On March 17, 2023, a law school clinic submitted to the United States Environmental Protection Agency (“EPA”) a sixty-day notice of intent to sue letter, setting forth various entities’ intent to sue the EPA for its alleged failure to perform various non-discretionary duties under the Noise Control Act of 1972 (the “Act”).

The Act has been largely unused since 1982. Should the EPA resume regulating noise pollution, it could have significant implications for a wide variety of product manufacturers, who could become subject to a host of regulatory requirements relating to controlling noise from products. For example, manufacturers of certain products could become subject to certain labeling, verification, recordkeeping, and reporting obligations.

The Act and Its History

In enacting the Noise Control Act of 1972, Congress announced “it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” 42 U.S.C. § 4901(b). Accordingly, the purpose of the Act is “to establish a means for effective coordination of Federal research and activities in noise control, to authorize the establishment of Federal noise emission standards for products distributed in commerce, and to provide information to the public respecting the noise emission and noise reduction characteristics of such products.” Id. While the Act makes clear that “primary responsibility for control of noise rests with State and local governments” (consistent with similar language in the Clean Air Act), it also provides that “Federal action is essential to deal with major noise sources in commerce, control of which require national uniformity of treatment.” Id. at § 4901(a)(3).

EPA’s principal regulatory authority under the Act consists of its ability to identify and regulate products that are a “major source of noise.” Id. at § 4905. Products subject to regulation include construction equipment, transportation equipment, any motor or engine, and any “[e]lectrical or electronic equipment.” Id. The EPA may also require labeling of products “which emits noise capable of adversely affecting the public health or welfare,” as well as products sold “wholly or in part on the basis of its effectiveness in reducing noise.” Id. at § 4907. In addition, the Act directs the EPA to coordinate and consult with other agencies to assist with noise reduction efforts, Id. at § 4903(c), and specifically contemplates regulation of noise generated by airplanes and motor carriers. Id. at §§ 4916, 4917.

When the EPA implemented the statute in the 1970s, the agency indicated its intent to regulate product categories such as: trucks, motorcycles, busses, tractors, air compressors, lawn mowers, pavement breakers, rock drills. However, it proposed to withdraw many of these designations in 1982, as part of no longer implementing the statute. 47 Fed. Reg. 54,108 (Dec. 1, 1982). In 1982, at the request of the Office of Management and Budget and EPA, Congress eliminated funding for implementation of the statute, but did not repeal the Act. Sidney A. Shapiro, Lessons from A Public Policy Failure: EPA and Noise Abatement, 19 Ecology L.Q. 1, 2 (1992)

The Notice of Intent to Sue

Like most other federal environmental statutes, the Act contains a citizen suit provision that enables individuals to sue other entities for various violations. Under this provision, citizens can bring a suit against the EPA for failure to perform nondiscretionary duties under the Act. 42 U.S.C. § 4911(a)(2)(A). Here, the sixty-day letter alleges that the EPA is aware of a growing universe of literature documenting the health risks associated with noise pollution—including sleep disruption, anxiety, depression, and increased risk of heart disease, heart attack, stroke, and early death—but that the EPA has, for forty years, abdicated several of its responsibilities under the Act, including its nondiscretionary duties to:

• Review, revise, and supplement published noise criteria;
• Review, revise, and supplement published information on safe levels of environmental noise;
• Identify and regulate major sources of noise;
• Develop low-noise-emission products;
• Designate products and promulgate labeling regulations;
• Coordinate and regularly consult with federal agencies and report on their noise control programs; and
• Assist state and local governments in developing effective noise control programs.

Why it Matters

If the EPA ultimately resumes implementation of the Noise Control Act, whether on its own initiative or pursuant to a court order, it could have significant implications for a wide range of industries and product manufacturers, who could be subject to regulatory requirements relating to noise levels, along with associated verification, recordkeeping, and reporting obligations.

The notice letter singles out several industries and consumer products, including: personal listening devices, toys, outdoor power equipment used in land care and construction, drones and urban air mobility, and conventional transportation technologies. In addition, those who make products designed to reduce noise—such as earplugs—could likewise be subject to further EPA oversight.

Industry members who make these or other products with noise implications should consider monitoring this area.