Exploring the ever-changing landscape of environmental law

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.

Environmental Law Committees

  • Air Quality and Climate Change Committee
    This committee reviews federal and local air pollution control, including source permitting, air quality planning, transportation planning, compliance monitoring, hazardous air pollutants and indoor air pollution.

    Contact Information

    Marilyn Levenson

    Massachusetts Department of Environmental Protection

    Aladdine Joroff

    Harvard Law School

  • Energy and Telecommunications Law Committee
    This committee addresses regulatory and related issues affecting the natural gas, electric and telecommunications industries in Massachusetts — on the federal level and in other jurisdictions. Members typically practice before the Massachusetts Department of Public Utilities, Massachusetts Department of Telecommunications and Cable, Massachusetts Department of Environmental Protection, Federal Energy Regulatory Commission, Federal Communications Commission, and state and federal courts.

    Contact Information

    Jamie M. Tosches

    Office of the Massachusetts Attorney General

    (617) 727-2200

    James M. Avery

    Pierce Atwood LLP

    (617) 488-8125

  • Environmental Law Public Policy Committee
    The BBA is very active in legislative and regulatory changes. Environmental attorneys are asked to lend their expertise.
  • Environmental Law Public Service Committee
    This committee has a number of annual service events including planting trees for Earth Day and volunteering with the Food Project. The committee also focuses on practice-specific pro bono projects and brown bag programming.

    Contact Information

    Mina S. Makarious

    Anderson & Kreiger LLP

    (617) 621-6525

    Korrin Petersen

    Buzzards Bay Coalition

    (508) 999-6363

  • Environmental Litigation Committee
    This committee focuses on Chapter 21E, CERCLA, insurance, clean air and clean water litigation.

    Contact Information

    Seth Schofield

    Office of the Massachusetts Attorney General

    (617) 727-2200

    Katherine Kimball

    Morgan Lewis

    (617) 341-7700

  • Hazardous and Solid Waste Committee
    This committee informs members about issues relating to federal and Massachusetts laws governing oil, hazardous materials and hazardous waste, including CERCLA and Chapter 21E.

    Contact Information

    Bonnie Heiple

    Wilmer Cutler Pickering Hale and Dorr LLP

    (617) 526-6745

    John D. Beling

    Massachusetts Department of Environmental Protection

  • International Environmental Law Committee
    This committee is for members interested in international environmental issues and the laws of foreign countries.

    Contact Information

    Stuart L. Canton

    (781) 652-0135

    Cicely Ott Parseghian

    Foley Hoag LLP

    (617) 832-3038

  • Steering Committee
    The goal of the Committee for Attorneys with Disabilities is to build fellowship between attorneys with disabilities and their professional allies; share experiences, resources and career advancement strategies; and provide a forum for increased communication and understanding within the legal community. The Committee will work to develop opportunities for attorneys with disabilities and their allies to converge in social and educational settings.
  • Wetlands, Waterways and Water Quality Committee
    This committee keeps members abreast of changes in local, state and federal statutes, regulations and by-laws relating to discharges to surface water, groundwater and wastewater treatment plants.

    Contact Information

    Rebekah Lacey

    Anderson & Kreiger LLP

    (617) 621-6500

    Margaret M. Callanan

    Executive Office of Environmental Affairs

    (617) 626-1146