x>EPA
United States
Environmental Protection
Agency
Noise Enforcement
Division
October 1980
Noise
State and Local
Guidance Manual for
Prosecutors
Noise Violations
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Preface
TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION TO NOISE CONTROL
SUMMARY
THE PROBLEM OF NOISE
MAJOR SOURCES OF NOISE
EFFECTS OF NOISE
Hearing Loss
Non-Auditory Pyslological
Social Impacts
Other Impacts
Envlronmental Impacts
Noise Measurement
Description of Equipment
Response to Noise
1
2
2
5
5
6
7
8
8
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 Criminal Remedies
Damages
DEFENSES
H
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 Monltorino Sound
Level Meter
26
26
27
28
28
28
29
30
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CHAPTER III (Continued)
BURDEN AND ORDER OF PROOF 31
REMEDIES 32
DEFENSES 32
Procedural Defenses 32
Technological Defenses 32
Substantive Defenses 33
CHAPTER IV: MOTOR VEHICLE CONTROLS 34
MODEL ORDINANCE: ARTICLE IX 34
SUMMARY 35
ELEMENTS OF CAUSE OF ACTION 35
TYPES OF EVIDENCE TO SATISFY ELEMENTS 36
Scientific Evidence 36
Establishing the Validity of Sound Level Meter 36
Evi dence
Testimony of the Officer Monitoring Sound Level 37
Meter
Sample Questions for Officer Monitoring Sound 38
Level
Testimony of the Apprehending Officer 39
Sample Questions for Apprehending Officer 40
BURDEN AND ORDER OF PROOF 41
Burden of Proof 41
Order of Proof 41
REMEDIES 41
DEFENSES 41
Reliability of Equipment, and Qualifications of 42
Monitoring Officials
Lack of Required Notice 42
Unconstitutionality 42
Apprehension of Wrong Vehicle 43
CHAPTER V: TAMPERING PROHIBITIONS 44
MODEL ORDINANCE: ARTICLES VI & IX 44
FEDERAL TAMPERING PROHIBITIONS 45
SUMMARY 46
TAMPERING CAUSES OF ACTION 47
TYPES OF EVIDENCE TO SATISFY ELEMENTS 48
Evidence of Statutory Controls 48
Proof of Tampering 49
Sample Question and Answer Scenario for Manu- 50
facturer’s Representative, Mechanic or Noise
Technician to Show Tampering
Evidence of Use of Tampered Product 52
Evidence of Motor Vehicle Tampering 52
BURDEN AND ORDER OF PROOF 53
REMEDIES 54
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CHAPTER V (Continued)
DEFENSES 54
Statutory Attacks - 54
Evidentiary Defenses 55
Substantive Defenses 55
PROBLEMS IN ENFORCEMENT 56
CHAPTER VI: SAMPLE FORMS AND PROCEDURES 57
SUMMARY 57
CIVIL COMPLAINT: PUBLIC NUISANCE 57
DISCOVERY 59
Civil Discovery 59
Reccmimended Order of Discovery in a Noise 59
Abatement Case
Penalties for Refusal to Submit to DIscovery 59
Discovery of EPOINCO 60
Defenses to Discovery 60
Civil Discovery Forms 60
Plaintiff’s First Request for Admission of Facts 60
and Genuineness of Documents/Sample
Interrogatorles to Defendant, Howard Horton 61
Plaintiff’s Second Request for Admission of Facts 64
and Genuineness of Documents
Motion to Produce Documents and Tangible Things 65
Motion for Physical Inspection of Premises 66
Criminal Discovery - Discussion 66
Motion for Discovery and Inspection 67
NOTICE OF VIOLATION 68
Notice Checklist 68
Notice of Violation - Form 69
ABATEMENT ORDERS 69
Abatement Order - Form 70
CRIMINAL FORMS 70
Information 70
IndIctment 71
CHAPTER VII: TRIAL TECHNIQUES 72
SUMMARY 72
Preparing the Noise Violation Case 73
Presenting the Noise Violation Case 73
Use of Expert Witnesses 74
Selection of the Expert 75
Preparing the Expert for Trial 75
Sources of InformatIon 76
Direct Examination of Experts 77
Qualifying Experts: In General 77
Semple Questions and Answers on Characteristics 78
of Sound and Hearing
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CHAPTER VII (Continued)
Sample Questions and Answers Showing Adverse 80
Health Effects of Noise
Sample Questions and Answers on Noise Control 83
Techniques
Questions and Answers to Establish 84
Reliabilityof Testing Procedures
SAMPLE JURY INSTRUCTIONS 88
Public Nuisance 88
Property Line Standards 89
Motor Vehicles 91
Tampering Sanctions 92
CHAPTER VIII: PREEMPTION 95
NOISE CONTROL ACT OF 1972 95
SUt 4ARY 95
THE PREEMPTION DOCTRINE AND THE CONSTITUTIONAL BASES 96
FOR FEDERAL, STATE AND LOCAL NOISE REGULATION
AREAS OF FEDERAL PREEMPTION AND RESIDUAL STATE AND 97
LOCAL AUTHORITY
Transportation Noise 97
Pràduct Noise Control 101
APPENDIX A — GLOSSARY OF KEY TERMS A-i
APPENDIX B - BIBLIOGRAPHY B-i
APPENDIX C - MODEL COMMUNITY NOISE CONTROL ORDINANCE C-i
APPENDIX D — NOISE CONTROL ACT OF 1972 (As Amended by Quiet D-1
Communities Act of 1978)
APPENDIX E — SOURCES OF ADDITIONAL INFORMATION E-1
TABLE I-i - NOISE SOURCES RAM(ED BY PERCENT OF URBAN POPULATION 3
ANNOYED
TABLE 1-2 - OTHER SOURCES RATED HIGHLY ANNOYING 4
TABLE Il—i — COMPARISON OF NUISANCE ACTIONS 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
Enviromnental Protection Agency (EPA) as part of its mandate under the
Noise Control Act of 19721 to assist state and local noise control pro-
gr ns. 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 el ements, sample direct exami nation of witnesses, burdens
1 42 U.S.C. S4901 et seq. as amended by Quiet Communities Act of 1978,
42 U.S.C. 4905 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 fonns and procedures, is a guide to drafting complaints,
motlons, 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 d l scusses 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 sumary 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 Co.muunities Act
of 1978.
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CHAPTER 1: INTRODUCTION TO NOISE CONTROL
SLJI44ARY
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, colitis, 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.
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THE PROBLEM OF NOISE
In 1972, Congress declared a policy of. promoting for all Americans an en-.
vironinent “free from noise that jeopardizes their health or welfare.”’ The
House Committee Report 2 recommending enactment of the Noise Control Act of 1972
noted that noise——unwanted sound——had a significant impact on more than 80 mu -
lion Americans; of that nu ter, 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 no1 e as first of all the undesirable conditions
of their neighborhoods. 4
MAJOR SOURCES OF NOISE
In a 1977 survey, the Envirorunental 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 I-i and 2.
1 NoIse Control Act of 1972, 42 U.S.C. S4901 et . (Supp. 1978).
2H.R. REP. Nob. 842, 92d Cong., 2d Sass. 6 (i972).
3 42 U.S.C. S4901 et . (Supp. 1978).
4 Bureau of Census, Department of Cummerce, Annual Housing Survey: 1977
(1979).
5 Office of Noise Abatement and Control, EPA, The Urban Noise Survey
39 (Table 111—5); 41 (Table 111—6).
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TABLE I—1
NOISE SOURCES RANKED BY PERCENT
OF URBAN POPULATION HIGHLY ANNOYED
RANK
SOURCE
% Highly Annoyed
1
Motorcycles
11.7
2
Large Trucks
6.9
3
Autos
6.5
4
Construction
5.8
5
Sports Cars
5.4
6
HelIcopters
4.0
1
Constant Traffic
3.9
8
AIrplanes
3.4
9
Small Trucks
3.1
10
Buses
2.8
11
Power Garden Equipment
1.9
*Tables I-i and 1—2 are taken from The Urban 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 I_2*
OTHER SOURCES RATED HIGHLY ANNOYING
Rank Source Nimther Number of
of Sites Mentions
1 Sirens 8 14
2 Fire Trucks 7 12
3 Ice Cre n Trucks 5 6
4 Trash Pickup 4 4
5 GunShots 4 4
6 Trains 4 4
7 Burglar Alarms 2 4
8 Auto Horns 3 3
9 ChainSaws 3 3
10 Hot Rods - Drag Racing 2
11 Defective Mufflers 1 1
Defective Pump 1 1
Refrigerator TrUck 1 1
Air ConditIoner 1 1
Model Al rpl anes 1 1
Cement Mix Truck 1 1
Wel di rig Equipment 1 1
*See Note acccinpanyl rig Table I-i.
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EFFECTS OF NOISE
Although many of the he lth 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 inunediate effect on hearing and equilibrium.
Noise in the 135—140 dB range and above may produce actual pain and can damage
hair eUs 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 steimning
fran lower levels of exposure. generally can be reversed if the ear is given
time to recuperate.
Non.’Audttory P hysIolog1cal 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 nunther 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. Sane 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 pP s1olbgical 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 jenerally , Enviroimiental Protection Agency 1 Public Health and Welfare
t Tteria 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. 7
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 alann, 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. 8
Noise experts stop short of directly linking psychological effects of noise
to clinical mental illness. 9 Rather thanclaiming 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.’ 0
7 See Environmental Protection Agency, Public Health and Welfare Criteria
1 i Noise (1973); Donnerstein and Wilson, Effects of Noise and Pérceivéd
COntrol on Ongoing and Subsequent Aggressive Behavior,” 34 3. 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,”
TFsych. Med . 19 (1977).
10 . Abey-W lckrama, M. A’Brook, F. Gattont, 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
well.
Other I acts
Sound loud enough to interfere with conversation or mental concentration
a have adverse secondary effects in the educational or work environment. For
example, reading and language development in school children may be impaired by
a n 1sy 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 potenti a danger. Disturbing noise levels may al so reduce the en-
joyment of recreational activities through comnn nicat1ofl 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, adreflal, and reproductive functions of animals under
certain noise conditions. Animals may even experience di srupti on of breedi ng,
nesting, and migratory habits.
Noise and indu éd vibrations can adversely affect structural materials.
Cracked plaster and broken windows and dlshware 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 cons tructi on 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 dR.
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 (Leg), an A-weighted measure often used to measure roadway noise, gener-
ally over a 24-hour period; the day—night sound level (Ldn), a variation of
L 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 (LpN) and its
refinement, the effective perceived noise level (LEPN).
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
Noisecontroi ordinancestypi-cally 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 speclfica-
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 0. Llpsccmb & A. Taylor, Noise Control: Handbook of Principles and
Practice 34 (1978).
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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 coninon 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 puL’lic from private
nuisance, Table Il—i compares public and private nuisance actions at conmion law
and as they are now developing in modern statutory law.
A cause of action for coninon 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-
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TABLE IT-i
COMPARISON OF NuISANCE ACTIONS
Public Nuisance Private Nuisance
Coimnon Law Co,mnon Law
1. Affects entire coimnunity. 1. Affects individual or
small group of
Individuals.
2. Generally crimInal. 2. Generally civil.
3. Generally brought by public 3. Brought by private
official. individual.
4. Citizen can bring if specIal 4. No need to prove
damages are shown. special damage.
5. Laches, prescriptive rights, 5. Must be an unrea-
statute of limitations, sonable and sub-
estoppel do not apply. stantlal Interfer-
ence with use and
enjoyment of pro-
perty.
Current Trend Current Trend
1. Does not have to affect 1. May affect a large
entire comn.inity. number of people.
2. May be civil.
3. States are expanding citizen
standing, eliminating special
damage requirement.
4. Not limited to property
rights.
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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
coninon 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 S821B, Comment b, at 88 (Tent. Draft
No. 17, 1971).
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The inherent vagueness of the ucrimefi of public nuisance has led to several
changes in the law defining that offense. The first change was to codify the
ccmnmn 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-
lng 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
3 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 S821B (Tentative Draft No.
17, 1971):
* A public nuisance is an unreasonable interference with a right conmion
to the general public.
* Factors conducting toward a determination that an interference with a
public ri it 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-
venlence which sufficed to constitute the comon 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.
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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. 5
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);
Flrth v. Sherzberg 336 Pa. 443,77 A.2d 443 (1951) (truck terminals);
Vandersilce 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 P1.E.2d 409 (1974)
(racetrack); State ex. rel. Fuller v. Stiliwell, 114 (an. 808, 220
P. 1058 (1923) (barking dog).
5 Restatement (Second) of Torts 5821B (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 coumnun-
Ity rather than one or a few Individuals. Both the unreasonableness of the
Interference and the substantiality of the rlQht 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-
thel ess, Intent Is relevant to show whether the Interference was unreasonable.
Under general tort 1 aw 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 otherwise
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 *ast establish the exIstence of a statute prohibiting the noise
nuisance and prove that the defendant violated the statute. Under some noise
6 The Restatenent (Second) of Torts 11 sts a number of factors tending to
substantiate a claim that an MunreasonableTM interference has occurred. See
footnote 3, supra . However, this list Is not all Inclusive. As the Re iter
of the Tentative Draft noted In comment e, some courts have recognized Inter-
ference with aesthetic values or with established pil nd pies of conservation
of natural resources as emounting 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. 7
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-
.tiallty of intereference. 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;
7 66 C.IJ.S. uNuisancesli §1(1 (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 niles and practice may Indicate whether local courts have
taken judicial notice of the reliability of sound measuring devices or whether
th c require an offer of proof. However, proof must be offered that the sound
meter actual ly 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 .°
8 See Harrison v. Auto Shredders, Inc., 528 F.2d 1107 (7th CIr. 1975) (trial
i irt 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 US. Noise Enforcement Division, Envirorinental 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
n e of the person taking the measurements, and the custodian of the record. ’°
(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 suggestlng.a link between contipuous noise exposure and
the development of heart disease.” 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.”)
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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 el ement 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-
I ng from the source was unreasonable and that It substantially inter-
fered with the c mnunity’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 actlon—-regaPdless
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 nutsance cases where injunc-
tive relief Is requested just as they would in any other proceeding for injunc-
tive relief.’ 2
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.
Dama s
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 nut sance actions,
but offer limited opportunities for success:’ 3
* 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:’ 4
* 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 general ly 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 M Jur 2d, uNuisancesu ff157, 234 (1971); Schofield v. Material
I?insit, 1nc., 206 A .2d 100 (1980) (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 58 M Jur 2d, Nuisance? ff167, 168, 225 (1971).
15 See Catlin 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.’ 6
* 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,’ 7 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. ’ 8
* Negligence — Contributory negligence is no defense when the defendant
Intentionally has created a nuisance,. with the knowledge that it will
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” S215 (1971).
17 Annot., 42 A.L.R. 3d 344, 346 (1972). As the court observed in
Yowlnckel 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 before
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
kiiowledge 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 [ Jolnt—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 • Prosser, Law of Torts 609 (4th ed. 1971). In the majority of juris-
dictions, the nile 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 8. Cohen, V. Yannacone and S. Davison, Environmental Rights and
Remedies S 6.15 (1972). ( TM Where two or more Independent tortfeasors
have supplemented each other’s actions and concurred In contributing
to and pro&clng 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.”
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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,
railroad 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 SeeW. Rodgers, Environmental Law 138-40 (1977).
22 See Consolidated Rail Corp. v. City of Dover, 450 F. Supp. 966
Tt 7 Del. 1978).
23 See Model Community Noise Control Ordinance, 11.5 [ Appendix C].
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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 Ljrnlt, dBA
(A) a.m. — L 1 *
(Residential, Public (B) p.m.
Space, Open Space,
Agricultural or (B) p.m.
Institutional) (A) a.m. L 2
C—i, C—2, etc. At all times L3
B—i, B—2, etc.
(Commercial or
Busi ness)
M—1, M—2, etc. At all times L 4
(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.
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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 I—i, 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. 1
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).
tF “Police Traffic Radar: Is It Reliable?” 1.1.5. Dept. of Transportation
Tr980).
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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 he 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 M . Jut’. Proof of Facts 2d 545-608 (1974).
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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 Ouestlons 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], 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)?
0. 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?
0. 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. 4
Q. Describe the sound equipment used to measure the sound level
[ manufacturer, model, date of last factory calibration].
4 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.
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0. What type and frequency of calibration is performed on this
equipment to ensure its accuracy [ field calibration and system
calibration by certifying laboratory]?
0. 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?
0. 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 yourreading?
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
(bull dings) present;
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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 i n.j unction 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 evidentlary 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 wdhich 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.
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CHAPTER 4: MOTOR VEHICLES
MODEL COt’VIUNITY 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
I n Interstate cmmerce of
GVWR or GCWR of 10,000 lbs.
or more
All other motor vehicles of A B
GVWR or GCWR of 10,000 lbs.
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. S202.20 (1978).
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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
aRd 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.’
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.1.R. 3d 822 (1973) (admissibility of radar speedmeter
Tdence); see also, Chapter 3, note 1, supra .
2 See discussion Chapter 3, Property Line Standards, supra .
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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
qualified 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).
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Sar le 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.
0. At about [ time] on [ date ] did you observe a [ color and
make of vehicle ] with Istate ] license number_________
near llocationj ?
Q. In what direction was it traveling?
Q. In what lane?
0. Did you obtain a noise reading of this vehicle?
Q. What was that reading?
0. 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?
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Q. Is this level more than (6dBA/1OdBA) 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 r adings. 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?
0. 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.
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down the vehicle and to issuing the “ticket” or sunwnons. (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:
* Corniiunications 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.
San le Questions for Apprehending Officer
0. At about ttime of offense ) on ( date of offense ] did you
issue a citation to 1 operator of offending vehicle] ,
operator of a [ color and make of vehicle ] with Lstate ]
license number Inumberi ?
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. 010 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.
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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 distanee
(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 surnons.
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
C. Torcia, Wharton’s Criminal Evidence §11 (13th ed. 1972).
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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 signs that read: “PIoise
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.
Unconstitutionality
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 fade
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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)
T”The test for constitutionality of statutes making proof of a certain
fact prima fade or presumptive evidence of another fact is whether
there is a natural and rational evidentiary relation between the fact
proven and the fact presumed.”)
Noise Enforcement Division, U.S. Environmental Protection Agency,
State and Local Hornbook (Draft, May 1, 1978).
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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.
Eb. 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
inmiediate 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;
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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 compressors 2 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,
! 1’ UNIFORM VEHICLE CODE 12-4O2:
§ 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 syst ‘in 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.
(B) The use of this compressor after such device or element
of design has been removed or rendered inoperative.”
(40 CF.R. §204.55-8)
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SIJW4ARY
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 NuseN 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
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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 dissipative
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
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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-
1 a ted.
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. [ f 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 No. Series 2001.
Q. Are you familiar with design and construction of this product?
A. Yes.
0. 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.
flay foundation for these and enter Into evidence.]
Q. Could you describe the noise 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 nibber 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
pol iceINCO?
A. Yes, at the recluest 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 b o 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 producec 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. Thar c 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
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tampered status of a product with actions of the defendant owners may be diff i-
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
dny 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 bethat 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 prove. 4 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
4 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).
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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 NCO, noise or police lab technician.
* Establish, for use violation, defendant’s operation of tampered product
or vehicle by apprehending IICO 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 Envi rorinental 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 promulgated
vehicle performance standards and the muffler provisions are tied to them, this
vagueness argument should be much less persuasive.
Evi dentiary 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 productor
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 S39(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 lnm aterial 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. 6
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 beb een tampering and the perpe-
trator.
6 See NConst ltut lonality of Auto Muffler Statutes: Comments on Noise
PäTiution Laws,N 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 Atthrney 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 durtng 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 Idaho 1
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
enipl oyees.
Reconinended Order of Discovery in a Noise Abatement Case
*Fjrst Requests for Admissions of Fact and Genuineness of Documents
*Interrogatories to Defendants
*Motion to Produce
*Deposi ti ons
*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.
1 Carmody—Wait 2d § 29:671, -:684, —:686 (1966).
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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 Abiiission of Facts and Genuineness of
Documents/Sample
Plaintiff, through counsel, under the provisions of Rule 5 requests that
the defendant, Howard Horton, 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;
12 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.
Interrogatorles to Defendant, Howard Horton
TO: [ defendant] Howard Horton
do lDefendants 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 t 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:
(ailhe.type of tests done;
(b) The dates on which they were done;
Cc) 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;
Cd) 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 I ] 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;
Cc) 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 I ] 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:
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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.
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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 reconmendations.
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 nun er 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 A lss1on of Facts and Genuineness of Documents
Plaintiff, by its attorney, under the provlslons 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 1.1
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
t en by Stan Cole on behalf of plaintiff;
13 CompilatIon of data showing recorded sounds at stated times and places
tMcen 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 suninaries 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
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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 defendar t 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, 1 served this
notice by mailing a copy to each person to whom It is directed. 2
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 County 3
2 1 Illinois and Federal Civil Practice Fonns 746, (2d ed. 1965).
3 Id., at 756.
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tiotlon 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 Gibbes 4
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. 7 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
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.
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not necessarily uniform, a form for a motion to compel discovery and inspection
is included in this )hapter.
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 delay. 8
Respectful ly submitted,
(signature of attorney)
John Jones
District Attorney
of Dallas County, Texas
Records Building
8 2 Tex. Crim. Forms S44.02 (1976).
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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 EPOINCO 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.
*Rea n for giving notice.
--required by statute
--required by rules of court
of facts subject to receiving notice.
*Statement of authority requiring notice (If necessary).
*Da+ by which action required by notice, If any, is to be completed.
9 58 in Jur 2d, Nuisances” S57 (1971).
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*Date f notice.
*Sjgnature of person giving notice or his agent.
*Acknowledgment or other authentication. 1 °
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 discontinuedor 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 Attorney ’ 1
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 11.3,
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 11.1 (b); (2) for any violation
of ; or, (3) when the EPO/NCO or other
10 13 Am Jur Legal Forms 2d §186.13 (1973).
1113 Am Jur Legal Forms (2d ) §188:17 (1973).
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enforcement (agency) / (official) has reason to believe
that there will not be compliance with the abatement order.]
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 S6.2.1. 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 llabie 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, Iowa 12
CRIMINAL FORMS
Information
Richard Alexander, prosecuting attorney, in and for the county of
Harris , for and in behalf of the people of the Coninonwealth 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
Coai onwealth oUYirgtnla, heretofore, to: wit: On the 20th day of March ,
1976,13 David Gary [ defendant] in said county of Harris Intentionally
r ved 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 ft88:17 (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 c inittedJ. Mich. Crim. Proc. Forms, Form No. 108.
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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.
Clerk 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 October 1979 , in the city of
Royal in the county of Young and within the jurisdiction of the court, unlawfully,
willfully 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
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CHAPTER 7:. TRIAL TECHNIQUES
SLN4ARY
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); 2) 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) tmi pering (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. ‘ ey 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. 1
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
1 Practicing law Institute, Civil Litigation and Trial Techniques 95
(1977).
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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. Althoucih 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.
T 75).
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 entitles. 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-
lng 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
co ercial 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;
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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, as 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
6 18 Am Jur 2d Proof of Facts 21, at 152 (1974).
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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 TM 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 l0 00 Hz 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-line 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 10dB
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—al 1 sound level. It gives a result according to its cal i -
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 I t nolseu
at that level may be extremely annoying.
C). 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 no1 e 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.
Semple 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 manss 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 fuhctlon 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
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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 3,000 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 coninunication 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,
4ich means some way of covering the ears to keep the sound out. The
second way is by environmental control.
Q. What do you mean, envirorm ental 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. Sii ose 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
sane 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 hanniessly.
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” amplif I-
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.
0. 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,
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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
2 Am Jur 2d, Proof of Facts , S3, at 545 (1974).
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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 placesiii 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 he 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 fran 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-
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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,
tdenonstrating] 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 im ts 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. Now 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 law 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 Nuisance
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 he 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, CIBA
R—1,R-2,etC. (A)a.n.—
(B)p.m.
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(Residential ,Publ ic
Space, Open Space,
Agricultural or (B)p.m.- L 2
Institutional) (A)a.m.
C-1,C-2,etc.
B-1,B--2,etc.
(Commercial or At Al 1
Business) Times L 3
M-1,M-2,etc. At All
(Industrial) Times L 4
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 f 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
Tmist 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
Speed Limit Speed Limit
35 MPH Over 35 Stationary
Vehicle Class or Less MPH Run-up
Motor Carrier Vehicle 86 90 88
engaged in interstate
commerce of GVWR or GCWR
of 10,000 lbs. or more
All other motor vehicles A B
of GVWR or GCWR of 10,000
lbs. or more
Any motorcycle C D
Any other motor vehicle E F
or any combination of
vehicles towed by any
motor vehicle
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II. Motor Vehicles - Elements of Proof
The State has the burden of iroving [ 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 sion.
***
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.
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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:
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1. The product alleged to have been used Improperly
was required by státhte 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.
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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 control
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 state
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.
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Federal preemption also touches products regulated by the Environmental
Protection Agency as major noise ources, 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 goverrunents have solid constitutional bases for in-
vol vement. 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 detennin-
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, ci. 2.
2 GIbbons v. Ogden, 22 U.S. 1, 9 Wheat. 186 (1824).
3 53 U.S. 298, 12 How. 298 (1851).
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Federal. But, where subjects of coninerce require “that diversity [ of regula-
tion) which alone can meet local necessities,” concurrent efforts at all levels
are apprbpriate, under the Cooley test. 4
The Noise Control Act of 1972, as amended by the Quiet Communities Act of
1978, envisions joint enforcement responsibilities for the Federal and state
governments. With some exceptions, Federal noise control efforts center on
identifying noise sources in comerce 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 local Noise Control Ordinance employs performance standards for new
products at the time of sale, the standards are not preempted if they are ident-
ical with Federal limits, and thus assure uniformity.
AREAS OF FEDERAL PREEMPTION AND RESIDUAL STATE AND LOCAL AUTHORITY
Transportation Noi se
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 Hines v. Davidovitz, 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. S4901 et seq. , as amended (Supp. 1978).
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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. 8
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 t seq . Under this scheme, the Federal Aviation Administration
(FM) Ii 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-
fonnance standards, the most significant being Federal Aviation Regulations
(FAR) Pt. 36 (14 C.F.R. Pt. 36), coimnonly 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.
S1431(b112), as amended (Supp. 1978).
Grlggs v. Allegheny Co., 369 U.S. 84 (1962).
8 . ., City of Burbank v. Lockheed Air Tenninal, Inc., 411 U.S. 624
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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.
Th 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-
priet ors 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
See National Aviation v. City of Hayward, Cal., 418 F. Supp. 417 (P1.D. Cal.
T 76) (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 Dist. v.
Glanturco, 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).
10 42 U.S.C. S4917 (1977) (regulation of motor carrier noise emissions);
42 U.S.C. §4916 (1977) (regulation of surface rail carriers).
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Environmental Protection Agency and Department of Transportation regulations.”
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:’ 2
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.’ 3
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 I I of secti ii 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. S4917(C)(1) & (2) (1977).
13 42 U.S.C. S4916(C)(1) & (2) (1977).
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ca e-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 liecessary 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, 14 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).
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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:’ 5
Ho 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, 16 medium and heavy duty trucks, 17 and truck mounted solid
waste compactors. 18 EPA has also issued final labeling regulations for new
hearing protectors. 19
15 42 U.S.C. S4905(e)(1) (1977).
16 Noise Emission Standards for Construction Equipment, Portable Air Com-
pressors, 40 C.F.R. S204.50 et. seg . (1979).
17 Noise Emission Standards for Construction Equipment, Transportation Equip-
ment, Noise Emission Controls, 40 C.F.R. 205.50 et. seq . (1979).
18 Noise Emission Standards for New Truck-Mounted Solid Waste Compactors,
40 C.F.R. S205.200 (1979).
19 Noise Labeling Requirements for Hearing Protectors, 40 C.F.R. 211 (1979).
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EDP has issued proposed new product emission regulations for buses, 2 ° 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-
clysion 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. S4905 (Supp. 1978).
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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).
‘EPA, Public Health and Welfare Criteria for Noise , (1973); EPA, About
Sound , (1976); EPA, Workbool for Police Enforcement of Noise Regulations ,
(1978).
A-i
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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 those materials to
reduce the amount of sound energy reflected. The introduction of
an nabsorbentu 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 roan 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 cieneration, 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 theparticular 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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AUDIOGRAN —— 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 (CWEL) 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
10:0.0 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 iON (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.
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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 materia1s.
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 UdBN) 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 iitch of a railroad
whistle as the locomotive approaches and passes by.
DOSIMETER -- An instrument which regi sters the occurrence and duration
of noise exceeding a predetermined level at a chosen point in the
envi roment.
EFFECTIVE PERCEIVED NOISE LEVEL (EPNL) -- A physical measure designed
to estimate the effective Nnoisiness 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 deratlon of the noise.
EQUIVALENT A-WEIGHTED SOUND LEVEL (Leg) -- 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
veloci1 ’ 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 , Nreverberant 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 nunther 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).
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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.
IPFRASONIC -- 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 asource, 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, ot (b) annoys or disturbs a reasonable
person of normal sensitivities, or (c) endangers or injures personal
or real property.
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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 nolsIness ” 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.
P(RE 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 establ Ished 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 (RNS) -- 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.
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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
rn/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).
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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
qusts on the sound levels being measured; typically made of reticulated
[ open cell) polyurethane foam and spherical in shape.
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APPENDIX B
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BIBL IOGRAPHY
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.
(1969).
J.D. Collins, “California Tackles Highway Noise, TM Civil Engineerlng ,
(November 1973).
B-i
-------
Cohen and Sharon, “Noise and the Law: A Survey,” 11 Duquesne Law
Review 133 (1972).
“Camnc nly 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,N 48 Journal of Urban Law 755 (1971).
J.F. tielts, “Noise Control in Oregon: Government Regulation and
Private Remedies, 10 Williamette Law Journal 198 (1974).
Donnerstein and Wilson, uEffect 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. Fra,*en, and D.G. Page, “NoIse in the Envlroment,H 6 Environ-
mental Science and Technology 124 (1972).
“Guidelines for Preparing Envirorinental Impact Statements on Noise,”
National Academy of Sciences (1977).
F.P. Grad, Treatise on Enviromnental 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: Nonstatlonary Noise Sources” BNA
Noise Regulation Reporter (Jan. 2, 1979). —
C. Harris, Handbook of Noise Control (1957).
H. 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).
B—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. Tarnopoisky, “Noise Discomfort and Mental Health,”
7 Psychological Medicine 19 (1977).
“Noise and Its Measurement,” Environmental Protection Agency,
Office of Public Affairs, Washingtor , 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 Duquesne Law Review 133 (1972).
Noise Control Act of 1972 , Public Law No. 92-574, 86 Stat. 1234,
42 U.S.C. Sec. 4901
“Noise Pollution,” 70 Coluntia 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
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N. Rodgers, Environmental Law (1977).
Standards and Measurements Methods, Legislation and Enforcement
Problems , Environmental Protection Agency Public Hearings, Vol.
TV, 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 C lty, 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,” 1 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).
JC. York, “Controlling Urban Noise Through Zoning Performance
Standards,” 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
-------
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
Iulroduc*ioa
Purpose
Background
Interrelationship of Various Provisions 1
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 Vill—Defining Land use Dis-
tricts 5
Article X—Land Use 6
Article Xl—Enforcement 7
Format 7
Figures
FIgure. 1 Fixed Noise Source Levels
at Residential Bound-
aries
Figure II Fixed Noise Source Levels
at Business/Commercial
Boundaries
Figure 111 Fixed Noise Source Levels
at Manufacturing/In.
dustrial Boundaries ... 6
First printins Nuvember l ?75
Reprinted September 1976
U.S. Environmental Protection Agency
Washington. D.C. 20460
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INTRODUCTION
Purpose
The Model Community Noise Control
Ordinance (model ordinance) is intended
to be a basic tool which communities, both
large and small, can use to construct noise
control ordinances suited to local needs and
conditions. The complete model ordinance.
including optional provisions. is perhaps
most suitable for larger communitres. 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. li 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.
is anticipated that an analagous model
ordinance will form part 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 piuper 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 als i provide dctailed pro-
cedures for measurements to be taken for
certain pros isions of the ordinance, such as
motor vehicles and stationary sources. To
assist communities in the development of a
code of recommended practices. EPA is pro-
paring a model code sihich. vhen completed.
will be sent to recipients of the model
ordinance.
Interrelationship of Various
Provisions
An overview of the model ordinance can
most readily be obtained by reading the
List of Provisions. When a community de-
termines which activities it wishes to regu-
late. the appropriate model provision 4 r pr .-
visions can be located by referring to this
list.
A glance through the List of Provi. ns
suggests that certain acts may be prohil te 1
y more than one provision. For e tamp’. ’.
use of a noisy go-can could violate Sccücn
9.2 (“Recreational Vehicles Operating Off
Public Rights-Of-Way”). as well as Section
6.1 (Noise Disturbances) It may be that a
community desires such multiple u.vcr g .
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 overed by other provisions from mul-
tiple coverage. Such modifications deserve
careful consideration, however, so 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 extent of such control is fully
within the purview of local decision. Of
course, localities will wish to consider the
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tecnnical 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
Noise 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 seq.), 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-
tamed 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
governments, 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-exnption 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 p-eemptive provisions of Sections 17
and 18 are very broad, preempting local
noise laws which affect the operation of in-
terstate motor and rail carrier vehicles.
In Section 6. subsection 6(e) (1) pro.vides
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 iiothing 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:
I) the EPA Administrator, after consul-
tation with the Secretary of the Departmeni
of Transportation, determines that such lo-
caL law is necessitated by special local con-
ditions, and
2) if he determines thnt such local law
is not in conflict with the EPA regulations.
Thus, on the effective date of the EPA
resulatk ’ns 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 e or com-
binatIon weight rating of greater than LO,00P
1 1w. operated by an interstate motor carrier
and of interstate surface railroad locomo-
tires 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-
identical standards may not be enforced, and
should be declared ineffective, as of the ef-
fective date of the Federal regulation. For
this reason, Section 18 standards have been
incorporated into Table H of Section 9.1 in
the model ordinance. The appropriate meas-
urement methodology should be incorpo-
rated int the community code of recom-
m ded prac
In general, we can classify the pee-amp-
tire effect of these sections on local law
into three categories. First, any local law
lsich sets noise emission levels for inter-
state motor vehicles and rail locomotives
and cars must be identical to the Federal
standard. No 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.empiion if (I) 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 en-
ample, truck routes designated solely on
the basis of noise must be submitted to EPA
foe determination of a special local condi-
tion. Truck routes based on additional lao-
toes, such as the safety of children, maxi-
mum load on street surfaces. etc., will
not need EPA appiovaL 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
propetty line levels may be applied to noise
emissions caused by interstate motor car-
rier vehicles at a low 4 irig terminal so long
as means of abatement are possible which
do not require controHing the noise emis-
sion level of the motor vehicle itielf. Such
other “ ‘rs of abasement can inr jiI , for
example. installation of noise barriers at the
perheeter of the terminal and creation of
buffer moss 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.Z and Vari-
ances for Time to Comply &Section 7.3).
This would free EPOINCO personnel to per-
form other tasks under the 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 (I) advice an 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 abatement This
Council could also be responsible foe writ-
ing the periodic reports, specified in Section
4.3.9. concerning the progress of the local
noise control program.
SPECIFIC PROVISIONS
Article Ill—Definitions
1. Sedlen 3.2.lfl, Dt ’ - of
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 2 15, Motor.
boats).
3. Seeds . 3.3.IP, De fls . .f ‘ Ses. ’
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
she attendant possibility that in order to
prove a violation of the ordinance , proof
must be given that the sound had indeed
been “disturbing” or “unwanted.” Because
the substantive provisions of the or’ 1 ses
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 the extent of a Locality’s authority
to bring action against the Federal govern.
nieflt 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-
erat 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 Clean Air
Act, have disagreed as to whether this
language extends to administrative as well
as substantive requirements. See Slate of
Alabama ,. Seeber, 502 F. 2d. 1238 (5 Cir.
1974); Commonwealth of Kentucky v.
Ruckelshous. 497 F. 2d. 1172, (6 Cir. 1974).
Kentucky v. Ruckeishaus is pending before
the Supreme Court. and a resolution of the
issue is likely. Further questions east as to
whether a State or local government can
bring an &ction against the Federal Go’i-
crnnmflt for violations of their noise con-
teal 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.
In the absence of such specificity, Sec-
tion 4 of the Noise Control Act continues
to 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, such 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 Xl (Enforcement).
Article TV—Powers and Duties
of The (Environmental Protec-
tion)/(Noise Control) Office(r)
Resolving luter.Depsrtm.Ot*l Congicis
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 Lon-
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 final
decision.
E4ucation
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 ordk
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-
lucing noise from its air conditioning unit
and 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 Pablic and Private Prolects
Section 4.2.5 grants the EPO the p er
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-
my 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 ViOlatiOn of the
ordinance.
Some communities may wish to expand
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 whetheT 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 EPOINCO can develop cri-
teri$ 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.
Inspec t ions
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 a warrant procedure (Comara
v .%funicipal Cour(. 387 U.S. 523 (1967);
C-5
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See v. Seattle. 387 U.S. 511 (1967)). Thus,
if a private properly 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 tights of a residential property holder
and those of a commercial property holder
concerning searches c c 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 31W-
ated, so a search warrant is not needed in
these situations.
Article VIlI—Sound Levels by
Receiving Land Use (Defining
Land Use Districts)
Article VUI sets property line scum’ bmtts
for the broad recei’ing land use categories
of residential, commercial and Industrial
Many communities are employing this type
of quantitative limit to provide strpnger
legal 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 Ill). On the other hand, if there are
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 arc 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 thaI 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 be
possible for several manufacturers impact-
ing the residence to lower their noise levels
meet thg limit speciftdd for residential
Shiatlons of this type will require
e disersuon in enforcement
Figures t, II , and III sumntgirme graphi-
cally the property line levels sh .by current
municipal noise ordinances.
FIGURE I
FIXED SOI.RCE NOISE LEVE1 S ALLOWABLE AT
RESIDENTIAL DISTRICT BOUNDARIES
35-
.
.;30.
25 .
.
-J
15
10.
S.
a-
90 85 80
a .-.oc.
75 70 65 60
A-Weighted Sound Level in dBA
Daytime LeveIs•
Nighttime LevehC
0
40
Average Day— 56.75
Average Night—SI .76
117 cities—daytime limits
118 cities— nighttime limits
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FIGURE II
35- FIXED SOURCE NOISE LEVELS ALLOWABLE AT
BUSINESS/COMMERCIAL DISTRICT BOUNDARIES
D
20-
I- .
• a
?
A-Weighted Sound Level in dBA
Daytime Levels S Average Day—63.32 104 cities— daytime limits
Nith,rime Levels [ “erage Night— 59.21 104 cities— nighttime limits
FIGURE III
FIXED SOURCE NOISE LEVELS M..LOWABLE AT
MANUFACTURING/INDUSTRIAL DISTRICT BOUNDARIES
30-
*
20-
.
I,-
.
•
S •—• —. EJ . •E E
• :• •. n..D
‘4 , M; hI) 75 70 OS 60 55 50 45 40
A-Weighted Sound Level in dBA
I).,vtimc L scls • Average Day— 67.54 112 cities— daytime limits
Nniht* rne L els - Average Night —64.24 113 cities— nighttime limits
Article X—Land Use areas are constructed in high noise areas,
as determined by the appropriate sections.
I he ha ..k purpt se of the Article X land Although the Article was drafted to stand
u ..e planning prt v sion is to ensure that no independently from the existing community
ni w residences. institutions or recreational land use planning or zoning systems, it is
C-7
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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-
fling and/or zoning laws and to reconcile
them where 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 part of the noise control ordinance.
Furthermore, because this Article effective-
ly rezones land subject to its pravisions. 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 the areas that will be affected by
these provisions.
Article Xl—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 Cit%i County may wish to ensure that
the public is reasonably well-informed of ac-
tivities prohibited by the ordinance before
fully effectuating its enforceme n program.
For example, the City/County may utilize
a discretionary policy of issuing an abate-
ment order for a first violation, followed by
a citation for the original violation, if the
abatement order is not complied sith. 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 thc citizen suit approach is that many
violations of the ordinance shich 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 so
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
sound 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
(29 U.S.C. fi 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 it soon after the ord is issued,,
in a mandamus type proceeding. This
remedy is contained in subsection (C), 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 person.
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
In 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-
Sc ted.
C-8
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Model
Community
Noise Control
Ordinance
List of Provisions
Page
Article 1 Short Title ii
Ardcli 11 . peclaration of Findings
and Policy; Scope 11
_________ Definitions and Standards. 11
__________ Powers and Duties of the
_4Environmental Protec-
tion>/(Noise Control)
Office(r) 13
4.1 Lead (Agency/Official)
42 Powers of The (En-
vironmental Protec-
tion)/ (Noise Con-
trol) Office(r)
4.2.1 Studies
4.2.2 Education
4.2.3 Coordination and Co-
operation
4.2.4 Review of Actions of
Other Departments
4.2.5 Review of Public and
Private Projects
4.2.6 Inspections
4.2.7 Records
4.2.8 Measurements by The
Owner or Operator
4.2.9 Product Performance
Standard Recom-
mendations
4.2.10 Noise Sensitive Zone
Recommendations
4.3 Duties of Environmental
Protection (Noise Con-
trol) Office(r)
4.3.1 Standards, Testing Meth-
ods, and Procedures
4.3.2 Investigate and Pursue
Violations
4.3.3 Delegation of Authority
4.3.4 Track Routes and Trans-
portation Planning
4.3.5 Capital Improvement
Guidelines
4.3.6 S*ate and Federal Laws
and Regulations
4.3.7 Planning to Achieve Long
Term Noise Goals
4.3.8 Administer Grants,
Funds and Gifts
4.3.9 Periodic Report
Article V Duties and Responsibilities
of Other Departments 14
5.1 Departmental Actions
5.2 Departmental Cooperation
5.3 Departmental Compli-
ance With Other Laws
5.4 Project Approval
5.5 Contracts
5.6 Low Noise Emission
Products
5.7 Capital Improvement Program
Article VI Prohibited Acts 14
6.1 Noise Disturbances Pro-
hibited
6.2 Specific Prohibitions
6.2.1 Radios. Television Sets,
Musical Instruments
and Similar Devices
6.2.2 LoudspeaketsfP 1bIiC
Address Systems
6.2.3 Street Sales
6.2.4 Animals and Birds
6.2.5 Loading and Unloading
6.2.6 Construction
6.2.7 Vehicle or Motorboat
Repairs and Testing
6.2.1 Airport and Aircraft
Operations
6.2.9 Places of Public Enter-
tainment
6.2.10 Explosives, Firearms,
and Similar Devices
Powered Model Vehicles
Vibration
Stationary Non-Emer-
gency Signaling Devices
6.2.14 EmergencY Signaling
Devices
Article III
Article I
6.2.11
6.2.12
6.2.13
C -.9
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6.2.15
6.2.16
6.2.11
6.2.18 Tampering
Article VU Exceptions and Variances. 17
7.1 Emergency Exception
7.2 Special Variances
7.3 Variances for rime to
Comply
1.4 Appeals
Article m Sound Levels by Receiv-
ingLandUse 18
$1 Maximum Permissible
Sound Levels by Re-
ceiving Land Use
8.2 Correction for Char-
acter of Sound
8-3 Exemptions
Article IX Motor Vehicle Maximum
Sound Levels 19
9.1 Motor Vehicles and
Motorcycles on Pub-
lic Rights-of-Way
911 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 ol
Public Rights-of-Way
A rl lcleXLandUsc 20
18.1 General Provisions
10.2 Construction Restrictions
for Habitable and
wtion
10.3 Reaeatiooai Amen Rn.
10.4 Site Study Requirement
10.5 Commercial and Indira-
al Construction
10. Sound from New Road-
ways in Residential
Areas
10.7 Equivalent Measurement
Systems
10.8 Zoning Ordinance or
Comprehensive Plan
109 Truth in Selling or Renting
10.10 Appeals
Article X l Enforcement 23
11.1
11.2
11.3
11.4
Penalties
Abatement Orders
Notice of Violation
Immediate Threats to
Health and Welfare
Citizen Suits
Other Remedies
Severability
Effective Date
Tables
Table I Sound Levels by Receiving
LandUse 19
Table U Motor Vehide and Motor-
cycle Sound Limits .... 19
Table 111 Recreational Motorized
Vehicle Sound Limits.. 20
Continuous Sound Levels. 23
Impulsive Sound Levels.. 23
Provisions Under Whidt
Civil Actions May By
Commenced 24
Motoiboats
Noise Sensitive Zones
Domestic Power Tools
11.5
11.6
11.7
11.8
Table IV
Table V
Table VI
C- I0
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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 hav a right
to an hould be ensured an environ-
meltt rree from excessive sound and
vibration that may jeopardize their
health or xselfare or safety or de-
grade the quality of life: and,
NOW, THEREFORE, it is the policy
of the tCitv: County) of
to prevent excessive sound and vibra-
tion which may jeopardize the health
and welfare or safety of its citizens
or degrade the quality of life.
2.2 Scope
This ordinance shall apply to the
control of all sound and vibration
originating within the limits of the
(City/County) of
ARTICLE UI Definitions
3.1 Terminology
All terminology used itt 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 Level” 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
dBA.
3.2.2 “Commercial Area” Means
((As defined in the community (com-
prehensive plan)/(zoning 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-Night Average Sound Level
(L)” 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 (dv)” Means
A unit for measuring the volume of
a sound, equal to 20 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).
3.26 “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 “F,nvironmental Protection Office(r)/
Noise Control Office(r) (EPO/NCO)”
Means
The mds icipal agency or department
having lead responsibility for this
ordinance. (If no such agency is
designated, the terrp shall mean the
municipal official having lead re-
sponsibility for this ordinance.)
3.2.10 “Equivalent A-Weighted Sound
Level (L.q)” Means
The constant sound level that, in a
given situation and time period, con-
veys the same sound energy as the
actual time-varying A-w e i g h t e d
sound. (For the purposes of this ordi-
nance, a time period of 24 hours shall
be used, unless otherwise specified.)
3.2.11 “Gross Vehide Weight Rating
(GVWR)” Means
The value specified by the manufac-
turer as the recommended maximum
loaded weight of a single motor ve-
hicle. In cases where trailers and trac-
tors are separable, the gross combina-
tion weight rating (GCWR), which is
the value specified by the manufac-
turer as the recommended maximum
loaded weight of the combination ve-
hicle. shall be used.
3.1.12 “Impulsive Sound” Means
Sound of short duration, usually less
c-li
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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 flrearms.
3.2.13 “Industtial Area” M
((As defined in the community (com-
prehensive plan)/ (zoning ordinance)).
3.2.14 “Motor CaTTier ‘/eblcle Engaged
in interstate Consnserce” 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 .Mumer or Sound Dissipative
Device” Mesne
A device for abating the sound of
escaping gases of an internal corn-
bustic’s 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.
3.2.29 ‘Noise Dlstnsb..ee” Mes
Any sound which (a) endangers or
injures the safety or heahh 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 ‘NeI,e 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 State 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 allcy 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 shill exist
if the one-third octave band sound
pressure level in the band with the
tone exceeds the arithmetric average
of the sound pressure levels of the
two contiguous one-third octave bands
by S dB for center frequencies of 500
Hz and above and by 8 dS 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 “Rod 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
jnira.building real property divisions.
3.2.21 “ResidentIal Area” Means
((As defined in the community (com-
prehensive pian)/ (zoning ordinance)).
3.2.29 “RMS Sound Preunre” Men
The square root of the time averaged
square of the sound pressure. denoted
Pt...
3,2.39 ‘Scud” Mes
An osciUation 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.
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3.2.31 “Sound Level” M
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.
3.2.33 “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” Mean.
20 times the logarithm to the base 10
of the ratio of the RMS sound pres-
sure to the reference pressure of 20
micropascals (20x lO N/m). The
sound pressure level 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-
tlou)/(Nosse Confrol)
Office
41 Lead (Agency/Official)
The noise control program established
by this ordinance shall be adminis-
tered by (title of municipal agency
or lead official).
42 Powers of The (Enviroonseutal
Protedlon)/(NoAe Confrol Offlce(r)
In order to implement and enforce
this ordinance and for the general
purpose of sound and vibration abate-
ment and control, the EPOINCO
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.
4.22 Education
(a) Conduct programs of public edu-
cation regarding:
(I) 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 in related pub-
tic 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 all 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 Action. 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
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 In ectioos
(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
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public right.o(-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-
quite the motor vehicle, motorcycle
or motorboat to be inspected or tested
as the EPO/NCO may reasonably re-
quite.]
4.2.7 acords
Require the owner or operator of any
commercial or industrial activity to
establish and maintain records and
make such reports as the EPO/ ’iCO
may reasonably prescribe.
4,2.8 Measswemeass by The Owner or
0
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
EPOINCO may reasonably prescribe
and to furnish reports of the results
of such measurements to the EPO/
NCO. The EPOINCO may require
the measurements to be conducted in
the presence of its enforcement
offic i a lL
4 .2.P Product Peeformanc. Staadirg
(a) Develop and recommend for
promulgation (to the appropriate au-
thority) provisions regulating tim 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 (to the appropriate au-
thorny) 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 19fl1
4,3.18 S.is. Sendlie. Zone Racese-
Prepare recommendations, to be *9-
proved by (die appropriate authority).
for the designation of noise sensitive
zones which contain noise sensitive
activities. Eating quiet zones shall
be considered noise sensitive zones
until otherwise designated. Noise
iensitive activities include. but are not
limited to, operations of schools,
libraries open to the public, churches,
hospitals, and nursing homes.
4.3 Duties of ltavlronmeala) ProlsUka) /
(Noise Con ol) OMce$
In order to implement and enforce
this ordinance effectively, the EPO!
NCO shall within a reasonable time
after the effective date of the ordi-
nance:
4.3.1 Standards, TestIng Methods, sad
Procedures
Develop, (recommend to the appro-
priate authority.) and promulgate
standards. testing methods and pro-
cedures.
4.3.2 InvestIgate and Purses Violations
in consonance with Section 4.2.6.
Article Xl, and othcr provisions of
this ordinance, investigate and pursue
possible violations of this ordinance.
4.3.3 DelegatIon of Mtboe4
Delegate functIons, where appropriate
under tisis ordinance, to personnel
within the EPOY4CO and to other
agencies or departments, (subject to
approval of 3.
4.34 Truck Routes and Truipsetade.
P 1
(a Study the existing transportation
%ystenn. 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 ted-
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 mutes, 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 laproveesent C- - - —
Establish noise ‘estment guidelines
for the evaluation of proposed im-
provements for the capital improve-
ments budget and program pursuant
to Section 55. These guidelines shall
assist in the determination of the rela-
tive priority of each improvement in
terms of noise impact.
4.33 Slate sad Federal Laws and
(a) Prepare and publish (with the
approvalof ]alistd
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 moth-
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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 achievingquiet in the (city!
county), and [ with the approval of
3 integrate this plan
into the planning process of the
(city/county).]
4.3.8 Administer Grants, Funds and Gifts
Administer noise program grants and
other funds and gifts from public and
private sources, including the State
and Federal governments.
[ 4.33] Periodic Report
[ Evaluate and report, every
sear(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 (appropr ate authority), for
approval.]
ARTICLE V Duties and Respoisiblifties
of Other Departments
5.1 Departmental Actioass
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
Alt departments and agencies shall
cooperate with the EPO/NCO to the
fullest extent in enforc n s 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
services 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 IS 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-
centum of the least expensive type of
product for which it is certified as a
substitute,
5.7 Capital Improvement Proram
All departments responsible for a
capital improvements budget and pro-
gram shalt 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 Ads
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 Prohibitloon
The following acts, and the causing
thereof, are declared to be in viola-
tion of this ordinance:
6.2.1 Radios, Television 8.1 ., Mialcal
Instrumeds and Similar Devices
• Operating, playing or permitting the
operation or playing of any radio,
television, phonograph, drum, musi-
cal instrument, sound amplifier, or
c-i 5
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similar device sshich 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:epr for activities onen to
the public and for which a permit hz.s
been issued by (appropriate author-
ity) according to criteria set forth
in ............];
(b, In such a manner as 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.
(C) In such a manner as to create a
noise disturbance t’ any person other
than the operator of the device, when
operated by any passenger on a com-
mon carrier;
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 8:00 a.m. the follow-
ing day, such that the sound there-
from creates a noise disturbance
across a residential rest 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
(1) 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-
dentia or commercial area of the
( .aty, 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 A- 1 ” and Birds
Owning, possessing or harboring any
animal or bird which frequently or
for continued duration, howls: barks.
meows. squawks. or makes other
sounds which create a noise disturb-
ance across a residential real property
boundary or sithin a noise sensitive
zone. (This pro ision shall not apply
to iuhIie zoos.]
6.2.5 Loading and Unloading
Loadine. tinloading. opening. elo in
or other handline of hoses. crate”.
containers. hu iltling materials ar-
bage cazi . or similar objects hets ccn
the ho. rs of p.m. and ... a m.
the lolloning Jay in such a manner
as to cau e a noise disturbance across
a residential real property boundary
or ithin a IIO C sensitive zone.
&L6 Construction
Operating or permitting the operation
of any tools or equipment used in
can tructio I. dr:lling, or demolition
work:
tat Betsseen the hours of p.m.
and .m. the following day on
seekda s or at any time on (Sun-
days. weekends) or ‘holidays, such
that the uund therefrom creates a
noise disturbance across a residential
real property boundary or within a
noise .,ensitise zone, except for emer-
gency aork uf pablic service utilities
or by special variance issued pursuant
to Section 7.2;
(b At any other time such that the
sound level at or across a real prop-
erty bound rv eseceds an 1.., of
dRA for the daily period of operation.
(Cl This section shall not apply to the
use of domestic power tools subject
to Section 6.2.17.
6.2,7 Vebide or Motorboat Repabs and
Testing
Repairing, rebuilding, modifying, or
testing any motor vehicle, motorcycle.
or motorboat in such a manner as to
cause a noise disturbance across a
residential real property boundary or
within a noise sensitive zone.
6.2.1 Airport and Aircraft Operatlees
(a) The EPO/NCO shall consult with
the airport proprietor to recommend
changes in airport operations to mini-
mize any noise disturbance which the
airport 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 Its any manner regu-
late the movement of airctaft which
are in all respects conducted in
accordance with, or pursuant to.
applicable Federal laws or regulations.
6.2.P Places of Public Entertalansent
Operating, playing or permitting the
operation or playing of any radio.
television, phonograph, drum, musi-
cal instrument. sound amplifier, or
C -i 6
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similar devtce which produces. repro-
duces, or amplifies sound in any place
of public entertainment at a sound
level greater than dEA as
read by the slow response on a sound
level meter at any point that 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
thsiurbance across a real property
boundary or on a public space or
right-of-way, without ftrst obtaining
a special variance issued pursuant to
Section 7.2. [ Such permit need not
be obtained for licensed game-hunting
activities on property where such
activities arc authorized.]
6.2.11 Powered Model Vehicles
Operating or permitting the operation
of po .ered model ehicles so as to
create a noise disturbance across a
residential real property boundary, in
a public space or within a noise sensi-
tise zone between the hours of
p.m. and am. the following day.
Maximum sound levels in a public
space during the permitted period of
operation shall conform to those set
forth for residential land use in Table
I of Section 8.1 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-
uve zones, during the permitted
period of operation. shall be governed
by Section 8.1 and Section 6.2.16.
respectively.
6.2.12 Vibration
Operating ot ermI.tin . tw operation
of .tny desiec that creat:s vibration
u hich is above the vibration percep-
tion threshold of an individual at or
bcvond the property of the source if
on pris ate property or at feet
inieier’.t from thc sorrce if on a pub’
tic space or public right-of-way. For
the purpose’ of this secioi. “vibra-
onri perception threshold” means the
ml nimum cround’ or structure-borne
sibranunat motion necessary to cause
a normal person to be aware of the
vibration b such direct means as,
but not limited to. sensation by touch
or sisual observation of moving ob-
jects.
6.2.13 Stationary Non-Emergency
Signaling Devices
(a) Sounding or permitting the sound-
ing of any [ electronically-amplified]
signal from any stationary bell, chime,
siren, whistle, or similar device. in-
tended primarily for nonemergency
purposes, from any place, [ for more
than minutes in any hourly
period.]
[ (b) Devices used in conjunction
with places of religious worship shall
be exempt from the operation of this
provision.]
[ (c) Sound sources covered by this
provision and not exempted under
subsection (b) shall be exempted by
(appropriate authority) using criteria
set forth in Section 7.2.]
6.2.14 Emergency Signaling DevIces
(a) The intentioaal sounding or per-
mitting the sounding outdoors of any
fire, burglar, or civil defense alarm,
siren, whistle or similar stationary
emergency signaling device, except for
emergency purposes or for testing, as
provided in Subsection (b).
(b) (i) Testing of a stationary emer-
gency signaling device shall occur at
the same time of day each time such
a test is performed, but not before
a.m. or after p.m. Any
such testing shall use only the mini-
mum cycle test time. In no case shall
such test time exceed seconds.
(ii Testing of the complete emer-
gency signaling system, including the
functioning of the signaling device
and the personnel response to the
signaling device, shall not occur more
than once in each calendar month.
Such testing shall not occur before
am. or after p.m. The
time limit specified in subsection (I)
shall not apply to such complete sys-
tem testing.
[ [ (c) Sounding or permitting the
sounding of any exterior burglar [ or
fire) alarm or any motor vehicle
burglar alarm unless such alarm is
automatically terminated within
minutes of activation. [ This section
shall not be interpreted to apply to
alarms.]]
6.2.15 Motorbo*ts
Operating or permitting the operation
of any motorboat in any lake, river.
stream, or other waterway in such
manner as to exceed a sound level of
dBA at 50 feet (15 meters)
or the nearest shoreline, whichever
distance is less.
6.2.16 NoIse Sensitive Zones
(a) Creating or causing the creation
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of any sound within any noise sensi-
tive zone designated pursuant to Sec.
lion 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 mdi-
catsog the presence of the zone.
.2,17 Doestlc 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
am. the following day so as to
cause a noise disturbance across .
residential real property boundary
& 2.1$
The following acts or the causing
thereof are prohibited:
(a) The removal or rendering mop.
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 EPOINCO 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/
NCO. 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
isnijer Section 4.36, which has had
noise control device or element of
design or noise label removed or ren-
dered inoperative, with knowledge
that such action has occurred.
ARTICLE VU ve,p mu d
7.1
The provisions of this ordinance shall
not apply to (a) the amiasion of sound
for the purpose of alerting persons to
the esislence of an emergency, or (b)
the ni in of sound in the per-
formance of emergency work.
• Z.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)I Hcaring Board). The appli-
cation shall contain information
which demonstrates that bringing the
sour c 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
appli’cation 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 (EPOI
NCO/ (Hearing Board) containing
any information to support his claim.
If the (EPO/NCO)/(Hearing Board)
finds that a sufficient controversy
exists regarding an application, a pub-
lic heating 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 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-
pliance 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).
(1) 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.
73 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
(EPOINCO)I (Hearing Board) for a
variance in time to comply with Sec-
tion 6.2.12 (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 dale 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/NCO)/ (Hearing Board) con-
taining any information to support
his claim. If the (EPOINCO)/(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 (EPOI
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) I
(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 variattce
in time to comply.
(d) 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)I (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) shalT
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) I (as specified by the
ARTICLE VU! Sound Levels by Receiv-
ing 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.
c-i
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TABLE L SOUND LEVELS BY
RECEIVING LAND USE
Level
a. dIA
ft-i, R-2, etc. (A) s..m.—
(B) p.m.
(Residential, Public
Space . 0 pen Space,
Agricultural or
Institutional)
C-1,C-2,etc. 7
B-i, B-2.etc.
(Commercial or
Business) At AU Times L.
M-l. M-2.etc.
(Industrial) At All Times L
8.2 Cerndla . for Chad.r of 5.
For any source of sound which emits
a pure tone or impulsive sound, the
ma umum sound level limtts set forth
in Section 8.1 shall be reduced by
dB
8.3 E .. , lIi*
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 (Motceboats). 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 ni nsplifie4 lV1I 121% voice;
(C) interstate railway locomotives and
ca and
((d) (non-stationary farming equip-
ment)/ (all agricultural activities)]
ARTICLE IX Medal Vehicle M—’—
9.1 Meder VzhIdw d Msl....,d.a ae
Peh& R wny
No person shall operate os cause to
be operated a public or private motor
vehicle or motorcycle on a public
rigbt .of-way at any rime in sqch a
mi f that the sound level emitted
by the motor vehicle or motorcycle
ev”.eds the level set forth in Table II.
TABLE H
MOTOR VEHICLE AND
MOTORCYCLE SOUND LIMITS
MEASURED AT 50 FEET
OR 15 METERS)
Sound Level in dIA
Speed Speed SIn-
Uft U.ll do
Vehicle Claus 35 Over y
MPH 3$ Rn .-
or MPH up
Lam
Motor Carrier Va- 86 90 88
hick engaged in
interstate com-
merce of GVWR
or GCWR of
10,000 lbs. or
more
AU other motor
GVWR or
GCWR of 10,000
lbs. or more
Any motorcycle
Any other motor
vehicle or any
combination of
vehicles towed
by any motor
vehicle
9.i.t AI. M .M.. . or Se
fl ’ ‘p iv Ds’lcss
(a) No person shall operate or cause
to be operated any motor vehicle or
motorcycle not equipped with a
muSIer or other sound dissipative
device in good working order and in
constant operation;
(b) No person shaft remove or render
inoperative, or ca ine to he removed
or rendered inoperat ive, other than
for purposes of maintenance, repair.
or replacement, any muffler or sound
dissipative device on a motor vehicli.
or motorcycle;
(c) The EPO/NCO may. by (guide-
lines) (regulations subject to approval
by ),lis tthoseacts
which constitute violation of this .
9.12 MoSer Vehicle Hams d
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 %ignaling device on or
Lund U
(B) p.m.—
(A) a.m.
L.
A B
C D
B P
C-20
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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 -Vehiclee
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 in excess of - . . -
dBA when measured at feet
(meters) from any point on the ye-
hide: 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
am. the following day in a
residential area or noise sensitive
zone: or
(C) Collect refuse with a refuse col-
lection vehicle between the hours of
p.m. and am. the
following day in a residential area or
noise sensitive zone.
91.4 Standing Motor Vehicles
No person shall operate or permit the
operation of any motor vehicle with
a gross vehicle weight rating
(GVWR) in excess of ten thousand
t I0,000) 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 Ott Public Rights-of -way
(a) [ Except as permitted in subsec-
tion (b) or (c).J no person shall op-
erate or cause to be operated any
recreational motorized vehicle off a
public right-of-way in such a manner
that the sound level emitted there-
from exceeds the limits set forth in
Table Ill 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 motorboats.
[ (b) Permits for motor vehicle racing
events may be obtained from (appro-
priate authority) according to pro-
cedures and criteria set forth in
]
[ Ic) Special variances for may
be obtained from (appropriate au-
thority) according to procedure and
criteria set forth in ]
TABLE ilL
RECREATIONAL MOTORIZED
VEHICLE SOUND LIMITS
(MEASURED AT 50 FEET
OR 15 METERS)
Vehicle Type Sound Level, dRA
Snowmobile A
Motorcycle B
Any Other Vehicle C
General Provisions
(a) No owner of any land shall com-
mence or cause to be commenced
construction of any structure covered
b- Sections 10.2, 10.3. 10.5 or 10.6
unless approved by the EPO/NCO
as provided in this Article.
(hI Any 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 re-quested;
(3) information and data support-
ing the claim that the appropriate
requirements wift be met; and,
(4) any other information which
the EPOINCO may reasonably re-
quire.
102 Construction Restrictions for
Habitable and Inslitufiousi Structures
(a) Except as provided in subsection
(c). no new single family residential
structure shall be approved for con-
struction (excluding substantial re-
ARTICLE X Land Use
10.1
C—2 1
-------
— or alteration) if the exterior day-
night average sound level (Li.) any-
where on the site of the proposed
structure * projected to be In en
of. dllAwithm . years
fc&. ng the “ ted completion
date of the structure.
(b) Ezcpt provided in sub roi o
(C). no saw aii ipLi-fmally roil-
— — . asebde home pu
le echo —
nursing home or il . . structure, or
sebstaptial mo4l& ’s c i such sabs-
ing structure, shall be app . ved for
construction if the exterior day-night
average sound level (Li.) asywh.le
on the site of the proposed atrctuie
is projected to be a excese c i.
dBA within. years following the
esthesled couçktios dale of th
structure or mod
(c) Construction ulkluwi.I pu k iiid
pursuant so eab ilaa . (a) c i (b)
shall be allowed if the exterior day-
night average sound level (Li.) on
the site of the ropo..d structure is
projected act to be inexcon of.
dBA for . years following coo-
election, plesrkled thus chars is in-
caporated Into the 4’ ’r and coo.
junction of the structure sack
atte sbos R Fin near, aa iy
to veèsce the maxhaum l..hrlor day-
right avsr smid level (Li.) to
• dIA. Subsections (a) sad (b)
shell not apply so say ills develop-
a plan or its equivalent on which
four or fewer dwe ng urite are to
be constructed.
Cd) Prior to any ome-
puncy permit for any structars nge
used pursuant to — b-.” u (a), the
of the . s . o. . shall soheit
for EPOINCO ievlaw the iu urt of
as 5J .yw4 5’l I in ‘ IS Y (UP
,, .g4 by the EPO/NCO] utetifying
that sound &ISler -9 h$ ’ s
been p..,sdy incorporated into the
4-r’asd wncdow of the Misc-
are and that the Mi Li. acute
the criterion . ,.dId ha b lviio .
(C). Such øtI shall contain the
results of slamLlseseous — -
of the exterior and interior day-night
average wend levels for a repre-
sentative sample of b
(a) The EPO/NCO may co ”ct
such po Mea and
ass nec ary to ensure the ame-
racy of any report wbmittsd per-
mint to subsoctiow (4) and to a cer.
tain — with this soct n .
Than may hac iad astute hepectious
by a certilled independent t ”1
agency daring apexilled periods of
11.3 a, .. . -r Ares SuMikians
(a) Except as pr,vided in subsections
(b), (c), and (4) no land shall be
____ or approved for construc-
tion or use a public or private ex-
terior recreational area, inthid but
not limited to, childresa’ playgrounds,
outdoor theaters seal amphitheaters,
— — touch courts and
sw ming pools, if the exterior day-
night average sound level (Li.) any-
where on the site c i the ptOpO’ d roc-
r ti l area is projected to be In
the exceas of dBA within
years following the comtnao-
tics or d,.gn tion of the sits.
(b) This section shall sot apply to
the dgptics or a,,u,al Of anY
green be l t or open apace in any area
is which the Li. exceeds the level
aps, L4 in subsection (a) regardlese
of whether sack grass belt or open
apace is open to public use, pr 4a4
that no recreational . pr sw’i or
fac ly is constructed thereon .
(a) T ’ or a.pproJ of ex-
tailor recreational areas oth.. . , 1 .a
prohibited under subsection (a) shall
be d,.id if the Li. scilled in that
— ‘-a- tics can be achieved by appse-
prints — : of sound attenuation.
nick a bj. , barriers , or buildisge,
a the pau t of or cisewbers on
the site.
(4) No san eaedor recreatIonal f a-
ty, c dIag . bat act limited is.
— . Ice or roller skating
lidaur seimmag poo and
imal. is , shall be a,,. ,.eJ for
ocestrucilon if the exterior day-night
average sound level anywhere on the
ills is projected to be is ev of
dBA within years tel.
1...ng the ted date of o wl.-
tics of the gr rtma unlen there is
M rp 1 . ..sa4 hits the d-4g and con-
struction of the structure such sound
•t— us a are aec— y
to redece the interior day-
average sound level (Li.) to
dB
11.4 ls .te 1.21
(a) If the EPO/NCO his reaso . to
belie’s that a full sport is r:s..r’y
to J .t. . s whether a
project is prohibited under Section
10 5. such report shall be made by lbs
applicant prior to lr u .a 3 of *fl
subdivision, zoning, at buil&ng per-
mit eppllc tion. (If a full report has
not been made and the applicant be-
lieves the project was wrongfully pro-
hibited under Section 10.1. he may
file a full report within days
of the EPO/NCO de .sion and to-
C-22
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quest reconsideration by the EPO/
NCO. A full report shall contain the
following information and any other
information which the EPO/NCO
may reasonably require:
(I) the existing day-night average
sound levels (L ), including identifi-
cation of the major sources of sound.
for a 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 1 . at the site resulting from
these new or expanded source . and,
(3) where applicable, plans for
sound attenuation measures on the
site and/or of the structure proposed
to 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 to submit a
full report pursuant to subsection
(a). the EPO/NCO shall consider
Circular 1390.2 (Noise Abatement
and Control) and other publications
of the U.S. Department of Housing
and Urban Development.
10.5 CommercIal and Industrial
Cotruction
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/
NCO. 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
the source of project funds, unless
such plan includes all control meas-
ures necessary to ensure that the
projected day-night average sound
level (L.L..) due to the operation of
the 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 (L) or
in any other equivalent measurement
system the EPO/NCO may reason-
ably approve.
10.8 Zoning Ordinance or Comprehensive
Plan
(a) No proposed zoning ordinance
or comprehensive plan shall be ap-
proved unless such plan includes a
sound analysis whictt (I) 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 shows (I) 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 q in any
hour of dBA)/(an L. of
dBA), without making full
written discl 9 sure 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
this Article, in the (appropriate court
of law), on the grounds that the
EPO/NCO disapproval was arbitrary,
capricious or unreasonable.
C-23
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ARTICLE XI
11.1 ?eiallki
(a) Any person who violates any
pnMsion of this ordinance shall be
fined for each offense not more than
(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 .... do).
(c) Each day of violation of any
provision of this ordinance shall con-
sutute a separate offense.
(1 1.2 Abate.s Orders
(a) Except as provided in subsection
(b), in bets c i issuing a notice of
violation as provided for in Section
11.3. the EPO/NCO or other
(agency/official) re onsible for en-
(ol cement of any provision of this
ordinance may issue an order requir-
ing abatement of any source of sound
or vibration alleged to be in violaton
of this ordinance within a reasonable
time period and according to guide-
lines (to be approved by appropriate
authonty] which the EPO/NCO may
prescribe.
(b ’ ) An abatement order shall not be
issued: (I) for any violation covered
by Section 11.1 (b); (2’) for any vie-
Lationot
(3’) when the EPO/NCO or other en-
forcein nt (agency) / (official) has
reason to believe that there will not
be compliance with the abatement
order.]
11.3 N.IkeofVl —
(Except where a p rson 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 odipeI e shall be cause for a
(notice of violation)! (summons) I
(cocnplaint)/(inform*Iion or indict-
ment) to be issued by the EPO/NCO
or other responsible enforcement
(agency official’) according to pro-
cedw’es (which the EPO/NCO may
p ea . 1 k )/(tforth in
11.4 ‘ —“i t1...a te IInd ad
Wd ace
(a) The EPOfl CO shall order an
immediate halt to any sound which
exposes any person , except those ex-
eluded pursuant to subsection (b).
to continuous sound levels in excess
of those shown in Table IV or to
impulsive sound levels in excem of
those shown in Table V. Within
days following issuance of
such an order, the EPO/NCO shall
apply to the appropriate court for an
injunction to replace the order.
(b) No order pursuant to subccctiern
(a’) shall be issued if the only per-
sons exposed to sound levels in ctccss
of those listed in Tables IV and V
are exposed as a result of (I) tres-
pass: (2) invitation upon privatc
property by the person causing or
permitting the sound: (3’) 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 round is brought into compliance
with the order. as determined by the
EPOINCO: 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 I V
CONTINUOUS SOUND LEVELS
WHICH POSE AN iMMEDIATE
THREAT TO HEALTH AND
WELFARE
(Measured at 50 Fees or IS Melers)
Soned Level
LhoM ( aBA ) Versus.
90 24hours
93 12 hours
96 6hour s
99 Shour s
102 1.5 hours
lOS 45 minutes
LOS 22minutes
tue equal .uarsy tim in .nuty i,ede- if leq. I
var,Ø; Sad energy equivalent over 24 h.uiv.
TAILEV
IMPULSIVE SOUND LEVELS WHiCH
POSE AN IMMEDIATE THREAT TO
HEALTh AND WELFARE
(Measured at 50 Feet or IS Meters)
Nemberol
Repsulleon per
24 Hour Period
flamed Level
Uselt (d l)
145
135
125
I
I0
100
C-24
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TABLE VI
Provisions Under Which Civil Actions
May Be Commenced
6.2.1(a) (Radios, Television Sets, Musical
Instruments and similar De-
vices)
6.2.2 (Loudspeakers/PubliC Ad-
dress Systems)
6.2.3 (Street Sales)
6.2.5 (Loading and Unloading)
6.2.6 (Construction)
6.2.7 (Vehicle or Motorboat Repairs
and Testing)
6.2.9 (Places of Public Entertainment)
6.2.10 (ExplosiveS, Firearms, and
Similar Devices)
(Powered Model Vehicles)
(Vibration)
(Stationary, Non-Emergency
Signaling Devices)
6.2.14 (Emergency Signaling Devices)
6.2.15 (Motorboats)
6.2.17 (Domestic Power Tools)
6.2.18 (Tampering)
8.1 (Maximum Permissible Sound
Levels by Receiving Land Use)
(Refuse Collection Vehicles)
(Standing Motor Vehicles)
(Motor Vehicle Racing Events)
(Motor Vehicle Horns and
Signaling Devices)
10.9 (Tiuth in Selling or Renting)
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) (1)
(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.
116 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
115 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
6.2.11
6.2.12
(6.2.13]
9.1.3
9.1.4
9.2(b)
9.2.1(b)
C-25
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APPENDIX D
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* Public Law 92-574
92nd Congress, H. R. 11021
October 27, 1972
86 SPAT. 1234
To control the emission of noise detrimental to the human envlro ,nneut, and
for other purposes.
Be it enacted by the Senate and Ho iae of Repreaentatite8 of the
Uruted States of America in Congress asserithled, Noise Control
Act of 1972.
SHORT TITLE
SECTIoN 1. This Act may be cited as the “Noise Control Act of 1972”.
FINDINGS AND POLICY
SEC.2. (a) The Congresslinds—
(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 purpose 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 in com-
merce, and to provide information to the public respecting the noise
emission and noise reduction characteristics of such products.
DEFINITIONS
Sac. 3. For purposes of this Act:
(1) The term “Administrator” means the Administrator of the
Environmental Protection Agency.
(2) The term “person” means an individual, corporation,
partnership, or association, and (except as provided in sections
11(e) and 12(a)) includes any officer, employee, department,
agency, or instrumentalitjr of the Umted 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 en ne, propeller, or appliance,
as such terms are defined in section 101 of the Federal Avia-
tion Act of 1958; or 72 Stat. 737.
(B) (i) any military weapons or equipment which are 49 Usc 1301.
designed for combat 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 (iii) 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 “ultimate purchaser” means the first person who
in good faith purchases a product for purposes other than resale.
13-10 0
D- 1
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be STAT. l. Pub. Law 92-574 - 2 - October 27, 1972
(5) The term new producr means (A) a product the equitable
or legal title of which has never been transferred to an ultimate
purchaser, or (B) a product which is imported or offered for
importation into the United States and which is 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 such person in connection with the distribution of such
products.
(7) The term “commerce” means trade, traffic. commerce. or
transportation—
(A) between a place in a State and any place outside
thereof, or
(B) which affects trade, traffic, commerce, or transporta-
tion described in subparagraph (A).
(8) The term “distribute in commerce” 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 Rice, the Virgin Islands, American
Samoa, Onam, and the Trust Territory of the Pacific Islands.
(10) The term “Federal agency” means an executive agency
00 Stat. ne . (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.
Sac. 4. (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 tovernment—
(1) having jurisdiction over any property or facility, or
(2) ençaged in any activity resulting, or which may result, in
the emission of noise,
shall comply with Federal, State, intetutate, and local requirements
respecting control and abatement of environmental noise to the same
cssp pm. extent that any person is subject to such requirements. The President
may exempt any single activity or facility, including noise emission
sources or clues. thereof, of any department, agency, or instrumen-
tality in the executive branch from compliance with any such require-
ment if he determin it to be in the paramount interest of the United
Stats. to do so: except that no exemption, other than for those
neoducts referred to in section 3(3) (B) of this Act, may be granted
from the requirem.nta of sections 6,17, and 18 of this Act. No such
exemption shall be granted due to lack of appropriation unless the
Preildent shall have spe.ifluelly requested such appropriation as a
part of the budgetary process and the Congress shall have failed to
make available such requested appropriation. An, 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
R.porS to President’s mafring a new determination. The President shall report
Csegrsau . each January to the Congrem all exemptions from the requirements
D-2
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October 27, 1972 - 3 - Pub. Law 92-574
86 STAr, 1236
of this section granted during the preceding calendar year, together
with his reason for granting such exemption.
(c) (1) The Administrator shall coordinate the programs of all
Federal agencies relating to noise research and noise control. Each
Federal agency shall, upon request, furnish to the Administrator such
information as he may reasonably require to determine the nature,
scope, and results of the noise-research and noise-control programs of
the agency.
(2) Each Federal agency shall consult with the Administrator in Sta ard or
prescribing standards or regulations respecting noise. If at any time regulations.
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 Revision re-
published in the Federal Register and shall be accompanied by a port request,
detailed statement of the information on which it is based. Such agency pi*blio*tion in
shall complete the requested review and report to the Administrator Federal Regis-
within such time as the Administrator specifies in the request, but such tep.
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- Report, publi-
ister and shall be accompanied by a detailed statement of the findings oation in Fed
and conclusions of the agency respecting the revision of its standard era]. Register.
or regulation. With respect to the Federal Aviation Administration,
section 611 of the Federal Aviation Act of 1958 (as amended by section
7 of this Act) shall apply in lieu of this paragraph.
(3) On the basis of regular consultation with appropriate Federal Status report,
agencies. the Administrator shall compile and publish, from time to
tune, 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.
IDENTIFICATION OF MAJOR NOISE SOVRCES; NOISE CRITERIA AND CoNTROL.
TECHNOLOGY
Sec. 5. (a)(1) The Administrator shall, aft r 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 differing 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 adeq uate margin of safety.
(b) The Administrator shall, after consultation with appropriate Report,.
Federal agencies, compile and publish a report or series of reports
(1) identifying products (or classes of products) which in his jud -
ment are major sources of noise, and (2) giving information on tee -
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.
D—3
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Pub. Law 92-574 . - 4 - October 27, 1972
(c) The Administrator shall from time to time review and, as
appropnate, revise or supplement any criteria or reports published
under this section.
(d) Any report (or revision thereof) under subsection (b)(1) iden-
i tifying major noise sources shall be published in the Federal Resister.
r. .rei R. a.. The publication or revision under this section of any criteria or infor-
tsr. matian on control techniques shall be announced in the Federal Reg-
ister, and copies shall be made available to the general public.
NOISE WTIOX STANDARDS 105 rtooucrs DISTRISUTED ZN COMMERCE
Ssc. 6. (a) (1) 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
repast published under section 5(b) (1) as a major source of noise,
(B) or which, in his judgment, noise emission standards irs
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
re a1ations, pubi not later than eighteen months after the date of enactment
.ff..tiv data, 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)(l) on or
before the date of publication of such initial proposed regulations.
(B) In the cue of any product described in paragraph (1) which
is identified (or is part of a class identified) as a major source of noise
in a report published under section 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 he
proposed and published by the Administrator not later than eighteen
months after such report is published.
(8) After proposed regulations respecting a product have been pub-
lished under pura ’raph (2). the Administrator shall. unless in his
judgment noise emission standards are not feasible for such product.
prescribe regulations, 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
the 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. Not earlier than six months
after the date of publication of such proposed regulations respecting
such product. he may prescribe regulations, meeting the requirements
of subsection (c), for such product
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October 27, 1972 - 5 - Pub. Law 92-574 86 STAT. 1238
(c) (1) Any regulation prescribed under subsection (a) or (b) of
this section (and any revision thereof) respecting a pro luct 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 other laws designed to safeguard the health and
welfare of persons. including any standards under the National Traffic
and Motor Vehicle Safety Act of 1966, the Clean Air Act, and the 80 Stat. 718.
Federal Water Pollution Control Act. Any such noise emission stand- 15 USC 1381
ards shall be a performance standard. In addition, any regulation note.
under subsection (a) or (b) (and any revision thereof) may contain 81 Stat. 5.
testing procedures necessary to assure compliance with the emission not C 8
standard in such regulation, and may contain provisions respecting Ante p. 816.
instructions of the manufacturer for the maintenance, use, or repair •‘
of the product.
(2) After l)ublicatiOfl of any proposed regulations under this sec-
tion. the Administrator shall allow interested persons an opportunity
to participate in rulemaking in accordance with the first sentence of
sect ion 553(c) of title 5, Fnited States Code. 80 Stat. 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 the revision; except
that a revision which makes only technical or clerical corr’ctions in a
regulation under this section may be promulgated earlier than six
months after such date if the Administrator finds that such earlier
promulgation is in the public interest.
(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) Xny cost obligation of any dealer incurred as a result of any Coet oblige.-
requirement imposed by paragraph (1) of this subsection shall be tions, trans-
borne by the manufacturer. The transfer of any such cost obligation
from a manufacturer to any dealer through franchise or other agree- tion.
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
Comptroiler General has to those of a recipient of assistance for pur-
poses of section 311 of the Clean Air Act. 81 Stat • 505;
(e) (1) No State or political subdivision thereof may adopt or 8 St t 8 05.
enforce— USC j.
(A) with respect to any new product for which a regulation Prohibitions.
has been prescribed by the Administrator under this section. any
law or regulation which sets a limit on noise emissions from such
D-5
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86 STA? 1 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.
( ) Subjeci. 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.
.%1*CWT NOISE S rANDARD8
SEc. 7. (a) The Administrator, after consultation with appropriate
Federal. State, and local agencies and interested persons, shall conduct
a study of the (1) adequacy of Federal Aviation Administration flight
and operational noise controls; (2) adequacy of noise emission stand-
aids 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 goveniments 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 alter the date of
the enactment of this Act.
(b) Section 611 of the Federal Aviation Act of 1958 (49 t.S.C.
82 Stat. 395. 1431) is amended to read is follows:
c0’1%OL no a vaxx r or AiacR&rr NOISE soxic soox
-Sac. 611. (a) For pui poseaof this section:
(1) The term ‘FA.V means Administrator of the Federal
Aviation Administration.
“(2) The term EPA’ means the Administrator of the Environ-
mental Protection Agency.
(b)(1) in order to afford present and future relief and protection
regulations, to 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 iss’iance, a’-endment,
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 an provision of this Act
u’nless the FAA shall have consulted with EPA before sneh exemn-
tion is granted 1 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 see-
n stat. 776. tion 60 3(a) of this Act for anyaircraft for which substantial noise
49 USC. 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).
p.’
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October 17, 1971 - 7 - Pub. Law 92-574 86 STAT. 1240
“(c) (1) Not earlier than the date of -submission of the report proposed
required by section 7(a) of the Noise Control Act of 1972, EPA shall regulations,
submit to the FAA proposed regulations to provide such control and su flittal to
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 & notice of proposed rulemaking. Within 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) m accordance with subsection (b), prescribe regulations
(i) substantially as they were submitted by 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 Publication
prescribing any regulation in response to EPA ’s submission of in Federal
proposed regulations 1 together with a detailed explanation provid- Register.
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
and 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 Report
and shall include a detailed statement of the information on which it is request,
based. The F.U. shall complete the review requested and shall report publication
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 g a
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 83 Stat • 853.
with respect to such action of the FAA under paragraph (1) of this 42 USC 4332.
subsection; and shall specify whether (and where) such statements are
available for public inspection. The FAA’s report shall be published Report,
in the Federal Register, except in a case in which EPA’s request pro- publication
posed specific action to be taken by the FAA, and the FAA’s report in Federal
indicates such action will be taken. Register.
“(3) If. in the case of a matter described in paragraph (2) of this Supplemental
subsection with respect to which no statement is required to be filed report,
under such section 102(2) (C), the report of the FAA indicates that publication
the proposed regulation originally submitted by EPA should not be in Federal
made, then EPA may request the FAA to file a supplemental report. Register.
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 (including 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.
D-7
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56 STAT. 1241 Pub. Law 92-574 - - October 27, 1972
thPr h mending standards and regulations under
“(1) consider relevant available data relating to aircraft noise
and sonic boom, including the results of research, developinii.t,
testing, and evaluation activities conducted pursuant to this Act
80 Stat. 931. and the Department of Transportation Act;
49 USC 1651 “(2) consult with suck Federal, State, and interstate agencies
flOti. as he donna appropriate;
“(3) considar whiether any proposed standard or regulation is
cons ent with the 1iigh. degree of safety in air commerce or
air transportation in the public inteast
“(4) whether any propceeii s ’wI rd or regulation is
economically rew n ’il4e , technologically practicable, and sppro-
priMe for the particular typ. of aircraft, aircraft engine, appli-
ance, or certificate to which it will apply; and
“(5) consider the extent to which such standard or regulation
will contribute to carrying out the purpoems of this section.
$ottoe sz “(e) In any a cn to amend, modify, suspend, or revok, a certifi-
ppsa1. cats in which violation of aircraft noise or sonic boom standards or
regulations is at issue, the certificat, holder shall have the seas notice
72 Stat. 779; azi appeal rights as are contained in section 609, and in any appeal
85 Stat. 481. to the Nation 1 Transportation Safety Board, the Board may amend,
. modify, or reveres the order of the 1AA if it finds that control or
abatement of aircraft nosas or aceic boom and the public health and
welfare do not require the a rrnation of such order, or that such order
is not consistent with safety in air cOmmerce or air transportation.”
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
72 Stat. 731. Aviation Act of 1958, with respect to such standards, rule., and
49 C 1301 regulations,
note, which are in effect on the date of the enactment of this Act, shall con-
tinue in effect according to their terum until modified, terminated,
superseded, set aside, or repealed by the Athniniutrator 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.
ks ttma. Sac & (a) The Administrator shall by regulation designate any
product (or class thereof)—
(1) which emits noise capable of adversely affecting the public
health or welfar, or
(2) whchisaoldwhollyorinpartonthebsaisofitaeff.ctiv..
nose in reducing noise.
(b) For each product (or cue. thereof) designated under sub-
section (a) the Administrator shall by regulation requir, that notice
be given to the prwupectivs user of the level of the noise the product
emits, or of it. effectiveness in reducing noise, as the case may be. Such
regulations shall specify (1) whether such notice shall be amid to
th. product or to the sutai of it. container, or to both, at the time of
its sale to the ultimate purcha.sr or wh4har such notice shall be given
to the prospective er in some other (2) the form ol the
notice, and (8) 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 .etien does not prevent ai y State or political subdivision
thereof from regulating product labeling or information respecting
pmducta in any way not a c i 6ict with regulations prescribed by the
Administrator un’½r thir suction.
fl-s
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October 27, 1972 - 9 - Pub. Law 92-574
86 STAT. 1242
IMPORTS
Sac. 9. The Secretary of the Treasury shall, in consultation with Reg 1ations.
the Administrator, issue regulations to carry out the provisions of this
Act with respect to new products imported or offered for importation.
PRO BIT ) ACTS
Sac. 10. (a) Except as otherwise provided in subsection (b), the
following acts or the causing thereof are prohibited:
(1) In the ease 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 any 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 6, prior to its sale
or delivery to the ultimate purchaser or while it is in use, or
(B) the use of a product after such device or element of design
has been removed or rendered inoperative by any person.
(3) In the case of a manufacturer, to distribute in commerce
any new product manuf ctured after the effective date of a
regulation prescribed under section 8(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
section 8(b), prior to sale of the product to the ultimate purchaser.
(5) The importation into the rnited 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 with any
requirement of section 11(d) or 13 (a) or regulations prescribed
under section 13(a), 17, or 18.
(b) (1) For the purpose of research. investigations, studies, demon- Exemptions.
strat.ions. 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 lie may find iiecessiiry 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 which) is
labeled or otherwise marked to show that it is manufactured solely
for use outside any State; except that such paragraphs shall apply
to such product iI it is in fact distributed in commerce for use in
any State.
ENFORCEMENT
Sac. 11. (a) Any person who willfully or knowingly violates pars- Penalty.
graph (1). (3), (5). or (6) of subsection (a) of section 10 of this
Act shall be punished by a fine of not more than $25,000 per day of
violation, or by imprisonment for not more than one year, or by both.
If the conviction is .for a violation committed after a first conviction
of such person under this subsection, punishment shall be by a fine
of not more than $50,000 per day of violation, or by imprisonment
for not more than two years. or by both.
(b) For the purpose of this section. each clay of violation of any
paragraph of section 10(a) shall constitute a separate violation of
that section.
83.1090-73-2
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as staY.. q Pub. Law 92-574 - 10 - October 27, 1972
Juriadiotion, (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
80 Stat. 4. of title 5 of the United States Code.
‘ 1 Per,on.” (a) The term “person,” as used in this section, does not include a
department, agency, or instrumentality of the United States.
IT&z5N St ’flS
Snc. 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
1 C prus. extent permitted by the eleventh amendment to the Constitution)
title 1. who is alleged to be in violation of any noise control requirement
(as defined.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
, p. Federal Aviation Act of 1958 which is not discretionary with
such Administrator.
Juitediattan. 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 AdiniuLs-
trator to perform such act or duty. as the case may be.
(b) No action may be commenced—
(1) undersubeection (a)(1)—
Ilot ics. (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 $ matter of
right, or
(2) under subsection (a) (2) prior to sixty da 7 s after the
plaintiff has given notice to the defendant that he will commence
such on.
Notice under this subsection shall be given in such manner as the
Administrator of the Environmental Protection Agency shall preecnbe
by regulation.
Int.rv,ution. (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,
fl_i (I
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October 27, 1972 - 11 - Pub. Law 92-574
86 STAT . 1244
the Administrator of the Federal Aviation Admithstratión, if not a
party, may also intervene as a matter of right.
(d) The court, in issuing any final order in any action brought Liti tion
pursuant to subsection (a) o this section, may award costs of litigation oosts.
(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 tight 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” “Noise oontrol
means paragraph (1), (2), (3), (4), or (5) of section 10(a)? or a requiranent.”
standard, rule, or regulation issued under section 17 or 18 of this Act
or under section 611 of the Federal Aviation Act of 1958. j, P.
. RECORDS, Rzpoirr , AND INYORMATION
\-
Sac. 13. (a) Each manufacturer of a product to which regulations
under section 6 or section 8 apply shall—
(1) establish and maintam 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.
(ii) upon request of an officer or employee duly designated by
the Adniinistrntor, permit such officer or employee at reasonable
times to have access to such information and the results of such
tests and to copy such records, and
(3) to the extent required by regulations of the Administrator,
make pr(xlucts coming off the assembly line or otherwise in
the hands of the manufacturer iivailable for testmg by the
Administrator.
(b) (1) All information obtained by the Administrator or his rep- Cor ’identia1
resentatives pursuant to subsection (a) of this ection. which infor- idonnation.
mation contains or relates to a trade secret or otkr matter referred to
in section i9O of title is of the United States (‘ode, shall be con- 62 St&t. 791.
sidered confidential for the purpose of that section. except that such Disolosure.
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 proceeding under this Act.
(‘2) Nothing in this subsection shall authorize the withholding of
information by the Administrator, or by any officers or employees
under his control, from the duly authorizea committees of time (‘ongress.
(c) Any person who knowingly makes any false statement. repre- Violations
séntation.or certification in any application, record, report, plan, om’ and penalties.
other document filed or required to be maintained under this Act or
who falsifies, tampers with, or knowingly renders inaccurate any moni-
toring device or method required to be maintained under this Act,
shall upon conviction be punished by a line of not more than $10,000.
or by imprisonment for not more than six months, or by both.
RESEARCH. TECHNICAL .tS8IST.tNCF , AND PrBLIC 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 —
rh-li
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88 sTAT. 1245 Pub. Law 92-574 - 12 - October 27. 1972
- (A) in estigation of the psychological and physiological
effects of noise on humans and the effects 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 nolee. in cooperation with
the National Bureau of Standards, Department of Conin*erce;
and
(C) determination of the most effective and practicable
means of controlling noise emission.
( i) Provide technical 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 equipmez4; and
(B) preparation of model State or local legislation foñwise
controL
(3) Disseminate to the public information on the effects of
noise, acceptable noise levels, and techniques for noise measure-
ment and control.
DEV WP3LENT OF LOW-NO(SE-EitIS8iO 1’ROOV L7 5
D.ftnitiomj. Snc. 13. (a) For the purpose of this section:
(1) The term Committee” means the Low-Noise-Emission
Product Advisory (‘ommittee.
() Time term Federal Government” includes the legislative.
executive, and judicial branches of the Government of the United
States, and the government of the District of Columbia.
(3) The term iow-noise-emisoion product means any product
which emits noise in amounts significantly below the levels speci-
fied in noise emission standards under regulations applicable
under 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-noise-emission products in accordance with the provisions of
this section.
C.rtittsst ion. (2) The Administrator shall certify any product—
(A) for which a certification application has been flied in
accordance with paragraph (5)(A) of this subsection;
(B) which is a low-noiEe-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.
i -lb1aem. (3) The Acbnini rator may establish a Low-Noise-Emission
sston Product Advisory Committee to assist him in determining which
Prethiot products qualify as low-noise-emission products for purpose. of this
*dltaogy section. The Committee shall include the Administrator or his dessg-
see. a representative of the National Bureau of Standards, and repro-
sentatives of such other Federal agencies and private individuals as
the Administrator may deem neceesary from tune to time. Any mem-
ber of the Committee not employed on a fuIltime basis by the United
States may receive the daily equivalent of the annual rate of basic pa
SI C 5332 in effect for grade GS-18 of the General &hedule for each day suc
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October 27, 1972 - 13 - Pub. Law 92-574 86 STAT. 1245
member is engaged upon work of the Committee. Each member of Travel expenles.
the Committee shall be reimbursed for travel expenses, including per
diem in lieu of subsistence as authorized by section 5703 of title 5.
United States Code, for persons in the Government service employed 80 St&t. 4 99J
intermittently. 83 Stat. 190.
(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 l ’ ,.iblic&tion in
notice of each application received. Federal Regis-
(C) The Administrator shall make determinations for the purpose ter.
of this section in accordance with procedures prescribed by him by
regulation.
(D) The Administrator shall conduct whatever investigation is
necessary, including actual inspection of the product at a place desig-
nated in regulations prescribed under subparagraph (A).
(E) The Administrator shall receive and evaluate written com-
ments and documents from interested persons in support of, or in
opposition to, certification of the class or model of product under
consideration.
(F) Within ninety days after the receipt of a properly filed cer-
tification application the Administrator shall determine whether such
product is a low-noise-emission product for purposes of this section.
If the Administrator determines that such product is a low-noise-emis-
sion product, then within one hundred and eighty days of such
determination the Administrator shall reach a decision as to whether
such product is a suitable substitute for any class or classes of products
presently being purchased by the Federal A3overnmedt for use by its
agencies.
(G) Immediately upon making any determination or decision under Publisation in
subparagraph (F), the Administrator shall p iblish in the Federal Federal R.gie
Register notice of such determination or decisiop, including reasons tar.
therefor
(c) (1) Certified low-noise-emission products shall be acquired by
purchase or lease by the Federal Government for use by the Federal
Government in lieu of other products if the Administrator of General
Services determines that such certified products have procurement costs
which are no more than 125 per centum of the retail price of the least
expensive type of product for which they are certified substitutes.
(2) Data relied upon by the Administrator in determining that a
product is a certified low-noiee einission product shall be incorporated
in any contract for the procurement of such product.
(d) The procuring agency shall be required to purchase available
certified low-noise-emission products which are eligible for purchase
to the extent they are available before purchasing any other products
for which any low-noise-emission product is a certified substitute.
In making purchaising selections between competing eligible certified
low-noise-emission products, the procuring agency shall give priority
to any class or model which does not require extensive periodic main-
tenance to retain its low-noise-emission qualities or which does not
involve operating costs significantly in exc of those products for
which it is a certified substitute.
(e) For the purpose of procuring certified low-noise-emission Statutory prios
products any statutory price limitations shall be waived. liaitationp,
(f) The Aamini 4rator shall, from time to time as he deems appro- waiver.
priate, test the emissions of noise from certified low-noise-emission
products purchased by the Federal Government If at any time he
finds that the noise-emission levels exceed the levels on which certifi-
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88 STh?. i Pub. Law 92-574 - 14 - October 27, 1972
cation under this section was besed, the Administrator shall give the
supplier of such product written notice of this finding, issue public
notice of it. and give the supplier an opportunity to make necessary
repairs, adjustments, or replacements. If no such repairs, adjua-
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 shalt promulgate the procedures required
to implement this section within one hundred and eighty days after
the date of enactment of this Act.
JVDICLU. saviaw; WIT JES8ES
Sac. 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 flied 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
& ‘ P. 1 • 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 after such date if such 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 be 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 wits not available
at the time of the proceeding before the Administrator of such .tgenev
or Administration (as the case may be). the court may order such
additional evidence and evidence in rebuttal thereofl to be taken
before such Administrator, and to be adduced upon the hearing, in such
manner and upon such terms and conditions as the court may deem
proper. Such Administrator may modify his findings as to the fads.
or make new findings, by reason of the additional evidence so taken.
and he shall file with the court such modified or new tindings. and li s
recommendation. if any. for the modification or setting 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 the
reviewing court determines that the party seeking such stay is (1)
likely to prevail on the merits in the review proceeding and (.i)
will suffer irreparable harm pending such proceeding.
Subpus. 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 oaths. Witnesses summoned shall be paid the same fees anal mileage
that are paid witnesses in the courts of the United States. In canes of
contumacy or refusal to obey a subpena served u on any person under
this subsection. the district court- of the United States for any district
in which such person is found or resides or transacts business, upon
application by the Inited States and after notice to such person,
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October 27, 1972 - 15 - Pub. Law 92-574
66 ST&TI 2248
shall have jurisdiction to issue an order requiring such person to appear
and give testimony before the Administrator, to appear and produce
papers. books, and documents before the Administrator, or both, and
any failure to obey such order of the court may be punished by such
court as a contempt thereof.
RAILROAD NOISE EMISSION STANDARDS
Sac. 1 ’. (a) (1) Within nine months after the date of enactment Regulations.
of this Act, the Administrator shall publish proposed noise emission
regulations forsurf ce 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.
( ) Within ninety days after the publication of such regulations as
may be proposed under paragraph (1) of this subsection. and subject
to the provisions of section 16 of this Act, the Administrator shall
prornulgte 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
ecretary of Transportation in order to assure appropriate considera-
tion for safety and technological availability.
4) Any regulation or revision thereof promulgated mder this
subsection shall take effect after such period as the Administrator finds
iieeessarv. after consultation with the Secretary of ‘t ansportation.
to permit the development and application of the requi technology,
giving appropriate consideration to the cost of compliance within
such period.
(b) The Secretary of Transportation. after consultation with the
Adniin ist rator. 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 Coin- 27 Stat. 531.
merce Act. and the Department of Transportation Act. Regulations 45 USC 1.
promulgated under this section shall be subject to the provisions of 24 Stat. 379.
sections 1( . 11. 1’2. and 16 of this Act. 49 USC preo. 1
(c) (1) Subject to paragraph (‘2) but notwithstanding any other not e.
provision of this Act. after the effective date of a regulation under 49 USC 1651 te.
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 en oree 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.
( ) 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, regula-
tion, or restriction is necessitated by special local conditions and is not
in conflict with regulations promulgated under this section.
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66 1249 Pub. Law 92-574 - 16 - October 27, 1972
(d) The terms “carrier” and “railroad” as used in this section
shall have the same meaning as such terms have under the first section
36 Stat. 913; of the Act of February 17, 1911 (45 U.S.C. 22).
43 Stat. 659.
MOTOR C P1 NOISE EMISSION STANDaRDS
Regulattoss. Sac. 18. (a) (1) Within nine months after the date of enactment
of this Act, the Admini rator 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
undersection 6o1 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 subeection.
(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 effect 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-
24 Stat. 379. tion authorized by the Interstate Commerce Act and the Department
49 C reo. of Transportation Act. Regulations promulgated under this section
931 shill be subject to the provisions of sections 10, 11, 12, and 16 of this
49 . • Act
(c) (1) Subject to paragraph (2) of this subsection but notwith-
standin g any other mvision 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 Stat, 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 duninish 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 nditions 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-1 6
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October 27, 1972 - 17 - Pub. Law 92-574 STAT
and a private carrier of property by motor vehicle as those terms are
de ned byparagraphs (14), (15), and (17) of section 203(a) of the
Interstate Commerce Act (49 U.S.C. 303(a)). 49 Stat. 545;
54 Stat. 920;
& JTKO1IZATION OP APPBOPRZATION S 71 Stat • 411.
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 $6,0( ) for the fiscal year ending June 30, 1914; and
$12,000,000 fOr the fiscal year ending June 30,1975.
Approved October 27, 1972.
LEGISLATIVE HISTORVi
UJSE P0ffl No. 92 —842 (Cciiri. on Inter state and Foreign Czeaere.).
SENATE REPORT No. 92—1160 soa tps ing S. 3342 (cm, on P ib1ta Worki).
COWRESSIONAL Vol. 118 (l972)s
Feb. 29, oonaidersd end psssed House.
Oat. 12, 13, oo, id.r,d end passed Se , t., enended, in lieu of S. 3342.
Oat. 18, House oonourred in Sez t. ener .ut, with an em.ndeentj
Se t. oomurred in House enendeent.
WEW Y C 1PIL.ATI0N OF P ID2iTIAL DOCUMENrS, Vol. 8, No. 44z
Oat. 28, Preeid.nti&1 stateut.
0
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 the o1se Control Act of 19T2 for one year. and for Nov. 8. l9 ’8
oUler purposes. [ S. 30831
Be it eiuictul Fiy the &is.it tlhd House of Nepiusu’ntu’t”rts of the
Unikd States of A nu rica LU Con greu as8ernbkd, That this Act may wet
be cited as the “Quiet Comniunities Act of 1978”. ( ommuaiues Act
SEC. ii. Section 14 of the Noise Control Act of 197 is amended to of 197k.
read as follows: 42 USC ’4901
note.
QUIET COMMUNITIES, RESEARCU. FUBUC LNFORM.’,TIOX 42 USC 4QJ 3.
‘SEc. 14. To promote the development of effective State and local
noise control ptog1 iiis. to pro ide an adequate Federal noise control
research program tlcsigned to meet the objectives of this Act, and to
otherwise carry out the policy of this Act, the Administrator shall.
in cooperation with olier Ft’deral 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 t ’ltects of noise and the most effective means for noise con-
trol. through the use of materials for school curricula, volunteer
organizatiomi . radio and television programs, publication, and
other n ieaii :
“ bi con t or finance research directly or with any public
•r private organization or any person on the effects, measurement,
.‘ mmd coin rot of noise. including but not limited to—
(1) invest ignrion 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:
(i?) investigation, development, and demonstration of
noise control technology for products subject to possible
regulation under sections 6.7. and 8 of this Act:
(31 invest igation. 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
( ) 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) identifying and determining the nature and
extent of the noise problem within the subject jurisdic-
tion;
35.135 0. 15 u532 1
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92 STAT. 3080 PUBLIC LAW 95-609-—NOV. 8, 1978
(B) planning, developing, and estahli hing a noise
control capacity in such jurisdiction, including piitchas-
lug initial eqUi )flieflt;
“(C) developing abatement plans for areas around
major tran portatiou facilities including airports, high-
voys. and tail 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 (lenionst i ’it-
ing the best available techniques in such jurisdiction
(2) purchase of monitoring and other equipment for loan
to State and local noise control pro ranis to meet special
needs or assist in the beginning inip mentation of a noise
control program or project;
(3) development, and implementation of a quality assur-
ance program for equipment and monitoring proce ures of
State and local noise control programs to help communities
assure that their data collection activities are accurate;
“(4) 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 and training materials
and programs, including national and regional work hiops.
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;
“(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 State 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 tinder
this section of senior citizens and persons eligible for participa-
42 USC 3001 tion in programs under the Older Americans Act.”.
note. SEc. 3. The fourth sentence of section 611(c)(1) of the Federal
Aviation Act, as amended by section 7 of the Noise Control Act of
49 USC 1431. 1972, is amended 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 regdlations”.
D-19
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PUBLIC LAW 95-609—NOV. 8. 1978 92 STAT. 3081
Sw. 4. Section 11(a) of the Noise Control Act of 197 is amended 42 USC 4910.
by inserting ‘(1)” after “(a)” and by adding the following new
paragraph:
“(2) Any person who violates paragraph (1). (3), (s), or (6) of Penalty.
subsection I a) of section ii) of this Act shall be subject to a civil
penalty not to exceed SitJ . N NI per day of such violation .
Sac. . Section 6 of the Noise Control Act of 197 is amended by 42 (‘SC 4905.
atliling the followjziir subsection:
I At any time after the promulgation of regulations respecting
a product uiith r tlai . tiun. a State or political IiI51jVI 5i()fl thereof
mac petition the Adiuini’—sratnr to r€vise such standard on the
grounds that a more stringent standard under subsection Ic) of this
settiolt is necessary to protect the public health and welfare. The Notice.
. tlniini ’ tration hahl publish notice of reeeij)i Of —tub petition in the publication in
Federal Register and shall within ninety days of receipt of such peti- Re iater
non respond by 1) publication of pr pos d revised regulations in
aerorilanee with subsection (c) :t) of tins eetion. or (21 publication
in the Federal Register of a decision not to pnhh-hi suuih proposed
revised reirulations at that time. together with a detailed explanation
for uiclt deeision.’.
SEC. tL Section 19 of the Noise Control Act of 1972 is amended to 42 USC 4918.
reatl as follows:
%tTflORiZATiO OF .%PPROPRi) T!OSS
•Si u. 19. There are authorized to be appropriated to carry out this
Act (other than for research and development) 1 .0th).OO0 for the
tiscal year ending September 30. 1979.”.
Sac. 7. (a) Section 100f2(a)(4) of the Solid Waste Disposal Act is 42 USC 6901.
amended by deleting the hyphen between 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 J aragraph (8) by striking out everything alter
‘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— Selid wuse
“(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 including hazardous wastes. whether
such facility 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 I V” and inieiting in lieu thereof “subtitle I)”.
(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”.
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92 STAT. 3082 PUBLIC LAW 95-609—NOV. 8, 1978
42 USC 6922. (f) Section 3002 of the Solid Waste I)isposal Act is amended by—
(1) revising paragraph (5) by striking out the semicolon after
“subtitle” and substituting a comma. and by striking out “and”
and inserting in lieu thereof “or pur uant to title I of the Marine
33 Usc 1411. Protection. esearch. and Sanctuaries Act ( 6 Stat. 1 2) : and”;
and
( revising paragraph ((i) 1w adding a close parenthesis after
“subtitle” the first time it appears.
42 USC 6923. (g) Section : 1)03 iif the Solid Waste l)isposal Act is amended by—
(1) revising subsection (a) (4) by striking out the period after
“subtitle” and substituting a comma. and by adding at the end
thereof “or pursuant to title I of the Marine Protection. l esearcli.
and Sanctuaries Act (86 Stat. 105 ).”: and
) revi—ing subsection 4 h) by striking out “subtitle” after
“the regulations promulgated by the Administrator under this”
and inserting in lieu thereof “section”.
42 USC 6925. ( Ii) ( ‘CtiOTt 3005 (a’) of the Solid Wa ’te 1)ispnsal _ ct is amended
by inserting “treatjiwnt. storage. n m” after “and 11p0 1 1 and after such
date the”.
42 USC 6926. (i) Se tion %l)06(c) of tin.’ Solid Waste 1)isposnl .tct is amended
by—
(I) striking omit “required for” wherever it appears in the sub-
sect ion and in emt lug in I jell thereof “of”: and
(2) inserting the word “may” immediately after “3I .’. •ii .i l
before “sILI )l )lit”.
42 USC 6927. j ) Seitiomi 3 0 07(a) (1) of the Solid Waste I)isposal . ct is ai,iemale’il
by striking omit “or disposed of” and inserting in lieu thereof “disposed
of. or trnns 1 morted from”.
42 USC 6928. (k) Section 3008 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 (86 Stat. 1052),”: and
( ) revising subsection (d) (2) to read as follows:
( ) treats, stores, or disposes of any hazardous waste identified
or listed under this subtitle without having obtained a permit
under section 3005 (or 301)6 in the case of a State program) or
pursuant to title I of the Marine Protection. Research, and
Sanctuaries Act (86 Stat, 1052).”
42 USC 6947. (1) Section 4001(C) of the Solid Waste Disposal Act is amended
by redesignating subsection “(C)” as’ (c) “.
USC 6961. (m) Section 6001 of the Solid Waste Disposal Act is amended h
inserting “or management” between “disposal” and “of solid waste”.
42 USC 6962. (n) Section 6002 of the Solid Waste Disposal Act is amended by—
(1) deleting “(A)” after “(1)” in subsection (c) andchan ing
“(B)” and “(C)” to “(2)” and “(3)”. respectively: and
changing “(i)”. “(ii)”, and “(ui)” to “(A) ”. “(B)”, and”(C)”.
resj)ectlvelv;
(‘2) in subsection (c) (3) as redesignated. striking “Contract.
ing” and inserting in lien thereof “After the date specified in
any applicable guidelines prepared pursuant to subsection (e)
of this section. contracting”; and
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PUBUC LAW 95-609—NOV. 8, 1978
92 STAT. 3083
(3) inserting in the second sentence of subsection (e) after
containing such materials” the phrase “and with respect to cer-
tification by vendors of the percentage of recovered materials
used,”. —
(o) Section 6004 of the Solid Waste Disposal Act is amended 42 USC 6964.
(1) revising subsection (a) (1) (A) by striking out “disposal”
and inserting in lien thereof ‘inanagenient”;
(2) revising subsection a) (1) (B) by striking out “disposal”
and inserting in lieu thereof nianagement”; and
(3) revising subsection tb) by striking out “Secretary” and
inserting in lieu thereof “Administrator”.
(p) Section 1002 of the Solid Waste Disposal Act is amended 42 USC 6972.
by—
(1) revising subsection (c) by striking out “section 212” and
inserting in lieu thereof subtit)e C”: and
(2) revising subsection (e) by striking out “requiring” and
inserting in lieu thereof “require”.
(q) Section 7003 of the Solid Waste Disposal Act is amended 42 USC 6973.
by striking out “for” before “contributing to the alleged disposal”.
(r) Section 7007 of the Solid Waste Disposal Act is amended 42 USC 6977.
by—
(1) revising subsection (b)(1)(A) by striking out “disposal”
and inserting iaanaget lient ; and by striking out “resources”
and in tting resour e:
2) revising uisection (b) (1) (B) by striking out disposal”
a**tl insert ing iaanagement ; and
*3) revising subsevtion (c)(3) by striking out “disposal” and
inserting nianageinent’ in lieu thereof.
(s) Section 8001(a) of the Solid Waste Disposal Act is amended 42 USC 6981.
l,v—
(1) revising nrnigniph 2) by striking out disposal and
inserting u *anageiuent ” in lien thereof; and
( ) revising pafltgra )l1 13) by inserting treatnient,” after
for purpose of’.
(t) Sevtion S0O of the Solid Waste Disposal Act is amended 42 USC 6982.
hv—
(1) revising paragraph 1) of subsection (g) by inserting a
voinina between sliale and ltquefaction”;
revising paragraph (1) of subsection j) by inserting
he S.ct reiary of Energy. the Chairman of the Council of Eco-
noiiaie Ailvisors? before antl a representative of the Office of
. 1zinagement and uiKl*ret: ;
(3) revising paragraph (2) of subsection (j) by striking (2)
tDY’ anti insert lng’(l) (D) ’ in lieu thereof;
(4) revising paragraph 3) of subsection (j) by striking (2)
(D) and utserting(1) inlieuthereof;and
(3) revising subseenon (1) by striking out “required under
subsection (a), 0*), (i) and j) and inserting in lieu thereof
under .ubseetions In). iii), and (i)”.
(u) Section 8003(a) (3) of the Solid Waste Disposal Act is 42 USC 6983.
;tincnded by striking out discarded materials” and inserting solid
waste in lieu thereof.
0-22
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92 STAT. 3084 PUBLIC LAW 95-609---NOV. 8, 1978
42 Usc 6984. (v) Section s004(a) (1) of the Solid Waste l)ispo al Act
titiciuk.! by .ti’ikiiig out di carded inatciiar and insetting dil
waste” in lieu thereof.
Aircraft noise Sxc. 8. (a) The Secretary of Transportation and the Ailrnini trator
effects. joint of the Enviroitittental Protection Agency shall oiiitIy study the air-
study. craft ilOi .e etlects front an airport on coinniunitles located in a State
49 USC 1431 other than the State in which the airport is located. The criteria to
note, be used in selecting the airport to be studied shall include:
1) the airport shall be operated by a State. a unit of zettral
purpose local government of a State, or a special purpose entity
constituted for the purpose of operating an airport, and
( ) the airport shall have a point on the airport boundaiv
within one nautical mile from a State boundary, and
(3) the airport shall have had in excess of sixty thousand
scheduled air carrier departures during the preceding calendar
year.
(b) The .tudy & .hi ll be conducted in cooperation with tlit’ aiI’l)ort
operator, appropriate Federal, State, and local officials, and the ippro-
priate Metropolitan Planning Organization.
Report to (c) The Secretary and the Administrator shall prepare and submit
Congress. to Congress a report within nine niouths 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—875 (Comm. on Environment and Public Works).
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
D-23
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APPENDIX E
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I. FEDERAL AGENCY NOISE CONTACTS
Environmental Protection Agency
Office of Administrator
Washington, D.C. 20460
Administrator, Douglas M. Costle (202) 755-2700
Deputy Administrator, Barbara Blum 755-2711
Acti ng Assi stant Admi ni strator for Enforcement, 755-2500
Jeffrey G. Miller
Assistant Administrator for Air, Radiation, 755-2640
and Noise, David G. Hawkins
Acting Deputy Assistant Administrator for Mobile 755-2530
Source and Noise Enforcement, Richard Kozlowskl
Assistant Director, Office of Public Awareness - 775-0720
Air, Noise & Radiation, Inez Artico
Noise and Radiation Enforcement Division
Crystal Mall Building 2
Arlington, VA 22202
Director, Martha G. Prothro (703) 557-7470
Office of Noise Abatement and Control
Crystal Mall Building 2
Arlington VA 22202
Deputy Assistant Administrator for Noise (703) 557-7777
Control Programs, Charles. 1. Elkins
Scientific Assistant to the Deputy Assistant 557-7305
Administrator, Rudolph M. Marrazzo
Director, Plans and Program Staff Coordinator, 557-7600
John F. Degan
Director, Standards and Regulations Division, 557—7743
Henry E. Thomas
Di rector, Technology and Federal Programs
Division, John C. Schettino 557-7750
E—1
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557-7695
Region I, Al Hicks
(Connecticut, Maine, Massachusetts,
New Jlampshire, Rhode Island,
Vermont)
Room 2113, JFK Federal Bldg.
Boston, MA 02203
(617) 223—5709
Region II, Tom O Hare
(New Jersey, New York
Rico, Virgin Islands,
Room 907G, 26 Federal
New York, NY 10278
(212) 264—2109,2110
Region III, Patrick Anderson
(Delaware, District of Columbia,
Maryland, Pennsylvania, Virginia
West Virginia)
Room 225, Curtis Bldg.
6th & Walnut Streets
Philadelphia, PA 19106
(215) 597—9118
Region IV, James Orban (Acting)
(Alabama, Florida, Georgia,
Kentucky, Mississippi, North
Carolina, Tennessee)
Room 109, 345 Courtland St.N.E.
Atlanta, GA 30308
(404) 881-3067
Region V, Horst Witschonke
(Illinois, Indiana, Michigan,
Minnesota, Ohio, Wisconsin)
230 S. Dearborn St.
Chicago, IL 60604
(312) 353—2202
Region VI, Mike Mendias
(Arkansas, Louisiana, New Mexico,
Oklahoma, Texas)
First International Bldg., 1201
Elm Street
Dallas, TX 75270
(214) 767—2742
Region VII, Fred Brown
(Iowa, Kansas, Missouri, Nebraska)
324 East 11th Street
Kansas City, MO 64106
(816) 374—3307
Region VIII, Larry Svoboda (Acting)
(Colorado., Montana, North Dakota,
Utah, Wyoming)
Suite 900, 1860 Lincoln St.
Denver, Co 80295
(303) 837—2221
Region IX, Dr. Richard Procunier
(Arizona, California, Hawaii, Nevada,
American Samoa, Guam, Trust Territories
of the Pacific Islands, Wake Island)
215 Frenont Street
San Francisco, CA 94105
(415) 556—4606
Region X, Helen Baer
(Alaska, Idaho, Oregon, Washington)
1200 Sixth Avenue
Seattle, WA 98101
(206) 442—1253
Director, State and Local Programs Division,
John M. Ropes
Envirornental Protection Agency Regional Office Noise Contacts:
EPA Regional Noise Program Chief
, Puerto
Canal Zone)
Plaza
E-2
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DEPARTMENT OF AGRICULTURE
Rupert Cutler (202)447-6827
Coordinator of Enviromnental Quality Activities
Office of the Secretary, U.S. D pt. of Agri-
culture
Administration Bldg., Room 307A
14th & Independence Ave., S.W.
Washington, D.C. 20250
Darwin Brlggs (202)447-3965
Assistant Director for Land Use Coordination
Office of the Secretary
U.S. Dept. of Agriculture
Administration Bldg., Room 4l2A
14th & Independence, S.W.
Washington, D.C. 20250
DEPARTMENT OF COMMERCE
Dr. Sidney R. Galler (202)377-4335
Deputy Assistant Secretary for Enviromnental
Affairs, Dept. of Co.mnerce
Room 3425, 14th & Constitution Ave., N.W.
Washington, D.C. 20230
Dave Pallett, Group Leader (301)921-3381
National Bureau of Standards
Industrial Acoustics
DEPARTMENT OF DEFENSE
George Marienthal (202)695—0221
Deputy Assistant Secretary for Energy, Environ-
ment and Safety, OASD, Dept. of Defense (I & L)
Room 3-E 784, Pentagon
Washington, D.C. 20301
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
Charles Custard (202)472—9740
Di rector of Envi rorinental Affairs
Dept. of Health, Education and Welfare
Room 537F, 200 Independence Ave., S.W.
Washington, D.C. 20201
E—3
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Richard H. Broun (202)755—6300
Director, Office of Envirormier tal Quality,
Dept. of Housing and Urban Development
Room 7276, HUD Bldg., 451 7th St., S.W.
Washington, D.C. 20410
DEPARTMENT OF THE INTERIOR
Bruce Blanchard (202)343—3891
Director, Office of Environmental Project
Review, Dept. of Interior
Room 4256, 18th & C Streets N.W.
Washington, D.C. 20240
MINING ENFORCEMENT AND SAFETY ADMINISTRATION
Aurel Goodwin (703)235—8307
Chief, Mine, Safety and Health Administration
(metal and non-metal mines),
Room 732, Baliston Tower #3, 4015 Wilson Blvd.
Arlington, VA 22203
Joseph A. Lamonica (703)235—1358
Chief, Mine, Safety and Health Administration
(coal mines),
Room 832, Baliston Tower #3, 4015 Wilson Blvd.
Arlington, VA 22203
DEPARTMENT OF JUSTICE
Barbara Spurlock (202)633—4244
Administrative Services Specialist
Property Management and Procurement Staff
Justice Management Division, Dept. of Justice
Room 8114, 10th & Pennsylvania Ayes., N.W.
Washington, D.C. 20530
DEPARTMENT OF LABOR
Dr. Ballus Walker (202)523—7075
Director, Directorate of Health Standards Pro-
grams, Occupational Safety & Health Admin-
istration, Department of Labor
Room N 3718, 200 ConstitutIon Ave., N.W.
Washington, D.C. 20210
E-4
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DEPARTMENT Of STATE
Dr. Don King (202)632-9278
Office of Environment and Health
Department of State
Roam 782D
Washington, D.C. 20520
DEPARTMENT OF TRANSPORTATION
Martin Convisser (202)426-4357
Director, Office of Environment & Safety
Department of Transportation
Room 9422 (P-2O), 400 Seventh St., S.W.
Washington, D.C. 20590
FEDERAL AVIATION ADMINISTRATION
John E. Wesler (202)426-3030
Director, Office of Environment and Energy
Federal Aviation Administration
Room 939 (AEE-1), 800 Independence Ave., S.W.
Washington, D.C. 20591 -
Dr. John 0. Powers (202)426—8406
Chief Environmental Scientist
Office of Envi ronment and Energy
Federal Aviation Administration
Room 828 (AEE-3), 800 Independence Ave., S.W.
Washington, D.C. 20591
James Densmore (202)426-8406
Chief, Noise Abatement Division
Office of Environment and Energy
Federal Aviation Administration
Roam 838 (AEE-lO0), 800 Independence Ave., S.W.
Washington, D.C. 20591
FEDERAL COMMUNICATIONS COMMISSION
Norman Blumenthal (202)632-6990
Assistant General Counsel for Research
Office of the General Counsel
Federal Communications Commission
1919 M Street N.W.
Washington, D.C. 20554
FEDERAL ENERGY REGULATORY COMMISSION
Dr. Jack Heinemann (202)357—8228
Director, Division of Energy, Technology and
Envi ronment
Federal Energy Regulatory Commission
Room 3000, 825 N. Capitol St., N.E.
Washington, D.C. 20426
E-5
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GENERAL SERVICES ADMINISTRATION
Andrew E. Kauders (202)566-0405
Director of Environmental Affairs
General Services Administration
GSA Bldg., Room 2321
18th & F Streets N.W.
Washington, D.C. 20405
Bryce Frey (202)557-5377
Director of Automotive and Tools Division (FREA)
General Services Administration
Room 903, Crystal Mall Bldg. 4
Washington, D.C. 20406
NATIONAL ACADEMY OF SCIENCES
Dr. Milton A. Whitcomb (202)389-6505
Study Director, Committee on Hearing,
Bloacoustics, and Biomechanics
National Academy of Sciences
2101 Constitution Ave., N.W.
Washington, D.C. 20418
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Ray Colladay (202)755-2400
Manager, Advanced Propulsion Division
Office of Aeronautics and Space Technology
National Aeronautics and Space Administration
Room 626, NASA Headquarters
600 Independence Avenue S.W. (Mail Code: RJP)
Washington, D.C. 20546
Dr. Gordon Banerian (202)755-2395
Chief, Noise and Pollution Reduction Branch
Advanced Propulsion Division
Office of Aeronautics and Space Technology
National Aeronautics and Space Administration
Room 647, NASA Headquarters
600 Independence Ave., S.W. (Mall Code: RTP—6)
Washington, D.C. 20546
NATIONAL SCIENCE FOUNDATION
Dr. Morris Ojalvo (202)632-5867
Program Director, Director for Particulate and
Multiphase Processes Program
National Science Foundation
Room 413
Washington, D.C. 20550
E—6
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DEPARTMENT OF THE TREASURY
Anthony V. DiSilvestre (202)376-0289
Assistant Director, Environmental Programs
Office of Administrative Programs
Department of the Treasury
Washington, D.C. 20220
CIVIL AERONAUTICS BOARD
Larry Aurbach (202)673-5858
Envi ronmental Attorney,
Civil Aeronautics Board
Bureau of Operating Rights
Room 906, Universal Bldg.
1825 Connecticut Avenue N.W.
Washington, D.C. 20428
CONSUMER PRODUCT SAFETY COMMISSION
Dr. Albert Esch (301)492-6415
Medical Director, Consumer Product Safety
Commission
Room 512, 5401 Westhard Avenue
Bethesda, Md. 20207
William S. West (301)492—6490
Deputy Director, Engineering Science
Consumer Product Safety Commission
Room 746, 5401 Westbard Avenue
Bethesda, Md. 20207
COUNCIL ON ENVIRONMENTAL QUALITY
Robert B. Nicholas, senior staff member, (202)395—4980
environmental health and toxic substances
Michael Kane, staff member, transportation
Council on Environmental Quality
722 Jackson Place N.W.
Washington, D.C. 20006
DEPARTMENT OF ENERGY
L. Joe Deal (301)353—4093
Chief, Environmental Protection Branch
Division of Operational and Environmental
Safety
Department of Energy
(E-201)
Washington, D.C. 20545
E-7
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Carl Welty (301)353-5642
Physical Scientist
Environmental Protection and Public Safety
Branch
Division of Operational and Environmental
Safety
Department of Energy
Washington D.C. 20545
OFFICE OF MANAGEMENT AND BUDGET
James Tozzi (202)395-6827
Natural Resources Division
Office of Management and Budget
Room 8222, New Executive Office Bldg.
726 Jackson Place, N.W.
Washington, D.C. 20503
U.S. POSTAL SERVICE
John N. Wiernickl (202)245-4242
General Manager, Design Management Division
Office of Design and Construction Management
Real Estate and Buildings Department
U.S. Postal Service
Room 8773
475 L’Enfant Plaza West
Washington, D.C. 20260
Donald Fitzwater (202)245-4686
Program Manager, Accident Prevention Branch
U.S. Postal Service
Room 9748, 475 L’Enfant Plaza West.
Washington, D.C. 20260
VETERANS ADMINISTRATION
William N. Brooks (202)389-2761
Chief, Safety, Occupational Health, and Fire
Protection Division
Department of Medicine and Surgery
Veterans A n1 ni strati on
Room 615 G, 810 Vermont Ave., N.W.
Washington, D.C. 20460
Chester R. Julian (202)389-2197
Technical Services Division (Environment)
Veterans A ni ni stratlon
Room 611-1, 810 Vermont Ave., N.W.
Washington, D.C. 20410
E8 MJ.S. GOVERNMENT PRINTING OFFICE: 1981 341-082/218 1-3
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