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Protection Agency to conduct a study which is now going on to which there has been allusion before. EPA is to study accumulative noise exposure around airports, among other things and this I will allude to later because it really forms the basis of the California Airport Noise Regulations.
Secondly, it is also to study “additional methods available to airport operators and local government to control aircraft noise". It is to that which I will now address myself.
Here too, another caveat is necessary, the question of the apportionment of powers between the proprietor and between the Agency, or the local and State government having police power jurisdiction in a particular area.
This clearly has been up in the air too. We take a position that they both have a considerable measure of authority and perhaps, though it is not directly an issue, the Supreme Court's decision in Burbank will do something to clarify it as well.
Now, let's examine, briefly, the measures which the State and local governments have taken, in fact, to reduce the impact of airport and aircraft noise on people.
First, land use controls over areas surrounding airports and planning, zoning-you have heard that discussed this morning. In California there are also land-use commissions which, at least, on a countywide bàsis, are to exert some measure of authority over and above the local zoning agency.
Secondly, there is the single event noise limit such as the port authority—what was the Port Authority of New York and is now New York and New Jersey, has imposed since the 1950's as a condition of landing at the airports under its jurisdiction, which included Kennedy, Newark, and Laguardia.
This is also going to be part of the California Noise Regulations to which I will refer.
Thirdly, there can be cumulative mechanisms for the overall reduction of noise, and I will discuss the California one shortly.
Fourth, there can be time limitations on aircraft operations in and out of airports. As you are aware, the ninth circuit invalidated Burbank's police power imposed regulation and curfew and that is now under submission before the Supreme Court.
However, the California Court of Appeals upheld a similar regulation imposed by Santa Monica at its airport and at least two State courts in Arizona and New Jersey have, in effect, imposed judicial curfews and, of course, the curfew exists at Washington National Airport, which is owned by the FAA.
Fifth, the use of quieter airplanes at more sensitive airports could be mandated and you have heard Cliff Moore speak about what may happen at night under certain weather conditions in Los Angeles.
Six, economic incentive for quieter airplanes; you have heard of the landing fees which are going to vary with the noisiness of the airplanes here at Los Angeles.
Seventh is the fleet noise rule for airlines which may be instituted such as Los Angeles has done with all aircraft being certificated in compliance with part 36 by the end of–my statement reads 1969, but it should be 1979.
Eighth, airports may mandate runway preferences for noise abatement purposes and this has traditionally been done.
In brief, a wide variety of means have successfully been used by State and local governments while on the other hand there have been cases where the jurisdiction acting was neither the proprietor nor the entity with police power jurisdiction over the actual location of the airport, the Cedarhurst, Hempstead case and so on, which resulted in the invalidation of local ordinances.
Now, finally, I want to talk about California's new noise standards, which California is the first State in the Nation to attempt to do something of this sort. The regulations are now coming into effect, they are based upon two separate legal grounds anticipating the Supreme Court's decision either way on the proprietor versus police power distinction.
One, they are based upon California's police power, and second they are based upon the powers of the proprietor who, in California, are licensees of the State.
I might add that the Air Transport Association has instituted litigation along with 18 airlines to invalidate the California noise standards and that is now pending before a three-judge court in San Francisco.
There are three separate parts of the California regulations.
First, monitoring, a system of measuring the actual noise which exists around major airports in California.
Second, single event noise level, and third a community noise equivalent level, or noise footprint called CNEL.
I will address myself briefly to each of these. Monitoring is required at airports having so-called noise problems and 11 airports in California have been certified as having noise problems.
The second is the single-event noise exposure level. Here the airport's existing authority which it would fairly clearly have as proprietor and which, as I said, the Port Authority has used in New York is going to really be reinforced by adding to the proprietor's arsenal of weapons, if you will, which currently would primarily include exclusion of excessively noisy aircraft from the airport, adding to criminal sanctions.
Then, finally, and perhaps most uniquely and constructively in California noise regulations is the community noise equivalent level, a structure utilized basically to take a whole airport, view the area as a whole, give a goal to the proprietor which has to be achieved over a period of years, the goal being to reduce the noise to acceptable levels on people in the areas surrounding the airport and giving to the proprietor the authority to orchestrate the methods with which that goal is to be achieved, working with the airlines, working with the users, working with the local communities, working with everybody involved so as to get the means that are best adapted to that particular airport to reduce the noise level.
The CNEL regulations do not directly relate the aircraft or its noise. They, instead, operate in the indirect way in which to which I have alluded. There is no specific mandate as to a particular method that the State requires the proprietor to act. But, a series of ways are listed in the regulations and it is up to him to choose which is to be used, including encouraging the use of quieter aircraft, encouraging the approach and departure flight paths and procedures to minimize noise in residential areas, planning runway utilization schedules, reduction of flight frequency, employing shielding and development of compatible land use.
In concluding, State and local governments do now and have traditionally exercised a concurrent jurisdiction with the Federal Government in the regulation of aircraft and airport noise. The United States itself has recognized that and in the case of Burbank versus Lockheed, at the request of the Department of Transportation, the Department of Justice filed a brief, amicus curiae, in the Supreme Court upholding the right of the city of Burbank to impose a curfew on jet takeoffs under its police power. This represented a change in the position on the part of the United States which was amicus on the other side in lower courts and I think that this change of position represents in every way a commendable thing.
With the narrow exceptions of certification of airplane types direct from the manufacturer and certain aspects of flight regulations connected with safety, the authority for the regulation of airport and aircraft noise has been a shared one with the national Government, perhaps, more responsive to national needs while States and localities have been responsive to the needs of local citizens, which include quiet as well as commerce.
In our Federal system that is the way things work. It is a healthy thing.
Thank you for your invitation to appear.
Mr. Chairman. Thank you, Mr. Yost.
I would like to say that the testimony that you gave in earlier hearings of the Senate Public Works Committee, and the work that you did subsequent thereto with me on that committee, enabled us to draft specific provisions of the noise bill, which is now the law, which I think are some of the most effective parts of the law and I want to thank you for the help that you gave us.
Mr. Yost. Yes, Senator.
Senator TUNNEY. I wonder if you had an opportunity to evaluate the way in which the law that we are presently holding hearings on has been utilized by the various Federal agencies in their relationship to the State government and State regulatory authority.
Have you had an opportunity to evaluate any action that has been taken by the EPA, or FAA as a result of the noise pollution bill?
Mr. Yost. Well, of course, we are still at an early stage in the implementation of that. I would hope to cite one concrete thing, that the Noise Control Act was one of the things that stimulated the United States to switch its position as to what the law is in the Supreme Court in the Burbank case.
Right now, of course, EPA is conducting the studies. I see Dr. AI Meyer, who is head of EPA's noise program here in the audience and it is hard to say what they will come out with in July and that
is going to be, I suppose, the acid test and then the second acid test is when they come out with what the FAA is going to do with it.
So, I think you have set up the mechanism for things to work well and it is now a matter of having constant pressure from the Congress and from the public on both the EPA and FAA to see that that mandate of the Public Health and Welfare is pursued.
Senator TUNNEY. One of the things in your statement regarding California's noise law, that interested me was the concept of cumulative noise levels. This concept was a part of the original legislative package that the Senate and Congress was dealing with last year before the final draft of the Noise Control Act was passed.
We eventually took out the language in the act as it related to cumulative noise levels because we just could not seem to agree as to what it meant and what the impact would be. I recall, however, some very interesting discussions of the Public Works Committee when six or seven Senators each expressed a different viewpoint as to what the language in the draft meant.
Consequently, we deleted it and I would just like to know how it has happened that you have been able to get a handle on the concept and how have you implemented it. I am curious because, as I say, this is something which we had originally included in our package. We felt, however, that more study was needed of the concept.
Could you direct your statements to that?
Perhaps California had the benefit of not having had to act under the time pressures that were facing you and your bill. But, in a process through, really, 1969, 1970, and 1971 this was developed with the State department of aeronautics public hearing and with an independent contractor while the laboratories were doing the work.
The idea was to come up with a means of telling people where you want to get to without trying to anticipate in advance by telling them how to get there.
In other words, leaving it up to the various affected interests at the individual airport to select the best mix of methods for that particular airport, given the needs of that community to bring the levels down. It is too early to tell how the California experiment is going to work and I know that the people in the Department of Transportation in Washington are watching very closely.
In the Burbank case they went out of their way to say the California noise standards were not invalidated by Federal legislation, particularly by the Noise Control Act, quoting a statement by yourself in the legislative district to that effect.
I hope that both the DOT and Congress will continue to watch this California experiment and I hope it will be useful for the whole Nation.
But, it can only prove useful if it is not preempted by either a judicial action or legislative action.
Senator TUNNEY. So, you feel that it is really too early to tell whether the cumulative noise standards ought to be applied at the Federal level?
Mr. Yost. I think it is a good idea. But, how it is going to work out in actual practice, that we will learn about in the next year or two.
Senator TUNNEY. Well, thank you very much, Mr. Yost. I think your statement, which you have submitted for the record is one of the most complete statements in identifying the existing law and what is proposed for the future.
I might just say that—the chairman might not know this—Mr. Yost argued in the Supreme Court for the State of California in the Burbank case.
So, he is quite knowledgeable on this matter.
STATEMENT OF NICHOLAS C. YOST; DEPUTY ATTORNEY GENERAL IN CHARGE,
ENVIRONMENTAL UNIT, OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA Thank you for the invitation to meet with you today. My name is Nicholas C. Yost. I am a Deputy Attorney General of California appearing on behalf of Attorney General Evelle J. Younger. By way of background I have been our office's expert in noise law; I was the legal adviser in the preparation of California's airport and aircraft noise regulations adopted by the State Department of Aeronautics; I have drafted a certain amount of the legislation enacted in the California Legislature which deals with vehicular noise; I served as legal adviser to our State Department of Public Health's Advisory Committee on noise; and I was Counsel to the State Environmental Quality Study Council, which had by statute an advisory group made up of professionals in the field of acoustics. Since 1971 I have been Deputy Attorney General in Charge of the Environmental Unit of the California Attorney General's Office. This newly formed section, unlike other sections in the office which represent client agencies such as the state's air and water boards, is completely self-generating. Without awaiting direction from administrative agencies the unit's nine attorneys look for environmental problems and attempt to deal with them by whatever means seem appropriate, whether by lawsuit, by seeking legislation, or by dealing with the problem in a less formal manner. I might also mention that in private life I formerly served ts co-chairman of the Planning and Conservation League's Noise Legislation Committee. The P.C.L. is a private consortium of over ninety environmental and conservation groups who band together to maintain a full-time environmental lobbyist in the California State Legislature.
I will discuss the problem of aircraft and airport noise reduction from the point of view of the role of state and local governments, with particular reference to California's efforts to solve it and the interrelationship with the Federal role under the Noise Control Act of 1972.
Any discussion of aircraft noise regulation in California immediately runs into the murky morass of tangled interrelationships between federal, state, and local governments generally, if loosely, referred to as preemption. What I say today must be subject to one important caveat. There is now pending in the United States Supreme Court the case of City of Burbank, et al. v. Lockheed Air Terminal, et al., No. 71-1637, the first case ever heard by that Court on aircraft noise regulation. The Court's decision may well do much to clear up the morass. Until that decision, however, any conclusion must be tentative.
THE FEDERAL ROLE
The Federal role in the regulation of air commerce began with the Air Commerce Act of 1926 (44 Stat. 570, repealed, 72 Stat. 806), continued through the Civil Aeronautics Act of 1938 (52 Stat. 973), the Federal Airport Act of 1946 (60 Stat. 170), and the Federal Aviation Act of 1958 (72 Stat. 737). However, it was not until 1968 that Congress first addressed the problem of aircraft noise with the enactment of section 611 of the Federal Aviation Act. The law directed the Administrator of the FAA to prescribe "standards for the measurement of aircraft noise and sonic boom” and prescribe "rules and regulations for the control and abatement of aircraft noise and sonic boom,
" (82 Stat. 395.)