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

III. OPTIONS FOR FEDERAL NOISE ABATEMENT

EPA can assist state and local noise abatement by reestablishing a support infrastructure and narrowing preemption of local regulation. This section evaluates what other abatement responsibility the federal government should undertake and concludes that Congress should fund EPA to implement the NCA, but that the agency should adopt a different regulatory strategy than it used previously.

A. Congressional Options

Congress has three choices concerning the future of the NCA. It must determine whether to continue or repeal it, and, if some or all of the provisions of the NCA are continued, Congress must decide whether EPA, or some other agency, is to be responsible for their implementation.

1. The Future of the NCA

Congress could continue the status quo, repeal the NCA, or fund EPA (or some other agency) to implement it, with or without restrictions on the scope of the agency's jurisdiction. Continuing the status quo saves money, but it also leaves EPA in an untenable position. Because of budget constraints, it can neither effectively enforce existing standards, nor amend them to take account of loopholes and other deficiencies that have been identified. Moreover, continuing the status quo prevents state and local governments, to some extent, from filling the regulatory void that the lack of funding has created.

Congress could repeal the NCA, or at least its preemption provisions, and free states and local governments to regulate more strictly, if they wish. But this choice merely recreates the conditions that led to passage of the NCA in the first place. As noted previously, preemption can provide important scale economies for firms that operate in interstate commerce. (283) Thus, unless Congress is prepared to forgo these economies of scale, a federal agency must be funded to enforce and, if necessary, update current regulations.

Congress could fund EPA (or some other agency) only to update and enforce current regulations. Or it could limit federal jurisdiction to regulate in some other manner. For example, the federal government could address only transportation noise. (284) Besides saving money, this approach has the advantage of maximizing the extent to which state and local governments would be free to regulate. Ultimately, however, this approach would be self-defeating. Additional targets for regulation exist, (285) and if state and local governments receive the informational and technical support recommended in the previous section, they will establish additional regulation. Demands by industry for federal preemption will quickly follow and Congress will have accomplished little by failing to have the federal government address these noise sources in the first place.

2. Location of Regulatory Activities

Congress could transfer EPA's regulatory responsibilities to other agencies which have mandates related to the regulation of transportation services and consumer products. But such a rearrangement would not increase the effectiveness of federal efforts.

Locating NCA standard-setting in other agencies has some advantages. Congress could delegate to DOT the authority to establish noise emissions standards for transportation. (286) this change would avoid the coordination problems that arise from splitting the responsibility to abate traffic noise between EPA and DOT, and it would permit DOT to coordinate more, easily the use of other highway noise abatement techniques, such as noise barriers, with reliance on emissions controls. Congress could assign to the Consumer Product Safety Commission (CPSC) the regulation of nontransportation products and to OSHA the labeling of hearing protection equipment. Since CPSC's mandate is to protect consumers from dangerous products, (287) the regulation of product noise emissions is congruent with its mission. Delegating to OSHA the responsibility to regulate hearing protection equipment makes sense since most consumers of protection equipment are employers and OSHA'S hearing conservation standard depends on the accuracy of the labels used on hearing protection equipment. (288)

There are, however, also good reasons for leaving standard-setting at EPA. First, Congress would lose the synergism that is produced by placing most aspects of noise abatement in EPA. Conversely, dividing up the federal government's abatement activities will create substantial coordination difficulties. Assuming that EPA resumed support of an infrastructure for local regulation, four different agencies (DOT, CPSC, OSHA, and EPA) would be involved in noise abatement under the previous proposals. Second, parcelling out responsibilities to four different agencies will result in at least some duplication of staffing. third, reassigning EPA's regulatory responsibilities will not necessarily result in more effective regulation since both DOT and CPSC have some liabilities that EPA does not share. For example, to the extent that DOT has responsibilities to promote transportation, as well as regulate it, it may lack the same credibility and motivation in regulating noise that EPA would have. (289) Moreover, CPSC'S effectiveness has been questioned over the years. (290)

While there are arguments for locating EPA's regulatory responsibilities in other agencies, the coordination problems that would result counsel against such a step. If the purpose of a reorganization is to make the government's abatement efforts more effective, that result can hardly be accomplished by splintering responsibilities now primarily located in one agency into four different ones. While it is true that EPA managers were not always genial hosts to ONAC, as the prior discussion noted, (291) there are reasons to believe that agency managers will take this responsibility seriously. Moreover, there is no reason to believe that DOT or CPSC would be more committed to noise abatement, or would be more effective as regulators.

B. EPA's Options

Since EPA should retain the responsibility for implementing the NCA, it is important that the agency carefully assess its abatement options. This section evaluates EPA's options for implementing these responsibilities in terms of risk assessment and management, and coordination and oversight.

1. Risk Assessment and Management

Risk assessment is a two part process involving hazard assessment, or determining what degree of harm a noise source poses, and exposure assessment, or estimating the number of persons who will be exposed to harmful or annoying levels of emissions. (292) EPA has previously identified emissions levels that are harmful to health or are disruptive, (293) and its last noise survey, completed in 1981, constituted an exposure assessment. (294) Earlier it was recommended that EPA acquire up-dated exposure data. (295) It should also update its risk assessment to reflect what else has been learned about the health consequences and other effects of noise pollution since 1981. (296)

As part of its risk assessment, EPA should rank significant sources of noise according to their relative risk. (297) Since EPA is unlikely to have funding to pursue more than a few abatement projects, it is important that the agency pursue those noise sources that pose the most significant problems. A former ONAC official concedes that although the noise program had criteria to choose which noise sources required regulation, it did not attempt to rank noise sources chosen for regulation in terms of which should be regulated first. (298)

Risk management involves selecting the most appropriate strategy to reduce emissions to the level required by the agency's mandate. (299) Whereas ONAC thought primarily, if not exclusively, in terms of emissions standards as a regulatory response, any new regulatory program should consider emissions standards as a last resort. Before promulgating an emissions standard, EPA should determine whether market forces, or local or state regulation, can be utilized to reduce product or transportation noise. (300) During its tenure, ONAC did not undertake the type of comprehensive assessment of risk management options recommended here. (301) a. Market Forces

Market forces have a role to play in noise abatement, but the utility of this approach depends on whether a consumer's choice about how much noise he or she will tolerate also impacts on third parties. This section explains how EPA can expand the use of product labeling and the limitations of this approach.

The extent of noise pollution is a function of the level of consumer demand for quieter products because properly functioning markets will supply the amount of noise abatement demanded by consumers. (302) A market will not function properly, however, if product noise information is expensive to acquire. (303) EPA can lower consumer search costs by educating the public concerning the potential harms of noise and by promoting noise labeling. Consumers would benefit from labeling that reveals the level of noise emissions, such as labels that specify the amount of noise emitted by appliances, and from labeling that reveals the level of noise suppression, such as labels that specify the extent to which various grades of windows attenuate noise. (304)

Increased noise labeling would not necessarily require EPA regulation. As EPA educates consumers concerning the value of quieter products, some sellers will respond by providing noise information. Nevertheless, because other sellers may limit or lie about the noise information they provide, (305) regulation may be necessary to ensure adequate disclosure. EPA, however, has an important role to play even in cases of voluntary disclosure. EPA can make the voluntary disclosure of information more effective by working with an industry to promote measurement accuracy and to ensure that noise information is provided in a manner that ensures consumers can understand it and use it to compare the performance of products. Uniformity in labeling is particularly important. Consumers are unlikely to be able to use noise labels effectively if product labels for different products use different methods of disclosure.

ONAC'S experiences with lawn mower noise emissions illustrates the potential of the previous approach as well as some of its pitfalls. Although ONAC declared lawn mowers to be a significant noise source, (306) it agreed to postpone an emissions standard if the industry would engage involuntary labeling. (307) The labeling program remains in effect today, but consumers have shown little interest. (308) The industry claims that this tepid response indicates that consumers understand that lawn mowers do not pose significant risks, (309) but it is also possible that consumers are not interested in the labels because the disclosure program was implemented at the same time that EPA stopped its efforts to educate consumers about the risks of noise. (310) As noted earlier, an NIH panel has found that consumers are ill-informed about the risks posed by noise. (311) Moreover, even. if some consumers would ignore the labels, commercial purchasers (312) and consumers who are sensitive to environmental issues (313) would likely use such information.

Market forces can be used to abate noise emissions in other ways as well. The NCA authorizes EPA to assist other agencies in purchasing quieter products, as an inducement for their creation and manufacture. (314) The usefulness of this approach, however, is limited by the fact that it can not be used for products for which there are no EPA emissions standards. (315) A better approach would be for Congress to authorize EPA to designate low noise products for purchase by the government without the requirement that an emissions standard exist for such products. (316) EPA could also recommend to Congress and state legislatures that they establish tax or other incentives for companies to reduce noise emissions. (317)

Although market forces have a role to play in noise abatement, not every noise problem is suitable for the previous approaches. Consumer education and labeling empowers consumers to decide for themselves what level of noise protection is appropriate, but if the consumer's choice also impacts adversely on third parties, some form of abatement regulation may be necessary. (318) The problem of lawn mower noise is again instructive. The noise from lawn mowers affects their owners, but it is also heard by others who are nearby. Unless home owners purchase quieter mowers for their own reasons, or at the behest of their neighbors, third parties will be unprotected from lawn mower noise. (319)

Where third party effects exist, it is still possible to rely on market incentives to reduce noise. Instead of promulgating an emissions standard, Congress could authorize EPA to assess a tax on products that exceeded certain noise levels. This approach has been used with some success by some local airport operators, (320) and has received attention generally as a more efficient approach to reducing pollution. (321)

b. State and Local Regulation

Although noise-reduction regulation may be necessary in cases involving an impact on third parties, this does not mean the EPA regulation is necessary. States and local governments have at their disposal under current laws a wide range of regulatory tools--such as land planning, noise barriers, time and place restrictions--that may not create an impediment on interstate commerce. This fact suggests that EPA should promulgate emissions standards only if local regulation will be ineffective or present a burden on interstate commerce.

The example of lawn mower noise can be used one more time. Although some persons who are informed about noise will purchase quieter lawn mowers, others will not. If the impact of the residual noise on third parties is significant, additional noise reduction will require government action. Whether local regulation will be adequate depends on the nature of the problem. If the problem is largely one of annoyance, a city could implement time and place restrictions. If, however, the noise is sufficiently loud to have significant adverse health effects, some form of emissions regulation could be necessary. Only in this last case would EPA regulation arguably be necessary to protect the public and guarantee uniform national treatment of lawn mower manufacturers. (322)

Evaluating the potential of local regulation has several advantages for EPA. First, it will save scarce EPA resources for noise problems that can not be addressed other than by federal efforts. As a related matter, EPA will be less likely to promulgate standards, like the garbage truck regulation, that are opposed by some local noise officials, without considering the merits of this opposition. (323) Second, it invites EPA to work closely with those officials. Finally, it would permit EPA to integrate its support of an infrastructure for state and local regulation with its priority-setting process. Once EPA decided to rely on local regulatory efforts, it could then design support activities that would assist local governments in achieving the desired noise abatement.

A noise problem might also be addressed through a combination of market incentives and local control. Garbage truck noise illustrates this possibility. Many communities have the option of prohibiting garbage pickup while most residents are sleeping. Where this is not true, such as urban areas where day-time pickup is infeasible, EPA could take another tack. It could write a model contract specification that cities could use to purchase trucks that are lower in noise.

c. EPA Discretion

Although EPA should make emissions standards the regulatory tool of last resort, the NCA may prevent part of this approach. EPA has the discretion under the NCA to require labeling for noise sources whether or not they have been designated as "major" noise sources. (324) The NCA, however, appears to require EPA to regulate any product identified as a "major" noise source, even if state and local regulation might be adequate to protect the public. Under the NCA, once EPA identifies a product to be a "major" noise source, it must promulgate emissions standards within the. short time deadlines specified in the act. (325) EPA, however, might avoid this result by defining "major" noise source to mean any source that requires a federal emissions standard for successful abatement or for purposes of preemption. (326) This interpretation would give EPA the flexibility to pursue noise abatement through alternative methods, while reserving the possibility that the agency would use an emissions standard if other techniques were unsuccessful. (327) If the NCA can not be interpreted in this manner, Congress should amend it to give EPA this flexibility. EPA's implementation of the NCA could also be hindered by the deadlines the NCA sets for promulgating emissions standards. ONAC missed most of these deadlines because they were unrealistically short given the she of its staff and the difficulty of writing the regulations. (328) The wisdom of statutory deadlines is the subject of considerable debate. Deadlines can improve legislative oversight, (329) enable courts to determine more easily when agency action is unreasonably delayed in violation of the Administrative Procedure Act (APA) ,(330) and mitigate pressures on an agency to move slowly. (331) But, as in the case of the NCA, these advantages are often lost because Congress sets unrealistically short deadlines. A better approach would be to require EPA to set its own rulemaking deadlines and then make these deadlines judicially enforceable. (332) This would permit it to set realistic deadlines, (333) while still holding it accountable. (334)

d. Decision making Procedures

EPA should use consensus building procedures, such as advisory committees, workshops, and negotiated rulemaking, to implement the risk assessment and risk management processes recommended above. Because advisory committees can explain complex technical issues, provide peer review for tentative decisions, identify areas of consensus among scientists and engineers, and expand the participation of interested experts and affected citizens in agency decisionmaking, (335) they can improve the credibility of agency decisions, and thereby increase their acceptance. (336) This last advantage might be particularly important since EPA would be attempting to restart a program that received significant criticism from the professional community when it last operated. (337) Some of the same advantages can be obtained in a less formal and structured mariner by inviting professionals, members of the regulated industry, public interest groups, and others, to participate in workshops, such as the meetings of local noise officials and noise professionals held late in ONAC'S tenure. (338) Such ad hoc arrangements, however, might not be as credible as establishing a permanent advisory committee that could give continuous peter review. (339)

EPA could also use negotiated rulemaking in circumstances where the Conference has recommended that its use can be constructive. (340) EPA has used successfully used this procedure previously to implement its other statutory responsibilities. (341) While negotiated rulemaking works best in certain types of situations, some of the issues that might come up in future noise regulation, such as a standard creating a process for exemptions for local communities to regulate railroad yard noise, (342) appear suitable for this process. (343)

2. Coordination and Oversight Functions

EPA should also resume its coordination and oversight functions. Specifically, it should coordinate the noise abatement activities of other government agencies, facilitate private and international standard setting activities, and rethink the regulatory basis for airport noise abatement.

The importance of coordination of the federal government's noise abatement activities is difficult to judge since the extent of such activities has not been catalogued since ONAC was abolished. Nevertheless, even if the federal government's activities are fairly limited, coordination could extend limited resources by promoting the sharing of information and the elimination of duplication. The Scientific Advisory Board has recommended that EPA in general should do more to foster cooperation among government entities responsible for reducing pollution, (344) and the NIH panel concluded that "reestablishment of a federal agency coordinating committee with central responsibility for practical solutions to noise issues is essential." (345)

EPA also has a role to play concerning national and international standardization activities. (346) The Acoustical Society of America and other similar professional groups have been active for many years in working with the American National Standards Institute (ANSI) to develop consensus standards concerning noise and vibration control. (347) Although ONAC has been criticized for ignoring private standardization activity, (348) there is opposition to governmental involvement in such activity, (349) except to support travel and other expenses of individuals who attend national and international standard-setting conferences. (350) These persons would like the government to support such activities and use the results, but not attempt to influence the outcome. (351)

The problem with limiting EPA's role in this manner is that the membership of most private groups interested in developing consensus standards is largely composed by representatives of noise producers, including governmental noise producers such as the Air Force and Navy. (352) If persons without a vested interest are represented at all, they are represented by a few university professors and consultants. (353) Thus, EPA's participation in such activities might bring additional balance and produce a result that the agency is more likely to be able to use. The same objective might be accomplished if EPA supported the expenses of citizens, professors, or consultants, who are not associated with noise producers. Whether or not EPA actively participates in private standard-setting activities, it should work with private organizations to identify potential projects that would benefit both private industry and the government.

EPA regulations should be congruent with international regulatory standards if possible. This prevents domestic manufacturers from having to meet different regulatory standards in the United States and abroad. Further, it places EPA in a position to work with other regulatory authorities, such as the European Community, in adopting regulatory standards which protect the public, and yet do not serve as trade barriers. (354) ONAC previously engaged in some of these activities. (355)

The final coordination issue is what role, if any, EPA should have concerning airport noise abatement. Since ONAC was abolished, this issue has been complicated by changes in the FAA's regulatory powers. In he waning moments of the 1990 session, Congress forbade airport operators from enacting noise abatement measures concerning the newest generation, of airplanes unless they have been approved by the FAA. (356) The legislation was sought by the airlines and air cargo industry because of the proliferation of local noise restrictions including evening and night-time curfews and requirements that aircraft operators pay taxes for emitting noise above specified levels. (357) Citizen groups and local elected officials, who are upset over the bill's passage, (358) have expressed an interest in having EPA superintend the FAA's implementation of its new powers. (359) The new legislation, however, does not establish any role for the EPA concerning the FAA's new powers. Nevertheless, EPA's authority under the NCA to coordinate federal noise abatement activities would arguably authorize it to participate in the FAA's implementation of its new powers. (360)

EPA can improve aircraft noise abatement, but not by attempting to supervise how the FAA implements its new powers. As the original director of ONAC points out, "It is difficult if not impossible for one federal agency to coordinate another federal agency's programs and actions." (361) EPA and FAA officials disagree concerning whether EPA oversight has increased noise abatement, but one undisputed legacy is FAA's continuing hostility concerning EPA's supervisory efforts. (362) An EPA approach to aircraft noise abatement that avoids direct confrontation with FAA is therefore more likely to be successful.

EPA has such a road open to it. FAA regulatory actions are built on scientific and policy conclusions reached by ONAC before it went out of business. As originally recommended by ONAC, (363) FAA defines areas impacted by aircraft noise as areas with noise levels of 65 Ldn or greater, (364) but citizens living outside of such areas are often among the most vocal opponents of aircraft noise. (365) Critics claim these complaints reflect the fact that the FAA does not take into account the low residual sound in suburban or semi-rural areas, or the intrusive nature of single events, such as a early morning takeoffs while residents are sleeping. (366) In light of these complaints, EPA should evaluate the adequacy of current measurement methods and determine whether additional or new measures would do a better job than the Ldn 65 metric.

A reevaluation would be a useful for two reasons. First, EPA's results are more likely to be generally accepted since EPA does not share the FAA's institutional conflict of interest. (367) Second, if EPA demonstrates that the scientific and policy basis on which the FAA is proceeding is no longer valid, the FAA would presumably conform its approach to the new metric or risk having its approach overturned in court.

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