EPA: Town can't supersede state noise law
Opinion based on North Hampton motorcycle ordinance approved at the polls in March
![Shir Haberman]()
By Shir Haberman
hamptonunion@seacoastonline.com
September 07, 2010 2:00 AM
NORTH HAMPTON — Just because the U.S. Environmental Protection Agency requires a label on all motorcycle mufflers indicating the noise the vehicle produces does not exceed 80 decibels doesn't mean a municipality has the right to enforce that noise level, according to a lawyer for the federal agency.
"The Noise Control Act (NCA), which authorizes EPA to enact noise control regulations, states that 'nothing in this section precludes or denies the right of any state or political subdivision thereof to establish and enforce controls on environmental noise,'"‰" EPA Senior Assistant Regional Counsel Timothy Williamson wrote in an Aug. 31 letter to North Hampton Town Administrator Steve Fournier. "However, neither does it grant localities any additional authority to control environmental noise beyond that available to them under state and local law."
Williamson's letter was in response to a July 6 request from Fournier for information concerning the ability of a town to enforce an EPA noise standard. In May, North Hampton voters overwhelmingly approved a motorcycle noise ordinance that uses the EPA label requirement as its basis.
The ordinance attempts to limit motorcycle noise levels to the EPA standard rather than the 106 decibel limit that is in New Hampshire state law by prohibiting any motorcycle without an EPA sticker from operating or even being parked in town.
Fournier and the Select Board have been seeking EPA legal input since Police Chief Brian Page secured legal opinions from Rockingham County Attorney Jim Reams, the Local Government Center, which indemnifies the town, and the town's legal counsel, the firm of Upton and Hatfield indicating the town's ordinance was unenforceable. All expressed the opinion that the state has determined the appropriate noise levels for motorcycles and that the town, therefore, does not have the option of creating its own more restrictive noise ordinance.
Page indicated that based on those legal decisions his department could not enforce the new town ordinance without creating a legal liability for both the municipality and any officers involved. The Select Board agreed to hold off on making a decision on enforcement until the EPA rendered its opinion on the matter.
That opinion was clearly stated in Williamson's letter.
"Thus, neither the NCA nor the regulations in Part 205 (of the EPA code) grant municipalities the authority to enact or enforce ordinances that supersede any limitations on their authority under state law," he wrote.
Fournier said the town is reviewing the EPA letter to determine how it impacts a request for an injunction filed by Seacoast Motorcycles Inc., a Harley-Davidson dealership on Lafayette Road. The dealership has asked the Rockingham Superior Court to stop the town from enforcing the new noise ordinance, claiming it's bad for both the community and its business.
A date of Oct. 7 has been set for the filing of legal briefs in the case.
"We are maintaining the status quo at this time," Fournier said. "The ordinance is not being enforced."
The town administrator said that while the ordinance must remain on the books since it was passed at the town election, the Select Board has the authority to instruct the Police Department not to enforce it.
http://www.seacoastonline.com/articles/20100907-NEWS-9070301