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,
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 !
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 u ~
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.
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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
C!
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1-0307