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Section Four of a seven-part article:
The Dormant Noise Control Act and options to abate noise pollution

C. Noise Abatement After Funding was Cut for the Office of Noise Abatement Control

EPA's noise abatement activities essentially stopped after ONAC lost its funding. State and local activities also declined. This section proposes an explanation for Congress' decision to eliminate ONAC'S funding and describes the status of noise control efforts after its elimination.

1. ONAC'S Loss of Funding

Although ONAC'S efforts were more successful in some areas than others, it had a record of accomplishment after the first decade of the NCA. ONAC promulgated four product and six transportation noise standards, but it was unable to complete work on standards for six other major noise sources. Although it made little progress in implementing product labeling or the LNEP program, ONAC was quite active concerning coordination, research and education, and support of local and state efforts. While this is a mixed record, it can not be said that it justifies elimination of the program. As noted earlier, government is a difficult business and most other health and safety programs have similar mixed records.

Despite the acceptable nature of ONAC'S performance, Congress eliminated funding for the program for three reasons. First, EPA told Congress that ONAC should be disbanded because an austere federal budget required that some current federal programs be eliminated, the benefits of noise control were highly localized, and noise control could be carried out by State and local governments without the presence of a federal program. (103) Why EPA's management acquiesced in OMB'S decision is unknown, but the decision is consistent with the general deregulatory attitude of Ann Gorsuch and other persons appointed by the Reagan administration to run EPA. (104) It is known that EPA's managers rejected a compromise to fund ONAC at a greatly reduced level. After OMB'S initial decision to end funding for ONAC, OMB officials agreed after meeting with lower level EPA officials to fund ONAC at the level of around $1 million to maintain the enforcement of existing regulations. But EPA's management rejected the compromise and decided to eliminate ONAC entirely. (105)

Second, ONAC lacked strong political allies. Those industries that originally supported the NCA in order to obtain federal preemption of conflicting local regulations had accomplished their goal. They told Congress that it could disband ONAC as long as it maintained their preemption. (106) Moreover, as noted earlier, (107) there has never been a well-organized constituency for noise control similar to interest groups supporting other types of environmental protection. (108)

Finally, ONAC might have survived if its critics had not had the garbage truck standard to kick around. In 1979, EPA promulgated a regulation that limited noise emissions from truck-mounted waste compactors. (109) Because the noise reduction was achieved primarily by requiring garbage trucks to run their engines more slowly when they compacted garbage, ONAC considered the standard to be a reasonable response to the problem of noise created when garbage is compacted. (110) Nevertheless, the standard was opposed not only by the regulated industry, which argued it was unnecessary, (111) but also by some local noise administrators, (112) and White House staff, (113) who agreed. ONAC fought back-contending that "if we had been talking about a chemical substance with similar effects, EPA would have regulated with more dispatch and vigor (114)-but it lost the battle when nationally syndicated columnist James Kilpatrick opined, "Metaphorically speaking, if you will forgive me, this is garbage." (115)

2. Revocation of Pending Standards

Once Congress accepted EPA's request that it stop funding ONAC, the agency had to decide what to do about products that had been identified as significant noise sources because the NCA obligated it to regulate any products so identified. (116) An EPA attorney warned that the agency could not merely withdraw the prior designations because "there is no evidence to suggest that the products in question no longer have the same effects on public health and welfare" recognized when the products were identified as requiring regulation. (117) EPA also rejected withdrawing the prior designations on the basis that state and local governments had shown that they were capable of regulating these products because this reason was outside its legal authority and possibly not true. (118) The agency finally decided to justify its actions on the basis that noise regulation should be temporarily abandoned because of reduced federal tax revenues. In December 1982, EPA withdrew the outstanding product identifications (119) and revoked the emissions standard for garbage trucks. (120) Although EPA was nervous about its deregulation rationale, there was no judicial review.

EPA's justification for its actions is dubious. While the courts will take agency resources into account in responding to citizen suits to enforce time deadlines for rulemaking, lack of resources is only relevant to the amount of additional time the court will give an agency to comply with a deadline--it does not excuse an agency from ever regulating. (121) It is difficult to believe that Congress intended that EPA could postpone indefinitely the deadlines specified in the NCA by the simple expedient of withdrawing prior designations because the agency did not consider noise pollution an important problem. After all, the reason that Congress established the deadlines in the first place was to force EPA to regulate in a timely manner. (122)

The Anti-Deficiency Act (123) prohibits government officials from making or authorizing an expenditure or obligation in excess of a congressional apportionment. (124) Although the act might be interpreted to prohibit EPA officials from spending money appropriated for other purposes on implementation of the NCA, EPA has apparently not accepted that interpretation and has continued to carry out certain activities related to the implementation of the NCA. (125) For example, in 1986, EPA amended its regulations regarding noise standards for trucks and motor carriers. EPA has continued its coordination and consultation activities with other federal agencies regarding noise and has continued enforcement activities, albeit at a limited level. EPA has continued to disseminate existing information and educational materials regarding noise control activities.

While EPA may not be prohibited as a legal matter from promulgating standards for the significant noise sources it previously identified, it is effectively prohibited from doing so by the lack of any budget for that purpose. To promulgate new standards, or even amend existing ones, EPA would have to divert agency personnel from other tasks, hire contractors, and absorb other expenses. There is no indication that EPA has sufficient budgetary flexibility to take this step.

3. Enforcement of Existing Regulations

Since revoking the pending standards, EPA's regulatory activity has been limited to enforcement of the existing standards, except for the amendment of two standards mentioned above. EPA's enforcement efforts have been hampered in two ways by the elimination of ONAC. First, the agency was forced to drop industry compliance reporting requirements for its product and labeling standards because it did not have any staff to implement them. (126) Lacking any compliance data, EPA can not say whether product manufacturers are abiding by its regulations. (127) Second, EPA has been slow to investigate and enforce existing regulations when violations have been found. For example, EPA has been investigating since 1987 approximately 18 hearing protection device labelers for a range of violations. (128) The investigation has been stalled because EPA has had to borrow staff from other responsibilities and because it has to develop procedures to assess civil penalties for violations of noise regulations. (129) The impact of EPA's limited capacity to enforce its standards is mitigated by the fact that the Department of Transportation (DOT) is responsible for enforcing the transportation noise standards promulgated by EPA. Unlike EPA, DOT has ongoing enforcement programs. Nevertheless, there may also be problems with DOT enforcement.

The Federal Railroad Administration (FRA), located in DOT, is responsible for enforcing EPA's railroad noise standards. It has discontinued routine noise inspections because the rate of compliance has been "extremely" high, (130) but the General Accounting Office (GAO) found that high compliance rates may be explained, in part, by the FRA'S practice of not citing any railroad that has made a good faith effort to correct a violation, even if the railroad is still in violation of the standard after the correction is made. (131) Moreover, an EPA official reports that he received a complaint from a person living near a railroad that the FRA could not do anything about loud, night-time noises because inspectors did not work at night. (132)

The Federal Highway Administration (FHWA), also in DOT, has likewise deemphasized enforcement of EPA's noise standards claiming high compliance rates and the burden of other inspection duties. (133) The GAO reports, however, that older trucks may be making excessive amounts of noise because of inadequate maintenance. (134) Moreover, a state noise control official reports that he was asked by local FHWA personnel not to refer any more noise complaints to them because they were under pressure from Washington to undertake different tasks. (135)

The extent of weaknesses in DOT enforcement, if any, is unclear. This does not mean, however, that the enforcement of transportation noise regulations has been unaffected by ONAC'S loss of funding. As the next section discusses, although EPA's railroad and motor carrier standards may need to be updated to protect the public adequately, EPA lacks the resources to undertake this task. ONAC'S loss of funding may have harmed the public in another manner. FHWA officials told GAO that source controls are "probably the most cost-effective" way to address traffic noise, but without new EPA regulations, DOT will continue to spend millions of dollars for the erection of noise barriers along federal highways. (136)

4. Update of Existing Regulations

ONAC'S loss of funding has had another effect besides restricting EPA's enforcement capacity. Because of a lack of funding, EPA can not update existing regulations that have become out of date or that are inadequate. Its labeling, railroad, motor carrier, and product standards may all be out of date.

EPA's noise protection labeling standard has become highly misleading. Scientific studies have demonstrated that persons wearing earplugs receive only 8 to 56 percent of the protection indicated by the Noise Reduction Rating (NRR) required by EPA, and that persons wearing earmuffs receive only 35 to 67 percent of the protection indicated by the EPA rating. (137) Recognizing these discrepancies, OSHA was forced to instruct its inspectors to assume that workers receive 50 percent less noise attenuation than indicated by an NRR. (138) An irony is that EPA has floundered for several years trying to force hearing protection manufacturers to comply with the existing labeling requirements. (139)

EPA's railroad standards also need updating. The FAA is powerless to protect some persons from railroad noise because there is no standard prohibiting noise emissions of certain operations, (140) existing standards are effectively unenforceable, (141) or because railroads have been able to exploit a loophole. An example of the latter problem has occurred in Boston where the FAA has been unable to prevent commuter railroads from running extremely loud engines (87 to 90 dB) all night long to keep heaters running in commuter passenger cars. (142) Even where the regulations are applicable, they may be inadequate. An EPA official explains that when the standards were developed, ONAC took into account the economic difficulty of the industry, and now that the industry's situation has improved, the standards may need to be reexamined. (143) Even if the regulations are not inadequate, they are written in a manner that makes them more difficult to perform. A FRA official points out that his agency could be more effective if EPA rewrote its standards to take advantage of the new noise measurement equipment that is now on the market. (144)

Similar problems have cropped up with the motor carrier regulations. For example, inspectors frequently can not perform stationary tests on heavily traveled highways because of high background noise levels, which make it difficult to obtain accurate readings of noise from individual trucks. (145) It is not clear whether EPA could create noise tests that are less time consuming and difficult to perform, but until it receives funding to implement the NCA, it is unable to seek such methods. (146)

Finally, EPA may be able to improve its product standards by switching to sound power as the metric to measure noise emissions. A scientist currently doing research in this field asserts that adoption of this method would improve the accuracy of the standards. (147) Use of this method would also make it possible to conform them to standards adopted by the European Economic Community (EEC) which rely on sound power measurements. (148) But an EPA official responds that current procedures may be more cost effective. (149)

5. Coordination, Education, and Research

ONAC'S loss of funding also ended all but three of its previous coordination, education, and research functions. For example, ONAC was prevented from distributing model building and mechanical codes for noise abatement that it had completed. (150) It was also prevented from distributing technical reports it had completed on grain dryers and minibikes, (151) and from completing a model land planning code for land development surrounding airports. (152) EPA's three remaining efforts involve commenting on Environmental Impact Statements (EISs), participating in an interagency committee, and answering telephone inquiries. While EPA is committed to these actions, its effectiveness is constrained by its lack of resources. EPA comments on proposed FAA regulations (153) and EISs, and claims some success in persuading the FAA to do a better job disclosing noise impacts. (154) An FAA official, however, disputes the usefulness of the EPA input. (155) Whether or not appreciated by the FAA, EPA's efforts in this area are constrained by the fact that one part-time employee is responsible for the EIS reviews and he also has other responsibilities. (156)

EPA is also a member of the Federal Interagency Committee on Noise (FICON). Among its functions, the committee is charged with considering whether agencies like the FAA should change the methods by which they measure noise impacts for EIS purposes. (157) It is not clear whether EPA's participation in the committee is hampered by its lack of noise personnel, but it may be since there are only a few persons left at the agency with a technical background in noise.

EPA also continues to respond to requests for noise information, but the elimination of ONAC has left dissemination of noise information in disarray. One part-time employee is available to respond to requests for information, but he has no extra copies of the documents in his library. (158) While some ONAC reports are publicly available from the National Technology Information Service, (159) local noise control officials and noise control consultants maintain that key ONAC documents are unavailable. (160)

A related problem is that although EPA no longer has a noise office, persons subject to regulation and local regulators still require clarification from time to time. Assisting them has become an increasing problem because industry is selling new types of products that do not match up well with standards that were written 5 to 10 years ago. EPA is able to respond to these inquiries only because it still has a few people left over from the noise program. As these key people leave, however, the agency will lose what little noise expertise it has left. (161)

ONAC'S loss of funding has an another effect. Some of the available ONAC technical information has gone out of date. For example, ONAC'S widely distributed model code is dated because although there is a new generation of noise monitoring equipment which is less expensive and more accurate, the code is not written to take advantage of this break-through. (162) Some technical information is also out of date because new types of noise problems have arisen since the information was generated. (163)

6. State and Local Regulation

Regulators and consultants agree there was a significant decline in active state and local noise programs after ONAC was abolished, (164) but there is no reliable data concerning the extent of the decline. EPA officials believe that only a handfull of states have on-going noise abatement programs, (165) and available data indicate a decrease in on-going local programs from 300 to 400 in 1981 to 50 to 75 programs today. (166)

Although the number of communities has declined, the scope of abatement efforts has been broadened in the communities that remain active. Whereas early local efforts focused on emissions limitations, noise abatement tools now include land use planning (including zoning, subdivision regulation, and site design review), environmental impact assessment, real estate disclosure requirements (such as requiring sellers to disclose noise levels on their property), and impact fees (based on the level of noise emissions). (167) For example, in California, where there is probably the most noise abatement activity in the country, cities use land use planning (such as specifying that noise sensitive land uses, such as hospitals and schools, be located and designed to reduce noise), development of loop roads to reroute traffic away from neighborhoods, and building codes (such as requiring that new structures must use soundproofing material approved by a city before a building permit is issued). (168)

Except for a few places like California, however, local regulation is in "disarray."(169) Cities apply widely varying approaches to noise abatement, sometimes including unrealistic emissions limitations. (170) This "fragmented noise policy" not only poses a problem for companies subject to more than one set of regulations (such as electrical utilities which operate in two or more different cities), but it makes it generally difficult for the business community to plan future activities. (171)

7. Private Rights of Action

In the absence of effective governmental noise abatement programs, persons adversely affected by noise can seek a tort remedy. The tort system and the regulatory system are two methods by which society can achieve an answer to the same question: what mix of environmental pollution and protection is acceptable. Moreover, while the two systems in theory can produce the same answer or result, the environmental movement which started in the 1960s was motivated, in part, by recognition that problems associated with tort remedies made this approach less satisfactory than a regulatory approach. (172) While nuisance law has been used to abate noise pollution, (173) this general lesson holds for noise pollution as well.

The neighbor(s) of a land owner who emits loud noises can seek monetary and/or injunctive relief by alleging that the land owner's activities constitute a "private nuisance," except in the case of railroad and motor carrier noise sources, where tort suits are apparently preempted. (174) To prevail, the plaintiff would have to demonstrate that:

(1) the noise interfered with the plaintiff's property interest, such as by causing the plaintiff health problems or by limiting some of the ways that the plaintiff's property could be used;(175)

(2) the interference with the plaintiff's land use resulted in a significant or substantial harm;(176)

(3) the defendant either acted with the purpose of causing that harm, or knew (or should have known) that the harm was likely to result from the noise; (177) and

(4) the invasion is "unreasonable" because the gravity of the harm of the plaintiff outweighs the utility of the defendant's conduct. (178)

Tort remedies will work satisfactorily only if individuals who are harmed actually sue. But the harm to individual property owners may be too small to merit a law suit, and the transaction costs of joining multiple property owners may prevent a class action. Moreover, even if some plaintiffs are successful, there may be no reduction in the amount of noise pollution since reducing the level of noise is often significantly more expensive than paying out claims to the few plaintiffs who file and successfully maintain nuisance suits. Even if all persons who are actually harmed sue, some will fail because it is often difficult for a plaintiff to prove some of elements of actionable nuisance. (179) For example, while scientific evidence may establish that there is a probability that noise causes loss of hearing or other harmful health effects, the same evidence does not prove individual causation.

In addition, since the producers of noise pollution, such as railroad yards, truck terminals, and manufacturing plants, have a considerable amount of economic and social value, the injury to the plaintiff(s) will have to be substantial before a court will decide the fourth element of the nuisance test in favor of a plaintiff. (180) Professor Rodgers reports:

Thus, the case law stresses the extent and degree of the hurt, with a number of cases declining injunctive relief where the noise was thought to be only sporadic or intermittent, or merely annoying, without constituting a serious health hazard, or speculative, or not "substantial" enough to justify recovery under an objective test of whether it would injure a normal person. . . . Similarly, in determining whether a noise nuisance exists, and particularly in fashioning an appropriate remedy, courts have stressed the value of defendant's enterprise . . .(181)

Finally, even if a court determines that the defendant's interference with the plaintiffs land is "unreasonable" under the fourth element, courts will apply a second "balancing" test to determine whether to grant injunctive relief, (182) which involves an even more open-ended test concerning the equity of the plaintiffs and defendant's positions. If the court does not grant injunctive relief, plaintiffs are forced to sue again once defendant's activities create additional damages.

In comparison to nuisance suits, regulatory approaches to reducing noise pollution have five advantages. First, noise reduction does not depend on whether plaintiffs have sufficient wealth to bring tort suits. Second, the decision of how much noise pollution should be tolerated is made in one proceeding, open to participation by all interested parties, by decision makers with access to relevant scientific and economic expertise. As Professor Hines notes:

Litigation is fortuitous in its timing, in the type of case that may arise, and in the quality of the presentation that may be made for each side. An effective program of pollution control requires that the control agency possess considerable expertise in the area of regulation and that it have the capacity to plan ahead for anticipated problems. Courts are manifestly not endowed with these features. (183)

Third, a regulatory body is in a position to define dearly what conduct is expected of those who emit noise. By comparison, the tort approach, which involves two ad hoc balancing tests, makes it very difficult to predict the prospects for success in a nuisance action involving industrial pollution. (184)

Fourth, an agency is empowered to control pollution regardless of whether it impacts on a person's property. By comparison, a person can rely on the tort of nuisance only in cases where the person's enjoyment of his or her property is affected.

Finally, an agency is able to administer a flexible program that involves remaining in contact with the regulated parties so that they comply with the agency's orders. By comparison, "[t]he traditional reluctance of courts to issue an affirmative order under equity powers requiring the carrying out of some tasks demonstrates the limited effectiveness of a court centered pollution control program. (185)

The previous analysis does not establish that tort remedies are unimportant in obtaining protection from noise pollution. (186) It does suggest, however, that sole reliance on tort remedies is unlikely to achieve the same degree of protection as a regulatory approach. This is the conclusion that has been reached in every other area of environmental protection, and there appears to be no basis on which noise pollution can be distinguished.

The previous discussion assumes that tort remedies are nor preempted by the NCA. The Supreme Court has expressed reluctance to find that state tort remedies are impliedly preempted, (187) and the NCA contains no express preemption provision. Indeed, the NCA seems to preserve common law rights of action. (188) Nevertheless, the courts have held that tort actions in some fields of health and safety are preempted by federal regulation. (189) Were the courts to take that position concerning the NCA, possibly outmoded EPA emission and labeling standards might be raised as a defense.

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