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
    !
    L~
    j
    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.
    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
    C!
    i~
    1-0307

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