ILLINOIS POLLUTION CONTROL BOARD

May

12,

1977

IN

THE

MATTER

OF

PETITION

FOR

ADOPTION

OF

AN

AMENDMENT

TO

CHAPTER

8:

NOISE REGULATIONS,

)

P77-4

ILLINOIS POLLUTION CONTROL

BOARD RULES AND REGULATIONS

DISSENTING OPINION

(by Mr. Young):

On May 12,

1977,

the Board denied

(3-2)

the Motion by the

Air Transport Association of America to postpone all evidentiary

hearings in R77—4 until

the completion of proceedings pending

before the Federal Aviation Administration concerning proposed

regulations

to regulate airport noise submitted by the United

States Environmental Protection Agency pursuant to the requirements

of the Federal Aviation Act of 1958 as amended by the Noise Control

Act of 1972

(PL 92-547).

As the Motion points out,

there are

similarities between the proposed regulations now being considered

by the Federal Aviation Administration and those proposed in R77—4

which might render Board hearings duplicative of

the Federal pro-

ceedings.

However,

I could not grant the stay on that basis alone

since any regulatory requirement adopted by the Federal Aviation

Administration which would impact the State regulation during the

pendancy of P77—4 could he integrated into the final

proposal before

Board adoption.

I am unable to concur in the denial of the Motion, however,

because

I believe that the Board

is governed in this proceeding by

the decisions

in The Village of I3ensenviiie et al v.

City of Chicago

(1st Dist.

1973)

16 Ill.Apo.3d 733,

306 N,E.2d

562; LaSalle National

Dank

v. County of Cook et a!

(1st Dist. i97~) 34

Ill.App.3d

264,

340

N.E.2d 79; and Praznik

v.

Sport Aero,

Inc.

(1st Dist.

1976)

42

Iii.

App.3rd 330,

355 N.E,2d 686 wherein the court concluded that the

United States, under

the SuDremacy and Commerce clauses of the Con-

stitution,

has, through the Federal Aviation Act, as now supplemented

by the Noise Control Act of 1972 and the regulations issued thereunder,

so occupied the regulation of aircraft noise and air pollution as to

pre-empt any state or local action

in that field,

I am unable to

agree with the proposition set forth in the proponent’s Petition for

Adoption

(at page

3)

that we are able to disregard the decisions cited

above by reference

to footnote 14 of Burbank

v. Lockheed Air Terminal,

25

—

545

---

—2—

Inc.

411 U.S.

624,

93

S.Ct.

1854

(1973).

The Illinois Court had

the Burbank decision,

including the footnotes, before them before

arriving at their decision in Bensenville and I must therefore

reject the contention that a reliance on the “proprietor’s rights”

theory of Burbank avoids the clear statement of federal pre-emption

made by the Illinois Court in Bensenville.

It is my feeling that the pre-emption question must be finally

resolved before any further proceedings

in P77—4 and I must therefore

dissent from the Order of the Board in denying the Motion to Stay.

~

~

JUmes

L. Youn~

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby ,~ertifythe above Dissenting Opinion was submitted to

me on the

_______

day of

‘J~—r~—&~

,

1977.

c&~e~

Christan L. Moff~I, Clerk

Illinois Pollution Control Board

25

—

546