TITLE V

Part A-Control and Abatement of Aircraft Noise and Sonic Boom This part (section 501 through 508) provides that the Administrator of the Environmental Protection Agency shall promulgate standards for the measurement of aircraft noise and sonic boom, and regulations with respect to noise emissions from aircraft which in his judgment are adequate to protect the public health and welfare with an adequate margin of safety. Standards actually applicable to noise emissions from aircraft must reflect the degree of noise reduction achievable through the application of the best available demonstrated technology, taking into account the cost of compliance, as jointly determined by the Administrators of the Environmental Protection Agency and the Federal Aviation Administration. Such standards can be promulgated only after the Administrator of the Federal Aviation Administration has determined that they are consistent with the highest degree of safety in air commerce, and technologically available for application to particular types of aircraft. Standards under section 611 of the Federal Aviation Act continue in effect until modified in accordance with this part. The implementation and enforcement of aircraft noise standards, through inspection and certification, is the responsibility of the Federal Aviation Administration.

Section 502 of this part directs the Administrator of the Environmental Protection Agency to conduct a one year study of a) the adequacy of FAA flight and operational noise controls; b) the adequacy of noise emission standards on new and existing aircraft, together with recommendations on the retrofitting and phase out of existing aircraft; c) the implications of identifying and achieving levels of cumulative noise exposures around airports; and d) additional measures available to airport operators and local governments to control aircraft noise. The Administrator is required to submit his report and recommendations for legislation to the Committees on Public Works and Commerce of the Senate and the Committee on Interstate and Foreign Commerce of the House of Representatives.

Section 508, on civil aircraft sonic boom, forbids commercial flights of supersonic aircraft over the United States and its territorial waters or the contiguous zone at supersonic speeds, but would permit research and development flights of supersonic aircraft. Enforcement of this ban under Section 412 of this Act is authorized.

Part B-Railroad Noise Emission Standards

This part (sections 511 through 514) provides a Federal regulatory scheme for noise emissions from surface carriers engaged in interstate commerce by railroad. The Administrator of the Environmental Protection Agency is required to publish within 9 months after enactment and promulgate within 90 days after publication noise emission standards for railroad equipment and facilities involved in interstate transportation, including both new and existing sources. Such standards must be established on the basis of the reduction in noise emissions achievable with the application of the best available technology, taking into account the cost of compliance.

Standards take effect after the period the Administrator determines necessary to develop and apply the requisite technology, and are im

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plemented and enforced through the safety inspection and regulatory authority of the Secretary of Transportation, as well as through Title IV.

Based on the interrelationship between the need for active regulation of moving noise sources and the burdens imposed on interstate carriers by differing State and local controls, the Federal regulatory program for railroads under this part completely preempts the authority of State and local governments to regulate such noise after the effective date of adequate Federal standards, except where the Administrator determines it to be necessitated by special local conditions or not in conflict with regulations under this part.

Part C-Motor Carrier Noise Emission Standards

This part (sections 521 through 524) provides a Federal regulatory scheme for noise emissions from motor carriers engaged in interstate commerce. The Administrator of the Environmental Protection Agency is required to publish within 9 months after enactment and promulgate within 90 days after publication noise emission standards for motor carrier operations involved in interstate transportation, including both new and existing sources. Such standards must be established on the basis of the reduction in noise emissions achievable with the application of the best available technology, taking into account the cost of compliance.

Standards take effect after the period the Administrator determines necessary to develop and apply the requisite technology, and are implemented and enforced through the safety inspection and regulatory authority of the Secretary of Transportation, as well as through Title IV.

Based on the interrelationship between the need for active regulation of moving noise sources and the burdens imposed on interstate carriers by differing State and local controls, the Federal regulatory program for interstate trucks and buses under this part completely preempts the authority of State and local governments to regulate such noise after the effective date of adequate Federal standards, except where the Administrator determines it to be necessitated by special local conditions or not in conflict with regulations under this part.

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MINORITY VIEWS OF MR. MUSKIE

The Environmental Noise Control Act of 1972 (S. 3342) was introduced on March 14, 1972 by Senator John V. Tunney and myself. That legislation was different than either the House-passed bill (H.R. 11021) or the Administration's bill, S. 1016, in purpose and intent. The bill which we introduced was not primarily designed to relieve product manufacturers from the effect of State noise pollution regulatory programs. Nor was it designed primarily to relieve transportation companies, particularly the airlines, from effective noise regulations.

Our intent was to establish a means to reduce, as rapidly as possible through the application of available control measures available, the exposure of people to noise by reducing noise at its source, by changing the way noisy products are used, by controlling noisy activities, and by such other means that are available.

Our bill was an environmental regulatory measure. We recognized that the regulation of noise would have an impact on commerce, but we also recognized that the purpose of regulation must be the reduction in the volume, intensity and character of noise to which people are exposed in their daily lives from sources over which they have no control.

While only recently recognized as a major environmental pollutant, noise may be one of the most perplexing. Unlike the common air and water pollutants, noise does not accumulate in the environment. Noise is not subject to collective treatment and reduction processes. And, noise is not subject to easy regulation. As a practical matter, the primary method by which noise will be reduced is through the application of noise emission control regulations at the source of sufficient stringency so that products will not, alone or in combination with other noise sources, present a problem.

To a degree, the legislation reported by the Committee moves toward this goal. Through the establishment of a regulatory mechanism which permits the Administrator to impose noise emission restrictions attainable through the application of the best available technology, the Administrator will have an opportunity to press the limits of our capability to reduce noise from new products.

The bill does not, however, provide adequate options in those cases in which best available technology is not adequate to achieve environmentally acceptable levels of noise. It does not recognize adequately the responsibility of States and local government to protect the environment in which their citizens live. It does not assure States an opportunity to ban the sale of Federally-regulated products which emit unacceptable levels of sound. At the same time, it does not expedite Federal regulation, thus holding out the hope of a quieter environment with no guarantee of early environmental improvement.

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By preempting State authority to restrict sale of noisy products, the bill places the burden on the consumer to take the risk of buying products which cannot be used in the manner intended at the time of purchase. The preemption provision limits State authority to restriction of the manner of use of noisy products regulated by the Federal government.

The Committee on Public Works is not unfamiliar with the problem of preemption. The Air Quality Act of 1967, which I sponsored, provided for Federal preemption of the authority to regulate air pollution emissions from new automobiles, except in California. That policy may have had an effect opposite of that which was intended. It appears that the preemption provision of that Act did not cause the auto companies to focus their research efforts and investments on one set of national standards. Rather, the auto companies' efforts have been focused on undermining those national standards.

Again in 1970, preemption was discussed in relation to regulation of air pollution emissions from aircraft. The Congress decided on a preemption provision effective on enactment and set deadlines for standards to be developed.

Section 231 (a) of the Clean Air Act requires that the Environmental Protection Agency must begin an investigation of air pollution from aircraft within 90 days of date of enactment. Within 180 days after commencing that investigation, the Environmental Protection Agency is required to report on the investigation and propose emission standards for any class of aircraft or aircraft engines which contributes to air pollution which endangers public health and welfare. Ninety days thereafter (one year after enactment), EPA was to issue final regulations. The proposed standards were due nearly one year ago, September 27, 1971. Today, no report or proposed standards have been published.

This is a classic example of Federal preemption leading to Federal failure to protect public health. The Federal Aviation Administration has undoubtedly discouraged active efforts by the Administrator. And the efforts that the Environmental Protection Agency has made have run aground in the Office of Management and Budget.

Therefore, in consideration of the pending legislation, I expressed reservations regarding a broad preemption provision for product and aircraft emission standards. The States have moved actively in this field. Federal noise pollution responsibility is new and little significant authority or responsibility exists. Conversely, a number of States have regulatory programs which impose emission controls on noisy products which controls are enforceable, both at the point of sale and the point of use.

I cannot support Federal preemption which protects product manufacturers and the air transportation industry without effective regulatory programs which will enhance the quality of the environment. Substitution of Federal law for State law without assurance that public health will be protected is poor public policy.

The second point of concern with the legislation reported from the Committee has to do with the problem of aircraft noise and regulatory mechanism recommended to deal with that problem. To date, regulation of aircraft noise pollution has been the sole responsibility of the Federal Aviation Administration. The Federal Aviation Administra

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tion has had this responsibility since its inception. It has had a specific legislative mandate for the past four years. And its record is wholly inadequate.

I understand why the Federal Aviation Administration's response has been inadequate. The FAA's responsibility is not to reduce the environmental impact caused by aircraft noise. Its primary responsibility is to promote air commerce and to protect safety. Regulation of noise from aircraft is not consistent with that primary mission.

In the proposed rulemaking in January, 1969, FAA set forth a "noise floor" at 80 EPNdB as "an objective to aim for, and to achieve where economically reasonable, technologically practicable, and appropriate to the particular design” and went on :

However, this objective is important because it makes it clear to all applicants that no increment of noise above 80 EPNdB can be considered acceptable, in and of itself, where it can be eliminated practically and reasonably. This figure is proposed as a reasonable boundary between noise levels that are high enough to interfere with communications and to obstruct normal life in homes or other buildings that are not designed with specific acoustical objectives, and lower noise levels which, while not completely benign, nevertheless allow those activities to proceed. Where this goal can be reached in a given case, and can be justified as economically reasonable, technologically practical, and appropriate to the particular type design, the FAA does not intend to ignore this potential reduction.

And yet, subject to industry pressure, the FAA dropped this 80 EPNdB "objective" from the promulgated regulations stating:

The FAA has determined that the request to remove the noise "floor" of 80 EPNdB from the regulatory language is reasonable and should be granted. This noise floor, not being currently achievable, could have no immediate legal effect.

The attitude of the Federal Aviation Administration as regards regulation of aircraft noise was more clearly spelled out in the following excerpt from a draft report on noise pollution prepared by the Environmental Protection Agency:

Both directly and by unmistakable inference, a number of important conclusions arise from the information gathered on Federal noise control programs.

Most plainly, the control of unwanted sound is not a high priority issue for virtually any Federal agency or department. Only when an Agency's primary mission absolutely requires a commitment of time, manpower and funding to noise control to assure the smooth functioning of that primary mission (as with for instance, FAA and NASA) is even a modest venture into noise suppression undertaken. For the FAA, aircraft noise is only an annoying interference in the basic goal of the Agency: the most efficient, safest and swiftest air travel possible.

While this statement was deleted from the final report transmitted to the Congress, it is indicative of FAA's attitude toward noise from aircraft. Unfortunately, the bill, as reported, would continue dominance of the FAA. Not only would FAA have veto over safety of [p. 23]