Hearing
      Board)  may  issue  guidelines  [ap-
      proved by	] defining
      the   procedures  to  be  followed  in
      applying  for  a special  variance  and
      the  criteria to  be  considered in decid-
      ing  whether to grant a  special vari-
      ance.
7_3   Variances for Time to Comply
      (a)  Within  	 days following the
      effective  date of this  ordinance, the
      owner of any commercial or  industrial
      source of sound  may  apply  to the
      (EPO/NCO)/(Hearing  Board) for a
      variance  in time to comply  with Sec-
      tion  6... 12  (Vibration)  or  Article
      VIII.  The    (EPO/NCO)/(Hearing
      Board) shall have the  authority, con-
      sistent with  this  section,  to grant  a.
      variance, not  to  exceed  	 days
      from, the  effective date of  this ordi-
      nance.
      (b)  Any person seeking a variance in
      time to comply shall file  an applica-'
      tion with  the  (EPO/NCO.)/ (Hearing
      Board). The application shall contain
      information  which demonstrates' that
      bringing  the source of sound or activ-
      ity  for which  the variance  is sought
      into compliance with  this ordinance
      prior to the  date  requested  in the
      application would constitute an un-
      reasonable hardship on  the applicant,
      on  the community, or on other  per-
      sons.  [Notice  of an  application  for a
      variance  in  time  to comply shall be
      published  according  to  (jurisdictional
      procedure).]   Any  individual  who
      claims to be  adversely  affected  by
      allowance of the  variance in time to
      comply may file a statement with the
      (EPO/N'CO)/(Hearing Board)  con-
      tainina  any information  to support
      his  claim. If the (EPO/NCO)/ (Hear-
      ing  Board) finds that a sufficient con-
      troversy  exists regarding  an applica-
      tion, a public  hearing may be held.
      (c)   In determining whether to  grant
      or  deny  the  application,  the  (EPO/
      NCO)/ (Hearing Board) shall balance
      the.  hardship  to   the  applicant, the
      community,  and other  persons  of not
      granting  the variance in time to com-
      ply   against  the  adverse impact  on
      health, safety, and welfare of  persons
      affected, the adverse impact on prop-
      erty affected,  and any  other  adverse
      impacts  of  granting  the  variance.
      Applicants for variances  in  time to
      comply  and  persons contesting  vari-
      ances  may  be  required  to  submit
      any  information  the  (EPO/NCO)/
      (Hearing  Board)  may  reasonably re-
      quire. In granting  or denying an ap-
      plication,  the  (EPO/NCO)/(Hearing
      Board)  shall  place  on  public  file  a
      copy of the decision and  the reasons
      for denying or granting the variance
      in time to comply.
      fd)  Variances  in time to comply  shall
      be granted to the applicant  contain-
      ing all necessary conditions, including
      a schedule for achieving compliance.
      The  variance in time to comply  shall
      not become effective until all condi-
      tions are agreed to by the applicant.
      Noncompliance with any condition of
      the variance  shall terminate  the  vari-
      ance and  subject the person holding
      it to those provisions of this ordinance
      for which  the variance was granted.
      (e) Application for extension of time
      limits specified in  variances  in  time
      to comply or for modification of other
      substantial conditions shall be treated
      like  applications for initial variances
      under subsection (b), except that the
      (EPO/NCO)/(Hearing  Board)   must
      find  that  the  need  for the extension
      or modification clearly  outweighs any
      adverse impacts of granting the exten-
     , sion  or modification..
      (f)    The    (EPO/NCO)/(Hearing
      Board)  may  issue  guidelines   [ap-
      proved by 	]   defining
      the  procedures  to-  be  followed  in
      applying  for  a variance  in  time  to
      comply  and  the criteria  to  be  con-
      sidered in  deciding  whether  to  grant
      a variance.
7.4  Appeals
      Appeals of an adverse decision of the
      (EPO/NCO)/(Hearing  Board)   shall
      be made to the (appropriate court of
      law).  Review of  the court  shall be
      (de  novo)/ (limited  to  whether  the
      decision is supported by  substantial
      evidence)/(as specified  by the  ....
ARTICLE  VTII   Sound Levels by Receiv-
	ing Land Use
S.I  Maximum Permissible Sound Levels
      by Receiving Land Use
      No  person shall operate or cause  to
      be operated on private  property any
      source of  sound in  such a manner  as
      to create a sound level which exceeds
      the  limits set forth for  the  receiving
      land  use  category  in Table  I  when
      measured  at or within the property
      boundary  of the receiving land use.

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    TABLE I.   SOUND LEVELS  BY
        RECEIVING LAND  USE
      Receiving
      Land Use
      Category

R-l, R-2, etc.
(Residential, Public
Space, Open Space,
Agricultural or
Institutional)

C-l, C-2, etc.
B-l, B-2. etc.
(Commercial or
  Business)

M-l, M-2. etc.
(Industrial)
  Time

(A) a.m.—
  (B)p-m.
       (B) p.m.—
         (A) a.m.
       At All Times
       At All Times
                    Sound
                    Level
                    Limit,
                    dBA

                     L,
S.2  Correction for Character of Sound
      For any source of sound which emits
      a pure tone or  impulsive sound, the
      maximum sound  level  limits set forth
      in  Section  8.1 shall be  reduced  by
      	dBA.
8.3  Exemptions
      The provisions of this article .shall not
      apply to:
      (a) Activities covered by the following
      Sections:  6.2.6  (Construction).  6.2.8
      (Aircraft  and Airport  Operations).
      6.2.10  (Explosives.   Firearms,   and
      Similar  Devices), 6.2.13  (Stationary
      Nonemergency   Signaling   Devices),
      6.2.14  (Emergency   Signaling   De-
      vices)",  6.2.15  (Motorboats),  6.2.17
      (Domestic Power Tools), 9.1.3 (Ref-
      use Collection Vehicles), 9.2 (Recrea-
      tional Motorized Vehicles Operating
      Off  Public  Rights-Of-Way);
      (b)  the  unamplifled human voice:
      (c) interstate railway locomotives and
      cars; and
      [(d)   (non-stationary  fanning  equip-
      ment)/(all agricultural activities)]
ARTICLE  DC
Motor Vehicle Maximum
Sound Levels
9.1   Motor Vehicles and Motorcycles- cm
     Public Ri§hts-of-way
      No person  shall operate  or  cause  to
      be operated a public or private motor
      vehicle  or  motorcycle oa a  public
      right-of-way  at  any  time  in  such a
      manner that the sound level  emitted
      by the  motor  vehicle or  motorcycle
      exceeds the level set forth in Table II.
                   TABLE II
            MOTOR  VEHICLE AND
        MOTORCYCLE SOUND  LIMITS
          i MEASURED AT  JO  FEET
               OR  15  METERS)
                      Sound  Level in dBA
                                               Vehicle Class
                    Speed   Speed   Sta-
                    Limit   Limit   tion-
                      35    Over    ary
                    MPH    35     Run-
                      or    MPH    up
Motor Carrier Ve-
  hide engaged in
  interstate com-
  merce of GVWR
  or GCWR of
  10,000 Ibs. or
  more

All  other motor
  vehicles of
  GVWR or
  GCWR of 10,000
  Ibs. or more

Any motorcycle

Any other motor
  vehicle or any
  combination of
  vehicles towed
  by any motor
  vehicle
                                            86
                                                    90
                                                            88
                                                   A
                                            C

                                            E
                                                           B      —
                                                          D

                                                          F
                      9.1.1   Adequate Mufflers or Sound
                             Dissipaa've Devices
                             (a) No person  shall  operate or cause
                             to be operated  any motor  vehicle or
                             motorcycle  not  equipped   with   a
                             muffler  or  other sound  dissipative
                            device in  good  working order and in
                            constant operation:
                             (b) No person shall remove or render
                            inoperative,  or  cause to be removed
                            or rendered  inoperative, other  than
                            for purposes of maintenance, repair.
                            or replacement, any  muffler or sound
                            dissipative device  on a motor vehicle
                            or motorcycle;
                             (c) The EPO/NCO  may. by (guide-
                             lines) (regulations subject to approval
                            by  	),  list those  acts
                             which  constitute violation of  this sec-
                             tion.
                      9.1.2   Motor Vehicle Horns and Signaling
                             Devices
                            The  following  acts and  the  causing
                             thereof are declared to be in violation
                             of this ordinance:
                             (a)  The  sounding  of any  horn  or
                            other auditory lignaling device on or
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      in  any  motor vehicle  on any  public
      right-of-way  or  public  space,  except
      (as a  warning  of  danger)/(as  pro-
      vided  in the vehicle code).
      [(b)  The  sounding  of any horn  or
      other  auditory signaling device which
      produces a  sound level  in  excess  of
      	dBA at	feet (meters).]
9,1.3  Refuse Collection Vehicles
      No person shall:
      (a) On or  after (2 years)  following
      the effective date of  this ordinance,
      operate or  permit the operation of the
      compacting mechanism of any motor
      vehicle which  compacts  refuse  and
      which creates, during  the compacting
      cycle,  a sound level  m excess of   ...
      dBA  when measured  at  ...     feet
      (meters)  from any  point on the ve-
      hicle:  or
      (b> Operate or permit the operation
      of the compacting mechanism  of any
      motor vehicle which compacts refuse.
      between the hours of   ...  p.m. and
              a.m. the following day  in  a
      residential  area  or  noise  sensitive
      zone:  or
       (c) Collect refuse  with  j refuse col-
      lection vehicle between  the hours  of
       	 p.m.  and   .    . .  a.m.  the
      following Jay in a residential area or
      noise  sensitive zone.

9.1.4  Standing Motor Vehicles
      No person .shall operate or permit the
      operation of any motor  vehicle  with
      a   gross   vehicle    weight   rating
      (GWVRl  in excess of ten  thousand
      UO.OOO)  pounds,  or  any  auxiliary
      equipment attached  to such a vehicle.
      for a  period longer  than  	  min-
      utes in any hour while the vehicle is
      stationary,  for   reasons  other  than
      traffic congestion, on a public  right-
      of-way or public space within  150 feet
      (46  meters) of a residential  area  or
      designated  noise  sensitive  zone, be-
      tween the hours of  	  p.m. and
        ....   a.m. the following  day.
9.2  Recreation Motorized Vehicles
     Operating Off Public Rights-of-way
      (a)  [Except as  permitted  in subsec-
      tion  (b) or (c).]  rro person shall op-
      erate   or  cause  to  be operated any
      recreational motorized vehicle  off  i
      public right-of-way in such  a manner
      that  the  sound  level emitted  there-
      from  exceeds the limits  set forth in
      Table III at a distance of 50 feet (15
      mt-;ers> or more from the path of the
      vehicle when  operated  on  a public
      space or at or across the  boundary of
      private property  when  operated  on
      private property. This  section  shall
      apply to  all recreational  motorized
      vehicles, whether or not duly licensed
      and registered, including, but not lim-
      ited  to, commercial  or non-commer-
      cial racing vehicles,  motorcycles, go-
      carts, snowmobiles, amphibious craft.
      campers  and dune buggies,  but not
      including  moiorboats.
      [(b) Permits for motor vehicle racing
      events  may be obtained from  (appro-
      priate  authority)  according  to  pro-
      cedures  and  criteria  set  forth  in
      [(c)  Special variances for	may
      be  obtained  from  (appropriate  au-
      thority)  according  to procedure and
      criteria set forth  in  	]
                  TABLE HI.
        RECREATIONAL MOTORIZED
          VEHICLE SOUND  LIMITS
          (MEASURED AT 50  FEET
               OR  15  METERS)
   Vehicle Type
Snowmobile
Motorcycle
An>  Other Vehicle
Sound Level. dBA
        A
        B'
        C
ARTICLE  X  Land Use
10.1   General Provisions
      (a) No  owner of jny land shall com-
      mence  or  cause to  be  commenced
      construction of any structure covered
      by Sections 10.2. 'lO.J. 10.5 or  10.6
      unless  approved  by  the  EPO/NCO
      as provided in this Article.
      lb>  An>  application  for approval  re-
      quired by  this Article  shall be sub-
      mitted in writing to  the  EPO/NCO,
      with a copy to the (Buildings Depart-
      ment)  (Appropriate Department), by
      the owner  of  the  land on which  the
      structure   is  proposed  to  be con-
      structed and shall contain the  follow-
      ing information:

         (1)  identification of  the  land  on
      which the  construction is proposed:
         (2) the section of this Article under
      which approval is requested;
         U)  information,  and data support-
      ing  the claim  that  the  appropriate
      requirements  will be  met; and,
         (-1)  any  other  information   which
      the  EPO/NCO  may  reasonably  re-
      quire.
 10.2  Construction Restrictions  for
      Habitable and Institutional Structures
      (a)  Except as provided in subsection
      (.c). no  new single family residential
      structure shall be approved for con-
      struction   (excluding  substantial  re-
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pair or alteration) if the exterior day-
night  average sound level  (Lu)  any-
where  on  the site  of  the  proposed
structure is projected to be  in excess
of 	  dBA within  	  yean
following   the  estimated  completion
date of the structure.
(b) Except as provided  in subsection
(c),   no  new  multiple-family  resi-
dence, dormitory, mobile home park,
transient  lodging,   school,  hospital,'
nursing home or similar structure, or
substantial  modification of such exist-
ing structure,  shall  be approved for
construction  if the exterior day-night
average  sound  level (1*.)  anywhere
on the  site  of the proposed  structure
is projected to be in excess  of	
dBA within	years  following the
estimated  completion  date  of  the
structure or modification.
(c) Construction otherwise prohibited
pursuant to  subsections  (a) or  (b)
shall be allowed if  the  exterior day-
night average  sound level  (L*.)  on
the site of  the proposed structure  is
projected not to be in excess of	
dBA for 	  yean following con-
struction,  provided  that there  is  in-
corporated into the design  and con-
struction of  (he structure  such  sound
attenuation measures as  are  necessary
to reduce the maximum interior day-
night  average sound  level  fl—)  to
	 dBA. Subsections  (a) and (b)
shall  not apply  to  any site develop-
ment plan  or its equivalent  on which
four or fewer  dwelling units  are  to
be constructed.
(d)  Prior  to  issuance of any  occu-
pancy permit for any structure  regu-
lated pursuant  to subsection (c),  the
owner  of  the structure shall  submit
for  EPO/NCO review  the  report  of
an independent testing agency  [ap-
proved by the EPO/NCO]  certifying
that sound attenuation measures have
been  properly  incorporated into  the
design and construction of  the  struc-
ture  and that the interior  L.,  meets
the  criterion  specified  in subsection
 (c).  Such  report  shall  contain  the
 results of  simultaneous  measurements
 of the exterior and interior day-night
 average  sound  levels  for  a   repre-
 sentative sample of locations.
  (e)  The   EPO/NCO  may  conduct
 such  inspections  and  measurements
 as are necessary to ensure the accu-
 racy  of   any  report submitted pur-
 suant  to subsection 
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       quest  reconsideration  by  the  EPO/
       SCO)  A full report shall contain the
       following  information  and any  other
       information  which  the  EPO/NCO
       may  reasonably require:
         (1)  the  existing  day-night average
       sound levels  (La.), including identifi-
       cation of the major sources of sound.
       for  3.  representative sample  of  loca-
       tions,  measured in  accordance   with
       guidelines  published  by  the  EPO/
       NCO;
         (2)  any projected  or proposed  new
       or  expanded  sources of sound which
       may affect exposure of the site  dur-
       ing 	years following completion
       of  the  project and  the  projected  fu-
       ture L.m  at  the site resulting  from
       these new or expanded  sources:  and.
         (3)   where  applicable,  plans   for
       sound  attenuation   measures  on   the
       site and/or of the  structure proposed
       :o be built  and the amount of .sound
       attenuation anticipated as a result of
       these measures.
       (b)  In determining  whether an appli-
       cant should  be required  10 submit a
       full  report  pursuant  to subsection
       (a),  the   EPO/NCO shall  consider
       Circular  1190.2 (Noise   Abatement
       and  Control)  and  other  publications
       of ihe  U.S. Department  of Housing
       and  Urban Development.
19.5   Commercial and Industrial
       Construction
       No  new   or   substantially  modified
       structure  on  land  used  or zoned  as
       commercial or industrial  shall  be ap-
       proved  for  construction   unless  the
       owner  or  developer  of such land  has
      demonstrated,  in  accordance   with
       guidelines  published by   the  EPO/
       N'CO   that the completed structure
       and the activities associated with and
      on  the  same  property  as the struc-
       ture, will  comply with  the provisions
      of Article VIII at the time  for initial
      full-scale operation  of such activities.

10.6   Sound From New Transportation
      Systems in Residential Areas or Noise
      Sensitive Zones
      No  plans  for construction  of  new
      transportation  systems  or expansion
      of the capacity of existing transporta-
      tion, systems  will be approved  for lo-
      cation in or near residential areas  or
      noise  sensitive  zones,  regardless  of
      ihe  source  of project  funds,  unless
      such plan  includes  all control meas-
      ures  necessary  to  ensure  that   the
      projected   day-night  average   sound
      level iL.i,,)  due to  the operation  of
      ihe  transportation  system  does   not
      exceed	  dBA at  any point on
      residential  property within   	
      years after  the  expected  completion
      of the project.

10.7  Equivalent Measurement Systems
      For  the  purposes  of  this Article, all
      measurements  and  designations  of
      sound levels shall be expressed in day-
      night average sound  levels  (Lm) or
      in any other equivalent measurement
      system the  EPO/NCO  may  reason-
      ably approve.

10.3  Zoning Ordinance or Comprehensive
      Plan
      (a)  No  proposed  zoning  ordinance
      or comprehensive  plan  shall  be ap-
      proved unless such  plan includes  a
      sound  analysis whicti   (1)  identifies
      existing and  projected  noise  sources
      and associated sound levels for . .
      years in  and around  the area under
      consideration, and  (2) ensures usage
      of adequate measures  to avoid viola-
      tion  of any  provision  of  this  ordi-
      nance.
      (b)  No  zoning  change  application
      shall be approved unless  the site feas-
      ibility  study  submitted,  as  required
      by the (Zoning  Board  oF  Appeals)/
      (Planning Commission), contains an
      analysis which ihows  (1) the impact
      of existing and projected noise sources
      for .  . .  . years on the intended use.
      and  (2) the  projected noise impact of
      the intended use. when completed, on
      surrounding   areas.  Such  sites study
      shall  ensure  the   use  of  adequate
      measures  to  avoid violation  of  any
      provision of  this  ordinance.

10.9  Truth in Selling or Renting
      No person shall  sell or rent,  or cause
      to be sold or rented, any structure or
      property  to  be used for  human habi-
      tation, where the  structure or  prop-
      erty  is exposed to sound  levels  regu-
      larly  in  excess  of  (an  L.,  in  any
      hour  of  	   dBA)/(an  Ldn of
         ....  dBA), without  making  full
      written   disclosure  to  all   potential
      buyers or renters  of the existence of
      such sound  levels  and of  the  nature
      of the sources. The EPO/NCO shall
      develop a standard format  for written
      disclosures,  which  shall  include  in-
      formation on the  effects of  noise on
      human health and welfare.

10.10   Appeals
      Any applicant may appeal  an adverse
      decision  by   the  EPO/NCO  under
      ihii  Article,  in the (appropriate court
      of  law),  on  the   grounds  that  the
      EPO/NCO disapproval was arbitrary,
      capricious, or unreasonable.
                                          c-es

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ARTICLE  XI  Enforcement	
11.1   Penalties
      (a)  Any  person  who  violates  any
      provision of  this ordinance  shnll  be
      fined for each offense not more  than
      	  dollars.
      (b)  Any  person  who   willfully  or
      knowingly violates any  provision  of
      this ordinance shall be fined  for  each
      offense a sum of not less than  ....
      dollars and not  more than ....  dol-
      lars.
      (c)  Each  day  of violation   of  any
      provision of this  ordinance shall  con-
      stitute a separate offense.
[11.2   Abatement Orders
      (a)  Except  as provided in subsection
      (.b),  m  lieu  of'issuing  a notice  of
      violation  as provided  for  in  Section
      11.3.   the    EPO/NCO   or  other
      (agency/official)   responsible   for en-
      forcement of  any provision  of  this
      ordinance may issue an order requir-
      ing abatement of any source of sound
      or vibration alleged to be in  violation
      of this ordinance within a reasonable
      time  period and according to guide-
      lines  [to be approved by appropriate
      authority] which the  EPO/NCO  may
      prescribe.
      (b) An  abatement order  shall not  be
      issued: (1)  for any violation  covered
      by Section 11.1 (b);  (2)  for any vio-
      lation of  	; or,
      (3) when the  EPO/NCO  or other en-
      forcement  (agency)  / (official)  has
      reason to believe that there  will not
      be .compliance  with  the abatement
      order.]
11J   Node* of Violation
      [Except where a person  is acting  in
      good faith to  comply with an abate-
      ment order issued pursuant to Section
      11.2  (a)], violation of any provision
      of this ordinance shall be cause for a
      (notice   of    violation)/ (summons)/
      (complaint)/(information or  indict-
      ment)  to be issued by the EPO/NCO
      or  other  responsible   enforcement
      (agency  official)  according  to  pro-
      cedures (which  the  EPO/NCO  may
      prescribe) / (set forth in  	).
11.4  Immediate Threat! to Health  and
      Welfare
      (a)  The EPO/NCO  shall order  an
      immediate,  halt  to any  sound which
      exposes any  person,  except those  ex-
      cluded  pursuant to  subsection  (b).
      to continuous sound  levels  in excess
      of those shown  in  Table IV  or  to
      impulsive  sound  levels  in excess  of
      those  shown in  Table  V.  Within
        	  days  following  issuance  of
    such  an  order,  the  EPO/NCO 'hall
    apply to  the  appropriate court  for an
    injunction  to replace the order
    (b) No order pursuant to subsection
    (a) shall  be issued  if  the  only  per-
    sons exposed to sound levels in excess
    of those listed in Tables IV and  V
    are exposed  as a  result of  (I)  tres-
    pass:   (2)   invitation   upon  private
    property by  the  person  causing or
    permitting  the  sound:   (.1)  employ-
    ment  by the person or a contractor
    of the person  causing  or permitting
    the sound.
    (c) Any person  subject to  an order
    issued pursuant   to  subsection  (a)
    shall comply  with such order until (1)
    the sound is  brought into compliance
    with the order, as determined  by the
    EPO/NCO:  or  (2)  a  judicial order
    has superseded the EPO/NCO order
    (d) Any person who violates an order
    issued pursuant to this section shall.
    for each  day of violation, be fined not
    less  than 	   dollars  nor more
    than  	  dollars.
              TABLE IV
   CONTINUOUS SOUND LEVELS
   WHICH  POSE AN IMMEDIATE
    THREAT TO HEALTH  AND
              WELFARE
   (Measured at 50 Feet or 15 Meters)*
     Sound Level
     Limit—
-------
11.5  Citizen Suits
      (a) Any  person, other  than  persons
      responsible for  enforcement  of this
      ordinance, may commence a civil ac-
      tion  on his own behalf  (1)  against
      any person who  is  alleged to be  in
      violation  of  any  provision  of  this
      ordinance set  forth  in  Table  VI  be-
      low or  (2) against  the EPO/NCO
      where  there  is  alleged  a  failure  of
      the EPO/NCO  to  perform  any  act
               TABLE  VI
   Provisions Under Which Civil Actions
           May B« Commenced

          (Radios, Television Sets, Musical
            Instruments and Similar De-
            vices)
          (Loudspeakers/Public Ad-
            dress Systems)
          (Street Sales)
          (Loading and Unloading)
          (Construction)
          (Vehicle or Motorboat Repairs
            and Testing)
          l Places of Public Entertainment)
          (Explosives, Firearms, and
            Similar Devices)
          (Powered Model Vehicles)
          (Vibration)
          (Stationary, Non-Emergency
            Signaling Devices)
          (Emergency Signaling Devices)
          (Motorboats)
          (Domestic Power Tools)
          (Tampering)
          (Maximum Permissible Sound
            Levels by Receiving Land Use)
          (Refuse Collection Vehicles)
          (Standing Motor Vehicles)
           (Motor Vehicle Racing Events)
          (Motor Vehicle Horns and
            Signaling Devices)
          (Truth in Selling or Renting)
 6.2.1(a)
 6.2.2

 6.2.3
 6.2.5
 6.2.6
 6.2.7

 6.2.9
 6.2.10

 6.2.11
 6.2.12
[6.2.13]

 6.2.14
 6.2.15
 6.2.17
 6.2.18
   8.1

 9.1.3
 9.1.4
   9.2 (b)
 9.2.Ub)
10.9
       under  this ordinance  which  is  not
       discretionary.  The  	  court
       shall  have jurisdiction, without regard
       to the amount in controversy, to grant
       such  relief as it deems  necessary..
       (b) No action may be commenced
         (1)  under subsection (a)(l)
          (A)  prior  to  	  days after
       the plaintiff has given  notice  of  the
       alleged violation  to  the EPO/NCO
       [and  to the alleged violator]  of such
       violation, or
          (B) if the  EPO/NCO  has com-
       menced  and is  diligently prosecuting
       an action against  the alleged  violator
       with  respect to such  violation, [but
       in such action  any  affected  person
       may intervene as  a matter of  right],
       or
        (2)  under subsection  (a) (2), prior
       to 	 days after the plaintiff has
       given   notice to  the EPO/NCO that
       he will commence such  action. Notice
       under  this subsection  shall be given
       in a  manner prescribed by the EPO/
       NCO.
      (c) In   any action  under  this  section,
      the EPO/NCO,  if  not a party, may
      intervene as a matter of right.
      (d) The  court,   in  issuing  any  final
      order  in any action brought pursuant
      to subsection (a), may at  its discre-
      tion award the  costs of litigation  to
      any party.
11.6  Other  Remedies
      No provision of this  ordinance shall
      be construed to  impair any common
      law or  statutory cause  of  action,  or
      legal  remedy therefrom, of any per-
      son for injury or damage arising from
      any  violation  of  this  ordinance  or
      from  other law.
11.7  Severability
       If any provision of  this  ordinance  is
       held  to be unconstitutional or other-
      wise   invalid  by  any court of  com-
       petent .jurisdiction,  the remaining pro-
       visions of  the ordinance shall not be
       invalidated.
11.8   Effective Date
       This  law/ordinance  shall  take   the
       effect on	
                                         C-25

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APPENDIX D

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                    Public Law 92-574
               92nd Congress,, H. R. 11021
                      October 27.  1972
                                                                   36 STAT.  1234
To control  the emission  of noise detrimental to  tJie human environment, and
                        for other purposes.

  Be  it enacted by the Senate and House  of Representatives of the
United States of America in Congress assembled,                      Noia«  Control
                                                                  Aat of 1972.
                           SHORT TITLE

  SECTION 1. Tliis Act may be cited as the "Noise Control Act of 1972"-

                                    POLICT
  SEC. -2. (a) The Congress finds —
      (1) that inadequately controlled noise presents a growing dan-
    ger to the health and welfare of the Nation's population, particu-
    larly in urban areas ;
      (2) that  the major sources of noise  include  transportation
    •vehicles and equipment, machinery, appliances, and other prod-
    ucts in commerce ; and
      (3) that, while primary responsibility for control of noise rests
    with State and local governments, Federal action is essential to
    deal with major noise sources in commerce control of which re-
    quire national uniformity of treatment.
  (b) The Congress declares that it is the policy of the United States
to promote an environment for all Americans free from noise that
jeopardizes their health or welfare. To that end, it is  the puroose of
this Act to establish  a means  for effective coordination of Federal
research and activities in noise control, to authorize the establishment
of Federal noise emission standards for products distributed hi com-
merce, and to  provide information to the public respecting the noise
emission and noise reduction characteristics of such products.

                           DEJTNTnONS

  SEC. 3. For purposes of this Act :
      ( 1 )  The term "Administrator'7 means the Administrator of the
    Environmental Protection Agency.
      (2) The  term   itperson"  means  an individual, corporation,
    partnership, or association, and (except as provided in sections
    ll(e)  and  12(a)) includes any officer,  employee, ^department,
    agency, or instrumentality of the United States, a State, or any
    political subdivision of a state.
      (3) The term "product" means any manufactured article or
    goods  or  component thereof;  except  that such  term does not
    include — •
           (A) any aircraft, aircraft engine, propeller, or appliance,
         as such terms are defined in section 101 of the Federal Avia-
         tion Act of 1958; or                             .        72 St»t.  737.
           (B) (i)  any military weapons  or  equipment which are  *9 use 1301.
         designed for combac use ; ( ii) any rockets or equipment which
         are designed  for  research,  experimental, or developmental
         work to be performed by the National Aeronautics and Space
         Administration; or (iiij to the extent provided by regulations
         of the  Administrator,  any other machinery or  equipment
         designed for use in experimental work done by or for the
         Federal Government.
      (4) The term iitdtimat« purchaser'' means the first person who
    in good faith purchases a product for purposes other than resale.

      33.10* O
                                      0-1

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36 STAT. 1235
               Pub.  Law 92-574
                                           - 2  -
October  27, 1972
ao St*t. 379.
Cotroliifio*
exeoptlan,
?r«sld»ntl»l
authority.
                     (5) The term "new product" means ( A) a product the equitable
                   or legal title of which has never been transferred to an ultimate
                   purchaser, or  (B) a product which  is imported or offered  for
                   importation  into th« United States and which is manufactured
                   after the effective date of a regulation under section 6 or section 8
                   which would have been applicable to such product  had it been
                   manufactured in the United States.
                     (6) The term "manufacturer' means any person engaged in the
                   manufacturing or assembling of new products, or the importing
                   of new products for resale, or who acts for, and is controlled by,
                   any  sucn  person  in connection  with the distribution of such
                   products.
                     (7) The term "commerce'7 means trade, traffic, commerce, or
                   transportation —
                         (A) between a  place in a State and  any  place outside
                       thereof, or
                         (B) which affects trade, traffic, commerce, or transporta-
                        tion described in subparagraph ( A) .
                     (3) The term ''distribute in commerce'7 means sell in, offer for
                   sale in, or introduce or deliver for introduction into, commerce.
                     (9) The term "State'' includes the District of Columbia, the
                   Commonwealth of Puerto Rico, the Virgin  Islands,  American
                   Samoa,  Guam, and the Trust Territory of the Pacific Islands.
                     (10) The  term "Federal agency" means an executive agency
                   (as defined  in section  105 of title 5.  United States Code)  and
                   includes the United States Postal Service.
                     (11) The  term  ''environmental noise"  means the  intensity,
                   duration, and the character of sounds from all sources.

                                      FEDERAL PROGRAMS

                 SEC. -t. (a) The Congress  authorizes and  directs  that Federal
               agencies  shall, to  the fullest extent consistent with their authority
               under Federal laws administered by them, carry out  the  programs
               within their control  in  such a manner  as to  further  the  policy
               declared  in  section 2(b).
                 (b)  Each department, agency, or instrumentality of the executive,
               legislative, and judicial branches of the Federal Government —
                     (1) having jurisdiction over any property or facility,  or
                      (2) engaged in any activity resulting, or which  may result, in
                   the emission of noise,
               shall comply with Federal,  State, interstate, and local requirements
               respecting control and abatement of environmental noise to the same
               extent that any person is subject to such requirements. The President
               may exempt any single  activity or facility, including noise emission
               sources or classes thereof, of any department, agency,  or instrumen-
               tality in  the executive branch from compliance with any such require-
               ment if he determines it to be in the paramount interest of the United
               States to do so:  except that no exemption,  other than  for those
               products referred  to in section 3(3) (B) of this Act. may be granted
               from the requirements of sections 6. 17, and 18 of this Act. Xo such
               exemption shall  be granted due to lack of appropriation  unless the
               President shall have  specifically  requested such  appropriation  as a
               part of the  budgetary process and the Congress shall have failed to
               make available such  requested appropriation.  Any exemption shall
               be for a  period not in excess of one year, but additional exemptions
               may be  granted for  periods  of  not  to  exceed  one year upon  the
               President's making a  new determination. The President  shall report
               each January to the Congress all exemptions from the requirements
                                      0-2

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October  27, 1972
- 3  -
Pub.  Law 92-574
                                                                  86 STAT.  1236
of this section granted during the preceding calendar year, together
with his reason for granting such exemption.
  (c)(l) The Administrator shall coordinate the programs of all
Federal agencies relating to noise research and noise control.  Each
Federal agency shall, upon request, furnish to the Administrator such
information as he may reasonably  require to determine the nature,
scope, and results of the noise-research and noise-control programs of
the agency.
  (2) Each Federal agency shall consult with the Administrator in
prescribing standards or regulations respecting noise. If at anv time
the Administrator has reason to believe that a standard or regulation,
or any proposed standard or regulation, of any Federal agency respect-
ing noise does not protect the  public health and welfare to the extent
he believes to be required and feasible, he may request such agency to
review and report to him on the advisability of revising such standard
or regulation to provide such protection. Any such request may be
published in the Federal  Register and  shall be accompanied  by a
detailed statement of the information on which it is based. Such acency
shall complete the requested review and  report to  the Administrator
within such time as  the Administrator specifies in the request, but such
time specified may  not be less than ninety days from the date the
request was made. The report shall be published in the Federal Reg-
ister and shall be accompanied by a detailed statement of the findings
and conclusions of  the agency respecting the revision of  its standard
or regulation. With respect to the Federal Aviation Administration,
section 611 of the Federal Aviation Act of 1958 (as amended by section
~ of this Act) shall apply in  lieu of  this paragraph.
  (3)1  On the basis of regular consultation with appropriate Federal
agencies, the Administrator shall compile and publish, from time to
time, a report on the status and progress  of Federal activities relating
to noise research and noise control. This report shall describe the noise-
control programs of each Federal agency and assess the contributions
of those programs to the Federal Government's overall efforts to con-
trol noise.
                                     S taidwdj or
                                     regulations.
                                     Revision Pa-
                                     port  request,
                                     publiaa.ti.on In
                                     Federal Regis-
                                     ter.


                                     Report, publi-
                                     cation In Fed-
                                     eral  Regirtar.
                                     Status report.
n>EjrrmcATTOx OF MAJOR NOISE SOURCES ; NOISE CRITERIA AXD CONTROL
                           TECHNOLOOT

  SEC. 3. (a)(l)  The Administrator shall,  after consultation with
appropriate Federal agencies and within nine months of the date of
the enactment of this Act. develop and publish  criteria with respect
to noise.  Such criteria shall reflect the scientific knowledge most useful
in indicating the kind and extent of all identifiable effects on the public
health or welfare which may be expected from diifering quantities and
qualities of noise.
   (2)  The Administrator shall, after consultation with appropriate
Federal  agencies and within twelve  months of the date of the enact-
ment of  this Act, publish information on the levels of environmental
noise the attainment and maintenance of which in defined areas under
various conditions are requisite to protect the public health  and wel-
fare with an adequate margin of safety.
   (b)  The Administrator"shall, after consultation with appropriate  Reports.
Federal  agencies,  compile and publish a reoon or series of reports
(1)  identifying products- (or classes of products)  which in his  judg-
ment are major sources of noise, and (2) giving information on tech-
niques for control of noise from  such products, including  available
data on the technology, costs, and alternative methods of noise control.
The first such report shall be published not later than eighteen months
after the date of enactment of this Act.
                                     0-3

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38 STA?. 1237
               Pub.  Law 92-574
                            -  4 -
October  27. 1972
Srrtaw.
Riporta, pub-
Haitian in
Froposed
regulations,
«ff«otiv« data.
  (c) The Administrator shall  'from time  ta time  review  and,  as
appropriate, revise or supplement any criteria or reports published
under this section.
  (d) Any report (or revision thereof) under subsection (b) (1) iden-
tifying major noise sources shall be published in the Federal Register.
The publication or revision under this section of any criteria or infor-
mation on control techniques shall be announced in the Federal Reg-
ister, and copies shall be made available to the general public,
                 JTOISE EMTSgmv 3TA2TDARD8 FOR PRODUCTS DISTMBCTZD
                                                                    COJCMERCE
  SEC. 6. (a)(l)  The Administrator shall publish proposed regula-
tions, meeting the requirements of subsection (c), for each product —
       (A)  which is identified (or is part of a class identified) in any
    report published under section 5( b) (I) as a major source of noise,
       (B)  for which, in his judgment, noise emission standards are
    feasible,  and
       (C)  which falls in one of the following categories:
          (i) Construction equipment.
          (ii) Transportation  equipment   (including  recreational
        vehicles and related  equipment).
          (iii) Any motor or engine (including any equipment of
        which an engine or motor is an integral part).
          (iv) Electrical or  electronic equipment.
  (2) (A) Initial proposed regulations under paragraph (1)  shall be
published not later than eighteen months after the date of enactment
of this Act. and shall apply to any product described in paragraph (1)
which is identified  (or  is a part of a class identified) as a major
source of noise in any report published under section 5(b) (1) on or
before the date of publication of such initial proposed regulations.
  (B) In the case of any product described in paragraph  (1) which
is identified (or is part oif a class identified) as a major source of noise
in a report published under section 5(b) (1)  after publication of the
initial proposed regulations under subparagraph  (A)  of this para-
graph. regulations under paragraph  (1) for such product shall be
proposed and published  by the Administrator not later than eighteen
months after such report is published,
  (3)  After  proposed regulations respecting a product have been pub-
lished under paragraph (2). the Administrator shall, unless in his
judgment noise emission standards are not feasible for such product.
prescribe reflations, meeting the requirements of subsection (c), for
such product —
       (A) not earlier than six months after publication of such pro-
    posed regulations, and
       (B)  not later than —
           (i) twenty- four months after the date of enactment of this
         Act. in the case of a  product subject to proposed regulations
         published under paragraph (2) (A), or
           (ii) in the case of any other product, twenty-four months
         after the publication of the report under section  3(b)(l)
         identifying it (or a class of products of which it is a part) as
         a major source of noise.
   (b) The Administrator may publish proposed regulations, meeting
rhe requirements of subsection (c). for any  product for which  he is
not required  by subsection (a) to prescribe regulations but for which,
in his judgment, noise emission standards are feasible and are  requisite
to protect the public health and  welfare. Xot earlier than six months
lifter the date of publication  of such proposed  regulations respecting
such  product, he may prescribe regulations, meeting the requirements
of subsection ( c ) , for such product.

-------
October  11, 1972
                             - 5 -
                                      Pub. Law 92-574
                                                             36 STAT. 1238
  (c)(l) Any regulation prescribed under subsection  (a) or  (b) of
this  section (and  any revision thereof) respecting a  product shall
include a noise emission standard which shall set limits on noise emis-
sions from such product and shall be a standard which in the Adminis-
trator's judgment, based on criteria published under section 5,  is
requisite to protect the public health and welfare, taking into account
the magnitude  and conditions  of use of such  product (alone or in
combination with  other noise sources),  the degree  of noise reduction
achievable  through the application of the best available technology,
and  the cost of compliance. In establishing such a standard for any
product, the Administrator shall give  appropriate consideration to
standards under  ocher laws designed  to safeguard the health  and
welfare of persons, including any standards under the National  Traffic
and  Motor Vehicle Safety Act'of 19tifi, the  Clean Air Act. and the  30 stat. na,
Federal Water Pollution Control Act. Any such noise emission stand-  is "SC  1381
ards shall  be  a  performance standard.  In addition, any regulation  no**.
under subsection  (a)  or (b) (and any revision thereof) may contain  ^ asc^'as?5'
testing procedures necessary to assure compliance with the emission  ~01.9   "
standard in such  regulation, and may  contain provisions respecting  ^nte>' ?> 916>
instructions of the manufacturer for the maintenance, use.  or repair    "^
of the product.
   (•2)  After publication of any  proposed regulations under this sec-
tion. the Administrator shall allow interested persons an opportunity
to participate in nilemaking in accordance with the first sentence of
section 553 (c) of title 3. United  States Code.                          30 sta-c. 383.
   (3)  The  Administrator may  revise  any  regulation prescribed by
him under this section by (A) publication of proposed  revised  regula-
tions,  and  ( B) the promulgation, not earlier than six months after the
date of such publication, of regulations making tiie revision: except
that a revision which mukes only technical or clerical corrections in a
regulation under this section  mav  be  promulgated earlier than six
months  after such date if the Administrator finds that such earlier
promulgation is in the public interest.
   (d) ( 1)  On and after the effective date of any regulation prescribed
under subsection  (a) or (b) of this section, the manufacturer  of each
 new product  to  which such regulation applies shall warrant to the
ultimate purchaser and each subsequent purchaser that such product is
 designed, built, and equipped so  as to conform at the time of sale with
such regulation.
   (2) Any cost  obligation of  any dealer incurred as  a result of any Cost
 requirement imposed by paragraph (1) of this  subsection shall be
 borne by the manufacturer. The transfer of any such cost obligation
 from  a manufacturer to any dealer through franchise or other agree-
 ment is prohibited.
   (3) If a manufacturer includes in any advertisement a statement
 respecting the cost or value of noise emission control devices or systems,
 such manufacturer shall set forth in such statement the cost or  value
 attributed  to such devices or  systems by  the Secretary  of Labor
 (through  the Bureau of Labor Statistics).  The Secretary of Labor,
 and his representatives, shall have the  same  access for this purpose to
 the books, documents, papers, and  records of a manufacturer as the
 Comptroller General has to those of a  recipient of assistance  for pur-
 poses of section 311 of the Clean Air Act.
    (e)(l)  No  State or political subdivision  thereof may adopt  or
 enforce —                                             '
                                                              on*
  (A)  with resoect to any new product for which a regulation
has been prescribed bv the Administrator under this section, anv
law or regulation which sets a limit on noise emissions from such
                                                              31 Stat.  305;
                                                              34 scat,  i^05-

                                                              *„ u • •  ±
                                                              'ro      on3'
                                 0-5

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3g STAT. 1239   Pub.  Law  92-574         - 6 -          October  27, 1972

                   new product and which is not identical to such regulation of the
                   Administrator: or
                     (B) with respect to any component incorporated into such new
                   product by the manufacturer of such product, any law or regula-
                   tion setting a limit on noise emissions from such component when
                   so  incorporated.
                 (•2) Subject to sections IT and 18, nothing in this section precludes
               or denies the right of any State or political subdivision  thereof to
               establish and  enforce controls on environmental noise (or one or more
               sources thereof) through the licensing, regulation, or restriction of the
               use.  operation, or movement of any product  or  combination of
               products.
                                  AIRCRAFT JfOISE STANDARDS

                 SEC. 7.  (a)  The Administrator, after consultation with appropriate
               Federal. State, and local agencies and interested persons, shall conduct
               n study of the (1)  adequacy of Federal  Aviation Administration flight
               and operational noise controls: (2)  adequacy of noise emission stand-
               ards on new and existing aircraft, together with recommendations on
               the  retrofitting and phaseout of existing aircraft; (3) implications of
               identifying and achieving levels of cumulative noise exposure around
               airports:  and (4)  additional  measures available to airport operators
               and  local governments to control aircraft noise. He shall report on
               such study to the Committee on Interstate and Foreign Commerce of
               the  House of  Representatives and the  Committees on Commerce  and
               Public  Works of  the  Senate within nine months  atter the date of
               the enactment of this Act.
                 (b) Section fill of  the  Federal Aviation  Act  of 1958 (49 U.S.C.
82 stat. 395,   U31) is amended to read as follows:

                   "CONTROL .VXD ABATEMENT OF AIRCRAFT XOISE AND SONIC BOOJt

                 ~SEC. 611. (a) For purposes of this section:
»?ju."                "(1)  The  term 'FAA'  means  Administrator of the  Federal
                   Aviation  Administration.
"SPA."                "(2)  The term-EPA'means the Administrator of the Environ-
                   mental Protection Agency.
standards and     "(b)  (1) In order to afford present and future relief and protection
rsguiitioos.    ro the public  health and welfare from aircraft noise and sonic boom,
               the  FAA. after consultation with the Secretary of Transportation and
               with EPA. shall prescribe and amend  standards for the measurement
               of aircraft noise and sonic boom and shall prescribe and amend such
               regulations as the FAA may find necessary to provide for the control
               and  abatement of aircraft noise and sonic boom, including the appli-
               cation of such standards and regulations in the issuance, amendment,
               modification, suspension, or revocation  of any certificate authorized by
               this  title. No exemption with respect  to any standard or regulation
               under this section may be granted under any provision  of this  Act
               I'nless the FAA shall  have consulted  with EPA  before such  exemp-
               tion  is  granted, except that if the FAA determines that safety in air
               commerce or  air transportation  requires that  such an exemption be
               granted before EPA can be consulted, the FAA shall consult with EPA
               as soon as practicable after the exemption is granted.
                 "(2)  The FAA shall not issue an original type certificate under sec-
rz stat. 775.   tion 6(M(a) of this Act for any aircraft  for'which substantial noise
49 use. 1423.   abatement can be achieved by prescribing standards and regulations
               in accordance with this section, unless  he shall  have prescribed stand-
               ards and regulations in accordance with  this section which apply to
               such aircraft and which protect the public  from aircraft noise  and
               sonic boom, consistent with the considerations listed in subsection  (d).
                                      n  a

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October  27. 1972
                             - 7  -
Pub. Law 92-574
                                                                  36 STAT.  1240
                                                                  Propoatd
                                                                  regulations,
                                                                  aubmittal to
                                                                  FAA.
  "(c)(l)  Xot earlier  than the date of submission  of  the report
required by section 7 (a) of the >Toise Control Act of 1972, EPA shall
submit to the FAA proposed regulations to  provide such control and
abatement of aircraft noise and sonic boom (including control and
abatement through the exercise of any of the FAA's regulatory author-
ity over air commerce or transportation or over aircraft or airport
operations) as EPA determines is necessary to protect the public health
and welfare. The FAA  shall consider such proposed regulations sub-  Publication.
mitted by EPA under this paragraph and shall, within thirty days of
the date of its submission to the  FAA, publish the proposed regulations
in a notice of proposed rulemaking. TV ithin sixty days after such pub-  Hearing.
lication, the FAA shall commence a hearing at which interested per-
sons shall be afforded an opportunity for oral  (as well as written)
presentations of data, views, and arguments.  "Within a reasonable time
after the conclusion of such hearing and after consultation with EPA,
the FAA shall—
      "(A) in accordance with subsection (b), prescribe regulations
     (i) substantially as they were submitted oy EPA, or  (ii) which
    are a modification of the proposed regulations submitted by EPA.
    or
      "(B) publish in the Federal Register a notice that it is not
     prescribing any regulation  in  response to EPA's submission of
     proposed regulations, together with a detailed explanation provid-
     ing reasons for the. decision not to prescribe such regulations.
  "(•2)  If EPA has  reason to  believe that the  FAA's action  with
respect to a. regulation proposed by EPA under paragraph  (1) (A)
(ii)  or  (1)(B)  of this subsection does not protect the public health
und  welfare from aircraft noise or sonic boom, consistent with the con-
siderations listed in subsection ;d)  of this section. EPA shall consult
with the FAA and may request the FAA to review, and report to EPA
on. the advisability of prescribing the regulation originally proposed
by EPA.  Any such request shall be published in the Federal Register
and  shall  include a detailed statement of the information on which it is
based. The FAA shall complete  the review requested and shall report
to EPA within such  time as EPA specifies in the request, but  such
time specified may not be less  than ninety  days  from the date the
request  was  made. The  FAA's  report  shall be  accompanied by  a
detailed  statement  of the FAA's findings and the reasons for the
FAA's conclusions; shall  identify any statement filed pursuant to sec-
tion  102(2) (C) of the National Environmental Policy  Act of  1969
wich respect to such action of the FAA under paragraph (1) of this
subsection; and shall specify whether (and where) such statements-are
available  for public inspection. The FAA's report shall be published
in the Federal  Register, except in a case  in which EPA's request pro-
posed specific action to be taken by the FAA, and the FAA's report
indicates such action will be taken.
  "(3) If. in the case of a matter described in paragraph (2) of this
subsection with respect to which no statement is required to be filed
under such section  102(2) (C), the  report of the FAA indicates that
the  proposed regulation originally  submitted by EPA should not be
made, then EPA may request the'FAA to file a supplemental report.
which shall be published in the Federal Register within such- a period
as EPA may specify (but such time specified shall not  be less  than
ninety days from the date the request was made), and which shall con-
tain a comparison of  (A) the environmental effects (includinz those
which cannot be avoided) of the action actually taken by the FAA in
response  to EPA's proposed regulations, and" (B) EPA's proposed
regulations.
                                                                  Publication
                                                                  in ?sdaral
                                                                  Ragistar,
                                                                  Ra port
                                                                  raquast,
                                                                  publication
                                                                  in  Federal
                                                                  Registar.
                                                                  83  Stat. 853.
                                                                  42  USC 4332.


                                                                  Raport,
                                                                  publication
                                                                  in  Federal
                                                                  Register,

                                                                  Supplemental
                                                                  rsport,
                                                                  publication
                                                                  in  Federal
                                                                  Ragiatar.
                                       D-7

-------
38 STAT. 1241
               Pub. Law 92^574
                                            October 27, 1972
90 St»t. 931.
49 USC 1651
not*.
Notlg* tad
72 St»t. 779)
95 Stat. 481.
49 USe 1429.
72 St«t. 731.
49 USC 1301
not*.
  "(d) la prescribing and amending standards and regulations under
this section, the F AA 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 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 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 or regulation is
    economically reasonable, technologically practicable, and appro-
    priate for the particular type of aircraft, aircraft engine, appli-
    ance, or certificate to which it will apply ; and
      "(5) consider the eitent to which such standard or regulation
    will contribute  to carrying; out  the purposes of  this section.
  "(e) In any action to amend, modify, suspend, or revoke a certifi-
cate  in which violation of aircraft  noise or sonic boom standards 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 FAA  if it finds that control or.
abatement of aircraft noise or sonic boom and the public health 'and
welfare do not require the affirmation of such order, or that such order
is not consistent with safety in air commerce or air transportation."
  (c) All—
      (1) standards, rules, and regulations prescribed under section
    611 of the Federal Aviation Act  of 1958, and
      (2) exemptions, granted under any provision of the Federal
    Aviation Act of 1958, with respect to such standards, rules, and
    regulations,
which are in effect on the date of the enactment of this Act, shall con-
tinue in effect according to their terms until modified, terminated,
superseded, set aside, or repealed by  the Administrator of the Federal
Aviation Administration in the exercise of any authority vested in
him, by a court of competent jurisdiction, or by operation of law.
                 SEC. 8. (a) The Administrator shall by regulation designate any
               product (or class thereof) —
                     (1) which emits noise capable of adversely affecting the public
                   health or welfare ; or
                     (2) which is sold wholly or in part on the basis of its effective-
                   ness in reducing noise.
                 (b) For  each product (or  class thereof)  designated  under sub-
               section (a)  the Administrator  shall by regulation require that notice
               be given to the prospective  user of the level of the noise the product
               emits, or of its effectiveness in reducing noise, as the case may be. Such
               regulations shall specify (1) whether such notice ihall be  affixed to
               the product or to the outside of its container, or to both, at the time of
               its sale to the ultimate purchaser or whether such notice shall be given
               to the prospective user in some  other manner,  (2) the form of the
               notice^ and  (3)  the methods and units  of measurement  to  be used.
               Sections 8(c) (2) shall  apply  to the prescribing of any regulation
               under this  section.
                 (c) This section does not prevent any State or political subdivision
               thereof from regulating product labeling or information respecting
               products in any way not in conflict with regulations prescribed by the
               Administrator under this section.
                                      0-8

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October  27, 1972         - 9  -         Pub.  Law  92-574
                                                                  36 STAT. 1242
                             IMPORTS

  SEC. 9. The Secretary of the  Treasury shall, in  consultation  with Regulations.
the Administrator, issue regulations to carry out the provisions of this
Act with respect to new products imported or offered for importation.

                         PROHIBITED ACTS

  SEC. 10.  (a) Except as otherwise provided in subsection (b), the
following acts or the causing thereof are prohibited :
       (1)  In the case of a manufacturer, to distribute in commerce
    any new product manufactured  after the effective date of a regu-
    lation prescribed under section 6 which is applicable to such prod-
    uct, except in conformity with such regulation.
       (2) (A) The removal or rendering inoperative by anv person.
    other than for purposes of  maintenance, repair, or replacement,
    of any device or element of  design incorporated into any product
    in compliance with regulations  under section 5, prior to its sale
    or  delivery to the ultimate purchaser or  while  it is Ln use.  or
    (B) the use of a product after such device or element of design
    has been removed or rendered inoperative by any person.
       (3)  In the case of a manufacturer, to distribute in commerce
    any new product manufactured after the  effective date of  a
    regulation prescribed under section 3(b) (requiring information
    respecting noise) which is applicable to such product, except in
    conformity with such regulation.
       (4)  The  removal  by  any person  of  any notice  affixed  to  a
    product or container  pursuant  to regulations  prescribed under
    section8(b). prior to sale of the product to the ultimate purchaser.
       (5)  The importation into the United States  by any person of
    any new product  in  violation of a  regulation  prescribed under
    , section 9 which is applicable to  such  product.
       (6)  The failure or refusal by any person to comply  \vith any
    requirement  of section 11 (d) or 13(a) or  regulations prescribed
    under section 13 (a), IT, or 18.
   (b) ( 1)  For the purpose of research, investigations, studies, demon- Exemplars.
strations. or training, or for reasons of national security, the Admin-
istrator may exempt for  a specified period of  time any product, or
class thereof, from paragraphs  (1). (2). (3).  and  (5)  of subsection
(a), upon such terms and conditions as he may find necessary to pro-
tect the public health or welfare.
   (•2)  Paragraphs (1). (2).  (3). and (4) of subsection (a)  shall not
apply  with respect to any product  which is manufactured solely for
use outside any  State and which  (and the container  of \vhicii)  is
labeled or  otherwise marked to show that it is manufactured solely
for use outside any State: except that  such paragraphs shall, apply-
to  such product  if it  is in fact distributed  in commerce for use hi
any State.
   SEC. 11. (a) Any person who willfully or knowingly violates para- ?aia.l±7.
 graph (1). (3), To), or  (6) of subsection  (a)  of section 10  ot  this
 Act shall be punished by a fine of not more than 525.000 per dav of
 violation, or by  imprisonment for not more than one year, or by both.
 If the conviction isvfor a violation committed after  a first conviction
 of such  person  under this subsection, punishment shall  be by a  fine
 of not more than S50.000 per  day of violation, or by imprisonment
 for not more than two years, or by both.
   (b) For the  purpose of this section, each day of violation of  any
 paragraph of section 10 (a)  shall  constitute a separate  violation of
 that section.
      33-109 O - 71 - 2
                                      D-9

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36 5TAT. 1243   ^b• ^W ^2-574        ' 10  '
                                                           October 27, 1972
Jvirtsdiation.
ao stat.  384.
use prao.
title  I.
Jurisdiction.
Motle*.
                 (c) The district courts of the United States shall have jurisdiction
               of actions brought by and in the name of the United States to restrain
               any violations of section 10(a) of this Act.
                 (d) (1)  Whenever any person is in violation of section 10 (a) of
               this Act. the Administrator may issue an order specifying such relief
               as he determines is necessary to'protect the public health and welfare.
                 (2) Any order under this subsection shall  be  issued  only after
               notice and opportunity for a hearing in accordance with section 554
               of title 5 of the United States Code.
                 (e) The term- ;iperson." as used  in this section, does not include a
               department, agency, or instrumentality of the United States,

                                         CITIZEN sirris

                 SEC. 12. (a) Except  as  provided in  subsection (b),  any person
               (other than the United  States)  may commence a civil action on his
               own behalf —
                     (1)  against any person (including (A) the United States,  and
                    (B)  any other governmental  instrumentality or  agency to  the
                   extent permitted, by the eleventh amendment to the Constitution)
                   who is alleged to be in violation of any noise control requirement
                    (as denned in subsection (e) ), or
                     (2)  against—
                          (A) the Administrator of the Environmental  Protection
                       Agency where there is alleged a failure of such  Adminis-
                       trator to perform  any  act or duty under  this Act which is
                       not discretionary with such Administrator, or
                          (B) the Administrator  of the Federal Aviation Adminis-
                       tration where there is alleged  a  failure of such Adminis-
                       trator to perform  any  act or duty under  section 611 of the
                       Federal Aviation Act of 1958 which is not discretionary with
                       such Administrator.
               The district courts of the United States shall have jurisdiction, without
               regard to the amount in controversy, to restrain  such  person from
               violating such noise  control requirement or to order  such Adminis-
               trator to perform such act or duty, as the  case may be.
                 (b) No  action may be commenced —
                     (1) under subsection (&)(!') —
                          (A) prior to sixty days after the plaintiff has given notice
                       of the violation (i) to'the  Administrator of the Environ-
                       mental Protection  Agency  (and  to  the  Federal Aviation
                       Administrator in the case of a violation of a noise control
                       requirement under such section  611)  and (ii)  to any alleged
                       violator of such requirement, or
                          (B) if an Administrator has commenced and is diligently
                       prosecuting a civil action to require compliance with the noise
                       control requirement, but  in any such action in  a court of
                       the United States  any  person may intervene  as  a  matter of
                       right, or
                      (2)  under subsection (a) (2) prior to  sixty  days after the
                    plaintiff  has given notice to the defendant that he will commence
                    such action.
               Notice under this subsection shall be given  in such manner as the
               Administrator of the Environmental Protection Agency shall prescribe
               by regulation.
                 (c) In  an  action under  this section, the Administrator of the
               Environmental Protection Agency, if not a party, may intervene  as a
               matter of right. In an action under this section respecting a noise con-
               trol requirement under section 611 of the Federal Aviation Act of 1958,
                                     n-in

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October  27,  1972
                            -  11 -
Pub. Law 92-574
                                                                   86 STAT.
                                                                   Litigation
                                                                   OOStS.
                                                                   ">foise control
                                                                   rsquirsnan-c."


                                                                   Ante. 3.
the Administrator of the Federal Aviation Administration, ii noc a
party, may also intervene as a matter of right.
  (d") The court, in issuing any final  order  in any action brought
pursuant to subsection (a) oi this section, may award costs of litigation
(including reasonable attorney and expert witness fees) to any party,
•whenever the court determines such an award is appropriate.
  (e) Nothing in this section shall restrict any  right which any person
(or class of persons) may have under any statute or common law to
seek enforcement of any noise control requirement or to seek any other
relief (including relief against an Administrator).
  (f) For purposes of this section, the term "noise control requirement"
means paragraph  (1),  (2),  (3), (-t), or  (5)  of section 10(a), or a
standard, rule,  or regulation issued under section IT or 18 of this Act
or under section 611 of the Federal Aviation Act of 1958.

                RECORDS,  REPORTS, AND  INFORMATION

  SEC. 13.  (a) Each manufacturer of a  product to which regulations
under section 6 or section 8  apply shall—
      (1)  establish and  maintain such records, make  such reports.
    provide such information, and make such tests, as  the Adminis-
    trator may reasonably require to enable him to determine whether
    such manufacturer has acted or  is acting in compliance with this
    Act.
      t'2)  upon request of ah officer or employee duly designated  l>y
    the Administrator, permit such  officer  or employee  ac reasonable
    times to have access to such information and the results of such
    tests and to copy such records, and
      ('•I)  to the extent required by requisitions of the Administrator,
    make  products  cominir  otf the assembly  line  or  otherwise  in
    the hands of  the  manufacturer  available for  testing l>y  the
    Administrator.
  (b) (1)  All  information obtained  by the Administrator or his rep- Confidential
resencatives pursuant to subsection  (a) of this section, which  infor- information,
ination contains or relates to a trade  secret or other matter referred to
in section  11)(>:> of title IS of the  I'nited States Code,  shall be eon- °2 Sta-c. 791.
side red .confidential for the  purpose  of  that Action,  except that such 3isolosurs.
information may be disclosed to other Federal officers or employees.
in whose  possession it shall  remain  confidential, or when relevant to
the matter in controversy in any proceed'mjr under this  Act.
  (•2) Nothing in  this subsection shall  authorize the withholding of
information by the Administrator,  or  bv any  officers or  employees
under his control, from the duly authorized committees of the (.'onirres.i.
  (c) Any person who knowingly makes any false  statement.,  repru-  violations
sentation.'or certification in  any  application,  record, report, plan, or  lni1
other document tiled or required to  be  maintained  under this Act or
who falsifies, tampers with, or knowintrly renders inaccurate any moni-
toring device  or method  required to be maintained under this Act,
shall upon conviction be punished by a tine of not more than &1 O.I HID,
or by imprisonment for not more than six mouths, or by  both.

     RESEARCH. TECHNICAL ASSISTANCE-. AND I'CBLIC  INFORMATION

  SEC. 14. In furtherance of his responsibilities under this  Act and
to  complement- as necessary, the noise-research programs of  other
Federal  agencies, the Administrator is authorized  to:
       (1) Conduct research, and finance  research  by  contract with
     any person, on the effects, measurement, and  control of noise,
     including but not limited to—
                                       run

-------
ss STAT, 1245
                     Law 92-574
                                            October 27,  1972
Definitions.
Certiflaation.
Emission
Product
Advisory
eatabliahment,
Membsrshlp.
5 USC  S332
r.ot«.
          (A)  investigation of tlie psychological and  physiological
        effects of noise on humans and the em.>cts of noise on domestic
        animals, wildlife, and property, and determination of accepta-
        ble levels of noise on the basis of such effects;
          (B)  development of improved methods and standards for
        measurement  and monitoring of noise, in cooperation with
        the National Bureau of Standards, Department of Commerce;
        and
          (C)  determination of the most  effective and practicable
        means of controlling noise emission.
      (2) Provide teclmical assistance to State and local governments
    to facilitate their development  and enforcement of ambient noise
    standards, including but not limited to—
          (A)  advice on training of noise-control personnel and on
        selection and  operation of noise-abatement equipment; and
          (B) preparation of model State or local legislation for noise
        control.
      (3) Disseminate to the  public  information on the  effects of
    noise, acceptable noise levels, and teclmiques for noise measure-
    ment  and control.

           DEVELOPMENT OF LOW-NOISE-EMISSION" I'RODCLTS

  SEC. 15. (a) For .the purpose of this section:
      (1) The  term  "Committee"  means  the  Low-Noise-Emission
    Product Advisory  Committee.
      ('2) The  term "Federal Government" includes the legislative,
    executive, and judicial brandies of the Government of the United
    States, and the government of  the District of Columbia.
      (3) The term "low-noise-emission product" means any product
    which emits noise  in amounts significantly below the levels  spwi-
    tied in noise emission standards under  regulations applicable
    tinder section 6 at the time of procurement to that type of product.
      (4) The term "retail price'' means (A) the maximum statutory
    price  applicable to any type of product;  or  (B) in any case
    where there is no  applicable maximum  statutory  price, the most
    recent procurement price paid  for any type of product.
  (b) (1) The Administrator shall determine which products qualify
as low-npise-emission products in accordance  with the provisions of
this section.
  (2) The Administrator shall certify any product—
      (A) for  which  a  certification  application has been filed in
    accordance  with paragraph  (5) (A) of this subsection;
      (B) which is a  low-noise-emission product as determined by
    the  Administrator; and
      (C) which he determines is suitable for use as a substitute for
    a type of product at  that time  in use by agencies of the Federal
    Government.
  (3) The Administrator may  establish  a  Low-Noise-Emission
Product  Advisory Committee  to assist him  in determining  which
products qualify as low-noise-emission products for purposes of this
section. The Committee shall include the Administrator or  his desig-
nee. a representative of the National Bureau of Standards, and repre-
sentatives of such other Federal  agencies and private individuals as
the Administrator may deem necessary from time to time. Any  mem-
ber of the Committee not  employed on a full-time basis by the United
States may receive the daily equivalent of the annual rate" of basic pay
in effect for grade GS-18 of the General Schedule for each day such
                                     D-12

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October  27, .1972
- 13 -
                                            Pub. Law 92-574
                                                                  86 5 TAT. 1246
member is  engaged upon work of the Committee. Each member of Travel
the Committee shall be reimbursed for travel expenses, including per
diem in lieu of subsistence as authorized by section 5703 of tiue  5,
United States Code, for persons in the Government service employed 30 s***
intermittently.                                                "    3-3 3t«-    .
   (4) Certification under this section shall be effective for  a period
of one year from the date of issuance.
   (5) (A) Any person seeking to  have a, class or model of product
certified  under this  section shall  file  a certification application  in
accordance with regulations prescribed by the Administrator.
   (B)  The Administrator shall publish in the Federal  Register a Publication 
-------
 8« STAT. 1247
Pub.
                            92-574
- 14 -
October  27, 1972
               cation under this section was based, the Administrator shall give the
               supplier of such product written notice of this finding, issue public
               notice of it. and jive the supplier an opportunity to. make  necessary
               repairs, adjustments,  or replacements. If  no 'such repairs, adjust-
               ments, or replacements are  made within a period  to be set by the
               Administrator, he may order the supplier to show cause why the
               product involved should be  eligible for recertification.
 Appropriation.     (g) There are authorized to be appropriated for paying additional
               amounts for products pursuant  to.  and for carrying  out the provi-
               sions of, this section. $1,000,000  for the fiscal year  ending June 30,
               1973, and $2,000,000 for each of the  two succeeding fiscal years.
                  (h) The Administrator shall  promulgate the procedures required
               to implement this section within one hundred and eighty days after
               the date of enactment of this Act.

                                  JUDICIAL REVIEW;  WITNESSES

                  SEC. 16. (a) A petition for review of action of the  Administrator
               of the Environmental Protection Agency in promulgating any stand-
               ard or regulation under section 6,17, or "18 of this Act or any labeling
               regulation under section 8 of this Act may be filed only in the United
               States Court of Appeals for the District of Columbia Circuit, and a
               petition for review of action, of the Administrator of the Federal Avia-
               tion Administration in promulgating any standard or regulation under
 Antjj p.  1239.  section 611 of  the Federal Aviation Act of 1958 may be filed only in
               such court. Any such petition shall  be  filed within ninety days  from
               the date of such promulgation, or nfter such date if suck petition  is
               based solely on grounds arising  after such ninetieth day. Action of
               either Administrator with respect to which review  could  have been
       "        obtained under this subsection shall not lie  subject to judicial review
               in civil or criminal proceedings for enforcement.
                  (b) If a party seeking review under this Act applies to  the court
               for leave to adduce additional evidence, and shows to the satisfaction
               of the court that the information is material and was not  available
               nt the time of the proceeding before the Administrator of such Agency
               or Administration (as the  ease  may be),  the court may order such
               additional evidence (and evidence  in rebutnil thereof) to be  taken
               liefore such Administrator, and to be adduced upon  the hearing, in such
               manner and upon such terms and conditions as the  court tuny deem
               proper.  Such Administrator may modify his  findings as to  the facts.
               or make new findings, by reason  of  rhe additional evidence so taken.
               and he shall file with the court such  modified or new findings, and his
               recommendation, if any. for the modification or seftinj; aside of his
               original order, with the return of such additional  evidence.
                  (c) With respect to  relief pending-review of an  action  by either
               Administrator, no stay  of an agency action may be granted unless tin-
               reviewing court  determines that tne party seeking  such stay is  (1)
               likely to prevail on the merits  in  the  review proceeding and  (•!)
               will suffer irreparable harm pending such proceeding.
Subpenaj.          (d) For the purpose of obtaining  information to carry out this Act,
               the Administrator of the Environmental Protection Agency may issue
               subpenas for the attendance  and  testimony  of witnesses and the pro-
               duction  of relevant papers, books, and documents, and he may adminis-
               ter ouths. Witnesses summoned shall  be paid the same fees and mileage
               that are paid witnesses in the courts of the  United States. In CUM>S of
               contumacy or refusal to obey a subpena served upon any person under
               rhis subsection, the district rtmrt  of the United States for any district
               in which such person is found or resides or transacts  business, upon
               application-by the  United  States and after notice to such person,
                                     D-14

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October  27,  1972        -  15 -         Pub. Law 92-574
                                               .	36 S7AT.  1248
shnll have jurisdiction to issue an order requiring such person to appear
and give testimony before the Administrator, to appear and produce
papers, books, and documents before the Administrator, or both, and
any failure to obey such order of the court may be punished by such
court as a contempt thereof.

                 RAILROAD XOISE EMISSION1 STANDARDS

  SEC. IT.  (a)(l) Within nine  months  after the  date of enactment
of this Act, the  Administrator shall publish proposed noise emission
regulations for surface carriers engaged in interstate commerce by rail-
road. Such proposed regulations shall include noise emission standards
setting such limits on noise emissions resulting from operation of the
equipment and facilities of surface carriers engaged in interstate com-
merce by railroad which reflect the degree of noise reduction achievable
through" the application of the best available technology, taking into
account the cost of compliance. These regulations shall be in addition
to any regulations that may be proposed under section 6 of this Act.
   (•2) Within ninety days after the publication of  such reflation* as
may be proposed under paragraph  11) of this subsection."and subject
to the provisions of section  16 of  this  Act.  the Administrator  shall
promulgate final regulations. Such regulations may be revised,  from
time to time, in accordance  with this subsection.
   (3) Any standard or regulation, or revision thereof, proposed under
this subsection shall be  promulgated only after consultation with the
Secretary of Transportation  in Border to assure appropriate considera-
tion for safety and technological  availability.
   (4)  Any  regulation  or revision thereof promulgated under  this
subsection shall take etfect after such period as the Administrator finds
necessary, after consultation  with  the Secretary  of Transportation.
to permit the development and application of the requisite technology,
giving  appropriate  consideration  to the cost  of  compliance within
such period.
   (b) The Secretary of Transportation, after consultation with the
Administrator, shall'promulgate regulations to insure compliance with
all  standards promulgated by the Administrator  under this section.
The Secretary of Transportation  shall carry out such  regulations
through the use of  his powers and  duties of enforcement  and inspec-
tion authorized  by  the  Safety Appliance Acts, the Interstate Com- 27 sta-t. 531.
merce Act. and  the  Department of Transportation Act. Regulations *5 ^c !•
promulgated under  this section  shall be subject to the provisions of <* f***; "9-
sections 10.11.12. and 16 of this Act.                                **tf  prea* L
  (c)(l) Subject to paragraph (-2) but notwithstanding any other go 3lat< 931>
provision of  this Act. after the  effective date of a regulation under 49 -Jsc [S5i 'nati
this section applicable to noise emissions  resulting  from the operation
of any equipment or facility of a surface carrier engaged in interstate
commerce by railroad, no State  or  political subdivision thereof may
adopt or enforce any standard applicable to noise  emissions resulting
from the operation  of the same equipment or facility of such carrier
unless such standard is identical to a standard  applicable  to noise
emissions resulting  from such operation prescribed by any regulation
under  this section.
   {•2)  Nothing in this section shall  diminish or enhance the rights of
any State  or political  subdivision  thereof  to  establish  and enforce
standards or controls on levels of environmental noise, or to control.
license, regulate, or restrict the  use. operation, or movement of any
product if the Administrator, after  consultation with the Secretary of
Transportation, determines chat such standard, control, license, regula-
tion, or restriction is necessitated by special local conditions and is not
in conflict with  regulations promulgated under this section.
                                       0-15

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36 STAT. 1249
                Pub. Law 92-574
                            - 16 -
October  27, 1972
3S Stat. 913|
43 Stat. 659.
R«gul*tlon3.
 24  Stat. 379.
 49  USC prea.
 1 not*.
 30  Sta-t. 931.
 49  OSC 1651
 not«.
  (d)  The terms "carrier' and "railroad" as used  in this section
shall have the same meaning as such terms have under the first section
of the  Act of February  17, 1911 (-15 U-S.C. 22).

            MOTOR CAHSTEH  XOI3E Z3CS8IOJT STANDARDS

  SEC. 18. (a)(l)  Within nine months after  the date of enactment
of this Act, the Administrator  shall publish proposed noise emission
regulations for motor carriers engaged in interstate commerce. Such
proposed  regulations  shall include  noise emission  standards setting
such limits on noise emissions resulting from operation of motor car-
riers engaged in interstate commerce which reflect the degree of noise
reduction achievable  through the application of the best available
technology, taking into  account the  cost of  compliance. These 'regula-
tions shall be in addition to any regulations  that  may be proposed
under section 6 of this Act.
  (2)  Within ninety  days after the publication of such regulations
as may be proposed under paragraph (1) of this subsection, and sub-
ject to the provisions of section  16 of this Act, the Administrator shall
promulgate  final regulations. Such  regulations may be  revised from
time to time, in accordance with this subsection.
  (3)  Any standard or regulation, or revision thereof, proposed under
this subsection shall be  promulgated only after consultation with the
Secretary of  Transportation in order  to assure  appropriate  con-
sideration for safety and technological availability.
  (4)  Any  regulation  or revision  thereof promulgated  under this
subsection shall take eSect after such period as the Administrator finds
necessary, after consultation with the Secretary of Transportation, to
permit the development and application of th'e requisite technology,
giving appropriate consideration to  the cost of compliance within such
period.
   (b)  The Secretary of Transportation, after consultation with the
Administrator shall promulgate regulations to insure compliance with
all standards  promulgated by  the Administrator under this section.
The Secretary of Transportation  shall carry out such  regulations
through the use of  his powers and  duties of enforcement and inspec-
tion authorized by the Interstate Commerce Act and the Department
of  Transportation Act. Regulations promulgated under this section
shall be subject  to the provisions of sections 10, 11, 12, and 16 of this
Act.
   (c)(l)  Subject  to  paragraph  (2) of this subsection but notwith-
standing  any  other provision of this Act. after the  effective date .of a
regulation under this section applicable to noise emissions resulting
from  the operation of  any motor carrier engaged  in interstate  com-
merce, no State or political subdivision thereof may adopt or enforce
any standard applicable to the same operation of such motor carrier.
 unless such standard is identical to a standard applicable to noise emis-
sions resulting from such operation prescribed  by any regulation under
 this section.
   (2)  Nothing  in this section shall  diminish or enhance the rights of
 any State or political subdivision  thereof to establish and enforce
standards or controls on  levels of environmental noise, or to control,
 license, regulate, or restrict the use, operation, or  movement of any
 product if the Administrator, after consultation with the Secretary of
 Transportation, determines that such standard, control, license, regu-
 lation, or restriction  is necessitated by special local conditions and is
 not in conflict with regulations promulgated under this section.
    (d)  For purposes of this section, the term "motor carrier" includes
 a common carrier by motor vehicle, a contract carrier by motor vehicle,
                                       D-16

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October  27. 1972       -  17 -         Pub, Law 92-574
and a private carrier of property by motor vehicle as those terms are
defined by paragraphs  (14), (15), and (IT)  of section 203(a) of the
Interstate Commerce Act (49 TJ.S.C. 303(a) ).                        «9 stat.  545;
                                                                  5« Stat.  920;
                 AUTHORIZATION OF APPHOFSIATIONS                 71 St"'  4U-

  SEC. 19. There is authorized to be appropriated to carry out this Act
(other than section 15) $3,000,000 for the fiscal year ending June 30,
1973;  $8,000,000  for the  fiscal  year  ending June 30, 1974; and
$12,000,000 for the fiscal year ending June 30, 1975.
  Approved October 27,  1972.
LEGISLATIVE HISTORY:

HOUSE REPORT  Mo. 92-342 (Cam,  on Intanrtata  and Foreign Conmerae).
SENATE REPORT tto. 92-1160 *ooonp*cylng 3. 3342 (Conn, an Publia Works).
CONOaESSIOKAL SECORD, Vol. 118 (1972)I
     Fab. 29« 3onJid«r*d and puaad Houae.
     Oat. 12, 13, aonsidarsd »nd pajaed sanat«, amendad, in lieu of S.  3342.
     Oat. 13, Hous« aonourred in Sanata amandmerrt, with in amendment;
             Senata  aonourr«d in House amendment.
WEEKLY COMPILATION OF PRESIDENTIAL SOCUKIOTS,  Vol. 3, So. 44:
     Oat. 29, Presidential statement.
                                  o
                                         0-17

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               PUBLIC LAW 95-609—NOV.  8, 1978
                                                                 92 STAT. 3079
Public Law 95-609
95th Congress
                            An Act
To extend provisions of  tne Xoise Control Act  of 1972 for one year, and for
                          ocner purposes.
  Be it etwcUJ by the Sen'iti inul House of Repnaenfufti-i* of the
Unitid States of A/iurica in Congress assembled. That this Act may
be cited as the "Quiet Communities Act of 197S".
  SEC.  2. Section 14 of the Noise Control Act  of 1972 is amended to
read as follows:

       "QflET COMMCNmE-S RESEABCH. PUBLIC IXFOFOtATTOX

  "Ssc. 14. To promote the development of  effective State and local
noise control  programs, to provide an adequate Federal noise control
research program designed to meet the objectives of this Act. and to
otherwise  carry out the policy of this  Act.  the Administrator shall.
in cooperation with o'her  Federal agencies  and through  the use of
grants, contracts, and direct Federal actions—
      "(a)  develop  and  disseminate  information  and educational
    materials to all segments of the  public on the public health and
    other etlVcts of noise and the most effective means for noise con-
    trol, through the  use of materials for school curricula, volunteer
    organization.-, radio and television programs,  publication,  and
    other moans:
      "ibi condtia or finance  research directly or with any  public
     •r private organization or any person on the effects, measurement,
    .i nd control of noise, including but noc limited to—
          "(1) investigation of the  psychological and physiological
        effects of noise on humans and the effects of noise on domestic
        animals, wildlife, and property, and  the  determination of
        dose/'response relationships  suitable,  for  use  in decision-
        making, with special emphasis on the nonauditory effects of
        noise'."
          "(•2)  investigation,  development, and  demonstration of
        noise control technology for products subject  to possible
        regulation under sections 6.7. and 8 erf this Act:
          "(3)  investigation,  development, and  demonstration of
        monitoring equipment and other technology especially suited
        for use by State and local noise control  programs;
          "(4)  investigation of the economic impact of noise on
         property and human activities: and
          "(5)  investigation and demonstration of  the use of eco-
        nomic incentives (including emission charges) in the control
        of noise:
       "(c)  administer a  nationwide  Quiet Communities Program
    which shall include, but not be limited to—
          "(1)  grants to  States, local governments,  and authorized
        regional planning agencies for the purpose of—
               ••(A)  identirying  and determining the  nature and
             extent of the noise problem wirhin the subject jurisdic-
             tion;
                                                                   Nov. 8. 19T8
                                                                     (S. 3083|
                                                                  Quiet
                                                                  Communities Act
                                                                  42 USC 4901
                                                                  note.
                                                                  42 USC 4913.
                                      0-18

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92 STAT. 3080              PUBLIC LAW 95-609—NOV. 8, 1978

                             "(B\  planning, developing, and establishing  a  noise
                           control capacity in such jurisdiction, including~pitrehas-
                           ing initial equipment;
                             "(C)  developing abatement  plans  for  area.~  around
                           major transportation facilities i including airports, high-
                           ways, and rail yards) and other major stationary  sources
                           of noise, and. where appropriate, for the facility or source
                           itself: and,
                             "(I))   evaluating  techniques  for  controlling noise
                           (including institutional arrangements) and demonstrat-
                           ing the best available techniques in such jurisdiction:
                         "(2)  purchase of monitoring and other equipment for loan
                       to State and local  noise control  programs to meet  special
                       needs or assist  in the beginning implementation of  a noise
                       control program or project:
                         "(3)  development and implementation of a quality assur-
                       ance program for equipment and monitoring procedures of
                       State and local noise control programs to help communities
                       assure that their data collection activities are accurate;
                         "(•i)  conduct of studies and demonstrations to determine
                       the resource and personnel needs of States and local govern-
                       ments required  for the establishment and implementation of
                       effective noise abatement and control programs: and
                         "(5)  development, of  educational ami trainine  materials
                       and programs,  including national and regional work-hops.
                       to support  State and local noise  abatement and  control
                       programs:
                   except that no actions, plans or programs hereunder shall be incon-
                   sistent with existing Federal authority under this Act to regulate
                   sources of noise in interstate commerce:
                     "(d)  develop and implement  a national noise  environmental
                   assessment  program to.  identify trends  in  noise exposure  and
                   response, ambient levels, and compliance data and to determine
                   otherwise the effectiveness of noise abatement actions through the
                   collection of physical, social, and human response data;
                     ;i(e) establish regional  technical assistance  centers which use
                   the capabilities  of university and private organizations to assist
                   State and local noise control programs:
                     "(f) provide  technical  assistance to Stare and  local govern-
                   ments to facilitate their development and enforcement of noise
                   control, including direct onsite assistance of agency or other per-
                   sonnel with  technical expertise, and preparation of model State
                   or local legislation for noise control: and
                     "(g) provide  for the maximum use in programs assisted under
                   this section of senior  citizens and persons eligible for participa-
42 USC 3001         tion in programs under the Older Americans Act.'".
aote-             SEC. 3. The fourth sentence of section  611(c)(l) of the Federal
               Aviation Act. as amended by  section 7 of the Xoise Control  Act of
•49 USC 1431.    1972.  is amend_ed by striking "a  reasonable time" and inserting in
               lieu thereof "ninety days", and by adding before the period  "and a
               detailed analysis of and" response to  all documentation or other infor-
               mation submitted by the Environmental Protection Agency  with such
               proposed regulations'1'.
                                      D-19

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               PUBLIC LAW 95-609—NOV.  8. 1978
                                                                   92 STAT. 3081
                                                                   42 I'SC 4-903.
  SEC. 4. Section Ilia) of the Xoise Control Act of 1972 is amended  42 I'SC 4910.
by inserting "(1)" after "(a.)"  and by adding  tha  following new
paragraph:
  "(•>) Any person who violates  paragraph (1). (3). (5), or (6)  of  Penalty.
subsection '(a)  of section 10 of this  Act shall be subject  to  a  civil
penalty not to exceed SIII.IMKI per day of such violation".
  .>EC.".">. Section 6 of the Xoisu Control Act of 1072  is amended  by
adding the following subsection :
  "(f) At ;iny  time^fifter the promulgation of regulations rrsperting
.1 product nailer tins  M-crion. a State or political -ubion rht-rrof
mav  pi-citioti the  Admini.-irator  to  revise  such  standard on  the
grounds that a nioiv string-lit >t:uidard  under subsection  |c)  of tlii.-i
section is iwosary ro protect the public  healtli  and welfare.  The  Notice.
Administration >hall  pulilir.li notice of rori«ip(  of Mich petition in the
Federal Ri-iristvr and shall wirhin ninety days of receipt of sudi peti-
tion  respond In-  i 1)  publication of proposed  revised reflations in
accordance with sulwcnon (c)i^)  of riiia section, or (\i) [)iib!ication
in the Federal lti.>j:i.ster of a decision  not  to  pul>li.-h sucli  proposed
revised regulations at that  time, together with a detailed explanation
for >uch decision.".
  SEC. i). Section 10 of the Xoise Control  Act  of 1972 is amended to  42 USC 4918.
read as follows:
                                                                   publication in
                                                                   Federal Register.
                "AT.TIIORIZAT10X UK APPROPRIATIONS

  '•SKC. 19. There are authorized to be appropriated to carry out this
Act  (other than for re>earch and development) S1.">,000.0(X)  for the
fiscal year ending September 30. 1979.''
  SEC 7. (a) Section 10O2(a) (4) of the Solid Waste Disposal Act is  42 USC 6901.
amended by deleting the hyphen bet-ween the words "solid" and "-waste"
in the  last line.
  (b) Section 1004  of the Solid Waste Disposal Act is amended by—  42 USC 6903.
       (1) revising paragraph (3) by'  striking out everything after
    ^improvement of land'*;
       (2)  revising paragraph (10) by striking out "disposal" and
    inserting in lieu thereof "management";
       (3) by revising paragraph (29) to read as  follows:
      "(29)  The term  'solid waste  management facility' includes—
          "(A) any resource recovery system or component thereof.
          "(B) any  system, program, or facility for resource  con-
         servation,  and
          "(C) any facility for the  collection, source separation,
         storage, transportation,-transfer, processing, treatment or dis-
         posal of solid  wastes, including hazardous wastes, whether
         such facility  is  associated  with  facilities generating  such
         •wastes or otherwise.".
  (c) Section 1008(a) (3) of the Solid Waste Disposal Act is amended  42 USC 6907.
by striking out  "Title IV" and inserting in lieu thereof "subtitle D".
  (d) Section 1008(b) of the Solid Waste Disposal Act is amended by
striking ".^pursuant to this section"'and by inserting after "suggested
guidelines" each time it appears the phrase "or proposed regulations
under this Act".
  (e) Section 2003 of the Solid Waste Disposal. Act is amended by  42 USC 6913.
inserting "Federal  agencies." after "to provide".
                                                                    "Solid w«te
                                                                    minuemeot
                                                                    facility."
                                       n-?n

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92 5TAT. 3082               PUBLIC LAW 95-609—NOV. 8.  1978

42 L'SC 6922.      (f)  Seccion 3002 of the Solid Waste  Disposal Act  is amended by—
                     (1) revising paragraph (.">) by striking out the semicolon after
                   "subtitle"  and substituting a comma, find by striking out "and"
                   and inserting in lieu thereof -or pur-uant to title I of the Marine
33 U5C 1411.        Protection. Research, and Sanctuaries Act i Stt Stat, lu.vj) ; and":
                   and
                     I -2) revising paragraph ( C>) by adding a close parenthesis after
                   "subtitle"  the first time it appears.
42 U5C 6923.      (g) Section  ::ut>:?  of the Solid Waste  Dispo>al  Act  is amended by—
                     (1) revising subsection  la) (4) by striking out the period after
                   "subtitle" and  substituting a comma, and by  nddinsr at  the end
                   thereof "or pursuant to title I of tin- Marine  Protection. Research.
                   and  Sanctuaries Act (Sfi  Stat. 10.V2).":  and
                     i-2)  n-vi.-inff subsection iM l>v striking ont "subtitle" after
                   "the regulations promulgated by the Administrator under this''
                   and inserting in lieu thereof "section"
42 USC 6925.      lh) Section 3(«>:>(a) of the Solid Waste Disposal Acr is amended
               by insertin;: "treatment, storage, or" after "and upon and after such
              • date the".
42 L'SC 6926.      (i)  Section  3nnf>(f) of the Solid Waste Disposal Act is amended
               by—
                     ( I)  strtkinsr out "required for" wherever  it appears in  the sub-
                   section and in.-ert in:: in lieu thereof "of": and
                     (2}  inserting the  \vord "may"  immediately after "300."."  ;in,i
                   I H-fore "submit"
42 USC 692T.       I j) Section  3oo~( a ) I 1) of the Solid Waste Disposal Act is amended
               by striking out "or  disposed  of" and in.-erfinjr in  lieu thereof "di.-posed
               of. or transported from".
42 USC 6928.       (k) Section "008 of the Solid Waste Disposal Act is amended by—
                      (1)  revising subsection (d) (1) to read  as follows:
                     "(1) transports any hazardous waste  identified or listed under
                   this subtitle to a facility which does not  have a  permit  under
                   section 3005 (or 3006 in the case of a State program), or pursuant
                   to title I of the Marine Protection. Research, and Sanctuaries
                    Act (36 Stat. 1052),": and
                      (-2)  revising subsection (d){-2) to read as follows:
                     "{•2} treats, stores, or disposes of any hazardous waste identified
                    or  listed  under this subtitle  without having obtained a permit
                    under section  3005 (or 30i>6 in the  case of'a State program) or
                    pursuant to  title  I  of  the  Marine Protection  Research,  and
                    Sanctuaries Act (36 Stat. 1052)."
 42 USC 6947.       (1) Section 4,007(0)  of the Solid Waste  Disposal Act is  amended
                by redesignat ins subsection " | C)" as " (c)".
 42 USC 6961.      " (m)  Section "6001 of the Solid Waste Disposal Act  is amended by
                insert ins "or management" between "disposal" and "of solid waste".
 42 USC 6962.       (n) Section rtOO^'of the Solid Waste Disposal Act is amended by—
                      (1) deleting "(A)" after "(1)" in subsection (c) and changing
                    "(BV and  "(C)"  to  "(2)"  and  "(3)".  respectively:  'and
                    changing "(i)". "(ii)", and "(in)"  to "(A)". "(B)", and""('O".
                    respectively:
                       (2)  in subsection (c) (3)  as redesignated. striking "Contract-
                     ing-  and_ inserting in  lieu thereof "After the date specified in
                     any applicable guidelines  prepared pursuant  to  subsection (e)
                     of this section, contracting": and
                                       0-21

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               PUBLIC LAW 95-609—NOV. 8, 1978              92 STAT. 3083

      (3) inserting in the second sentence  of  subsection (e) after
    "containing sucii materials'' the phrase "and with respect to cer-
    tification by vendors  of the percentage of  recovered materials

  (o) Section 6004 of the Solid "Waste Disposal Act is amended 42 U5C 6964.
by—
      (1) revising subsection (a)(l)(A) by striking out "disposal"
    and inserting in lieu thereof "management'':
      (2) revising subsection (a)(l)(B) by striking out "disposal"
    and inserting in lieu thereof "management": and
      (3) revising  subsection  (b)  by striking  out "Secretary'' and
    inserting in lieu thereof "Administrator".
  (p) Section "002 of the Solid Waste Disposal Act is amended 42 USC 6972.
by-
      (1) revising subsectioa (c) by striking out  ''section 212" and
    inserting in lieu thereof "subtitle G": and
      (2) revising  subsection  (e)  by striking  out '•requiring'" and
    inserting in lieu thereof ''require".
  (q) Section "003 of the Solid Waste Disposal Act is amended 42 USC 6973.
by striking out "for" before ''contributing to the  alleged disposal".
 "(r) Section TOOT of the Solid Waste Disposal Act is amended 42 USC 6977.
by—
      (1) revising subsection (b)(l)(A) by striking out "disposal"
    and  inserting "management"; and by striking  out "resources"
    and iuMMtinj:"resource":
      i -2) iwising Mibst-etion (b)(l)(B) by striking out "disposal"
    and insvrt ing "management"; and
      lo) revising subsection (c)(3) by striking out "disposal" and
    insortim: "management" in lieu thereof.
  (s) Section SOOl(a)  of  the Solid  Waste Disposal Act is amended 42 USC 6981.
by—
      (1) revising  paragraph  i2)  by striking out  "disposal" and
    insert ing "management" in lieu thereof; and"
      (2) revising  paragraph (!•">) by inserting "treatment," after
    "for purpose of".
  (t) Section S002 of the Solid Waste Disposal Act is amended 42 USC 6982.
      (I) revising paragraph (1) of subsection  (g)  by inserting a
    comma U'twovii "shale" and "liquefaction";
      12) revising paragraph (1.) of subsection (j) by  inserting
    "the Swretary of Energy, the Chainnan of the Council of Eeo-
    noitiu- Ad visors." U'fim> "and a representative of the Office of
    .Management and Budget.":
      (3) revising paragraph (2) of subsection (j)  by striking "(2)
    I D)"und inserting ••( 1) (D)" in lieu thereof;
      (4.) revising paragraph (3) of subsection (j)  by striking "(2)
    ( D)" and inserting"! 1)" in lieu thereof; and
      (5) revising subsection (1) by striking out  "required  under
    subsection  (a), (h), (i)  and (j)"  and inserting in lieu thereof
    "rei|iiired under Mibsovfions (a). ih),and (i)''.
  (u)  Section  S00;3(a)(3)  of the  Solid  Waste Disposal Act  is  42 USC 6983.
amended by striking out "discarded materials" and inserting  "solid
waste" in lieu thereof.
                                        Q-22

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92 STAT. 3084
              PUBLIC LAW 95-609—NOV. 8, 1978
42 USC 6984.
Aircraft noise
effects, joint
study.
49 L'SC 1431
note.
 Report to
 Congress.
   (v)  Section  nU04(a)il)  of  the Solid  Waste Disposal  Art  i-
aint'iulfd  by i-rrikinji  our  "discarded material" and  inserting "-olid
waste" in lieu thereof.
  SEC. S.  (ai The .Secretary of Transportation and the Admim.-trator
of the Environmental Protection Aicency shall jointly study the air-
craft noi.-e effects from an airport on. communities located in a  .State
other than the state in which the airport is located. The criteria to
be used in selecting the airport to be studied shall include:
       I 1) riie airport shall bo operated by .1 State, a unit of ^em-ral
     purpose local government of a State, or a  special purpose entity
     constituted, for the purpose  of operating an airport, and
       (•2) the airport shall  have a point on  the airport bound;tr\
     within one nautical mile from a State boundary, and
       (3) the airport shall  have  had in excess of sisty thousand
     scheduled  air carrier departures during the  preceding calendar
     year.
   (b) The stuily r-lmll be conducted in cooperation with  tin-, airport
operator, appropriate Federal. State, and local officials, and the appro-
priate Metropolitan Planning ()r^unization.
   (c) The Secretary and the  Administrator shall  prepare  and submit
to Congress a report  within  nine  months of  the conclusion  of the
study, but no later than twenty-four months after enactment of  this
section.

   Approved November 8, 1978.
                 LEGISLATIVE HISTORY:

                 HOUSE REPORT No. 95-1171. accompanying H.R. 12647 (Comm. on Interstate and
                               Foreign Commerce).
                 SENATE REPORT No. 95-873 (Comm. cm Environment and Public Workat.
                 CONGRESSIONAL RECORD, Vol. 124 (1978):
                      July 19, considered and passed Senate.
                      Oct. 10, H.R. 12647 considered and passed House, passage vacated, and S. 3083.
                        amended, passed in lieu.
                      Oct. 13, Senate concurred in House amendments.
                                          0-23

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Chain Saw
Snowmobile (including wind effects)
Diesel Locomotive at 50 ft
Heavy Truck at 50 Ft
Motorcycle
Power Lawnmower
Subwayd'ncluding screech noise)
Pleasure Motorboat
Train Passenger
Food Disposer
Automobile at 50 Ft
Automobile Passenger
Home Shop Tools
Food Blender
Vacuum Cleaner
Air Conditioner (window,units)
Clothes Dryer
Washing Machine
Refrigerator
                       NVVXXNV AXVXWWVW kYWWWYVV NNVWWWNV k\\X>
IIMIMMIIIIIHtllllKIMIIIIII'M'
                                          MEASUREMENT LOCATION
                                40         50       60         70        80
                                      Maximum A-Weighted Sound Level in dB
                                       90
Outdoors
Operator/
Passenger
In Home
   •i
    100
                                                        OVNNNNNXV
110
120
                          FIGURE 1. TYPICAL RANGE OF COMMON SOUNDS
                          SOURCE:  Office  of Noise Abatement and Control,  U.S.
                                   Environmental  Protection Agency,  Protective
                                   Noij>e Leye]_s_:   Condensed Vers.ion  of EPA
                                   Levels^  Document, at 5 (November 1978).

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30
  0
5        6

Time in Minutes
10
                    FIGURE 2. TYPICAL OUTDOOR SOUND MEASURED ON A
                               QUIET SUBURBAN STREET

                       SOURCE:  Office of Noise Abatement and  Control, U.S.
                               Environmental Protection Agency, Protecjtiye
                               Noise Levels:  Condensed Yer.sJ£Q of EPA
                               Levels DQCujijejlt, at  9 (November, 1978).

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 L-dn  in dB
       Outdoor Location
    -90-
    —80-
    —70—
    -60-
   —30—
Apartment Next to Freeway

3/4 Mile From Touchdown at Major Airport



Downtown With Some Construction Activity

Urban High Density Apartment




Urban Row Housing on Major Avenue
                      Old Urban Residential Area
                      Wooded Residential
                      Agricultural Crop Land
                       Rural Residential
                      Wilderness Ambient
FIGURE 4. EXAMPLES OF OUTDOOR DAY-NIGHT AVERAGE
           SOUND LEVELS  IN dB MEASURED AT VARIOUS
           LOCATIONS

      SOURCE:  Office of Noise Abatement  and Control,  U.S.
              Environmental Protection Agency, Protective
              Noise Levels:  Condensed Version of EPA
              Levels Document, at 8 (November, TT78)."

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 90 —
 70
 40
     Urban
     Environment
     Suburban
     Environment

1
1
1


"""
01
3
£
o
0




Factory
—r—*v—'*rm






Play Outside, Shop
(Urban)
Play Outside, Shop
(Suburban)
Work, Play in Home
Classroom





•
0)
3
E
o

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        Loudness and Decibels
          Because  hearing  also  vanes  widely  Between
        individuals, what may seem loud to one person may
        not to  another  Although  ioudness  is a  personal
        judgment, precise measurement of sound is made
        possible by use of the decibel scale This scale.
        shown  below,  measures sound pressure or energy
        according to international standards
Sound Level:
Common Sounds
Carrier deck
let operation
Air raid siren

Jet takeoff (200 feet]
Thunderclap
Discotheque
— Auto horn (3 feet) — .
Pile drivers
Garoage truck
Heavy truck (50 feeti
City traffic
Alarm clock (2 feet)
Hair dryer
Noisy restaurant
Freeway traffic
Man s voice (3 feet!
Air conditioning unit
(20 feet)
Light auto traffic
(100 lean
Living room
Bedroom
Quiet office
Library
Soft wnispef (15 feet)
Broadcasting studio


s and K
Noise
Level
(dB)
140
130
120
110
100
90
30
70
60
SO
40
30
20
10
0
tuman Response
Effect
Painfully loud

Maximum vocal effort


Very annoying
Hearing damage (8 hours)
Annoying
Telephone use difficult
Intrusive
Quiet

Very quiet

Just audible
Hearing begins •
        This decibel (d8) table compares some common sounds and
        snows now they rank in potential harm to hearing. Note tnat
        70 dB is the point at which noise begins to harm hearing. To
        the ear. each 10 dB increase seems twice as loud.
SOURCE:   U.S.  Environmental  Protection  Agency,
           Noise  And  Its Measurement,
           (February,  1977).

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