ILLINOIS POLLUTION CONTROL BOARD
April 22,
1993
IN THE MATTER OF:
PUBLIC AIRPORT NOISE
)
R77-4
REGULATIONS,
35 ILL. ADM.
)
(Rulemaking)
CODE PART 904
PROPOSED RULE.
DISMISSAL ORDER.
ORDER OF THE BOARD
(by J.
C.
Marlin):
This
docket was initiated
by
a
February,
1977 petition
for
adoption
of
airport
noise
regulations
by
then—Attorney
General
William Scott.
Based
on the record of
45 transcripts of public
hearings,
265
exhibits,
a
4—volume
economic
impact
study
and
voluminous
written
public
comments,
in
April,
1986,
the
Board
crafted a revised proposal to regulate noise emissions from public
airports that are owned or operated by the State or its political
subdivisions.
As explained
in detail
in the Board’s
125-page first notice
opinion of April
10,
1986,
the proposal was to establish a 65 Ldn
noise
standard
for
receiving
Class
A
land,
which
covers
most
residential
uses.
The proposal
phased
the
65
Ldn
standard
in
gradually over seven years.
A variance procedure was provided for
airports which cannot meet the standard.
The variance procedure
included developing a plan for reducing noise at the airports.
In
addition,
the
proposal
required
airport
proprietors
to
gather
information on aircraft operations to be used
in noise models to
map the area affected by an airport’s noise.
This proposal was the
subject
of
three
public hearings
in September-October,
1986,
as
well as of hundreds of public comments.
The Board now reluctantly determines that this matter should
be dismissed.
The Board
continues to conclude that
it
has some
legal
authority
to regulate
airport
noise
and subsequent
court
cases have confirmed that the State
is not totally preempted
from
addressing the
issue.’
The Board also continues
to believe that
The
complexity
of
the
case
law
governing the
field
of
airport
noise
regulation
is
discussed
in
detail
in
the Board’s
Opinion of April
10, 1986 at pp. 7—31.
In 1988,
in
Bieneman et al.
v.
City
of
Chicago,
et
a?.,
864
F.2d
463
(7th
Cir.
1988),
the
Seventh Circuit Court of Appeals reversed its prior position that
the entire
field
of
airport
noise
controls was
federally pre-
empted.
The court specifically admitted error
in its decision in
Luedtke v.
County of Milwaukee,
521 F.2d 387
(7th Cir.
1975).
As
the court
itself
noted,
in Bryske
v.
City
of
Chicago,
148
Ill.
App.3d
556,
499 N.E.2d
162
(2d Dist.
1986),
the Second District
Illinois
Appellate
Court
found
a
state
claim
preempted
on
the
authority
of
Luedtke.
See
the
Board’s
Resolution
RES
87-1,
U
!
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2
the
65 Ldn noise
limitation
it proposed
is the most appropriate
noise
standard
of
those
considered,
a
standard
which
was
not
seriously challenged for new airports at the 1986 hearings.2
As
a practical matter,
however,
there are sound reasons for
terminating
this
proceeding.
First,
this
record
is
stale
and
outdated.
By
way
of
example,
no
“third
airport”
proposal
to
relieve
the
burdens
of
O’Hare
International
Airport
is
even
mentioned
in
this
record,
let
alone
the
results
of
“noise
footprint”
mapping
performed
since
1986
by
O’Hare
and
other
airports pursuant to
14 CFR Part
150.
Any attempt
by the Board
itself
to divert technical and other
resources
to updating this
record would jeopardize
its ability to timely complete federally
required rulemaking
in other programs
e.g.,
rules mandated by the
Clean Air Act Amendments of 1990.
However, even providing the Board with additional resources to
create
rules,
and
the
Illinois
Environmental
Protection
Agency
funds to enforce such rules,3 would not cure a fundamental problem
recognized
by
the
Board
in
its
1986
opinion4
and reiterated
by
commenters on that proposal;5 any meaningful attempt at resolution
or amelioration of the airport noise problem must include uniform,
comprehensive, statewide authority for land use planning and zoning
in the vicinity of airports.
This is beyond the power of the Board
to effectively address.
As the Office of the then-Governor James
Thompson
commented
while
the
proposed
rules were
“a
start”
the
problem essentially “remains in the hands of the General Assembly”
Hearing Transcript of 10-10-86,
p.
120.
(January
27,
1987)
,
and
its
orders
of
February
19,
1987
and
December
3,
1987
in
docket
R77-4,
discussing
the
Bryski
and
Bieneman cases.
The Board assumes the outcome would be different
if the appellate court were to decide the case today.
2
The acceptability of this standard
is discussed
in detail
in the Board’s Opinion of April
10,
1986
at Pp.
66-76.
~
The
Agency
testified
in
1986
that
its
noise
pollution
division has been disbanded for “a number of years” due to lack of
funding, and that it felt unable to adequately enforce the Board’s
proposed rule.
(Exhibit 230; Hearing Transcript of 9-10-86, p. 12).
‘~
See the Board’s Opinion of April
10,
1986 at p.
15.
~ Commenters who shared this view included e.g., the Illinois
Public Airports Association, Hearing Transcript of 9—16—86,
p.
69,
405,
410, the Director of the University of Illinois’ Institute of
Aviation,
Hearing
Transcript
of
10—20-86,
p.
76—77,
the
Air
Transport Association,
~.
p.
208.
U1~iu~iu
3
In
dismissing
this
docket,
the
Board
recognizes
that
legislative action cannot and should not
be taken
in haste when
dealing with this complex matter.
Rather,
to the extent that the
legislature may have deferred action due
to the pendancy
of this
proposal,
the
Board
wishes
to
make
clear
that
it
lacks
clear
authority
to
adequately
address
all
aspects
of
this
problem.
Leadership
in this matter must come from the collective wisdom of
state
and
local
officials,
as
well
as
the
federal
regulatory
agencies.
The Board awaits direction as
to the part that
it can
reasonably play
in mitigating the airport noise problem.
Again,
this proceeding is dismissed and the docket is closed.
IT IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
~
day of
___________________,
1993 by a vote of
~
I
Control Board
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1-0307