BBA's Writers Pool: Regulating Noise

By Jennifer Bernazani-Ludlum

On April 1, 2013, the BBA’s committees on Land Use and Development and Air Quality and Climate Change co-sponsored a presentation featuring Marc Wolman of the Massachusetts Department of Environmental Protection (MassDEP) examining the regulation of noise.

In Massachusetts, noise is considered a public health concern and regulated as air pollution under Article 97 of the Massachusetts Constitution and G.L. c. 11 § 142A. Sounds become prohibited noise when they cause a nuisance, are or could be hazardous to public health, or unreasonably interfere with the enjoyment of life, property or the conduct of business.

A source will be considered in violation of MassDEP’s noise regulation, 310 CMR 7.10, if it:
(1) increases the broadband sound level by more than 10 dB(A) above ambient, or
(2) produces a pure tone condition – when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more.

These levels are measured both at the property line where the sound is being produced and at the nearest sensitive receptor (such as a residence or school).

In practice, MassDEP applies its noise prevention policies in the context of pre-construction permitting, municipal ordinance review and responding to complaints.

For facilities that will exceed air pollutant thresholds and require air permits under 310 CMR 7.02 a noise impact analysis, including a study of the ambient conditions and sound modeling to predict the project’s impacts, is required. Noise mitigation is required if the impacts are projected to exceed 5-10 dB(A) at the sensitive receptor. Some permits require post-construction monitoring.

Additionally, MassDEP is charged with reviewing town adopted ordinances under G.L. 111 c. 31C, to ensure that they are at least as stringent as the state regulations and are reasonable.

In the event of noise complaints, local police and fire departments are the first responders, though MassDEP will provide guidance, training, and lend equipment to municipal officials to assist them in enforcing state and local regulations. While complaints can arise from a variety of sources, including rooftop HVAC equipment and demolition, complaints associated with wind turbines have been increasing in frequency.

As a result, MassDEP and other state and municipal agencies, including the department of public health, are taking a closer look at the complex sound issues associated with wind turbines. A number of studies have been commissioned regarding turbine acoustics, which can be affected by wind-speed, amplitude, infrasound and ambient levels at the project sites. When the results of these studies are in, at the end of 2013, MassDEP expects to revisit its noise pollution regulations and policy to assess whether revisions, new standards and measurement procedures are warranted. Comments from the public will be solicited during this process.

For now, when attempting to permit a project or create acceptable local regulations, the general rule of thumb is if something can be done to mitigate the sounds associated with a particular activity or project, then those measures, within reason, should be taken.

Jennifer Bernazani-Ludlum is an attorney with Ferriter Scobbo and Rodophele, PC representing clients in the Courtroom, in the Boardroom and at the Statehouse on environmental remediation, permitting and litigation matters. For more on Jennifer, click here.