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Administrative Conference of the United States The Dormant Noise Control Act And Options to Abate Noise Pollution Sidney A. Shapiro Rounds Professor of Law University of Kansas Conference Consultant (November 1991) This reportwaspreparedfortheconsiderationoftheAdminiatraliveConferenceof theUnitedStates, The viewsexpressedarethoseoftheauthoranddonot necessarilyrefleelthoseof themembersof theConferenceoritscommitteesexceptwhereformalrecommendationsoftheConferenceareciled. i INTRODUCTION , I I,NOISE A_BATEMENT IN THE UNITED STATES 2 A, Nois_AbatemenPrt iorTo ONAC 2 B. NoisaAbatemenDurt ingONAC 4 1. Regulation of Noise Emissions 4 2 ProductLabeling 6 3. Low-Noise-EmissionProducts 7 4. Coordinationof Noise ReductionActivities 7 5. Assistanceof Stainand LocalNoise Control 9 6. Noise Educationand Research 10 C, Noise AbatementAfter ONAC I0 I.ONAC's Loss of Funding II 2. Revocation of Pending Standards 12 3. Enforcementof Existing Regulations 13 4. UpdataoPExisting Regulations 14 5. Coordination, Education,andResearch 16 6. State and LocalRegulation 17 i 7. PrivateRights of Action 18 D. The Current Statusof Noise Abatement 21 If,OPTIONS FOR STATE AND LOCAL NOISEABATEMENT 23 A, Why State and Local RegulationDeclined 23 I.Infrastructure Support 24 2, LocalDisincentives 25 3. Federal Preemption 27 C. PolicOpy tions 29 1. InfrastructureSupport 29 2. Preemption 32 III.OPTIONS FOR FEDERAL NOISEABATEMENT 34 A. CongressionOapltions 34 I. ThePu[uro¢ftheNCA 34 2, Location of RegulatoryAclivities 34 B. EPA's Options 35 1. Risk Assessmentand Management 36 a. MarketForces 36 b. State and Local Regulation 39 c. EPA Discretion 39 d. DecisionmakingProa_ures 41 2, Coordinationand OversightFunctions 41 IV, CONCLUSION 45 ,% INTRODUCTION • ,. t In early 1981, the'Director of the Office of Noise Abatement and Control (ONAC) at the EnvironmentalProtection Agency(EPA) was informedthat the White HouseOffice of Management and Budget (OMB) had decidedto end fundingof ONAC and that the matterwas non-negotiable1. Congress' eventual acquiescencein OMB's action was, and remains, unique. Of the twenty-eight environmental and health and safetystatutes passedbntween 1958 and 1980,2 the Noise ControlAct of 1972 (NCA)a standsalone in b_thgstripped of budgetarysupport. r Since Congress did not repealthe NCA when it eliminatedONAC's funding, EPA remains " legally responsible for enforcingthe regulationsit issued under the Act, but without any budget supportlegislatedfor that purpose. Moreover, althoughsome of the regulationsare now outof date, and others may be inadequate, EPA's lack of budgetary support effectively prneludes their amendment. Since the NCA preemptslocalandstate governmentsfrom regulatingnoise sources in many situations, these levels of government may not be able to step into the void created by Congress' decision notto fundEPA. This report considers the futureof noise abatement in the United States and what role EPA should play in that function. Part1 dascrihes rite history of noise abatement in the United States before ONAC was created, duringits tenure, and after its abolition. Part lI evaluatas therole of local and state governments in noise reductionand EPA's relationship to such efforts. Part III assesses the role of the federalguvornmentand EPA in noise reduction. Thereport concludesthat it wouldbe unfortunatefor Congressto maintainthe status qua where EPA has ongoing legal duties, hutit has no fundingto carryingthem out. AlthoughCongresscould eliminate the federalgovernment'sresponsibilitiesfor noise abatement,the NCA, with modifications, should remain in force. This doesnot mean, however, that EPA should merelypick up whereit left off 10years ago. Insteadof relyingprimarilyonemissions controls as it didpravioasly, EPA should emphasize abatement approachesthatrely on local and state activity, on marketincentives, and on coordinationwith other agencies, private standard-settinggroups, and regulatory agencies in other countries. I{m=rvicw wah CharlesElkinL Alfiliant Io $h¢G©n¢rmCl ounsm},EPA, in Wishinelon, DC (Nov. 19, 1990). a_e C. SUNSTEIN, A{_TERTHE RIO}ITSREVOLUTION: RECONSTRUCTING THE REGULATORY STATE 2"/ 0990) (li6tinc lhc _lltut¢i). 3Noi**:Poaullon ind At:if©meritAct of 1972,Pub. L. No, 92.S74. S6su:1. 1234 0972] t¢odificd ,_ *,m_ndcda142 U.$.C. I§4901- 491S (19SS). 7 SIDNEYA, SHAPIRO 2 I. NOISE ABATEMENT IN THE UNITED STATES '_ .... t Noiseabatementhes"eomealmostfull circleIn theUnitedStates.Priortothe1970s,therewas almostno governmentaacl tivitaddy ressedtonoisepollutionDur, ingthe1970s,allthreelevelofs government were active in abating noise. Since 1981, when ONAC lost its funding, the level of activity at all three levels has been algalfieantly reduced, and although it is greater than prior to the 1970s, It Is not significantly greater except in a few areas. This section describes the roller coaster history of noise abatement in this country and its likely effect on the level of noise at this time. The analysis considers noise abatement prior to ONAC, during ONAC. and after ONAC. A. Noise Abatement Prior To ONAC In the 1960s, noise pollution was a distant cousin in the family of environmental issues and, as this history will relate, it has remained outside the mainstream of the environmental movement ever since. A massive public opinion survey taken in the early 1970s revealed that the public ranked noise pollutlon as a serious problem, d but noise control advocates were unable to develop the same type of organized constituency that developed to support clean air and water: One reason was that although "air and water pollution was shown actually to kill people." the supporters of noise control could not demonstrate a "direct cause and effect relationship" between excessive noise and death, e Advocates also lacked any dramatic illustrations of noise pollution similar to the Cuyahoga river catching on fire, nor did they have someone like Rechael Carson or Barry Commoner to popularize their cause. Because noise pollution Is produced by hundreds of types of sources, noise control proponents also found it more difficult to arouse public indignation against convenient corporate targets in the way that other environmentalists attacked the automobile industry or chemical manufacturers. 7 Finally, edvocutcs had trouble generating wide-spread support because of the incidence of noise pollution. Whereas air and water pollution normally affect large areas, only a small proportion of the people in a city or state may be burdened by particular sources of noise, and that burden may have been imposed on them by the other residents who wished to obtain the benefit of a highway, airport, or Industry# Despite these handicaps, noise control advocates made some headway starting in the late 1960a. Prior to that time, local noise regulation was b_aed on legislation or ordinances that prohibited "excessive or unusual" noise, wbich were difficult to enforce because of their subjective character. 9 Once ponuble noise measuring equipment became available. 1o local and state 4In a 1973 naUonU surv©r or houling nnd nclghborhcod conditthns hy th©Deparlment of noullng nnd Urals Ocvelopmenh men!el noi_ w*l cited by 34 percent or the 60,000 _spondenl= a. a "condiUon° in the neighborhood, while 60 percent of tho_ _ponina the ¢ondiUon all it wnl *dimlurhina, hnffnrui, or dlnsemus,' and IS pore=hi fell that il wa__ "obje¢fionihle" that they would *llke to move. ° Add_mmBy Kenn¢th Eld_d, Noi_ AI Ti_e Y_ar 2000, Fias Inten_aUor_lCongrcm_On Nols= As An IntemaUor_l Problem. Sweden 0988))al9, SSer R. PAEH Ll'_, ENVIRONMENTALISM AND THE FUTURE OF PROGRESSIVE POLITICS (1989) td¢_:dbing orlgthmor the ©nvironmenlalmovam_ntl; C. eosso, pESTICIDES & POLITICS: TIle LWE CYCLE OF A PUBLIC ISSUE (19871(Mmch 6Hildcrbrnnd. Noise Pollution: ¢th Introducnon To _e Problem and .'In Outline For Futur# Legal Re_ear¢h, 70 COL. L, REV, 652, ass I1970), 7Sr_' WU_n, "The PoliUes or eeSulJUon," in THE POLITICS OF REGULATION 370 O. WU_n ed. 1980) (¢nvlronmenlil mOV¢lllenli¢l¢¢_¢dedby capitalizing on a erlaim,pulling oppnn_ntmon defensive by a¢cumhl a th_nl or had iota, lind hs Ilm_ialiflg Ualmlalinnwith widely heldwithes like Uean,liO, SL_tlet from Natal St=warl, Slew*n A¢o_mtieal Conmuhant.,to nJvld PrilZker, Adminimt_tiv¢ Confcr_n¢_ of the United Statem (ANUS) (MIr. i2, 1991), at 3. 'SLum.Ura¢ matropoth|n &ram=arc mor_ iikdy to have noi_ *bztemenl program= beeau_ i_oil¢ imp*¢tz* nmjorilyof the population. In otherareal wherethe impact imon I minority of the rcllaelltl, they find it dimcua to gel helpfrom Iceal aovernmentmwhich _r_ _rr_id of being di_dvanUtg©d in the competition for intl_l W by erc_tinc rcaul,Uon| thaiother jurisdieUon_ do not h_v¢, Id, 9Ftndl¢)'& PIsSer) State Regul_aon of Nontraraponation Noise: Law & T¢¢hnololO', 4S a. CAL. L. REV. 209, 254 0974). IOTel=phon¢Inlet'view with Fi_nk Gomez.PreUdenl.N_tin_l A_u_ci=tlonof Noa¢ Conlrol official, (NANCO) (Dec. S. lgg0). TIlE DORMANT NOISE CONTROL ACT 3 % governmentbegans topromulgatobejectivemisse ions]imitationsstated, as a maximum..numbofer • decibel(dsl_Y At aboutthesametime,Congresauthorizeds theFederalAviationAdministration (FAA) to regulateaircraftnoiseemissions12,enactedtheNationaEnvl ironmentaPollicyAct (NEPA)Js whichrequiredagenciesto assessnoiseimpactsas partqf environmentalimpact statementsan, ddirected EPA to establishONAC and to have It prep=irerecommendationsto Congresswithinl year for furtherlegislation,14 CongresspassedtheNCA afterreceivingthat reportsJ Congresacts eddespittheelackofsignificantorganizpedublicsupportfortworeasonsF.irst,