ILLINOIS POLLUTION CONTROL BOARD

April

10,

1986

IN THE MATTER OF:

R77—4

PUBLIC AIRPORT NOISE REGULATIONS

)

PART 904

PROPOSED RULE.

FIRST NOTICE.

PROPOSED OPINION AND ORDER OF THE BOARD

(by J.

Marlin):

This matter

comes before

the Illinois Pollution Control

Board upon

the filing by the

Illinois Attorney

General

on

February

16,

1977 of

a petition for adoption of airport noise

regulations at

35

Ill. Adm. Code Part 904.

Each of three

successive Illinois Attorney Generals

(William Scott,

Tyrone

Fahner

and Neil Hartigan) have sponsored

this proposal.

Specifically,

it

is

a proposal

to regulate noise emissions from

public airports that are owned

or operated by the State or

its

political subdivisions.

The proposal was published in the

Pollution Control Boardts Environmental Register

(No.

144, pp 5—

17, March 21,

1977).

Amendments

to the proposal were filed on

September 19,

1977

(Exhibit 23), June 12,

1978

(Exh.

127)

and on

November

14,

1979

(Exh.

156).

The Illinois Department of Energy

and Natural Resources

(DENR)

(formerly the Illinois Institute of

Natural Resources

IINR

and

th’e Illinois Institute for

Environmental Quality)

IIEQ

performed an economic impact

analysis on the proposal

and submitted four volumes of an

economic impact study

(EcIS)

to the Board.

Volumes

I and II

(public airports outside of Chicago) were filed on July

1,

1981

while volumes III and IV (public airports

in Chicago) were

filed

on November

16, 1981.

A total

of forty—five hearings were held

on the proposal:

thirty—nine merit hearings,

four economic impact hearings, and

two update merit hearings.

The last merit hearing

was

held

on

September

9, 1980,

the last economic impact hearing on March 15,

1983,

and the two update merit hearings were held on September 10

This Opinion and

the accompanying Order have benefited

from

considerable

input

from current Board Members.

The Board wishes

to acknowledge

the efforts

of the late Irvin G. Goodman, Vice

Chairman of the Board, who attended most of the hearings as

the

coordinating Board Member.

Current Board

staff who provided

invaluable assistance

in drafting the Opinion and Order

include

Kevin

F. Duerinck, who researched

the record and proposed initial

drafts;

Lee Cunningham, who prepared the first legal analysis;

Kathleen

M.

Crowley, who prepared the final

legal section; Morton

F.

Dorothy, who provided scientific and technical input;

Lorilyn

Chamberlin,

who provided editorial assistance,

and Beth Guido,

who typed

the several drafts.

69-65

---

—2—

and

18,

1985.

Prior

to these two update hearings, comments and

reply comments were filed by the participants,

the last being

filed on November

28, 1983.

After

the two update hearings, the

participants again submitted comments,

the last being

filed on

November

12, 1985.

The

record

in this proceeding consists of 46 transcripts

(approximately 7,500 pages),

253 numbered exhibits and

approximately 12

lettered exhibits,

4 EcIS volumes, written

public comments,

and additional filings.

Aside

from the two update merit

hearings,

the Board

is aware

that over

five years have passed

since the last merit hearing and

three since

the last economic

impact hearing.

This fact does not

seriously affect

the usefulness of the

record before

the Board.

Although some changes have occurred

in the number

of flights,

fleet mix, and individual companies and witnesses,

the basic

situation has not changed.

The two supplemental hearings held

in

September 1985 established that people living near airports

continue

to find the noise objectionable and that airports and

airlines maintain their objections

to the proposal.

Developing

an entirely new record would not serve a useful purpose.

The

Board

notes that references

to dollar amounts

in the record have

not been adjusted for any inflation that occurred since

the

testimony was given.

The two supplemental hearings held

in 1985 provided

participants the opportunity to raise any significant new

issues.

Further opportunity to comment will

be provided during

the

45 day first notice comment period.

Participants as well

as

the public will

be able

to comment

in writing on the Board’s

First Notice Opinion and Order

and may request a hearing.

To avoid

any confusion, citations to the hearing transcripts

will

be as follows:

~~RHfor merit hearing,

“E” for economic

impact hearing,

and

“5”

for

the two supplemental hearing

transcripts of September 1985.

Where

a hearing transcript was

not consecutively paginated,

any reference to

that transcript

is

by hearing date and page.

The Attorney General’s Office

(AGO) has proposed

to regulate

the amount of airport noise emanating from airports owned or

operated by the State

or

its political subdivisions.

The AGO’s

proposed noise standard

for receiving Class A Land

is

65 Ldn

(Ldn

is sometimes referred

to as DNL).

According

to the AGO, noise

in

excess

of this level

is unacceptable for land devoted

to Class A

uses.

Pursuant

to

35

Ill. Adm. Code 901.101(a),

Class A Land uses

include among others residential quarters, hotels and motels,

medical and other health services, correctional institutions,

schools,

religious activities,

certain cultural activities such

as

libraries and museums, nature exhibitions such as planetaria

69-66

---

—3—

and botanical gardens but not zoos,

leisure and ornamental parks,

and forest reserves.

The proposal phases

the

65 Ldn standard

in gradually over

seven years.

A variance procedure

is provided for airports which

cannot meet

the standard.

The variance procedure includes

developing

a plan for reducing noise at the airports.

In

addition,

the proposal requires airport proprietors

to gather

information on aircraft operations

to be used

in noise models

to

map the

area affected

by an airport’s noise.

The AGO’s proposal has been amended several times both

formally and

in the hearings and comments.

There

is no single

document

in

the record which contains the text of the rule as

proposed

by

the AGO at

the close of the hearings

in 1985.

The

Board

has used its discretion

to formulate the final wording.

At

the first hearing,

the AGO moved to incorporate

the

regulatory record

in R72—2,

In the Matter

of Noise Regulations

(R.

7—8) and R74—lO;

Motor Vehicle Noise,

(R.

132).

Over

objections

the motion was granted and the

records of both

proceedings were entered as Exhibits

2

and

3 respectively

(R.

7—

8,

R.

141).

The record

in R70—13,

the old Airport Noise

proceeding,

on motion

of the City of Chicago was entered

as

Exhibit

4

(R.

141).

The Board on its own motion hereby overrules

the hearing officer and strikes Exhibits

2,

3, and

4 from the

record.

These

three voluminous regulatory records have not been

considered

or cited by any participant.

Under

the circumstances,

the Board

sees no merit

in keeping

this bulk

in the record of

this proceeding.

Regarding jurisdiction, on May 12,

1977 the Board denied

the

Air Transport Association’s

(ATA)

and Chicago Association of

Commerce and Industry’s motions

for postponement

of the hearings

for deferral of briefing and consideration of constitutional and

statutory questions

(25 PCB 543, May 12,

1977).

At the time,

hearings were being held by the Federal Aviation Administration

(FAA)

based

on

a proposal filed

by the United States

Environmental Protection Agency (USEPA)

(25 PCB 541, May 12,

1977)

(25 PCB 545,

546,

May 12,

1977).

The Board will address

the jurisdictional as well

as other

legal

issues in the legal

section below.

Airport Noise Index

The Problem

5

The Legal Complexities of Airport Noise Regulation

7

Preemption Overview

8

Federal Statutes and FAA Regulations

9

Local Governments’ Attempts at Controls:

Ordinances and Litigation

14

69-67

---

—4—

Airport Proprietor’s Controls

18

Preemption As Affecting Board Regulatory

Authority

20

State Statutes As Affecting Board Regulatory

Authority

25

Citizen Concerns

31

Frequency of Flights

31

Impact of Noise on People’s Lives

31

Ground Noise

37

Noise Impact on Property Values

39

Industry Concerns

43

Development Patterns

53

People Move

to Airports

54

Airport Changes Impact Residents

56

Schools and Hospitals

60

Land Use and Zoning Concerns

61

65 Ldn Standard

66

Sound Measurement and Prediction

66

Acceptability of 65 Ldn as

a Standard

68

Noise Modelling and Monitoring

76

Effectiveness and Practicality of Noise

Reduction Methods

82

Retrofit, Replace and Reengirte

83

Takeoff and Landing Procedures

86

Preferential Runways

88

Taxiing

89

Engine Runups

89

Berms

90

Soundproofing

91

Easements

92

Purchase

92

Nighttime Curfew

& Reduced Operations

94

Land Use and Zoning

100

Alternate Airports

102

Economic Impact Study

103

Downstate Airports

104

O’Hare International

110

Midway

113

Discussion of Proposed Rule

115

Subpart A General Provisions

116

Subpart B Prohibitions

119

Subpart C Data Collection

121

Subpart D Exceptions

122

Subpart E Adjusted Standards and Procedures

123

69-68

---

—5--

THE PROBLEM

The

airport noise regulation

is one

of the most complex

issues ever

to come before

the Board.

The implications of any

decision will affect

a large number of competing interests and

government agencies at all levels.

The voluminous record and the

length of this Opinion are

a reflection of these realities.

Illinois

is home to

a number

of airports, including O’Hare

International which

is the busiest

in

the world.

The economic

impact of these facilities and related aviation activity

in

Illinois

in 1982 was over 9.1 billion dollars according

to the

Illinois Department of Transportation (Exh.

252,

b).

In 1984

O’Hare served 45.7 million passengers and processed over 882,000

tons of cargo with

a total

of 732,000 aircraft operations.

Its

closest rival,

Atlanta, handled 39 million passengers and 547,000

operations

(Exh.

240).

Because

of its location and many

connecting flights, O’Hare

has become

a pivotal point

for

the

world’s passenger and airfreight movements.

This facility plays

a key role in the economy of Illinois and

is essential to the

efficient operation of thousands of businesses.

Other publicly—owned airports

in the state may lack O’Hare’s

size, but make

a vital contribution

to the state’s economy.

They

provide

feeder service from cities which would otherwise

be

without air service and attract industries which depend on their

services.

The State’s airportsare expected

to increase their

operations over the coming decades.

Unfortunately, past airport

development has caused considerable conflict with local

residents

and in all probability future developments will have similar

problems.

With

the advent of commercial

jet aircraft

it became

apparent that much land surrounding airports would be subjected

to noise levels which would be unacceptable

for

a number

of uses,

including residential development, hospitals and schools.

The

noise

is generated by planes as they land and take off

as well

as

by engine testing and taxiing on the ground.

The noise pattern

about an airport

is irregular

in shape,

but generally follows

the

flight paths of the planes.

At a major airport such as O’Hare,

persons more than 20 miles from the runways may complain about

the noise

(R.

1009).

The testimony demonstrates that large numbers of people are

affected by the airport noise problem.

The two Chicago airports,

Midway and O’Hare, greatly impact

the surrounding areas.

Around

O’Hare, approximately 45,000 acres of land (exclusive of the

airport) were subjected to noise levels

in excess

of

65

Ldn.

At

Midway between 1,920 and 20,480 acres are impacted depending upon

the level of flight activity.

According to the EelS,

about

101,500 dwelling units are impacted by noise

at O’Hare and up

to

76,000

at Midway.

Over 500,000 people are subject

to noise

levels

in excess

of 65 Ldn from the two airports.

This number

69-69

---

—6—

varies

as

flight operations change

(Exh.

D).

Information

supplied by the City of Chicago’s Department of Aviation (CCDA)

illustrates how the amount

of land impacted by noise can change

over short time frames.

The data show that 1984 aircraft

operations exceeded 1982 operations

by over 100,000 yet impacted

ten fewer square miles.

According

to the CCDA,

about 50,000

fewer people were subjected to 65 Ldn in 1984 then

in

1979.

These estimates are based on population

and housing

unit counts

“based on residential units constructed

before or

in 1979.”

Table

1 summarizes the noise impact data provided by the CCDA

(Exh.

240).

As

of 1981,

downstate Illinois public airports created noise

levels

in excess of 65 Ldn on 8,614 acres, 962 acres of which

have noise sensitive land uses.

The 962 acre figure does not

include

industrial

lands, parks,

commercial

or airport properties

(Exh.

A,

EelS Vol.

I at 6).

Dwelling units

impacted totalled

2,575.

Id.

TABLE

1.

Population,

Community Facilities

& Square Miles

Within the

65 Ldn and Greater Sound Level*

1979

1982

1983

1984

Population

312,920

286,320

285,430

259,620

Housing Units

103,740

94,720

94,730

86,400

Schools

102

95

96

93

Hospital/Nursing Homes

15

16

20

14

Parks/Forest Preserves

115

105

102

103

Libraries

10

7

12

9

Square Miles

89

88

80

78

*

Population and housing

unit counts are based

on residential

units constructed before

or

in 1979.

O’Hare Total

Aircraft Operations

735,245

604,383

667,963

731,742

Source:

Exh.

240,

Map.

69.70

---

—7—

THE LEGAL COMPLEXITIES OF AIRPORT NOISE REGULATION

In brief summary,

the Attorney General has proposed that the

Board adopt regulations providing

for

a “continuum of actions”,

which he has characterized as

a three—tier system:

At

the

lowest

level

of

the

continuum,

State

action

simply

requires

the

disclosure

of

noise

impact

information.

At an intermediate level,

it requires the

use

of

such

information

and

forecasts

to

formulate

specific noise abatement policies and programs

as part

of

a

planning

process.

At

the

highest

level,

it

directs

state

intervention

and

the

use

of

state

authority

to

require

compliance

with

state

prescribed

standards,

whether

through

implementation

of

the

policies and programs formulated

at

the planning

level

or otherwise.

(A.G.

Brief,

p.

17—18).

The legal questions facing

the Board were well and simply

framed by Law Professor Sheldon Plager,

first witness

at the

first day

of hearing

in 1977:

First of

all,

is there

a role

for

the State of

Illinois

acting

through

its Pollution

Control

Board

and

its

Environmental

Protection

Agency,

in

the

abatement

of

this

airport

noise problem?

And

secondly,

if

there

is such

a

role,

is the proposal by the Attorney General

within the scope of that role?

(R.

12).

In summary,

the Board’s conclusions on each

of these

questions are

——

as were those of the witness

——

“yes, with

qualifications.”

In reaching these conclusions,

the Board has

considered the remarks of all hearing participants,

but has

placed particular reliance

on

the extensive and thoughtful

legal

analyses presented by the Attorney General

in support of the

regulation,

and

of the Air Transport Association of America

(ATA)

in opposition thereto.

The ATA argues that any regulation

by the Board

of airport

noise

is contrary

to both federal and state

law.

In brief,

the

ATA first contends that any regulatory action by Illinois

is

“preempted” by the United States Constitution, federal

legislation

and regulations

implementing that legislation.

The

ATA then asserts that,

even

if state

regulation of airport noise

is not preempted by federal law,

that the Board cannot adopt

rules without violating the laws and constitution of the State of

Illinois.

To place

these legal arguments

in perspective,

the Board

will

first outline the current state of controls of airport

noise, discussing case law as necessary to “tell

the story”.

The

Board will then address first the federal

law and then the state

law issues.

69-71

---

—8—

Preemption Overview

A preliminary overview of the general principles of

preemption analysis will serve

to enhance the discussion of

federal legislation and the regulatory reaction of the Federal

Aviation Administration (hereinafter

“FAA”)

to this legislation.

Simply stated,

the so—called “preemption doctrine”

is that

the federal government may take legislative

or regulatory action

which totally or partially precludes the states from legislating

or

regulating the same subject matter.

This doctrine flows from

the supremacy and interstate commerce clauses of the federal

constitution.

U.S. Const.

art.l

8, Cl.

3;

art 6,

cl.

2.

Due

to

the nature

and effects

of aircraft noise,

the principal cases

in

this area rely upon one,

the other,

or both of these

constitutional provisions.

In dealing with supremacy clause

issues,

the Supreme Court:

starts)

with

the

assumption

that

the historic police

powers

of

the

States

were not

to

be

superseded

by

the

Federal

Act

unless

that

was

the

clear

and

manifest

purpose

of Congress....Such

a purpose

may

be evidenced

in several ways.

The

scheme

of federal

regulation may

be

so

pervasive

as

to

make

reasonable

the

inference

that Congress left no room for the States

to supplement

it....Or the Act of Congress may touch

a field in which

the

federal

interest

is

so

dominant

that

the

federal

system will be assumed

to preclude enforcement

of state

laws on

the same subject....Likewise,

the object sought

to

be

attained

by the

federal law and the character

of

obligations

imposed

by

it

may

reveal

the

same

purpose....Or

the

state

policy

may

produce

a

result

inconsistent

with

the

objective

of

the

federal

statute.

Rice

v.

Santa

Fe

Elevator

Corp.,

331

U.S.

218, 230

(1946).

If purported state

intent and action runs afoul

of Congressional

intent and action

in any of these particulars,

the state action

will

be invalidated.

As to the commerce clause,

the basic principles,

as restated

by the Supreme Court

in Southern Pacific Co.

v.

Arizona,

325 U.

S.

761,

767

(1945), are that:

EJver

since Gibbons v.

Ogden,

9 Wheat.

1,

18241

the

states

have

not

been

deemed

to

have

authority

to

impede

substantially

the

free flow

of

commerce

from

state

to

state

or

to

regulate

those

phases

of

the

national

commerce

which,

because

of

the

need

for

national uniformity,

demand that their regulation,

if

any,

be prescribed by a single authority.

69-72

---

—9—

Generally,

the local benefit of

a state’s exercise

of its

police power

to protect the public health, safety,

and welfare is

examined

in relation

to the direct and indirect economic and

other effects which it may have on the national commerce.

Where

the burden

on interstate commerce

is

judged to

be excessive

in

relation

to the local benefit

a state seeks

to achieve, the

local

action

is

invalidated.

For

instance,

in Southern Pacific,

Arizona’s attempt

to reduce accidents by requiring that long

trains

be broken up

into shorter ones

for

travel through the

state was held

to be impermissible.

The safety interest causing

interruption

in service

to dissassemble and reassemble

trains was

found

to be plainly outweighed “by the interest of the nation in

an adequate, economical and efficient railway transportation

service”.

325 U.S.

at 783—4

Federal Statutes and FAA Regulations

The primary federal agency having jurisdiction of aircraft

and their

noise

is

the Federal Aviation Administration

(FAA),

created by the Federal Aviation Act (FA Act)

of

1958,

49 U.S.C.

1301 et seq.

The FAA was created primarily to promote air

safety

and commerce, functions formerly,

since

1938, within the

province of the Civil Aeronautics Board

(see

R.

19—20).

Section

1508 of the FA Act provides

in part

that the

“United States of

America is declared

to possess and exercise exclusive national

sovereignty

in the airspace

of the United States”.

Sections

1348(a)

and

(c) give the Administrator of the FAA wide authority

to promulgate regulations.

Th& 1958 FA Act did not specifically

mention the regulation

of noise, but a 1968 amendment, Pub.

L.

90—411, added Section 611

(49 USC

1431) which provided that:

to afford present and future relief and protection

to

the public

from unnecessary

aircraft

noise and sonic

boom,

the

Administrator

shall

prescribe

and

amend

such rules...necessary to provide for

the control and

abatement

of aircraft noise and sonic

boom.

The FAA’s regulatory response

to Section 611 was the

promulgation

of Federal Aviation Regulations

(FAR)

14 C.F.R. Part

36

(hereinafter “FAR—36”).

In brief,

FAR—36

set

a limit

on noise

emissions

from domestically manufactured new aircraft for which

manufacturers were required

to have aircraft certificates.

FAR—

36 was not applicable

to aircraft types approved as of November

18,

1969, and was not applicable

to all

newly manufactured

aircraft until 1973.

In 1972,

Section

611

of the FA Act was amended by the Noise

Control Act of 1972 (hearinafter “Noise Control Act”).

Pub.

L.

92—574, codified

at 42 U.S.C.

4901—4918.

The

FAA

characterized

this action as one taken by a Congress “displaying some

dissatisfaction with

the FAA’s methodical regulatory practice

under Section 611”

(Exh.

13,

p.

30).

The amended Section 611

added USEPA to

the

FAA

rulemaking process, although

it did not

give the USEPA independent authority to promulgate

69.73

---

—10—

aircraft/airport noise regulations.

Instead,

and

in brief,

the

USEPA was authorized and directed

to present regulatory proposals

to the FAA.

The FAA was required only to publish

the proposals

in the Federal Register and,

after

considering public comments

thereon,

to advise

the public whether

it was adopting any

proposals.

Section 611 was also amended

to require the FAA to

consider noise abatement

in

its

issuance of aircraft

certificates.

As discussed

later

in more detail, consideration of

the

legislative history of the FA Act and the Noise Control Act led

the Supreme Court

to remark in City

of Burbank

v. Lockheed, 411

U.S. 624,

639

(1973)

that:

Control

of

noise

is

of

course

deepseated

in

the

police

powers

of

the

States.

Yet

the

pervasive

control

vested

in

EPA

and

in

FAA

under

the

1972

Noise

Pollution

Control

Act

seems

to

leave

us

no

room for

local curfews

or other

local controls.

What

the ultimate

remedy may

be

for

aircraft

noise

which

plagues

many

communities

and

tens

of

thousands

of

people is not known.

The Burbank case, which invalidated

a city’s attempt

to impose

a

curfew on night—time flights into a private airport,

is the

Supreme Court’s first

and

last word

on the subject.

However,

Burbank

is as significant for what

it did not address,

as what it

did address.

In footnote

14

to the opinion, the Court first

quoted a letter from the Secretary of Transportation concerning

his view of the effects

of Section 611 on the

rights of

governments as proprietors of

airports.

The Court itself then

stated

that:

We

are

concerned here

not with

an

ordinance

imposed

by

the

City

of

Burbank

as

“proprietor”

of

the

airport,

but

with

the

exercise

of

police

power.

While

the Hollywood—Burbank

Airport may

be

the

only

major airport which

is privately owned, many airports

are owned

by

one municipality yet physically located

in

another.

For

example,

the

principal

airport

serving

Cincinnati

is

located

in

Kentucky.

Thus,

authority that

a municipality may have

as

a

landlord

is

not necessarily

congruent with

its police

power.

We do not consider here what limits,

if

any, apply to

a municipality as

a proprietor.

(411 U.S.

at 635.)

Since

1973,

FAR—36 and the companion FAR—91

(which sets

complaince deadlines for FAR—36)

remain

the only regulatory

limits on noise emissions promulgated by the FAA.*

In 1976,

the

*As of July 1,

1985,

88

of

the United States certificated fleet

were

in compliance with the noise certification standards of FAR—

36;

100

compliance

is required by statute on January

1,

1988

(continued)

69.74

---

—11—

FAA developed

its Noise Abatement Policy

(hereinafter

“Noise

Policy”).

The Noise Policy encouraged

the airport proprietor

to

take various voluntary actions, on the basis of the

FAA’S

assessment that

it

is the proprietor who was

“primarily

responsible

for planning and implementing actions designed to

reduce the effect

of noise

on residents of the surrounding

area.”

(Noise Policy,

Exh.

13,

p.

5).

In support

of this

position,

the FAA cited three cases

(to be discussed in more

detail later) which

it characterized as setting forth

the

responsibilities

of airport proprietors.

It was noted that

Griggs

v. Allegheny,

369 U.S. 84

(1962) established

the

proposition that proprietors are liable for payment

of damages

for noise

resulting from aircraft operations.

The

FAA

then cited

Air Transport Assn.

v.

Crotti,

389 F.Supp.

58

(N.D.

Cal. 1975)

as

establishing that:

The

airport

proprietor

is

responsible

for

the

consequences which

attend

his operation

of

a

public

airport;

his

right

to control

the use of

the airport

is a necessary concomitant, whether

it

be directed by

state

police

power

or

by

his

own

initiative...A

correlating

right

of

proprietorship

control

is

recognized

and

exempted

from

judicially

declared

federal

preemption

by

footnote

14

of

the

Burbank

opinion

.

Manifestly,

such

proprietary

control

necessarily includes the basic

right

to determine the

type

of

air

service

a given airport proprietor wants

its

facilities

to

provide;

as

well

as

the

type

of

aircraft

to

utilize

those

facilities...(389

F.Supp.

at 63—64.)

Finally,

the FAA also noted that the “Crotti principle” had been

followed in the then recent decision

in National Aviation

v. Cit~

of Hayward, 418 F.Supp.

417

(N.D. Cal.

1976).

In that case,

the

City had by ordinance imposed

a curfew at the airport which it

operated.

The Hayward court examined the

legislative history of

the amendments

to the FA Act and concluded that these amendments

were not designed

to prevent airport proprietors from excluding

(Exh.

231,

at 1—2,

and app. 1).

Noise standards for foreign aircraft are set by the International

Civil Aviation Organization

(ICAO),

of which

the United States

is

a member.

The ICAO adopted noise

standards in April

1971,

known

as “Annex 16”

(R.

4392).

(The U.S. version of Annex

16

is Part

36).

Foreign air carriers must

at least meet the Annex 16

standards if they desire

to operate

in the U.S.

When the ICAO

did not enact

a compliance timetable for Annex

16 by January

1,

1980,

the FAA did pursuant

to the Aviation Safety and Noise

Abatement Act of 1979.

Foreign stage II aircraft must meet the

Annex

16 standards by January 1,

1985

(14 CFR 91.301,

14 CFR

91.303, November

28,

1980).

However,

exemptions

are available

from this deadline.

69-75

---

—12—

aircraft on the basis

of noise considerations.

The Hayward court

also found

that,

to the extent that the curfew ordinance could

cause

the plaintiff air freight company

to use another airport

between 11 p.m.

and

7 a.m.,

that the City action did have an

effect on interstate commerce.

However,

the court did not find

the curfew invalid for that reason,

as the effect was:

incidental

at

best

and

clearly

not

excessive

when

weighed

against

the

legitimate

and

concededly

laudable goal

of

controlling

the noise

levels

at the

Hayward Air Terminal

during

late evening and morning

hours.

(418 F.Supp.

at

427)

The FAA’S synthesis of these cases was that:

The

power

thus

left

to

the

proprietor

—

to

control

what

types

of

aircraft

use

its

airports,

to

impose

curfews

or

other

use

restrictions,

and,

subject

to

FAA

approval,

to

regulate

runway

use

and

flight

paths,

is

not

unlimited.

Though

not

preempted,

the

proprietor

is subject

to two important Constitutional

restrictions.

He

first may not take any action

that

imposes

an

undue

burden

on

interstate

or

foreign

commerce

and,

second

may

not

unjustly

discriminate

between different categories of airport users....

The

~j~yward court

indicated

that

the

FAA

had

the

authority

to preempt proprietor

regulation.

We have

been

urged

to

undertake

-

and

have

considered

carefully

and

rejected

—

full

and

complete

federal

preemption

of

the

field

of

aviation

noise

abatement.

In our judgment the control and reduction

of

airport

noise must

remain

a shared responsibility

among

airport

proprietors,

users,

and

governments.

(Noise Policy,

Exh.

13,

p.

33—34)

The FAA did note,

however,

its “substantial power

to

influence

airport development” through its grant—in—aid program pursuant

to

the Airport and Airway Development Act,

49 USC

1701 et seq.,

which provided

it with new authority to share

in the costs

of

certain noise abatement activities.

The Noise Policy went on

to

specify what an airport proprietor

might wish

to include

in a

noise abatement plan, suggesting actions that

a proprietor could

take directly, those

it could propose

to local governments,

those

it could propose

to FAA for

implementation, and those

it could

propose

to the airlines

it services.

(Exh.

13,

p.

55—57)

In

short,

the FAA encouraged,

but did not require, noise abatement

planning subject

to

its veto

as regards proposed adjustments

in

operational

controls.

This policy

of leaving affirmative noise control actions

to

proprietors has since been formalized in FAR rules codified at

14

CFR Part 150

(hereinafter “FAR—lSO”).

See “interim rule”,

46

Fed. Reg.

8316, January 26,

1981,

and final rule,

49 Fed. Reg.

49269,

December

18, 1984.

69-76

---

—13—

FAR—iSO was adopted

in part to implement mandates contained

in the Aviation Safety and Noise Abatement Act (ASNA Act)

of

1979, 42 U.S.C.

2101 et seq., as well

as Section 1431 of

the

FA

Act.

The ASNA Act provided that on or before February 28,

1981,

the Secretary of Transportation should by regulation

(1)

establish

a single system for determining the exposure of

individuals

to airport noise; and

(2)

identify land uses

compatible with various exposures of

individuals

to noise.

49

U.S.C.

2102.

Once these

regulations were established, any

airport operator could submit a “noise exposure map”

to the

Secretary,

setting forth existing and projected non—compatible

land uses

in the area surrounding the airport.

49 U.S.C.

2103.

Thereafter,

the airport operator could

then submit

a

“noise compatibility program” setting forth the measures the

operator has taken or proposes to reduce existing, and prevent

future, non—compatible uses within the area covered by the map.

49

U.S.C.

2104(a).

The Secretary was

required

to approve

or

disapprove any programs submitted

to him

in accordance with the

criteria set forth

in

the ASNA Act.

49 U.S.C.

2104(b).

In FAR—l50,

the FAA adopted the noise measurement system

known as

the Ldn metric.

FAR—l50 further establishes

the

procedures,

standards and methodology for the development and

submission

of noise exposure maps and airport noise compatibility

programs, and sets forth the criteria to be employed by the FAA

in determining whether

to approve or disapprove

the

maps/programs.

Approval by the

FAA

of

a noise compatibility

program “does

not direct any implementing action.”

14 CFR Part

150.5(c).

Moreover,

in some instances proprietors must request

“federal

actions”

to implement specific measures of

a program,

which, where appropriate will include an environmental assessment

of the proposed action.

In considering

the voluntary Part

150 program,

it

is

particularly important to note the limitations contained

in the

ASNA Act.

Section

2106 provides that any noise exposure map and

related data submitted

to the FAA may not be “admitted as

evidence, or used

for

any other purpose,

in any action seeking

damages

or other

relief for

the noise that results from the

operation of an airport.”

At the same time, Section 2107

provides that a person acquiring property

in an area surrounding

an airport with respect to which

a noise exposure plan has been

submitted may not recover damages for noise

“if such person had

actual

or constructive knowledge of the existence

of the noise

exposure map”,

absent “significant change”

in airport operations

or layout.

In conclusion,

the Board notes

that

the FAA has been

characterized by one witness

in this proceeding as the “reluctant

dragon” of airport

noise control

(R.21).

The FAA’s posture does

not appear likely to change, given that at

least one federal

circuit court of appeals has agreed with

the

FAA’s

interpretation

that Section 611 of the FA Act, imposes a discretionary, and not

69-77

---

—14—

a mandatory, duty on the FAA

to control airport noise.

The

comments made by the court

in Di Perri

v.

FAA,

671

F.

2d

54,

56

(1st Cir.

1982)

remain as true today

as

they were

in 1982:

...while

section

1431

may

empower

the

FAA

to

promulgate

airport

noise

regulations,

the agency has

not done

so.

There

are,

in

fact,

so far

as

we

can

determine,

no

airport

(as opposed

to aircraft) noise

abatement regulations presently in effect pursuant

to

this

authority.

The

FAA has so

far elected

to limit

its

regulation

of

aircraft

noise

primarily

to

noise

abatement

design

criteria

for

new

aircraft.

See,

e.g.,

14

CFR Sections

36

and

91.301—311.

In

these

regulations,

the

FAA

has

been

careful

to

avoid

exercising

authority

over airport

noise.

(original

emphasis, footnote omitted)

Local Governments’ Attempts At Controls: Ordinances and

Litigation

In adopting Illinois’

first noise regulations,

the Board

specifically excluded airport noise from their coverage, with the

intent

of initiating later regulatory proceedings.

See, In The

Matter

of Noise

Pollution

Control Regulations, R72—2, Opinion of

July 31,

1973

(8 PCB 703

at

704,

722),

(noting that the Board’s

focus on the area of noise

in general was initiated by

a proposal

to regulate airport noise).

In, the absence of state regulations

in this

arena, governmental attempts

to control

or abate airport

and aircraft noise have been the province of the municipal and

county governments.

Local

governments whose populations are impacted by airport

noise fall into two classes:

those which are themselves airport

proprietors, and those which are neighbors of airports operated

by other entities.

Under Burbank,

a proprietor—government may

exercise direct control of

its airport

to the extent

constitutionally permissible

(as described

in detail later).

However,

the Burbank decision has precluded use of the

traditional police powers over noise.

While

local governments

may still regulate land use,

the record

in this proceeding amply

indicates that land use controls have not been very effective.

As summarized by the Attorney General:

In

some

instances

pre—existing

incompatible

uses

limited

the effectiveness

of

land use controls.

(R.

18;

R.

45).

In other

instances affected communities

were

not

privy

to

the

airport’s

data

relative

to

current and/or

future operations

that were needed

to

enact

appropriate

controls

(R.

18;

R.

183;

R.

235—

236;

R.

1055—1056

and

1065;

R

4911;

R

5073).

Moreover,

where

this

data

was

available

its

utilization

by

local

zoning

authorities

was

not

assured.

(Cf.

R.

2062—2063 with

R.

1402—1409 and

R.

1848.)

A.G. Comments,

p.

9.

69-78

---

—15—

The

ineffectiveness

of attempts

by non—proprietors to exert

police powers

is exemplified

by some of Illinois’ airport noise

litigation.

In Village of Bensenville,

et

al.

v.

City of

Chicago,

16 Ill.App.3d 733,

306 N.E.2d 562

(1st Dist.

1973),

Bensenville and other

communities surrounding O’Hare Airport

alleged

that aircraft operations from the airport emitted noise

and air pollution over the communities so as

to constitute

a

public nuisance.

Bensenville therefore sought an injunction

prohibiting Chicago from

1) expanding the airport

in such a

manner

as

to expose

the communities

to higher noise levels,

2)

allowing

the airport’s facilities to

be utilized by any aircraft

which emit noise beyond

a certain level and

3) permitting any

aircraft which produce noise

in excess of a certain level to

utilize airport

facilities unless such aircraft was

in use prior

to the date

of the requested relief.

Remarking that

the

“real thrust”

of the complaint was

to

prohibit aircraft while

in flight over the communities from

producing noise

in excess of prescribed limits,

the court found

the matter before

it was controlled by the Burbank decision

(which was

then some six months

old).

After extensively quoting

that decision,

the court held that under the Federal Aviation

Act,

as amended

by the Noise Control Act of 1972,

the federal

government had, “so occupied the regulation of aircraft noise and

air pollution

as

to preempt any state or local action

in that

field.”

306 N.E.2d at 566.

In County of Cook

v. Priester,

22 Ill.App.3d

964,

318 N.E.2d

327

(1st Dist.

1974),

affirmed without

reaching the supremacI

clause

issue,

62

Ill.2d

357,

342 N.E.2d 41

(1976),

the issue was

whether

a county, pursuant

to conditions imposed

in

a special use

permit issued under

its

zoning ordinance,

could lawfully impose

a

weight limitation on aircraft using a private airport.

Specifically,

one such condition sought to

restrict usage of one

of the airport’s runways

to aircraft that did not exceed 60,000

pounds.

In attempting

to justify that condition,

the County argued

that the limitation was

a safety

factor for the surrounding

landowners,

users,

and passengers of users of the airport.

As

such,

the County maintained that

it had a legitimate interest and

duty

in protecting the citizens living

in the area surrounding

the airport,

and was free to regulate activities within its

boundaries

to that end.

The Appellate Court disagreed,

remarking first

that the

County had failed

to show how the safety of

the public was

impaired by aircraft over 60,000 pounds utilizing the airport.

After reviewing the federal aviation statutory scheme,

including

49 U.S.C.

Sections 1508 and 1348,

and relying on the Burbank

decision,

the court determined that the condition was

unenforceable.

Specifically,

the court viewed the condition as

an attempt

to manipulate the type and number

of aircraft

servicing the airport

by regulating air traffic beyond

the

69.79

---

—16—

boundaries

of the county under

the guise of land use controls.

Finding

that the effect of the condition on the use of navigable

airspace was comparable to that cited

in Burbank,

the court held:

“that the level of

federal regulation of air commerce

by

the

Federal Aviation Agency

sic

is

so pervasive

as

to deprive

other

governmental bodies of

the power

to

act,

and

that

the

weight

limitation

ordinance

violates

the

Supremacy

clause

of

Article

VI

of

the

Constitution

of

the

United

States.”

318

N.E.2d

at

332.

The Board notes

that these holdings are squarely

in line

with

those

in other jurisdictions invalidating attempts by non—

proprietors to mandate

or preclude some specified actions

by the

airport proprietor which would have

a direct effect upon airport

operations.

These are,

by way

of example, San Diego Unified

p~9~Authority v. Gianturco, 651 F.2d 1306

(9th Cir.

1981)

(curfew); Luedtke v

.

County

of Milwaukee,

521

F.2d 387

(7th Cir.

1975)

(number

of flights, hours of operation,

aircraft operating

procedures and flight paths);

U.S.A.

v. City

of Blue Ash, Ohio,

487 F.Supp.

135

(S.D. Ohio

1978), aff’d

621 F.2d 227

(6th Cir.

1980)

(mandating

turns after takeoff) Northeast Phoenix

Homeowners, Assn.

v.

Scottsdale Municipal Airport, 636; F.2d 1269

(Ariz. App.

1981)

(restraining runway extension,

curfew and

specific operating procedures),

Air Transport Assn.

v.

Crotti,

supra,

(SENEL noise limits directly applicable to aircraft in

flight

as discussed

in more detail below).

Not all local attempts to

regulate in areas which may impact

airports fail, however,

as evidenced by LaSalle National Bank

v.

County

of Cook,

34 Ill.App.3d

264, 340 N.E.2d

79

(1st Dist.

1975).

At issue

in that case was whether a Cook County zoning

ordinance which limited building heights for areas within two

miles

of designated airports had been preempted by FAA

regulations concerning airport approach zones.

The allowable

height of any building under both the ordinance and

the FAA

regulation was based on the distance of

the building from

a given

measuring point.

Under the County ordinance, however,

that

measuring point was

the airport boundary, while under

the

FAA

regulation

it was the end of

the runway.

From these measuring

points further but differing computations under both the

ordinance and regulation were required

to determine

the allowable

height.

In upholding the Cook County ordinance,

the court

first

discussed the Priester decision, which held that regulation of

the field of air commerce had been federally preempted.

The

Court determined, however,

that it was not air

commerce, but

instead the construction

of buildings,

that was the object of

control by the county ordinance.

Accordingly, preemption was not

at issue

as the goals of the federal and

local government were

different.

Specifically,

the court found that while the FAA was

concerned with air

traffic safety,

the County was concerned with

69.80

---

—17—

the health,

welfare and

safety of those near the air field.

34

Ill.App.3d,

at 274—5;

340 N.E.2d at 87—88;

accord, Praznik

v.

Sport Aero,

Inc.,

42 Ill.App.3d

330,

355 N.E.2d 694 (1st Dist.

1976)

(state aircraft guest statute was not preempted by FAA

safety regulations).

Finding

themselves powerless

to limit airport noise and

expansion,

governmental entities have banded together

to ask the

courts

to do so,

using various

legal

theories.

In Illinois,

expansion of O’Hare International Airport has been the subject of

two such suits.

In State

of Illinois ex

rel.

Scott

v.

Butterfield, No.

74C2440

(N.D.

Ill. 1974),

a group of

municipalities organized as the Suburban O’Hare Commission

(Suburban) participated

in

a suit brought by the Attorney

General.

The allegation was that

the FAA had violated the

National Environmental Policy Act,

42 U.S.C.

4321 et ~q.,

by

adopting

a policy of unlimited growth at O’Hare.

This case did

not come to judgment,

but was the subject of

a consent decree and

settlement agreement dated October 14,

1982

(see Exh.

K,

L; ATA

Brief,

p.

18—19

and Attach

B., and ATA Supp Comments p.

18—20).

Pursuant

to this decree,

among other

things,

the City of Chicago

agreed

to

a moratorium on runway expansion until

1995.

The City

also agreed

to engage in voluntary FAR—iSO planning,

to present

a

master plan

for development

at O’Hare

to the FAA for approval,

and

to request the

FAA

to process an Environmental Impact

Statement

(EIS)

concerning any expansion.

The agreement and

consent decree additionally established

a forum known as the

O’Hare Advisory Commission

(OAC)

for “consideration and

resolution”

of

issues involving the relationship of the City of

Chicago’s O’Hare Airport

to surrounding communities.

On November

14,

1984,

the

FAA

approved an Airport Layout

Plan

for O’Hare which provided

for expansion.

On December

4,

1984, Suburban brought suit against the City and the

FAA

in the

federal District Court

for

the Northern District of Illinois

seeking

an

injunction banning all future construction at

O’Hare.

The complaint was that the FAA’s approval violated the

Butterfield consent decree, NEPA,

the Airway and Airport

Improvement Act of

1982,

49 USC

2201 et. seq.,

and the Clean Air

Act,

42 U.S.C.

7401 et seq.

The district court dismissed the

complaint for lack of jurisdiction.

Suburban O’Hare Commission

v.

Dole,

No. 84C10387, Memorandum Opinion and Order

(N.D.

Ill.

Feb.

28,

1985).

Suburban sought appellate review of the district court order

as well

as the FAA’s approval

of the Airport Layout Plan and the

adequacy of the EIS.

The Seventh Circuit Court of Appeals

determined that Suburban was not legally entitled

to relief.

The

members

of the three—judge panel also stated

that:

we

feel

compelled

to

address

the

equities

of

this

case.

Petitioners

conceive

of

themselves

as

the

innocent, passive victims of a relentlessly expansive

O’Hare.

They point out that many of

the communities

69.81

---

—18—

surrounding

O’Hare

were

established

long

before

the

airport

had

been

built.

In

all

fairness,

however,

these

same

communities

receive

enormous

economic

benefits

from

their

proximity

to O’Hare.

Moreover,

many

of

these

communities

have resisted

attempts

by

the

City

to harmonize

their own

land—use regulations

with

the

aviation

activity

at O’Hare.

In

a perfect

world, petitioners would

be able to reap the benefits

of their

location

and still

be able

to sleep without

noise disturbances

at

night.

Unfortunately,

the FAA

and

the

City

are

forced

to operate

in

a world where

even

their

most

carefully

considered

decisions

are

likely

to

adversely

affect

some

people.

We

are

confident that the proposed development represents

an

honest

and

careful

attempt

to

minimize

those

consequences

and

to

accommodate

the

conflicting

interests

in

the

best

possible

manner.

Suburban

O’Hare

Commission

v.

Dole,

No.

85—1073,

slip

op.

at

27

(7th Cir. March

13, 1986).

Finally,

it should also be noted

that in Illinois,

as

elsewhere,

individual homeowners have applied

to the courts for

airport noise

relief using

a variety of

legal theories of

liability,

including inverse condemnation, personal injury,

trespass, and nuisance.

See,

e.g., Bryski

v. City

of Chicago,

No.

83 CH841,

(DuPage County Circuit Court)

(complaint discussed

and included

in A.

G. Comments,

p.

62 and A49—60).

The Board

further notes

that in a recent case,

the California Supreme Court

found

that

a homeowners’

suit alleging

inverse condemnation of

land by,

and continuing nuisance from, airport noise

stated a

proper cause of action

for damages.

Baker

v. Burbank—Glendale—

Pasadena Airport Authority,

39 Cal. 3rd 862, 705 P.2d 866,

(1985), cert. denied

54 U.S.L.W.

3561, 3562 (Feb.25,1986).

Airport Proprietors’ Controls

The quandary of airport proprietors has been the

determination as

to what the

limits of its duties and authorities

are

as landlord,

in relation

to its statutory and constitutional

duties

to avoid actions which are “discriminatory,”

“unreasonable” and

“undue burdens on interstate commerce.”

The Illinois Municipal Code,

Ill. Rev.

Stat.

1985 Ch.

24

11—101—1, provides that municipalities:

may establish and maintain public

airports within or

without

their

corporate limits;

may

operate

any

public

airport

and

may

charge

and

collect

rents,

rates

or

other

compensation

for

any

use

thereof

or

for

any

service

rendered

by

the

municipality

in the operation thereof, provided

that

subject

to the capacity thereof,

the landing field

69-82

---

—19—

and

landing

strips

shall

be available

to any person,

without

unjust

or

unreasonable discrimination

as

to

services and

charges,

for

landing and take—off by

an

aircraft;

and

may

regulate

the

use

of

such

airports,

the

navigation

of

aircraft

over

such

airports

and

the

approach

of

aircraft

and

their

take—off

from

such

airports.

Chapter

15 1/2,

“Aviation”, provides similar, although not

identical,

authority

to establish,

operate and regulate airports

to various counties, municipal airport authorities,

joint city

—

county airport commissions, multi—county airport authorities, and

inter—state

airport authorities.

However,

local government’s

regulatory powers are not boundless,

being subject,

for

example,

to limitations imposed by the Illinois Department

of

Transportation as well

as the legislature.

See, ~

Ill.

Rev.

Stat.

1985 Ch.

15 1/2

190,

191.

As the Attorney General

correctly relates,

Caught

between

the

local

communities’

inability

to

act

and

the

FAA

refusal

to

lead

is

the

airport

proprietor.

The

proprietor

in

effect

is

caught

on

both

horns

of

a

dilemma.

First,

he

is

responsible

for

the

noise

impact

caused

by

the airport,

but

the

disclosure

of

the

extent

of

the

impact

may subject

him

to

further

liability.

Disclosure

of

that very

data, however, may well assist

the local community in

addressing

the

impact

and

thereby

lessen

the

proprietor’s

eventual

liability.

Second,

the

proprietor

is

subjected

to

the competing demands

of

the

serving

air

carriers

to

increase operations

and

the

local

communities

to

decrease

noise.

(A.G.

Comments,

at 16).

While

the Illinois courts have not addressed the issue of

the permissible scope of proprietor control of noise, case law

developed

in other jurisdictions gives some indication.

A

governmental proprietor may exercise otherwise preempted police

powers to establish a curfew,

see National Aviation v. City of

~yward,

supra

and may ban certain noisy aircraft from use of

its airport provided

that the decision

to do

so

is made in

a

timely

and reasonable fashion, see British Ai~s

Board v.Port

Authority

of New York (“Concorde I”),

558 F.2d 75

(2nd Cir.

1977);

on remand, 564 F.2d 1002 (“Concorde

II”)

(2nd Cir.

1977).

However,

a proprietor may not require compliance with

FAA

regulations

in advance

of FAA’s own compliance timetable because

of

federal preemption of this regulatory area;

see Global

International Airways Co~p~.v. Port Authority of New York,

564

F.

Supp.

795 (S.D.N.Y.

1983).

69.83

---

—20—

Preemption As Affecting Board Regulatory Authority

Having established the context

of the ATA’s

legal arguments,

the Board may now proceed

to address

them.

This Opinion has

considered

the

FAA’S

disinclination to regulate

airport,

as

opposed

to aircraft noise,

the inability of local governments to

exercise what police and zoning authorities they may possess

to

the satisfaction of themselves as well

as their neighbors, and

the competing and often conflicting federal, local and commercial

interests which airport operators must attempt

to satisfy.

The

argument becomes compelling that state governments could serve

the much needed function of establishing noise limits and

enforcing coordination of efforts between proprietors and units

of local government.

In considering

the possible role of the

state,

the

issues obviously become:

to what extent

is state

action preempted by federal

law, and to what extent is

contemplated state action precluded

by other constitutional

and/or state

law requirements.

As

to the preemption

issue,

the Attorney General and the ATA

do not dispute that the most relevant federal cases are Burbank,

supra, Air Transport Assn.

v. Crotti,

supra, and San Diego

Unified Port District

v.

Gianturco,

651 F,2d 1306

(9th Cir.

1981),

cert den. sub.

norn.

Department of Tran~portationv.

San

Die9o Unified Port District,

455 U.S.

1000

(1982).

The ATA believes that Burbank, as echoed

in the First

District Illinois Appellate Court’s decision

in Bensenville

in

1972 and Priester

in

1974, establishes total preemption of police

power action by state

and local governments

(see ATA Brief,

p.

23—24,

30—31).

The

Board

rejects

this

simplistic

assertion.

To

the extent that Bensenville and Priester

involved

attempts

by

non—proprietors

to exert controls over airport operations and

aircraft,

these decisions correctly noted

the total preemption

principle enunciated by the Burbank court in

a similar factual

situation.

Extension of these holdings beyond

their

facts would

be

error,

in that neither

Illinois court considered,

or was asked

to consider,

the Burbank

footnote

14 proprietor’s exemption now

well recognized by the federal courts and actively embraced by

the FAA.

The prototype for

the Attorney General’s regulatory proposal

to the Board are noise regulations adopted

by the State of

California.

These

regulations have been considered and

interpreted by federal courts

in the Crotti and Gianturco

cases.

In Crotti,

a three—judge district court was designated

to

review airport noise regulations which sought

to reduce community

exposure

to aircraft noise.

These regulations governed the

operations of airports and of aircraft at all airports

in

California mandatorily operating under

a permit

issued by that

state.

The county

in which the airport was situated was given

the responsibility of enforcing the noise regulations.

Any

airport’s non—compliance with the regulations would subject

it to

revocation

or suspension

of its permit.

69.84

---

—21—

The regulations were written to control noise

in two ways.

Generally, one part of the regulations was designed to gradually

reduce noise

levels

in communities surrounding an airport

to 65

dB under

a metric denominated

as the Community Noise Equivalent

Level

(CNEL).

Certain recommended procedures were established

under

this part of the regulations

to attain the CNEL standards,

such as encouraging

the use of aircraft types with low noise

level characteristics, preferential runway usage, reduction of

flight frequency during noise sensitive periods, noise—shielding

berms, and development of compatible land uses within noise

impact boundaries.

No recommended procedure was mandatory,

and

each airport was left to choose any procedure at its discretion,

including those beyond what was suggested,

in tailoring its own

programs.

A variance procedure was also provided for those

unable

to meet the required noise levels,

and in certain

instances airports with noise problems were required to establish

a Noise Impact Boundary by monitoring and measuring aircraft

noise emissions.

The other part

of the regulations established Single Event

Noise Exposure Levels (SENEL).

The SENEL set out permissible

noise levels governing noise generated by an aircraft directly

engaged

in flight.

Both the CNEL and SENEL standards were

challenged on the basis of preemption, with each party relying on

the Burbank decision

in support of their

respective positions.

After analyzing Burbank, the court first addressed the CNEL

standards.

Here,

the court readily concluded that the proprietor

exemption contained in footnote

14

of Burbank firmly established

the right of the airport proprietor

to control the use of its

airport.

Such control

included the right of the proprietor

to

determine the type of air service provided as well as the type of

aircraft that could utilize the airport.

Further,

the court

specifically recognized that the proprietor’s control could be

exercised either through its own initiative or

through a

directive initiated by the state through its police powers.

389

F.Supp.

at 64.

Moreover,

the court noted

the power of the state

to generally regulate its political subdivisions, including local

airport authorities,

as being

“well established

as a matter of

law”

citing City of Trenton v.

State of New Jersiy,

262 U.S.

182,

185—187,

43 S.Ct.

534

(1923).

389 F.Supp.

at 64,

n.2.

The court also determined that the monitoring provisions

of

CNEL standards were “innocuous

to air traffic involving ground

noise measuring machines and recording sound volume data which

in

no way intrude upon or affect flight operations and air space

management in commerce.”

389 F.Supp.

at 64—65.

Further,

the

state—dictated employment of shielding and ground level facility

configurations, and the development of compatible land uses, were

found as

“so patently within local police power control and

beyond

the intent of Congress in the federal legislation that

further discussion would be wasteful.”

389 F.Supp.

at 65.

69.85

---

—22—

As the court was reviewing the noise regulations pursuant

to

a summary judgment motion, however,

the court did not decide the

issue of what limits,

if any,

applied

to any of the CNEL

requirements.

Remarking that while

the remaining CNEL

recommended procedures

“appeared

suspect” until such time as

an airport took

a definite affirmative action thereunder, the

court concluded that the CNEL regulations were not per

se invalid

as preempted.

Id.

However,

the court did find that the SENEL regulations

constituted a per

se unlawful exercise of police power into the

exclusive federal domain of control over aircraft flights and

operations,

and airspace management and utilization

in interstate

and foreign commerce.

The court therefore enjoined their

implementation and enforcement

as having been preempted.

Id.

In Gianturco,

the court was subsequently called upon to

review

the implementation of the California CNEL regulations.

The San Diego Unified Port District,

a political subdivision of

the State of California,

owned and operated San Diego

International Airport at Lindbergh Field.

Aircraft noise

from

Lindbergh Field impacted the City

of San Diego

to such

a degree

that the Port District, pursuant

to California’s noise

regulations, was required

to seek

a variance from the regulations

from the California Department of Transportation

(Cal Trans).

The Port District sought

its first such variance

in 1975.

At

that time the Port District voluntarily imposed

a curfew on

operations

at the airport between the hours of midnight and 6:00

a.m.

In effect,

the curfew prohibited any aircraft from taking

off during

those hours and barred any aircraft not certified

under FAR Part 36 from landing during that period.

Subsequently,

the variance was granted, with the curfew incorporated

as

a

condition of the variance.

In January 1977,

the Port District reapplied for

a

variance.

After

a hearing, Cal Trans granted the variance, but

as

a condition thereof,

required that the curfew be extended two

hours,

i.e.,

from 11:00

p.m.

to 7:00 a.m.

The Port District

objected

to the extension of

the curfew,

and challenged

the

condition

in the federal district court, which found

the

condition to

be preempted by

federal law and enjoined

its

enforcement.

Upon review by the appellate court, Cal Trans submitted two

arguments.

The first was that Burbank was

no longer good law.

The basis for

this argument was Congress’ passage

of

the Quiet

Communities Act

of

1978,

Pub.

L.

95—609, which amended the Noise

Control Act of 1978

to establish

a federal program for funding

of

noise abatement plans

for sources including airports.

The court

rejected Cal Trans’

“attempt

to interpret the Quiet Communities

Act as

a blank

check for

local control of aviation noise”

651

F.Supp.

at

1314.

Finding that

the preemption doctrine as

articulated

in Burbank controlled,

the court found that

a local

government

could not adopt regulations impinging on aircraft

69-86

---

—23—

operation.

The court,

however, took care to mention that its

results were consistent with Crotti.

The court found that the

CNEL regulations upheld

by the Crotti court:

permitted proprietors

to choose

a variety

of methods

to

reduce

noise.

Although

a

curfew was one

option,

it

was

not

specifically

mandated

as

it

has

been

here.

footnote

25.

The

Crotti

court stated that

efforts

to

impose

curfews

via

the

state’s

police

power might be suspect but,

since

the program did not

unambiguously require

this,

it

refrained from

ruling

on the matter.

Footnote

25.

In

Crotti,

the

state

argued

in

its

brief,

made

a

part

of

the

record

in

this case,

that

the

regulations were

not mandatory

upon proprietors,

but only suggestive.

As the state put

it,

Should

a

proprietor

chose

to

act

using

its

unpreemptive

powers...that

is the business of the proprietor.

The

state

has nowhere directed

that proprietary power

be

used.

651 F.2d.

at 1316

Finally,

the court turned

to footnote

2

in Crotti, which

observed that the power of a state

to regulate its subdivisions

was well established.

This power, however, was thought by the

Gianturco court

to be limited through preemption,

referencing

without further discussion the dicta discussed above.

Id.

Cal Trans’

second argument was

that it was

a proprietor of

Lindbergh Field within the meaning of Burbank, and could

thus

impose

the curfew pursuant to the footnote 14 proprietor’s

exemption.

The court disagreed.

Citing Griggs

v. Allegheny

County,

supra,

the court found that for the purposes of

constitutional liability

for

unjust taking of property as well

as

for establishing proprietorship under Burbank,

the criteria to be

assessed are ownership, operation, promotion, and the ability

to

acquire necessary approach easements.

The court determined

that

under

state

law,

it was the Port Authority which satisfied these

criteria and therefore was the airport proprietor.

The concept

of

a dual proprietorship was similarly rejected on state

statutory grounds.

The position of the ATA

is that Gianturco is “fatally

dispositive”

of the Attorney General’s regulatory proposal,

because “Illinois public airport authorities have been ceded

proprietary powers by the Illinois General Assembly identical

in

all significant respects

to the powers held by their California

counterparts”,

as well

as the substantially identical prohibition

against acquisition

of airports from political subdivisions

without their consent (ATA Brief,

p.

26—28).

The ATA asserts

that the Attorney General has conceded

as much,

citing

a

statement made

in the Attorney General’s amicus brief

in support

of Cal Trans’ petition to the Supreme Court

for certiorari:

69-87

---

—24—

The

Illinois

R77—4

proposal...

applicable

to

all

public

airports

in

Illinois,

would

impose

specific

noise

limitations

for

airport operations as

a whole,

with enforcement and variance mechanisms,

all similar

to

the

California

scheme....The

Court

of

Appeals

decision places

a

large cloud

on the efficacy

of

the

proposal,

and

if

allowed

to

stand

could

render

nugatory

the

entire

regulatory

scheme.

(Exhibit

J,

ATA Brief

at

29).

The argument of the Attorney General

is essentially twofold:

that Crotti has continued validity, and that Gianturco wrongly

decided that the state did not stand

in

a proprietary capacity.

In analyzing these cases,

the Board has not considered

arguments

that the controlling

cases were wrongly decided,

employing instead principles of case construction and stare

decisis.

The Board

finds that Gianturco does not overrule or

otherwise disturb the finding

in Crotti that CNEL standards,

properly applied,

may form the basis

for

a valid state

regulatory

program.

Applying the reasoning of Gianturco,

the Board does not

find that Illinois

is

a proprietor within the meaning of Griggs

and Burbank

Illinois,

therefore, may not dictate what

proprietary controls an airport may

impose.

In terms of the continuum of state action envisioned by the

Attorney General,

this result does not affect the State’s ability

to require “disclosure” and “planning”,

but does circumscribe the

“intervention” options.

The Board’s

ability

to

a)

issue a

general cease and desist order,

leaving a proprietor

to devise

its own compliance plan,

or

b)

to deny

a variance,

leaving

a

proprietor

to adopt

a revised compliance plan,

remains

unaffected;

the range of specific directives may,

however, be

limited.

While

this result may have some undesirable effects,

the

Board notes that

it severely undercuts one of the ATA’s primary

arguments against adoption of

airport noise regulations:

violation of the interstate commerce clause (ATA Brief,

p. 46—

53).

As earlier explained,

the commerce clause prohibits

a state

from adopting legislation or

regulations which places

a burden on

interstate commerce which

is excessive

in relation to the local

benefits which

the state hopes

to achieve.

The essence of the

ATA’s argument

is that any control

of airport noise unduly

burdens commerce,

because of the interconnection of the air

transportation system:

for

instance,

a 10:00 p.m.—7:00 a.m.

curfew at O’Hare,

in combination with

a similar curfew in Los

Angeles,

would prohibit Los—Angeles—Chicago flight departures

for

fourteen and one—half hours out of 24.

Id.

at 51—52.

Uniformity

of regulations

is needed, ATA asserts, and the FAA

is the entity

in the best position to

insure uniformity.

The regulatory scheme proposed by the Attorney General

states the noise levels

to be achieved, not the method of their

achievement.

The airport proprietor

itself must determine the

69.88

---

—25—

method

of achievement.

This process will inevitably involve

consultation with the FAA, which can assess the effect of any

operational changes on

the air transportation system.

Where

the

FAA does not agree

to operational changes because of their undue

effects on commerce, and

a proprietor cannot achieve full

compliance with the noise limitation,

the proprietor may resort

to the mechanisms for relief provided

for

in the Illinois

Environmental Protection Act,

Ill. Rev. Stat.

1985,

ch.

111 1/2

pars.

1001 et

seq.

(hereinafter

“Act”): variances,

site specific

rules,

or

adjusted standards.

Any burdens

on interstate commerce

may thereby be minimized.

In summary,

the Board finds

that neither

the supremacy nor

the commerce clause preempts the Board from regulating airport

noise

in the manner

suggested by the Attorney General.

State Statutes As Affecting Board Regulatory Authority

Having disposed of the ATA’s federal

law objections, the

Board

will proceed

to consider ATA’s assertion that state

statutes preclude Board regulation of airport noise.

The ATA’s

state law claims

are that the Board lacks general

authority under

the Act

to regulate airport noise,

that

furthermore such regulation would be

in conflict with Illinois

aviation statutes,

that regulation of public airports

(those

operated by governmental entities) to the exclusion of private

airports violates equal protection guarantees of

the state and

federal constitutions, and that the proposed regulations are not

economically reasonable

or technically

feasible.

Title VI of the Act, “Noise”, provides

in pertinent part:

TITLE VI:

NOISE

Section

23

The

General

Assembly

finds

that

excessive

noise

endangers

physical

and

emotional

health

and well-

being,

interferes

with

legitimate

business

and

recreational

activities,

increases

construction

costs,

depresses property values,

offends the senses,

creates

public

nuisances,

and

in

other

respects

reduces the quality of our environment.

It

is

the

purpose

of

this

Title

to

prevent

noise

which creates a public nuisance.

Section 24

No

person

shall

emit

beyond

the

boundaries

of

his

property any noise

that unreasonably

interferes with

the enjoyment of

life or with any lawful

business or

69.89

---

—26—

activity,

so as

to violate any regulation or standard

adopted by the Board

under this Act.

Section

25

The

Board,

pursuant

to

the procedures

prescribed

in

Title

VII

of

this

Act,

may

adopt

regulations

prescribing limitations

on noise emissions beyond

the

boundaries

of

the

property

of

any

person

and

prescribing

requirements

and standards for equipment

and

procedures

for

monitoring

noise

and

the

collection,

reporting and retention of data resulting

from such monitoring.

The

Board

shall,

by

regulations

under

this Section,

categorize

the

types

and

sources

of

noise

emissions

that

unreasonably

interfere

with

the

enjoyment

of

life,

or with any

lawful

business,

or

activity,

and

shall

prescribe

for

each

such

category

the

maximum

permissible

limits

on

such

noise

emissions.

The

Board

shall

secure

the co—operation

of

the

Illinois

Institute on Environmental Quality

in determining the

categories

of

noise

emission

and

the

technological

and economic feasibility of such noise level

limits.

In

establishing

such

limits,

the

Board,

in

addition

to considering

those factors

set forth

in Section

27

of

this

Act,

shall

consider

the

adverse

ecological

effects

on

and

interference

with

the

enjoyment

of

natural,

scenic,

wilderness

or

other

outdoor

recreational

areas,

parks,

and forests

occasioned

by

noise

emissions

from

automotive,

mechanical,

and

other

sources

and

may

establish

lower

permissible

noise

levels

applicable

to

sources

in

such

outdoor

recreational uses....

For purposes

of

this Section and Section

24,

“beyond

the

boundaries

of

his

property”

or

“beyond

the

boundaries

of

the

property

of

any

person”

includes

personal

property

as

well

as

real

property.

(Ill.

Rev.

Stat.

1985,

ch.

111

1/2,

pars.

1023,

1024,

1025.)

First,

the ATA argues that Section

25 of

the Environmental

Protection Act

is not “sufficiently definitive or specific” to

empower the Board

to adopt

the wide—ranging regulations sought by

the Attorney General.

ATA asserts that Section

25

is a general

grant of authority to

“adopt regulations prescribing limitations

on noise emissions beyond the boundaries of the property of any

person”,

as opposed to a specific mandate to regulate airport

noise as enacted,

for

instance,

by the California legislature

as

discussed

in Crotti and Gianturco.

The ATA also asserts that

airport noise regulation

falls outside the scope of the

permissive authority of

Section

25 to the extent that the

---

—27—

proposal would cover

a)

noise emitted by aircraft while

operating miles outside the airport’s boundary, and

b)

the

“property” emitting the noise——the aircraft——is not owned by the

airport.

Initially,

the Board must point out that the second

paragraph of Section

25 specifically mandates the Board to

categorize “unreasonably interfering” noise

sources and to

prescribe noise

limits.

The lack of

a legislative “laundry list”

identifying particular noise sources, such as airport

noise,

as

being subjects of special concern does not impair the general

grant of

regulatory authority.

Section

25

is both definite and

specific, particularly when

read in the context of the Title

as a

whole.

In support

of

its

argument that the Board cannot

“limit the

aggregation of noise caused

by aircraft operating miles beyond

the boundaries

of the airport”

(ATA Brief, Oct.

26,

1983 at 59),

the ATA cites the following language from

In The Matter

of

Proposed Noise Regulations

for Toys,

R72—l6,

6 PCB 131

(October

31,

1972):

It

will

be

seen

from

the

above—quoted

provisions

Sections

23—25

of

the

Act

that

the

Board’s

jurisdiction

for

the

adoption

of

regulations

in this

field

related

to noise emitted

beyond the boundaries

of

the

property

on

which

the

noise

has

been

generated... (emphasis added).

Reliance

on this incomplete quotation

is badly misplaced.

The

toy noise proposal was

to impose

a 100 dB limit on noise from toy

guns and

an

85 dB limit on noise from other

toys measured one

foot from the

toy.

The sentence following that quoted above

contains

the essence of the Board’s rationale for dismissing the

petition:

The

proposed

regulation

is

essentially

one

in

the

category

of

consumer

protection

and

does

not

fall

within

the

area

of

control

envisioned

by

the

Legislature

for

which

the

Board

is

authorized

to

enact regulations.

Furthermore, Professor David Currie,

the principal draftsman

of

the Act, has stated that the “beyond the boundaries”

language

of Section

25 of the Act “excludes industrial hygiene,

as

in the

previous air statutes;

meaning

that

the Board has shown no

inclination

to duplicate the work

of other agencies

in

indoor

air

pollution.”

Currie, Pollution at 123

(1975).

Thus, the Board

has not attempted to regulate noise, such as toy noise, which

does not generally escape the boundaries

of the property on which

it

is generated.

The Board

has, however,

adopted regulations

limiting noise emissions from mobile sources on roadways

R74—lO,

25 PCB 517, 641, Order May

12,

1977,

since mobile source noise

reaches and impacts the general environment.

69-91

---

—28—

Next,

the ATA argues that

“the proposed regulation purports

to target Illinois public airport proprietors even though the

entities do not own the property,

i.e.,

the aircraft, which are

the source

of the noise being emitted”, and that the regulations

adopt

the “guise of

regulating

the airport proprietor

in order

to

reach

the source of the noise

itself,

i.e.,

the aircraft in

flight”

(ATA Brief, Oct. 26,

1983,

at 60).

However, while the

noise

is generated

by the aircraft,

the impact of that noise

depends upon the location of the airport property,

its size and

configuration,

the flight paths (especially during take—offs and

landings),

the timing

of arrivals and departures, airport

operating procedures,

surrounding

land uses, and other factors,

many of which are under

the control

of the airport proprietor.

As the Attorney General has pointed out,

“just as

‘

planes

do

not wander about

in the sky like vagrant clouds’

(quoting

Burbank, 411 U.S.

at

633, planes likewise do not take—off and

arrive

(with

their indivisible noise)

on vagrant clouds,

but at

proprietor located and controlled airports”

(A.G.

Reply Comments,

Nov.

28,

1983 at 19).

Clearly,

the airport proprietor’s original decisions

as to

airport location, configuration and design,

as well

as ongoing

decisions regarding new construction, operating procedures and

additional

land or easement purchases have

a real effect upon

airport noise

impact.

The Supreme Court,

in the context of an

air easement case,

recognized this fact:

It

is

argued

that

though

there

was

a

“taking”,

someone

other

than

the

airport proprietor

was

the

taker

——

the

airlines

or

the

C.A.A.

acting

as

an

authorized

representative

of

the United

States.

We

think,

however,

that

the

proprietor

,

which was

the

promoter,

owner,

and

lessor

of

the

airport,

was

in

these circumstances the one who took the air easement

in

the

constitutional

sense.

The

proprietor

decided,

subject to approval of

the

C.A..A., where

the

airport would

be

built,

what

runways

it

would

need,

their

direction

and

length,

and

what

land

and

navigational easements would be needed.

Griggs supra,

369 U.S.

at 89

(1962).

The rationale used by the Supreme Court here,

that the

responsibility for a taking accrues

to the decisionmaking entity,

is one which

the Board has long and consistently applied

in

analyzing liability for pollution under the Environmental

Protection Act:

The

Act

makes

it

unlawful

not

only to

‘cause’

but

also

to

‘al1ow~~o11ution. We

think

this

language

goes beyond

the common law arid imposes an affirmative

duty on persons in

a position of potential control

to

take

action

to

prevent

pollution.

.

.

the question

for

our decision

is whether,

in light

of the

Act’s

policy,

a respondent

is

in such

a relationship

to the

69-92

---

—29—

transaction

that

it

is

reasonable

to

expect

him

to

exercise control to prevent pollution.

EPA

v.

James McHugh

Construction

Co.,.

PCB

71—29,

4

PCB 511,

513

(May 17, 1972).

See also,

EPA v. Village

of Millstadt, PCB 78—132,

31 PCB 391

(Sept.

7,

1978)

(“The Act prohibits any person

(including

corporations) from causing or allowing

a violation of the

regulation,

regardless of whether such violation was caused or

allowed as

a result of

a contractual arrangement”); EPA

v.

Meadowlark Farms,

Inc.,

6 PCB 537

(PCB 72—343, January 16,

1973)

(“We are not concerned with the refinements of ownership of the

source

of pollution

as much

as with the capacity of controlling

its pollutional discharge.

Respondents cannot be selective about

what aspects of the

source

are under

its control.

The burdens

must be accepted with the benefits”),

affirmed, Meadowlark

Farms,

Inc.

v.

Pollution Control Board,

17 Ill.App.3d 51,

861

(5th Dist.

1974).

Thus,

the Board

finds that regulation of airport noise,

provided such regulation

is accomplished in

a constitutionally

permissible manner,

is both authorized by the Act and necessary

to implement the purposes of Title VII.

The ATA’s assertion of conflict between aviation statutes

and noise regulations promulgated under

the Act can be dismissed

with

little discussion.

The ATA contends that the aviation

statutes authorizing municipalities

(Ill.

Rev. Stat.

1985,

ch.

24,

11—101—1, previously quoted at length) and other

governmental entities

(Ill. Rev.

Stat.

ch.

15 1/2 generally, and

specifically

187—194)

to operate airports require them to

provide unlimited access

to all persons.

ATA asserts that

airport noise regulation would prevent compliance with this

requirement,

based on language prohibiting “unjust or

unreasonable discrimination.”

The statutes do not preclude

“reasonable discrimination”

for purposes of noise abatement;

the

statutes

in fact go on

to provide for regulation of the use of

the airport and the aircraft’s navigation,

take—off and

approaches.

However,

Section 47(a)

of the Act requires that the

“State

of

Illinois and all its

...

subdivisions shall comply with all

provisions

of the Act and of regulations adopted

thereunder.”

Compliance with an airport noise regulation

presents no inherent conflict with the aviation statutes

authorizing

regulation of airports

in a “just”

and “reasonable”

fashion.

The final argument of the ATA concerns the proposed

regulation of noise from public airports only.

The first noise

regulations, adopted

in Docket R72—2,

were challenged

on similar

grounds.

The validity of these regulation was upheld in Illinois

Coal Operators Assn.

v.

PCB,

59

Ill.

2d

305,

319 N.E.2d 782

69.93

---

—30—

(1974).

One of many areas

of challenge was the exemption of

sounds emitted by construction equipment from the regulations,

when identical equipment used

in mining was not also given an

exemption.

It was argued that this differing treatment violated

the equal protection clauses

of the state and federal

constitutions, as well as

a state prohibition against special

legislation.

The Illinois Supreme Court cited numerous authorities

which

specify groundrules to

be used by the legislature

in creating

classifications for differing treatment; these apply to the Board

in its use of

its quasi—legislative powers of rulemaking:

We

would

remark

that

so

far

as

legislative

classification

is

concerned,

it

has

been

recognized

that

evils

in

the

same

field

may

be

of

different

dimensions

and

reform

may

take

place

one

step

at

a

time.

The

legislature

may

address

itself

to

one

stage

of

a

problem

and

not

take action

at

the

same

time

as

to

other

phases.”

319

N.E.2d

at

786

(citations

omitted).

....If

there

is

a

reasonable

basis

for differentiating between

the

class

to which

the

law

is

applicable

and

the

class

to which

it

is

not,

the

General

Assembly

may

constitutionally

classify

persons

and

objects

for

the

purpose

of

legislative

regulation

or

control,

and may pass laws

applicable

only

to

such

persons

or

objects.

319

N.E.2d at 785

(citations omitted).

In that case,

the court found that there were significant bases

in the

record

for distinguishing between the mining and

construction industries,

including the temporary vs. permanent

use

of equipment, the different areas of

the state

in which the

activities were primarily conducted, and the number of persons

employed.

Similarly,

the Board

finds that this record supports a

rational distinction between public and private airports.

As

enunciated

by the Attorney General:

Privately owned airports are

a different contaminant

source from those

owned by public entities.

They are

typically

much

smaller

and

more

isolated;

and

their

operations

are

dominated

by

general

aviation

and

fixed—based aircraft whose operating needs

and noise

characteristics

are

altogether

different

from

the

scheduled

commercial

jet

airliners

which

dominate

operations

at

airports

operated

by

public

entities.

(Amended proposal

of 6—12—73, Rule 501

“Purpose”).

Additionally, political subdivisions are vested with

explicit statutory authority to

regulate their airports, which

authority may arguably give them greater noise abatement powers

than non—governmental airport proprietors possess.

Additionally,

69-94

---

—31—

state government has an obligation

“to manage its activities

so

as

to minimize environmental damage.”

Ill. Rev. Stat.

1985 ch.

111 1/2,

par. l002(a)(4).

For

these reasons, the Board

finds

that

it may lawfully address

itself first to the noise problems

posed

by political subdivisions of the state over which the power

to regulate

is well established.

E.g.,

City of Trenton

v.State

of New Jersey, 262 U.S.

182

(1982).

The only legal challenge remaining concerns the economic

reasonableness

and technical feasibility of

regulations

to

be

adopted by the Board.

This can be answered only after

a detailed

examination of

the record

in this proceeding.

CITIZEN CONCERNS

Many persons impacted by airport noise appeared at the

Board’s hearings and testified about

its effect on their lives.

A small fraction of those

comments will be quoted

or referred

to

in this opinion.

Frequency

of Flights

While noise levels are attributable to

a number

of

variables,

the frequency of flights was

of great concern

to

residents around

the Chicago airports.

With 731,742 operations

(landings or takeoffs) per year, O’Hare has 2,000 operations

a

day or

an

average of

83 per hou~. One Elmhurst citizen testified

that depending on wind direction,

landings occur every 75 seconds

and

takeoffs occur every 50 seconds

at O’Hare runways 4R and 22L

(R. 655).

A second Elrnhurst citizen said that planes land at

runway 4R every 15—20 seconds

(R. 687, 690—1).

A third stated

that unbearable noise

from runways 22L and 4R occurs every 50

seconds for 14 hours on

a northeast wind day

(R.

742).

A Des

Plaines resident testified that noise from planes using runway 22

is

continuous

from 7:30 a.m.

to 9:30 p.m.

(R.

992).

Another Des

Plaines homeowner stated that approximately 90,000 planes fly

over his home per year at

an altitude of less than 400

feet.

Impact of Noise on Peopie’s Lives

Many citizens testified that they could not enjoy

the use of

their homes or property because of the airport noise.

These

complaints can be categorized as communication interference.

Indoor communication interference occurs when the noise

interferes with

the resident’s ability to hear

the television,

stereo,

radio,

telephone,

or each other, which happens

in many

suburbs of O’Hare including Glenview

(R.

1008), Elmhurst

(R.

366,

718),

Schiller Park

(R.

711),

Des Plaines

(R. 2968,

2976,

1039—

42) and Bensenville

(R.

425).

A Bensenville resident summed up

the indoor communication interference

as follows:

It

is

impossible

at

times

to

carry

on

normal

conversations

in

a

variety

of

situations.

Sitting

69.95

---

—32—

outside

on

our

patio

we

are

frequently

unable

to

carry

on uninterrupted discussion.

Inside our home,

on days when we do not have the

air conditioning on,

the noise

interferes with our mealtime

banter.

When

using

the

phone

we

frequently

must

stop

talking

because

of

the roar of plane, and

if we happen

to

be

speaking to someone here

in Bensenville who is

in the

path

of

the

same

flight

pattern

the conversation

is

interrupted

two

times,

once

as

the

roar

is

at

our

house and then at their home, and also with each take

off during

the conversation

ER.

425.

Indoor communication interference problems extend to

hospitals and schools.

A registered

nurse at Lutheran General

testified that:

While

working,

I

have seen

how patients respond

to

noise pollution

from planes going

in

for landings

at

O’Hare.

It

appears

the

patients

do

become

more

irritable

and

nervous

when

noisy

aircraft

are

heard.

The

noise

interrupts

conversation

,

not

to

mention the patients’ experience when trying

to

rest.

It’s

important

to

have

quiet

when one

is

doing

certain procedures such as taking blood pressures and

this

is

interrupted

by

the

noise

from aircraft

ER.

4241.

Airport noise also interrupts church services.

The pastor

of Our Lady of All Parish

in Roseniont testified that:

In

terms

of

giving

homilies

on

Sunday,

things

like

that,

it’s

very

difficult.

There

are certain

days when we have

a northeast wind and we just know,

the

parishioners

know

we

have

to

cut

the

homilies

short.

There

is no way we can really communicate

to the

people.

It’s nearly wiped out of existence on those

days.

Other times,

it’s not that bad

ER.

4236.

A Bensenville resident testified that:

We go

to church

services and

all

throughout

the

service

we

have

to

hesitate.

Sermons

have

to

be

stopped because

of the noise of

the aircraft.

At any

rate,

it

is

very

discouraging

and

certainly

disrupting

to

the message being given during

sermons

and services.

ER.

5842).

Complaints

of airport noise extend even

to the sports

arena.

A witness attended

a football game that was stopped eight

times

by

the

referee due

to aircraft noise

ER.

404).

A school

superintendent stated

that:

69-96

---

—33—

that...is

the

way

we

play

our

football;

the

quarterback puts his hands

up, we wait

‘til the plane

passes over,

and we run the play.

I think

it

is safe

to say from impartial research that we spend

20

to 30

seconds for each pass over.

ER.

290.

One elementary teacher at

a school which

sits under runway

22R, testified about the problem:

The

first

problem

that

we

have

deals

with

spelling.

Whenever

the words

are given the children

will

raise

their

hands

and

point

overhead,

which

means

I can’t hear you,

there

is a jet overhead.

And

I have

five classes

of

language arts,

which

means

on

certain days we have

to

stop five

to

twenty

minutes

in each class, this

is

in spelling...

In

reading

it

is

impossible

to

present

a

new

word

on

the

board

as

a plane

is

going

overhead.

We

have groups of children coming up and saying,

‘We can

see

the

board

but

we

can’t

pronounce

the

word.’....And

I

notice

as

I

have

been

teaching

in

Park

Ridge

the

increase

in

noise

level

is

getting

worse and the frequency is increasing

ER.

392—3.

The superintendent of the school district testified that

O’Hare runway

22L,

22R and 27R operations fly over six of

the

district’s schools and affect five others

(R. 387).

Even when schools are air conditioned complaints exist.

The

Superintendent of Bensenville School Districts

2 and 100

testified that:

I

submit

to

you

that

air

conditioning

is

a

wonderful

thing

and we’re

all enjoying

it today,

but

in

the

fall and spring boys and girls

in our schools

can’t

enjoy

air

conditioning,

they can’t

even

enjoy

open

windows

because

of

noise

pollution.

The

only

defense

we

have

against

noise

pollution

is

the

windows

R.

287

People have testified that they have had difficulty sleeping

because of airport noise.

A Mount Prospect resident stated:

I

did

not

get

any

sleep that day,

nor

did many

of my neighbors get much sleep.

I am

——

I

feel that

is excessive.

I

feel

it

is excessive

that

I

have

to

be subject

to

22 straight hours of noise.

I

think

it

is

excessive

that

my children

can’t

go

to

sleep

and

therefore cannot go

to school

the next morning and be

educated.

I

think

it

is excessive that

I

cannot go

to work

the next day and earn a living

for my family,

69-97

---

—34—

and therefore

I am concerned

R.

267

A Bensenville resident also testified:

Let

me

get

back

to

my

typical

day

in

Bensenville.

Okay.

I will

be

sleeping

in my bed at

3:00

o’clock,

ten

to

3:00

a.m.,

charter

flights

to

Europe,

everybody

knows

them

because

you

can

get

a

good deal

on

it,

there

are

at

least

sic

flights

at

night.

When

they

land

——

I

am

sorry,

take off over

the house at five

to 3:00,

ten to 3:00,

3:00 o’clock,.

I will get up every morning

to look at the clock, and

then

I

try

to

get

back

to

sleep.

My

bed

is

shaking.

I

kid you not,

it vibrates,....

R.

401-

02

.

A Des Plaines resident stated:

This morning

I

opened

my

back

door and

I

said,

‘good

morning

airplanes’,

because

they

were

back

again.

You

go

to

sleep

with

them.

You wake

with

them.

I have

a four—year old who

I can’t even put

to

bed at 8:00 o’clock at night because she says,

‘Could

you please stop the airplanes?’

R.

2976—77

Airport noise also interferes with outside communication.

One Schiller Park woman complained

as follows:

We can’t stand out in the yard.

You can’t

talk

on

the

telephone.

You have

got

to

be

closed

up

all

summer

arid you call that right.

They

should

have

all

the

right,

and

I

have

to

sit

in

my house all

summer.

I

think

it

is

terrible

in

this

day

and

age

we

should

have

to

put

up

with

such garbage.

And

if

I was

to

sell my

house,

I

wouldn’t even

be able

to sell

it.

I wouldn’t want somebody else

to

go through what

I go through.

Something

should

be done

and

something could

be

done....You

want

to

wait

‘til

we

all

get

a

nervous

breakdown.

I

am

just

about

at

it.

They should

pay

me

for what

I am going

through

ER.

711—12.

Similarly,

an

Elmhurst

resident

was

disgruntled

over

the

impact

of

the

airport

noise

on

the

ability

of

residents

to

use

the outdoors:

We

had

a

block

party

this year

and

the

noise

bothered

many

of

the

residents

of my

neighborhood.

And

I

recall

it

when

we

were

planning

this

block

party,

we

really

prayed

that

we

would

have

a

nice

69-98

---

—35—

warm

day,

we

prayed

that

it

wouldn’t

rain,

we

also

prayed

that

the

airplanes

wouldn’t

come

over.

And

that

is

true.

We did talk about

that

R.

704.

A representative of the Bensenville Home Society,

a social

service agency which operates

a 247—bed facility

for

the aged

in

Bensenville, also testified:

We

have

beautiful

grounds

surrounding

the

facilities which are

of

little use

to us

because the

residents

find

the

noise

so

unbearable

most

of

the

time

from

the

aircraft

that

they

prefer

to

remain

indoors.

This is very sad.

I

might

add

that

the Bensenville

Home

Society

has

been

in

existence

in

that

location

since

1894,

long

before

the

airport

was

even

dreamed

about

ER.

5841—2

Airport noise can even interfere with the vital

communication services as evidenced by the testimony of Sergeant

Mosher

of the Bensenville Police Department.

He

testified as

to

the effect of airport noise

on the department’s radio

communication system:

I

have

occasioned

several

times

when

a

total

communication

blackout

occurs

because

of

the

jets

going

over.

Everyone

in

the audience here knows that

frequency

with

which

they

go

over

and

if

you

can

imagine

a

forty—five

second,

thirty

to

forty—five

second

blackout

in

our

communication,

it

becomes

almost

unbelievable

how

we

can communicate

back

and

forth with the frequency with which the jets go over.

We

operate

under

this

on

a

24—hour

basis.

Our

contact

with

the

jets

is

so

close

that

I

have

had

officers

tell

me

that

while

on

York

Road

they

can

clock

the

jets on their

radar units,

it’s that close

to us,

and the noise

is that great

for

us and

it does

cause

a vital problem to us and hampers

us

to a great

extent

in

our

ability

to

serve

the

public

and

the

Village of Bensenville.

ER.

6587.

In addition

to the frustration of being unable

to

communicate indoors or

to enjoy the outdoors,

residents are also

caused discomfort and expense

by noise vibrations.

One woman

from the Mohawk subdivision

in Bensenville testified that

“pollution

is also vibrations,

vibrations that have broken two

bedroom storm windows...vibrations that have cracked the patio

twice....It has also cracked the ceiling.”

(R.

6566).

A man from

the same subdivision testified that planes

from O’Hare pass over

the subdivision homes

at about

150

feet.

“We have been

continually fixing

the ceiling from cracks.”

(R.

6665—6).

Even

the Mohawk School

in Bensenville

vibrates

(R.

298).

A

69-99

---

—36—

Bensenville woman summed up the vibration problem,

testifying

that:

when

you

sit

at

the

dining

room

and

a

plane goes

over,

my

chandeliers

shake,

the

china

in

the

hutch

shakes

to

the point

that

I put most

of

it underneath

because I’m

afraid

some day

the

chandelier

is going

to fall

on top

of

us

and

the

china

is

going

to come

out....

I mean you can see

the people

in

the planes

practically

looking

down

on

you

and

you

feel

like

they are

staring

or

laughing

at you because you are

foolish

enough

to

live

in

a

home

that you

love

ER.

5864—5.

Others testified that they could not enjoy

the full use of

their home or property

(R. 450, 741, 4360).

One resident of Des

Plaines

stated that

the noise

is so loud

“that

I can’t even tell

if the lawnmower is going.”

(R. 4358).

He stated

that he was

frustrated,

and many times

ends up yelling and getting

irritable.

Id.

Another Des Plaines resident spoke of stress:

The

stress

factor

has

been

great,

as

I

say.

They

are

talking

about

those

hostages,

39

hostages,

or

55

in

Iran,

and

an

entire country

is

willing

to

sacrifice,

but

here we

hav.e

two people

in our

house

who

are hostages

of

the

airlines;

and

I guess

there

are many,

many more,

.

.

.

and

no one

is willing

to

sacrifice for us

ER.

5058).

Others testified as

to the stressful situations caused

by

the noise.

An Elmhurst resident stated:

And

I

also

feel

that

the

rights

of my having

a

home,

that

is,

a

healthy

home

is

being

violated

because

I

do

feel

that

.

.

.

the

noise

hurts

my

ears.

And

I do feel

that

it creates

a great deal

of

tension between myself and my wife and my family.

So,

I

do

believe,

then,

that

our

individual

rights

are

being

violated.

And

I

hope

that

the

Attorney

General’s

office

will

recognize

this

fact

and

will protect

us

because

really we

can’t

protect

ourselves

ER.

765.

Another Elrnhurst resident testified that:

I

am

a

wreck

sometimes.

I

just want

to

get

a

missile

and

shoot

at

every

one

of

those

planes,

at

every one of them.

This

is

emotional

testimony,

but when you’re

in

the situation you do get emotional

ER.

3281.

69-100

---

—37—

An Elmhurst resident commented on the psychological

impact.

of the noise:

I

only

notice

the

airplanes

on

weekends.

I

don’t notice them during the week, except when

I come

home

from work.

After working

in the Loop

I

return

to my nice lovely home

in quiet tree—lined

streets in

Elmhurst and my wife

is

a miserable bitch, pardon the

French.

She

is

normally

a

very

lovely

woman,

but

after

three

or

four

hours

or

whatever

it

takes

of

airplanes flying over my house is not very nice.

We

talk

about

physiological

health

and

bodily

effects,

and

the

like

but

nobody

talked

about

psychological

welfare.

And

I

think

this

does

more

damage

to

us

psychologically

than

it

does

to

us

physically.

ER. 752)

Things had not improved much by the time of the September

1985 hearings which were attended by far

fewer residents.

A

Chicago resident testified that the Midway Airport noise problem

as he perceives

it began in

“1983 when they started the

expansion.

In 1983,

it was not bad.

But 1984,

it has just been

absolutely terrible”

(S.

43).

Another Chicago resident testified about

recent noise levels

at Midway:

-

I

live

about

a

half

mile

from

Midway

airport

that has

a

large number

of older

DC—9 planes.

These

planes

are very noisy

and fly over low

in and out

of

Midway,

causing

my

windows

to

rattle.

The

mortar

falls

from

the

walls.

You

can’t

hear

on

the

telephone and

it

interferes with

all the TV programs

S.

36—7

Ground Noise

Several witnesses were more concerned about ground noise

than that generated by planes

in flight.

Airport ground noise

results from run—ups, taxiing and aircraft maintenance:

Ground noise begins with

a very loud,

you know,

big

shock

and

runs

for

fifteen

seconds,

twenty

seconds,

thirty

seconds

and

then

shuts

off.

Then

they

will

figure

out

there

is

something

else

that

they

have

got

to

fix

and

do

it

again.

It’s

the

ground noise

of that type that has caused us the most

problems

ER.

4345

One woman testified regarding the intensity of maintenance

run up noise:

69-101

---

—38—

My husband

and

I were awoken

at approximately

a

quarter

after

twelve

at night.

There was

a terrible

sound

that was

shaking

our

house.

We

did

not

know

what

it

was.

We

thought

at

first

maybe

it

was

a

tornado.

It

was

a

bad

night,

Sunday

night.

There

was

lightning

and

thunder

and

this

sound

just took

over everything

else.

We

tried

to

find

out.

We

called

the

Police

Department

to

see

if

they knew what

the

noise

was;

they knew nothing of

it....

My husband

finally called

the airport and asked

them

if

they

were

testing

some

new

kind

of

run—up

which

he

explained

to

my

husband

is

they

take

the

airplane

to

the

ends

of

the

runway

and

rev

the

engines

as high as

it will go.

My

husband

told

me

——

he

says,

‘Man,

our whole

house

is

shaking.’

The noise

was

unbelievable.

He

says,

‘Well,

it

will

last

about

fifteen

minutes

longer.’

It

lasted

a

least

fifteen

minutes

longer

although

it

did

lessen.

They

must

have

moved

it

either up the runway

or to

a different

runway,

but we

could

still

hear

it and

for anybody that experienced

this,

it’s

really

something.

I

mean,

the noise was

unbelievable and

this was

in

the middle

of

the

night

R.

6661—62)

Another woman testified about the frequency and duration of

ground

noise:

We

used

to

be

able

to

distinguish

rev—ups

because

they

would,

as

they

were

doing

the

other

night,

they would gun

it and shut

if off abruptly and

that

in

itself

jolts

you

out

of

your

bed,

but

they

don’t always do that,

so as

a result,

I can’t tell if

it’s

a

plane

that

is

there waiting

to take

off

or

a

plane

that

has

just

landed

waiting

to

go

to

the

terminal.

.

You see, when you live where we live you get the

noise

of

the

planes

taxiing....Then

you

get

them

coming

over

slowly and

then they go up

and,

I would

venture

to

say,

most

planes

using

those

runways

are

heard

in

our

area maybe

two

or

three minutes,

which

is

a lot when they are, maybe,

five minutes apart....

Q.

Is

the

noise

on

the

ground

more

continuous,

perhaps?

A.

Yes, you would

swear

that

there was

a

plane out

on

Touhy Avenue with

its engine

running

for

a half—

hour, forty—five minutes at

a

time.

69-102

---

—39—

Q.

For

that reason, does that bother you more?

A.

Well,

yes,

I would

think

it would anybody because

when

a plane

is in

the air and

it goes over and it’s

gone,

you assume

that,

okay, maybe another one won’t

come

over

for

an

hour,

but

when

it’s

on

the ground

and

it’s constant,

obviously,

it

would

be bothersome

to

anyone

who

is

bothered

by

it,

right?

R.

4313—

4318

A Des Plaines

resident, complaining about ground noise

testified:

We

do

hear

other

ground

noise

where,

for

example,

at about 6:00 o’clock

at night there must be

35,

40,

50

flights

that

leave

and you

hear

one

taxi

up

to

the end

of

the

runway and then

roar

it up and

take off and that goes

on ad

infinitum.

R.

4349

Ground noise and run—ups also occur

at other airports such

as at Coles County Airport

(R.

1785) and Springfield

(R.

1711).

The O’Hare situation

is simply more extreme.

Noise Impact on Property Values

The impact of airport noise on property values was

frequently discussed at hearing.

The testimony of individual

property owners differed according

to their location

in relation

to an airport and their personal experiences.

The testimony of

a

realtor and examination

of exhibits provided more detailed

information.

A former resident of

River Forest testified that she sold

her home

in three weeks after deciding

to move because

of noise

related

to

a new runway.

Regarding the sale price

she said,

“We

made money on

it.

But the people didn’t know what they were

getting into.”

(R.

219).

She also said that sales were

“hot”

in

the area due

to its beauty and other amenities.

An Elmhurst

resident said that his property had “gone down in value

considerably”

(R.

691).

A Chicago resident living seven miles

from O’Hare thought that values

had generally gone

up

in his

neighborhood,

but noted that people

in other

areas thought their

values

had declined

(R. June 12,

1978, 3049).

Another woman

said:

At this

time of year,

it’s too hard to sell your

house.

You have

to pay twice

as much if you want to

move

into

a house

the

same

as

the

one

that you

live

in now,

but the noise

is

so horrible

R.

5861.

A Bensenville realtor was

later asked

if

he had suffered

similar effects.

He said:

69-103

---

—40—

Very specifically,

yes.

And

very

specifically

in the residential

real estate business,

I hear these

constant

complaints

from

my

customers

and

clients.

There

are

areas

of

these

towns

that

are

less

desirable because of the air traffic

R.

5852

The Chairman of the Elk Grove Aviation Committee said:

I

would

imagine

that

most

previous

testimony

hinged

around

the

negative

economic

impact

the

amendment

would

have

on

business

in

the

area.

Has

anyone considered or evaluated the negative impact on

real

estate

values

of

residences.

Many

homes

have

been sold

below market value,

and many

homes

cannot

be

sold

because

of

the

ever—increasing

noise

pollution

R.

5014

General von Kann of the ATA did not think

that property

values had actually declined.

He testified as

follows:

There

certainly

is

little evidence

of decreased

property

values

if

you

look

at

some

of

your

census

tracts and you look

at

such things

as

the value

of

a

median

family

home

in

the

so—called

impacted

area

here compared with what has happened

to the values

in

the non—impacted areas

ER.

3182

Impressive testimony on this issue,

however,

was presented

by

a licensed real estate broke~who has practiced in Des Plaines

for fifteen years.

He holds an instructor’s certificate

in real

estate appraisal from the University

of Minnesota and is a

graduate

of the Realtors’ Institute

arid

a senior member

by

examination of the National Association of Independent Fee

Appraisers.

He served

as President of the Northwest Suburban

Chapter of the National Association of Independent Fee Appraisers

for three years and works for

a firm which has been actively

engaged

in real estate brokerage

in Des Plaines for fifty—two

years.

He testified as follows:

I

wish

to

address

you

concerning

the financial

impact

of

noise

pollution

on

a

residential

neighborhood.

The

impact

of noise pollution is many

faceted

and

it’s

difficult

to

address

in

a

direct

manner.

I

have

chosen

the

residential

neighborhood

located south

of Touhy Avenue, east of Mannheim Road,

west

of River Road and north of the Northwest Tollway

as

an

example

of

a

noise

polluted

area

and

have

compared

this

area

to

the

balance

of

Des

Plaines

north

of

Algonquin

Road.

I

have

omitted

the

area

north

of

Touhy

Avenue

and

south

of

Algonquin

Road

since

this

will

eliminate

the

transition

neighborhoods and provide a clear contrast.

69-104

---

—41—

My first conclusion drawn in comparing these two

contrasting

areas

of

Des

Plaines

concerns

home

improvements.

I

have

found

that

there

is

a marked

lag

in home improvements directed

to the enjoyment of

outdoor

lifestyle

such

as

screened

porches,

patios

and family room additions

for homes suitable for this

improvement

are

about

one—half

as

frequent

in

the

noise

impacted area.

The

lack

of

patios

and

other

outdoor

improvements would

appear

to

be

an

obvious

reaction

to

noise

pollution

which

we

would

expect,

but

the

lack

of

family

rooms

and

other

substantial

improvements

is

unexpected

and,

in

my

opinion,

ominous.

This

reluctance

to

invest

in

one’s

own

neighborhood

is

a dangerous

factor

which

is normally

found

in

declining

neighborhoods

to

a

much

greater

extent.

I do

not

suggest that South Des Plaines

is

in

a

state

of

decline.

To

the

contrary,

it’s

an

area

which

is

growing

and

improving,

though

at

a

much

slower

rate than other Des Plaines neighborhoods.

In order

to address specific impact of pollution

in

a

dollar

amount,

I

have

selected

the

home

style

which

is

subject

to

the

least

variation.

I

have

compared

only

two

bedroom,

brick

ranches

with

one

bath,

no

basement,

no

family

room,

no

central

air

conditioning,

but

with

a

garage.

I

have

used

the

annual

sales

summary

or

the

northwest

suburban

multiple

listing

system for

data using

1977 and 1978

as

a basis of comparison.

All home

sales

in

the selected areas which meet

this description has

been

included.

There have been

no

omissions.

Within

this

strict

description

there

were four sales in South Des Plaines in 1977 and five

in

1978.

North of Algonquin Road there were eight in

1977 and four in

1978.

Averaging

the

sales

of

1977

and

averaging

the

sales

of 1978,

the pattern

is established.

Homes of

this

modest

description

sold

for

$57,168.50

on

an

average

north

of Algonquin Road;

yet,

the

same home

in

a

pollution

impact

area

sold

for

an

average

of

$53,367.50,

a difference

of $3,801.

It

should

be

kept

in

mind

that

this

figure

is

for

a

modest,

two—bedroom

home

with

few

amenities.

Most of the homes of

the noise impact area are larger

and

these

homes would

suffer

even greater

loss,

but

for

purposes

of

extrapolation

on

an

overly

conservative

basis,

the

approximately

850

homes

69-105

---

—42—

located

in

this

single

impacted

area

suffer

an

economic

loss well

in

excess

of $3,230,000

ER.

4263—

67.

Additional evidence of the negative

impact of airport noise

on residential property values

is provided in

a 1985 FAA report

entitled Aviation Noise Effects.

A summary of

a number

of

studies was presented.

The range of property value decrease per

decibel above 55 Ldn was given as 0.6 percent

to 2.3 percent of

the property’s value depending upon the city studied.

The report

concluded:

The bottom line

is

that noise has been shown to

decrease the value

of property by only a small amount

——

approximately

1

percent

decrease

per

decibel

(DNL).

At

a minimum,

the depreciation of

a home due

to aircraft noise

is equal

to the cost of moving

to a

new

residence.

Because

there

are many other

factors

that

affect

the

price

and

desirability

of

a

residence,

the

annoyance

of

aircraft

noise

remains

just one of the considerations that affect the market

value

of

a home

Exh.

229,101.

As will

be discussed in some detail

in another

section,

the

EcIS concluded that noise decreased property values.

The use of

the

regression analysis method estimated a mean 0.58 percent