"The Dormant Noise Control Act and Options to Abate Noise Pollution"
Sidney A. Shapiro, 1991
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 [1972 Noise Control Act]. 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 [low-noise emission products] program, ONAC was quite active concerning coordination, research and education, and support of local and state efforts. While this is a mixed record, it cannot 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)
103. Oversight Hearing, supra note 84, at 59. [Note 84: Noise Control Act Oversight: Heaerings before the Subcom. on Resource Protection of the Senate Com. on Environment and Public Works, 95th Cong., 2d Sess. (1978)]
104. See J. LASH, A SEASON OF SPOILS: THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT 28 (1984).
105. Feith interview, supra note 16. [Note 16: Interview with Kenneth Feith, Senior Scientist/Advisor, Office of Air and Radiation EPA, in Washington, DC (Nov. 19, 1990) (former ONAC official); Interview with Marshall Miller, in Washington, DC (Nov, 20, 1990) (former EPA General Counsel); Telephone interview with Ralph Hillquist (Jan. 7, 1991) (former General Motors employee).]
106. Oversight Hearings, supra note 84, at 2 (Testimony of William H. Dempsey, President, American Association of Railroads) (taking no position whether ONAC should be continued, but favoring federal preemption of state and local noise regulation); id. at 124 (Statement of Motor Vehicle Manufacturers Association of the U.S., Inc.) (same); Letter to Senator Slade Gorton from Bennett C. Whitlock, Jr., American Trucking Association, reprinted in id. at 128 (same). The railroads and motor carriers gained credibility for this position from the fact that EPA emission standards for them industries ore enforced by the Department of Transportation (DOT), which was not put out of business. 42 U.S.C. §§ 4916(b), 4917(b). These industries, however, did receive some regulatory relief. See infra note Section IB3 & accompanying text (discussing weaknesses of railroad and motor carrier regulation).
107. Supra note 5 & accompanying text. [Note 5: See R. PAEHLKE. ENVIRONMENTALISM AND THE FUTURE OF PROGRESSIVE POLITICS (1989) (describing origins of the environmental movement); C. BOSSO. PESTICIDES & POLITICS: THE LIFE CYCLE OF A PUBLIC ISSUE (1987) (same).]
108. Ruben, On Deaf Ears, ENVIRONMENTAL ACTION, Mar./Apr. 1991, at 17 ("Public apathy about noise made it all the easier for EPA's office to quickly toll under Reagan's budget axe, says [David] Hawkins of the Natural Resources Defense Council.").
109. 44 Fed. Reg. 56524 (1979).
110. Id. at 56526-56527. The agency estimated that the standard would produce a 74 percent decrease in the magnitude of refuse vehicle noise by 1991 and that about 19.7 million persons in cities and densely populated suburbs would benefit. Id. at 56532. An EPA official admits, however, that the agency's original plan for testing garbage trucks would hove been expensive for the industry, but he maintains that ONAC was working with the industry to solve that problem. Feith interview, supra note 16.
111. See e.g., Oversight Hearings, supra note 84, at 4.6 Testimony of Richard L. Hanneman, Director, Government and Public Affairs, National Solid Waste Management Association). The industry objected to the standard because not all noise generated by refuse collection is made by the compactor mechanism (the standard did not regulate other ports of the vehicle such as brakes tires), locally imposed curfews have effectively limited citizen complaints about garbage truck noise, the standard had the effect of preventing trucks from compacting when moving which reduced their productivity, and EPA had only weak evidence of adverse health effects. Id. at 4.5.
A former ONAC official denies that the standard would have prevented garbage trucks from compacting when moving. Telephone interview with Fred Mintz, EPA (June 19, 1991).
112. Jesse Borthwick, the Executive Director of the National association of Noise Control Office told Congress:
The problem with refuse collection noise can best be dealt with through local in.use and administrative controls. Reducing compactor noise emission levels 5 or 6 dB will virtually have no effect on reducing the impact of refuse collection in noise sensitive are during morning hours when background noise levels are low. Reauthorization of the Noise Control Act of 197l before the subcom. on Commerce, Transportation, and Tourism of the House Comm. on Energy and Commerce, 97th Cong., 1st. 27 (1981) [cited hereinafter "Reauthorization Hearing"].
113. The Regulatory Analysis Review Group, located in the Center White House, received more letters from Congress concerning the standard than concerning any other issue in its first 3 years. Clark. Regulating Garbage Truck noise. A quiet Debate is Getting Louder, NATIONAL JOURNAL, November 1, 1980, at 38. A Regulatory analysis Review Group study initiated in response to these complaints concluded a national standard was inappropriate for noise generated by garbage pickups. Id. At 39. The study reasoned that garbage collection noise was primarily local problem because the desired level of product noise regulation depends on the ability to regulate a truck's pattern of use which varies tremendously among communities. Id.
115. Kilpatrick continued, "Cost and benefits to one side, this petty, stupid, nit picking regulation based almost entirely upon gauzy conjecture as to 'sleep and activity interference'. offers one more interference of bureaucracy gone berserk." Kilpatrick pointed to successful local efforts to control garbage collection noise and decided, based on this case, that the entire NCA was superfluous. Kilpatrick, This Noise Regulation Is Just Garbage, reprinted in Reauthorization Hearings, supra note, at 63. kilpatrick later endorsed the "Buy quiet" program as an appropriate governmental response to noise acknowledging without a ONAC'S role in establishing the program. Kilpatrick, Reaction from Memphis To Noise Level Column, id. at 62.