Transportation, Preconstruction

Rule R930-3

Highway Noise Abatement

Notice of Proposed Rule

(Amendment)

DAR File No.: 35516
Filed: 12/08/2011 03:53:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Federal Highway Administration (FHWA) published a Final Rule in the Federal Register that amended the federal noise regulation titled "Procedures for Abatement of Highway Traffic Noise" outlined in 23 CFR 772. Amended sections of this regulation require that UDOT revise this rule and its Noise Abatement Policy to be consistent with federal regulations.

Summary of the rule or change:

Proposed changes to this rule include the following: 1) noise studies must now be prepared for projects that involve adding auxiliary lanes or interchange ramps; 2) to be considered reasonable, noise abatement measures must achieve at least 8 decibels of noise reduction at receptors nearest the highway. (The old criteria was 5 decibels of noise reduction); 3) the definition of a "benefited" noise receptor has been revised. A benefited receptor is a noise receptor that would receive an 8 decibel decrease in noise as a result of abatement measures. (The old criterion was a 5 decibel decrease to be considered benefited); and 4) residents (renters) must be allowed to vote for or against noise abatement measures. Property owner's votes will be weighted by a factor of 5 compared to a weighting factor of 1 for residents (renters) votes. (Previously, only property owners voted for or against noise abatement measures).

State statutory or constitutional authorization for this rule:

• Section 72-6-111
• Section 72-1-201

This rule or change incorporates by reference the following material:

• Updates 23 CFR 772, published by Government Printing Office, April 1, 2011

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget because the proposed amendment only incorporates changes to federal regulations which are already in place.

local governments:

There is no anticipated cost or savings to local government because the proposed amendment only incorporates changes to federal regulations which are already in place.

small businesses:

There is no anticipated cost or savings to small businesses because the proposed amendment only incorporates changes to federal regulations which are already in place.

persons other than small businesses, businesses, or local governmental entities:

There is no anticipated cost or savings to persons other than small businesses, businesses, or local government entities because the proposed amendment only incorporates changes to federal regulations which are already in place.

Compliance costs for affected persons:

There are no anticipated compliance costs because the proposed amendment only incorporates changes to federal regulations which are already in place.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no anticipated fiscal impact on businesses because the proposed amendment only incorporates changes to federal regulations which are already in place.

John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Preconstruction
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Linda Barrow at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/31/2012

This rule may become effective on:

02/07/2012

Authorized by:

John Njord, Executive Director

R930. Transportation, Preconstruction.

R930-3. Highway Noise Abatement.

R930-3-[0]1. Purpose and Authority.

The purpose of this rule is to allow UDOT to address highway noise impacts and to determine the conditions under which noise abatement may be approved. This rule is authorized by the grant of rulemaking authority found in Section 72-6-111. Th[e]is [following]rule is consistent with the Federal Highway Administration's Procedures for Abatement of Highway Traffic Noise and Construction Noise, 23 CFR 772 (April 1, 2011), which is hereby adopted and incorporated by reference[, and in accordance with Utah Code Ann. Section 72-6-111. This rule is designed to allow UDOT to address highway noise impacts and to determine the conditions under which noise abatement may be approved].

 

R930-3-[1]2. Definitions.

(1) "Existing Noise Level" means the noise level, Leq, resulting from the natural and mechanical sources and human activity, considered to be usually present in a particular area.

(2) "Design Noise Level" means the noise level, Leq, calculated for the worst traffic noise conditions likely to occur on a regular basis using a method approved by FHWA.

(3) "Type I Project" means a highway construction project that is related to an increase in traffic noise - construction of a highway on new location or the physical alteration of an existing highway which substantially changes the alignment or increases the number of through-traffic lanes or the addition of auxiliary lanes or interchange ramps.

(4) "Type II Project" means a proposed highway project strictly for noise abatement on an existing highway.

(5) "Type III Project" means a project that does not meet the classification of a Type I project or a Type II project. Type III projects do not require a noise analysis.

( 6[5]) "UDOT" means Utah Department of Transportation.

( 7[6]) "FHWA" means Federal Highway Administration.

( 8[7]) "dBA" means decibels of sound expressed or measured using the "A" weighting scale of a sound-pressure level meter.

(9) "Leq" means the equivalent (average) sound level reported in units of dBA.

( 10[8]) "AASHTO" means American Association of State Highway and Transportation Officials.

 

R930-3-[2]3. Applicability.

(1) Type I Projects. Noise abatement shall be considered for Type I projects where noise impacts are identified. A new or proposed subdivision or other development must have a formal building permit before the issuance of the final environmental decision document to be considered for noise abatement.

(2) Type II Projects. UDOT does not provide a noise retrofit (Type II) program to construct noise abatement measures along existing state transportation facilities.

 

R930-3-[3]4. Noise Impact Determination.

A traffic noise impact occurs, for purposes of this policy, when either of the following conditions exists at a sensitive land use:

(1) The design noise level is greater than or equal to the UDOT Noise Abatement Criterion (NAC) in Table 1 for each corresponding land use category[.]; or

(2) The design noise level substantially exceeds (ten dBA or more) the existing noise level.

 

R930-3-[4]5. Noise Abatement Objective.

When noise abatement measures are being considered, every reasonable effort shall be made to obtain substantial noise reductions consistent with Department procedures.

 

R930-3-[5]6. Noise Abatement Conditions.

In order to be considered for noise abatement, all of the following conditions must be met[, if applicable]:

(1) A noise abatement device shall not be installed where it will create a hazard or violate design standards. Specifically, noise abatement walls shall not be added within the highway clear zone as defined in the AASHTO Roadside Design Guide, unless a safety barrier already exists[.];

(2) At least eight[five] dBA of noise reduction must be achievable at [typical] impacted receptors[receivers] nearest the highway[.]; and

(3) Noise abatement measures must be cost effective.[Residential Areas (Category B, Table 1):]

(a) For residential areas (Category B, Table 1), Cost effectiveness is based on the cost of abatement divided by the number of benefited receptors. [b]Benefited receptors[receivers] must be considered in determining a noise barrier's cost per receptor[receiver] regardless of whether or not they were identified as impacted. A benefited receptor[receiver] is any impacted or non-impacted receptor[receiver] that gets a noise reduction of 8[5] dBA or more as a result of the noise barrier. The maximum cost used to determine reasonableness to provide noise abatement is listed in the Noise Abatement Procedures. This cost may be periodically reviewed by the Department for reasonableness and updat ed[ing], as needed.

[ (b) In the event that the noise barrier cost effectiveness criteria listed in the Noise Abatement Procedures is exceeded, the cost will be considered to be reasonable only if it can be demonstrated that a "severe" noise impact will occur. Severe traffic noise impacts are defined as traffic noise levels by 30 dBA or more, or results in absolute exterior nose levels of 80 dBA or greater. Based on severity, abatement will be considered on a case-by-case basis.

] ( b[c]) For non-residential areas (Category A, C[B], D or E[C], Table 1): [The] [c]Cost effectiveness[of noise abatement measures for schools, parks, churches and other non-residential developments including commercial and industrial areas will] depend s on the height of noise wall required and corresponding length of frontage .[this type of development has exposed to the transportation facility.] In any case, a reasonable cost for [mitigation for] noise abatement will not exceed the cost effectiveness criteria listed in the Noise Abatement Procedures section of the UDOT Noise Policy.

 

[R930-3-6. Other Considerations.

Noise abatement benefits shall be consistent with overall social, economic, and environmental conditions on both sides of the highway. Aesthetics shall be considered where appropriate' including graffiti deterrence and surrounding landscape. Other factors may be considered.

 

]R930-3-7. Declaration of Intent.

Environmental study documents will[shall] indicate those areas where noise impacts are projected and areas where abatement appears reasonable and feasible.[mitigation is "likely." "Likely" does not mean a firm commitment.] A final decision on the installation of [the] abatement measures will[shall] be made after[upon] completi ng[on of] final[ the project] design and the [public involvement]balloting process .[ and based upon what the department believes is reasonable and feasible.]

 

R930-3-8. Public Involvement.

(1) As part of the final design phase of projects, the Department needs to establish whether property owners and residents are in favor of noise abatement measures. This process involves sending ballots to the following groups so they can indicate their preference for or against noise abatement measures:

(a) All benefited receptors (property owners and residents/renters). A benefited receptor is one that would receive a reduction of 8 dBA or more as a result of noise abatement; and

(b) Receptors that border and are directly adjacent to the end of a proposed noise wall that are not, by definition, benefited by the wall.[Department representatives shall contact the local government agency and impacted residents. This shall be done prior to completion of final design activities. The concerns of the impacted residents and local government agency shall be a major consideration in reaching a decision on the abatement measures to be provided.]

(2) The number of votes is established as follows:

(a) Owner occupied residences: The owner will have 1 vote.

(b) Rental homes, multi-family residences and apartments: The owner will have 1 vote per unit and the resident/renter will have 1 vote for the unit.

(c) Day care centers, hospitals, libraries, medical facilities, parks, picnic areas, places of worship, playgrounds, public meeting rooms, public or nonprofit institutional structures: The owner will have 1 vote.

(d) Commercial/industrial businesses: The owner will have 1 vote for the unit and, if applicable, the tenant will have 1 vote for the unit.

(e) Mobile home parks: The mobile home owner will have 1 vote. The lot owner, if different than the home owner, will have 1 vote.[Noise abatement may not be planned after local government agency and impacted residents' involvement if the majority of them are in opposition or indifferent to noise mitigation.]

(3) Assessing ballots - When votes are counted, property owners'votes will receive a multiplier factor of 5 compared to residents (non-owners) factor of 1.[Balloting Process for Noise Abatement Measures]

(a) Noise abatement will only be recommended if 75% of votes counted, favor noise abatement. The denominator used to calculate this percentage will equal the total number of votes . In addition, at least 50% of the total number of completed ballots must be returned to adequately assess if noise abatement measures are desired. If less than 50 percent of ballots are returned after balloting efforts are completed, then noise abatement measures will be deemed not reasonable.[As part of the final design phase of projects, the Department needs to know if residents/land owners are in favor of noise abatement measures. This public input along with other information including; local ordinances, the amount of noise reduction achieved, engineering considerations, cost and views of the impacted and benefited residents will be considered together to come to a decision on whether or not to construct noise abatement. This process involves sending ballots to residents/land owners so they can indicate their preference for or against noise abatement measures.]

(b) Ballots sent by mail are deemed by the Department as "due [D]diligence" in notifying the affected property owners and residents /renters of possible noise mitigation measures in their area. [One b]Ballot s will be sent by regular mail to each [resident/land]property owner of record and each residing household/resident. Each ballot will include[be given] a deadline for return to the Department.[as to when the ballots need to be returned for counting. If ballots sent to the residents/land owners are not returned by the deadline, a second ballot will be sent by registered mail, to those who have not returned a ballot.] For ballots sent but not received by the deadline, a second ballot will be sent by Registered Mail to those who have not returned a ballot.

(c) If the voting process results in a decision not to construct noise abatement, the area will not be considered for noise abatement unless a future transportation project falls under the guidelines of a Type I Project.

[ Noise abatement will only be recommended if 75 percent of the following groups of residents/land owners vote, through balloting, in favor the abatement:

Front row (adjacent) receivers,

Receivers that would be impacted by the project and benefited by noise abatement.

(c) The denominator used to calculate this percentage will equal the total number of completed ballots returned. At least 50 percent of the total number of completed ballots must be returned to adequately assess if noise abatement measures are desired by residents/land owners. If less than 50 percent of completed ballots are returned, then noise abatement measures will not be considered reasonable.

]

R930-3-9. Coordination with Local Officials.

For Type I Projects, the Department will inform local officials of noise compatible planning concepts and an estimate of future noise levels on undeveloped lands or properties within the project limits.[The Department shall coordinate in the local government review process with regard to aesthetics, height, and other design features of the proposed noise abatement measure. Effective control of highway traffic noise requires land uses near highways to be controlled, but land use planning and control belong to local government jurisdiction. UDOT shall, upon request, assist local agencies by giving information that shall help them to be aware of incompatible land uses near state highways.

Local governments may have ordinances in place that restrict the height of fences and walls along property lines. In addition, there is an increased potential for conflicts between noise barriers and overhead utilities in urban areas. As such, proposed noise barriers on non-limited access roadways in urban areas will not exceed 8 feet in height.]

 

R930-3-10. Local Government Participation.

In instances where noise abatement has already been deemed feasible and reasonable, a third party such as a local municipality, may contribute funds to make functional or aesthetic enhancements to a noise abatement feature.

 

R930-3-11. Projects Funded From Other Sources.

The Utah Code authorizes the Department to construct and maintain noise abatement measures along state highways in cases where the cost for the noise abatement is provided by citizens, adjacent property owners, developers, or local governments, and meeting other established criteria. These cases may be treated as a special application of Paragraph R930-3-10, in which the Department may design, build, and maintain the abatement measure, and the local government agency shall pay the Department for all preliminary engineering and construction costs.

 

R930-3-12. Construction Off Right-of-Way.

Normally, noise barriers (walls or berms) built pursuant to this rule[policy] will[shall] be constructed within Department right-of-way and owned and maintained by the Department. There are cases in which Department right-of-way is not the most prudent location for noise barriers, yet noise abatement can be very feasible and reasonable if built on adjacent property or adjacent public right-of-way. In these cases:

(1) The Department's cost is limited to normal cost for abatement on Department right-of-way.

(2) In no case shall the Department construct a noise barrier unless the adjacent property owners allow access and easements as necessary in order to construct and maintain the barrier.

[ (3) Maintenance of noise walls and associated landscaping on the side facing the highway shall normally be the Department's responsibility. The opposite side shall be maintained by the property owner.

(4) When landscaping is included off the Department right-of-way, the Department and landowner shall sign an irrigation agreement. The Department shall not pay for irrigation off the right-of-way.

]

TABLE 1- UDOT Noise Abatement Criteria (NAC)
(Hourly A- Weighted Sound Level decibels (dB(A)))

  Activity   UDOT         Evaluation    Activity

Category   Criteria(1)  Location      Description

           Leq (h)



A          56          Exterior   Lands on which serenity and

                                  quiet are of extraordinary

                                  significance and serve an

                                  important public need and

                                  where the preservation of

                                  those qualities is essential

                                  if the area is to continue to

                                  serve its intended purpose.



B          66           Exterior   Residential



C          66          Exterior   Active sports areas, 


                                    amphitheaters, auditoriums,

                                  campgrounds, cemeteries, day

                                  care centers, hospitals,

                                  libraries, medical facilities,

                                  parks, picnic areas, places of

                                  worship, playgrounds, public

                                  meeting rooms, public or

                                  nonprofit institutional

                                  structures, radio studios,

                                  recording studios, recreation

                                  areas, Section 4(f) sites,

                                  schools, television studios,

                                  trails and trail crossings.



D          51          Interior   Auditoriums, day care centers,

                                  hospitals, libraries, medical

                                  facilities, places of worship,

                                  public meeting rooms, public

                                  or nonprofit institutional

                                  structures, radio studios,

                                  recording studios, schools,

                                  and television studios.



E          71          Exterior   Hotels, motels, offices,

                                  restaurants/bars, and other

                                  developed lands, properties or

                                  activities not included in A-D

                                  or F.



F          No Limit    -          Agriculture, airports, bus

                                  yards, emergency services,

                                  industrial, logging,

                                  maintenance facilities,

                                  manufacturing, mining, rail

                                  yards, retail facilities,

                                  shipyards, utilities (water

                                  resources, water treatment,

                                  electrical), and warehousing.



G          No Limit    -          Undeveloped lands that are not

                                  permitted.



(1)  Hourly A-weighted sound level in decibels reflecting a

1 dBA "approach" value below 23CFR 772 values

 

 

[ TABLE I - UDOT NOISE ABATEMENT CRITERIA (NAC)

  

  Land Use

  Activity

  Category     Leq(h), dba*   Description of Activity Category



     A            56          Lands on which serenity and

                (Exterior)    quiet are of extraordinary

                              significance and serve an

                              important public need and where

                              the preservation of those

                              qualities is essential if the

                              area is to continue to serve its

                              intended purpose.

     B            66          Picnic areas, fixed recreation

                (Exterior)    areas, active sports areas,

                              parks, residences, motels,

                              hotels, schools, churches,

                              libraries, and hospitals.



     C            71          Cemeteries, commercial areas,

                (Exterior)    industrial areas, exterior

                              office buildings, and other

                              developed lands, properties or

                              activities not included in

                              Categories A or B above.



     D            No limit    Undeveloped lands.



     E            51          Motels, hotels, public meeting

              (Interior)      rooms, schools churches,

                              libraries, hospitals, and

                              auditoriums.  (The interior

                              criterion only applies when

                              there are no exterior activities

                              affected by traffic noise.)



* Hourly A-weighed sound level in Decibels, Reflecting a zdBA

"Approach" Value Below 23 CFR 772

]

KEY: transportation, barrier, traffic noise abatement, highways

Date of Enactment or Last Substantive Amendment: [January 12, 2009]2012

Notice of Continuation: November 1, 2011

Authorizing, and Implemented or Interpreted Law: 72-1-201; 72-7-101; 72-6-111