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

D. The Current Status of Noise Abatement

With the elimination of ONAC, EPA's regulatory and coordination activities have been reduced to a trickle. Available information indicates that there has been a decline in the number of on-going state and local noise control programs although the magnitude of that decline can not be documented. Nevertheless, when this trend is added to the reduction in EPA's activities, there can be little doubt that there is less governmental activity devoted to abating noise than there was 10 years ago.

What is less dear is how much noise pollution exists at the current time in the United States. The last study of the extent of noise pollution occurred in 1980. (190) Nevertheless, "it is safe to assume that noise in communities is increasing." (191) Noise is directly related to population growth and the urban population in the country is increasing at twice the rate of the nonurban population. (192) Moreover, since there has been growth in the airline, trucking, and construction industries, these noise sources have likely increased. Regulation may have mitigated the extent of the increase, but EPA has been effectively disabled from enforcing its standards by budget constraints (193) and there are questions about the adequacy of the standards enforced by DOT. (194) Moreover, there are no federal standards for other noise sources, such as almost all construction noise, (195) and state and local regulation has declined significantly. (196) Moreover, industry research and development concerning the development of quieter products has slowed to a trickle, in part, because of the removal of any meaningful threat of regulation. (197)

EPA should commission a new study to determine the extent of noise pollution in the United States. (198) Although EPA has in the past relied on estimates of the extent of noise pollution, (199) this time it may be better to commission a study that would take actual measurements of ambient noise levels and noise sources. This would not only provide a more accurate baseline for future abatement efforts, but it would give EPA more credibility for restarting implementation of the NCA. (200)

While the exact scope of the need for additional noise abatement is uncertain, health professionals believe that additional regulatory activity is warranted. A consensus development conference held at the National Institute of Health (NIH) in 1990 found that "[h]earing loss from nonoccupational sources is common" and "public awareness of the hazard is low," (201) It concluded that "inconsistent compliance and spotty enforcement of existing government regulations have been the underlying cause for their relative ineffectiveness in preventing NIHL [noise induced hearing loss]" and that a "particular unfortunate occurrence was the elimination of [ONAC] in 1982." (202) The American Academy of Audiology, (203) the American Speech-Language association, (204) and the National Hearing Conservation Association (205) all agree with the NIH conclusions. And a "Proposed National Strategy for the Prevention of Hearing Loss" published by the National Institute of Occupational Safety and Health (NIOSH) in 1988 calls on Congress to reestablish the type of educational, research, and coordination activities undertaken by ONAC as important elements in a long-term strategy to reduce noise-induced hearing loss. (206)

The health community's support for renewed federal activity is based on research identifying the health and welfare consequences of noise. Proof of noise-induced hearing loss, which has been "extensively researched" and is "no longer controversial," comes from the industrial context, but there is "growing evidence" of hearing loss associated with leisure time activities, loud music, and other sources of nonoccupational noise. (207) Noise has also been implicated in the development or exacerbation of a variety of other health problems, ranging from hypertension to psychosis. (208) Among the ways that noise degrades the quality of life is by contributing to sleep disturbance, (209) interrupting communications, (210) and increasing anxiety and anti-social behavior. (211)

Congress and EPA have a unique opportunity. Enough time has passed that the benefits and detriments of ONAC'S approach to noise abatement are now apparent. Assuming that additional abatement efforts are merited, the sections that follow discuss how to shape future abatement efforts in light of ONAC'S experiences. Part II considers options for state and local noise abatement and Part III considers options for federal abatement.

II. OPTIONS FOR STATE AND LOCAL NOISE ABATEMENT

Local noise abatement has not prospered in the years since ONAC was disbanded. This itself suggests that ONAC'S support of an infrastructure for local activity was an important catalyst. Nevertheless, the decline in local activity could also reflect local voters' lack of interest in noise abatement. This section examines the connection between federal support and local effort and concludes that cities and states would become more active in noise abatement if the federal government resumed its infrastructure activities. Congress could locate the responsibility of infrastructure support in some other agency or agencies, but EPA is still the best home for such an effort.

A. Why State and Local Regulation Declined

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. (212) These arguments reflected a "rebuttable presumption" in favor of local regulatory programs that guided the Reagan administration. (213) Whenever possible, the administration sought to return control over "local lifestyles to local decision makers. (214)

According to the Reagan federalism philosophy, noise is a local problem because noise pollution does not travel very far and it is quickly dissipated. (215) Accordingly, local regulation is more efficient since local government can more easily respond to different types of local conditions. (216) Requiring local governments to fund their own noise abatement means that they must decide whether this activity is more important than other responsibilities they have. The failure to fund noise abatement activities can therefore be attributed to the low priority given these activities by local governments. (217)

This argument, however, presumes that local citizens are informed about the risks and effects of noise. In fact, the public is generally uninformed about noise impacts. (218) In addition to this problem, the explanation has two other flaws. First, local regulation may become ineffective or inefficient without federal involvement. (219) Noise abatement by local governments is this type of situation. One reason its that ONAC'S demise eliminated economies of scale that made noise abatement more affordable for local government. In addition, by stimulating local noise abatement activity across the country, ONAC lessened the concern of cities and states that they would be disadvantaged in the competition for industrial development by addressing their own noise problems. Second, although the Reagan concept of dual federalism envisions that local governments will be given control over local problems, only a partial devolution actually occurred in the case of noise abatement. Because of preemption and related factors, local government may be prevented, or at least discouraged, from regulating some important local sources of noise.

This section explores these two alternative explanations for the decline in local regulation. It demonstrates that although citizen lack of interest in noise abatement can not be dismissed as an explanation for the decrease in local efforts, the alternative explanations are more persuasive.

1. Infrastructure Support

Professors Mashaw & Rose-Ackerman suggest why the elimination of EPA support was an important factor in the nosedive in local activity. When the federal government creates the information that is used by local governments for their activities, there are significant economies of scale that lower the cost of local activity. (220) ONAC created economies of scale activity in two ways. First, because most communities lack any expertise in noise abatement techniques, (221) ONAC'S sponsorship of training programs, intercity information exchange, creation of model ordinances, and so on, offered local governments an inexpensive means to obtain the necessary information and expertise necessary to create and maintain noise programs. (222) Second, ONAC'S sponsorship of research created a scientific and technical basis for local and state noise control efforts that has not been replaced. For example, ONAC'S "Levels Document" offered local officials authoritative guidance concerning the levels of cumulative noise that posed a danger to local citizens.

The elimination of the federal infrastructure has raised the cost of local noise control to the point where it is no longer affordable for most jurisdictions. Not only is noise abatement more expensive, but the federal infrastructure was eliminated at the same time that state and local governments were hit with significant decreases in federal aid. (223) Noise abatement is but one more victim of the massive shift in the financing of government from the federal government to the states. (224)

Reestablishing a federal infrastructure would increase the number of state and local noise control programs by decreasing the cost of starting and maintaining such programs, and the experiences of local noise control officials bear this out. When an association of California noise control officials has offered inexpensive training sessions, officials from dozens of California municipalities have signed up. (225) There has been similar interest in a NANCO program that certifies government employees as technically capable of running noise control equipment. (226) NANCO hopes to offer these services nationally, but it has been stymied by a lack of resources. (227) In addition, EPA officials (228) and noise consultants (229) report that since ONAC has been abolished, they have received hundreds of telephone calls seeking information about how to implement noise abatement activities.

2. Local Disincentives

Professors Mashaw & Rose-Ackerman also suggest that without federal involvement local regulation may be ineffective because there are local disincentives to regulate stringently. (230) Noise presents this type of problem. As noted earlier, noise often only affects a portion of the population in a city or state, 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. (231) In other legislation, such as the Clean Air Act, Congress spoke to this problem by mandating a minimum floor of protection for all citizens, but the NCA contains no such requirement. (232) Although a similar approach is justified concerning noise, (233) Congress chose' not to require a minimum level of protection by states. and local governments.

Congress' decision hot to fund ONAC had two effects on local disincentives. First, Congress' decision sent a signal to citizens (and their elected leaders) that noise abatement was unimportant. That is, the failure to abate noise that affected some of a community's citizens was unimportant. Second, because ONAC'S infrastructure activities stimulated noise abatement activity across the country, it minimized fears that a city or state would be disadvantaged in the competition for economic development by imposing noise abatement requirements.

State and local noise control officials concur in the previous conclusions. Terry Obteska, Manager, Noise Control Program, Air Quality Division, Oregon Department of Environmental Quality, has written the Administrative Conference:

The demise of the federal program in 1981 has been a disastrous experiment, resulting in the wholesale death of state and local programs. . . . .

Dismantlement of the national noise control effort produced predictable results. Without a federal program, the linchpin of the network, it became politically expedient to classify noise pollution as a "nuisance" and cancel programs under the pretext that it was a cost savings measure. Paradoxically, the costs borne by those exposed to airport, highway, railway, and other egregious noise products, if calculated, are by no means insignificant. (234) Mr. Obteska reports that he expects Oregon to eliminate the state's noise control program in the near future in response to the lack of federal support and declining state resources.

A letter from Edward DiPolvere agrees that the lack of any federal program is a key factor in the decision by states to eliminate their own noise control efforts:

It was clear to me back 10 years ago that once EPA disbanded its ONAC program that the weak State and local programs would soon die. Unfortunately, that was the case; even worse, most strong programs also died within the next few years. The New Jersey program was cut in half in 1981 and has just been bumping along since then. The proposed New Jersey budget for 1992 fiscal year which starts in a few months (July 1, 1991) does not include any funding for Noise Control. So one of the longest ongoing and strongest programs will also die. And it's easier for a state to kill a program that has no form of matching subsidy federal funding or stronger link to public risk. In New Jersey we are in a severe budget crisis and many programs are being pinched or curtailed but only [the] Noise Control Program of 25 program classifications is being eliminated altogether. (235)

North Dakota's noise program has had a similar fate, which according to a letter from Dana Mount, Director, Division of Environmental Engineering, North Dakota State Department of Health, can also be attributed to the lack of federal support:

North Dakota has had an active noise control program since 1971. . . . Since the phase-out of the EPA program, the State has been able to provide an extremely limited budget for noise control. . . .

. . . Due to the State's current financial concerns and shifts in priorities, the State's noise control law was repealed by the Legislature this year and will effectively phase out completely on July 1, 1991. We believe that there is a need for a strong noise control program within EPA, that includes extensive support for State noise control programs. (236)

Ellwyn G. Brickson, Noise Control Specialist, Environmental Health Division, Orange County, California, tells a similar story: When the EPA reduced their personnel from 175 to 0, the State of California ONAC also reduced the staff from 5 to 0. The biggest reason for decline in noise abatement programs is simply a lack of funding. The noise problems are still being discovered. (237)

Peter Nichols, Director of Environmental Health Services, City of Norfolk, Virginia, writes that he was able to start a noise control program because of the training he received from ONAC. He concludes, "The possibility of a federal community noise control program being re-established is exciting . I support any efforts to re-establish a federal noise control program. " (238)

3. Federal Preemption

Finally, the decline in local noise abatement might be attributed, in part, to federal preemption. The extent of preemption varies concerning product standards, transportation standards, and labeling, but these differences do not affect the conclusion that states and local governments are generally unable to remedy the problem that some of EPA's noise standards are obsolete.

Since the NCA preempts states and political subdivisions from imposing their own emissions standards on new products that are regulated by EPA, (239) these levels of government can not promulgate different emissions standards for air compressors, motorcycles, and. medium and heavy duty trucks, which are covered by product standards promulgated by ONAC. (240) State and local governments are not preempted, however, from controlling noise emitted by these sources by the use of other regulatory tools, such as restriction of use, operation or movement, and they can enforce the EPA standards by adopting identical limitations as their own laws or ordinances. (241)

Since EPA regulated only three products, the effects of preemption concerning product regulation are narrow. And EPA's lack of enforcement could be overcome if other levels of government adopted the EPA standards as their own. To the extent that the EPA standards are obsolete, however, local enforcement of EPA's standards would be inadequate. Moreover, alternative methods of enforcement may not work in all circumstances. For example, local noise regulators have complained that EPA's new truck regulations in some cases preempted stricter local emissions regulations. (242) As a result, a city may lack any effective mechanism to abate the noise from delivery trucks. Time and place restrictions could be employed, but it may be impractical to cut off access to local businesses during business hours. Zoning and land planning restrictions likewise would have no efficacy against mobile sources of noise. The city may also not be able to regulate the warehouse area where the trucks are located. A land owner could be exempt from any change in zoning if the prior use of the land qualifies as a nonconforming use exempt from ex post zoning changes. (243)

States and localities are preempted from regulating the same railroad or motor carrier noise emissions regulated by EPA by any form of regulation (other than an emissions standard identical to the one promulgated by EPA) unless the agency grants a "special local circumstances" exemption permitting local regulation. (244)

Since EPA has regulated. railroad and motor carrier noise sources extensively, (245) the scope of this preemption is broader than the preemption of product regulation.

Likewise, the consequences for the public of such preemption are also greater. There is evidence that the transportation emissions standards have become obsolete, or are inadequate for other reasons. (246) States and local government have no regulatory authority to resolve such problems unless EPA grants them an exemption. This solution, however, is problematic for three reasons. First, EPA has established a significant burden of proof to obtain an exemption, which has discouraged cities which have applied from pursuing this option. (247) Second, it is not apparent that EPA has the resources to respond to an application. Finally, EPA would have to turn down any regulatory initiative which placed a significant burden on a railroad or trucker's capacity to operate in interstate commerce. This constraint may limit cities from adopting the most effective noise controls. The NCA also provides for preemption concerning labeling standards. States and local governments can establish their own labeling standards only to the extent they do not conflict with federal standards. (248) There is one federal labeling standard for hearing protection devices, which is misleading because it does not accurately reflect the degree of hearing protection the devices provide under actual conditions of use. (249) But there is no role for state or local governments in addressing the misleading nature of the label. Even if state or local labeling is not preempted, which it appears to be, most local jurisdictions lack the technical and informational capacities to promulgate labeling requirements. Moreover, local labels would lead to substantial confusion for consumers who would find two labels with conflicting information.

In light of the previous preemption, cities may not find it cost-effective to start (or maintain) a noise abatement program when they are effectively prevented from addressing some significant local sources of noise. The extent to which federal preemption has actually discouraged starting or maintaining local programs is unknown. It may not be an important factor since the scope of EPA regulation is fairly narrow and many important noise sources remain unregulated.

Some cities, however, may be discouraged from regulating because of industry claims of preemption in cases where such claims are dubious or erroneous. (250) A recent case, where the federal government assisted an industry to make a dubious claim of preemption, illustrates this potential. The government filed a brief in a lawsuit that the American Association of Railroads and two local railroads brought against Delaware which claimed the noise emitted from refrigerated trucks mounted on railroad cars violated the state's noise emission limits (251) . The Third Circuit Court of Appeals cited EPA's brief, which argued the state was preempted from regulating, as the reason for affirming the district court's injunction against state enforcement, (252) But when Delaware appealed the case to the Supreme Court, the Solicitor General told the Court that government's position was legally erroneous and he asked the Court to remand the case back to the Circuit Coin for reconsideration. (253) After the remand, the Third Circuit reversed itself and held that Delaware could enforce its regulation. (254)

While it might be expected that the Third Circuit's decision has clarified the power of local governments to regulate some aspects of railroad operations, the matter may still represent a muddle to many localities. An EPA official attributes the lack of local regulatory activity, in part, to the fact that many localities may have not heard about the decision. (255)

C. Policy Options

State and local noise regulation lacks a bright future unless the federal government reestablishes the type of scientific, technical, training, educational, and other "infrastructure" activities that EPA supported at the end of the 1970s. Far from usurping local initiative, federal support is necessary to empower communities to act against noise pollution. It is less dear what actions EPA (or Congress) should take regarding federal preemption, but some reduction in federal preemption appears possible.

1. Infrastructure Support

If the cost of starting and maintaining noise control programs was lowered, cities and states would be more likely to increase their noise abatement efforts. Federal involvement would also lower the national cost of abatement. Moreover, EPA's experience in the 1970s suggests that a worthwhile program could be established at a fairly low cost to the federal government.

The panel of experts convened by NIH (256) and a NIOSH report (257) called for reestablishing the type of infrastructure activities that EPA supported while ONAC operated. This conclusion is supported by noise consultants, (258) health professionals, (259) and local regulators, (260) although there is some disagreement concerning what steps EPA should take. For example, some professionals support establishing a computerized database of technical information that they can easily access, (261) but others believe this would not be a useful step. (262) The NIH and NIOSH reports also recommend a comprehensive program of public education concerning noise with special attention directed towards school-age children. (263) And EPA's Scientific Advisory Board (SAB) has noted as a general matter that EPA should improve public understanding of environmental risks as one of its strategies for risk reduction. (264)

Congress would not have to locate federal infrastructure activities in EPA. Two arguments can be made on behalf of location in other agencies. First, some previous management officials in EPA have not been enthusiastic about its noise abatement mission. (265) Second, since EPA's primary mission is standard setting, the research and educational aspects of noise abatement would be better served if they were delegated to agencies that had research and education as primary objectives.

There are also good reasons for reestablishing EPA as the home of infrastructure efforts. While some infrastructure activities can be moved to other locations, others are not easily relocated. Congress could give the National Institutes of Environmental Health Sciences responsibility for health-related noise research and some other agency in the Department of Health and Human Services (HHS) the responsibility for public education (266) but there is no obvious alternative home for infrastructure activities. such as producing model ordinances, establishing universal measurement standards, and training enforcement personnel. (267) Congress could establish a new agency, modeled on the National Institute for Occupational Safety and Health (NIOSH), which performs similar functions concerning occupational safety and health, but the small scale of federal activities in this area may not justify a separate agency for that purpose.

In addition, parceling out infrastructure activities would make them less effective than locating them at EPA. If some infrastructure activities remain at EPA, locating others elsewhere would create coordination difficulties. For example, when the NCA was passed, Congress expected that EPA would be able to rely on noise research conducted by other agencies, but EPA found that because the other agencies followed their own research agendas, they produced very little research relevant to EPA's purposes. (268) Moving all infrastructure functions to a new agency would solve this type of problem, but there would be other coordination difficulties if EPA retains any regulatory functions. (269) OSHA'S experience indicates this difficulty. OSHA and NIOSH have had continuous coordination difficulties because the former is located in the Department of Labor and the latter is in HHS. (270)

Finally, EPA may be ready to turn over a new leaf regarding its attitudes towards infrastructure activities, if not noise abatement itself. The Scientific Advisory Board recently called on EPA to recast its mission to include not only a wider variety of environmental hazards, but also a greater variety of regulatory tools. (271) In particular, the SAB recommended that EPA use a Welfare risk paradigm that recognizes "social nuisances" such as "odors, noise, and reduced visibility" that may or may not affect human health. (272) The SAB was not suggesting that noise might not also pose a health hazard, but it was saying that EPA should not treat its nonhealth effects as unimportant to environmental protection. (273) The SAB also told EPA that the "most promising strategies for risk reduction encompass a wide range of policy approaches" including scientific and technical measures, provision of information, and cooperation with other agencies. (274)

2. Preemption

Besides reestablishing infrastructure support, EPA should clarify the extent of federal preemption and minimize the scope of it. Clarification will assist local governments to resist erroneous industry claims that cities or states can not act. Minimizing the scope of preemption will empower local governments to act concerning local problems. While some preemption is unavoidable to protect firms from the costs of complying with inconsistent local regulation, there may be more preemption currently than necessary.

Federal regulation creates scale economies for firms that operate in interstate commerce if a uniform federal standard replaces conflicting state and local regulation, (275) and the preemption provisions of the NCA have such a purpose. (276) The disadvantage of preemption is that it can replace more stringent standards preferred by local governments. (277) But companies that operate in interstate commerce, such as product (278) and vehicle manufacturers, (279) and the railroads, (280) insist that they could not operate efficiently without extensive federal preemption. Nevertheless, some forms of local regulation, such as the erection of noise barriers, would appear to have little or no effect on transportation scale economies. (281) EPA could assist local governments by promulgating a standard that would establish criteria for granting special local circumstances exemptions for railroad and truck noise regulation. (282)

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