The Automobile and the Regulation of Some

of Its Non-Exhaust Impacts on the

Environment*

By Frank Grad, Albert J. Rosenthal et al.

INTRODUCTION

The automobile lies at the heart of one of our country's most pro-
found environmental and economic dilemmas. The mass availability
of automotive transportation has become an integral part of the
American life style, and the production, distribution and servicing
of automobiles and the related fuel industry have become major
elements of the American economy. In addition, a vast number of
other industries and commercial interests (such as, notably, high-
way building and the recreation industry), as well as many urban
concerns are related to the automobile. While the automobile is a
mainstay of the American economy, a whole set of side effects-
from the contribution to deterioration of air quality in urban areas,
to urban congestion and urban noise-have made the automobile
one of the principle foci of environmental, and most recently,
energy, concerns.

It was to describe and analyze these side-effects, as well as to
examine current and possible future means of minimizing environ-
mental hazards, that a study was begun in September 1971-funded
by the National Science Foundation (RANN-Research Addressed
to National Needs), and sponsored by the Special Committee on
Science and Law of the Association of the Bar of the City of New
York, which also acted as advisory committee to the project.

The results of that study have recently been published by the
Legislative Drafting Research Fund under the title The Automobile

* Copyright @ 1975 by the Trustees of Columbia University in the City of New

York. Reprinted by permission. The work reproduced is part of RANN Report NSF/
RA/X-74-023. Work on this project was supported by Grant No. ERP71-01870. The
views expressed herein are those of the authors and do not necessarily reflect the
views of the National Science Foundation.

187



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 187

and the Regulation of Its Impact on the EnvironmentJt The main
emphasis of the study-as in most recent studies that focus on the
automobile-was on problems of the regulation of automotive air
pollution. The chapters here reproduced-Chapters 10, 11, and 12-
however, deal with other aspects of the environmental impact of the
automobile-in the areas of noise, water pollution and solid waste-
that should receive greater attention than they have in the past.

The investigators primarily responsible for the work are Professors
Frank P. Grad and Albert J. Rosenthal, of Columbia Law School,
who acted as co-directors of the study at the Legislative Drafting
Research Fund, and Laurie R. Rockett, associate director; Professors
James A. Fay and John Heywood, at the Massachusetts Institute of
Technology, who assumed responsibility for the technical automo-
tive portion of the study; and Professors John F. Kain, Gregory
Ingram, and David Harrison at the Harvard University Department
of Economics, and Thomas Tietenberg at Williams College, who
were responsible for the economic analysis.tt

NOISE POLLUTION CONTROL OF THE AUTOMOBILE

By Albert J. Rosenthal and Richard Hsia

Noise is increasingly being recognized as an element of environ-
mental pollution. Sustained exposure to excessive noise levels gives

t F. GRAD, A. ROSENTHAL, et al., THE AUTOMOBILE AND THE REGULATION OF ITS

IMPACT ON THE ENVIRONMENT, pp. XIV, 481 (The Oklahoma University Press,
Norman, Okla., 1975).

tt In addition, a number of other professionals made substantial contributions
to the study. At Columbia University, special mention must be made of Jack Bat-
taglia, who, as staff attorney, ably served the project for almost two years, and was
responsible for significant parts of the legal research, and of staff attorney Stephen
Munzer, who, during the last year of the study, added to the legal research and
effectively helped to shape and prepare the final manuscript for submission.

Appreciation is due, too, to the members of the devoted staff of student research
assistants, who participated in the project in various research capacities during their
second and third years at Columbia Law School: John E. Baumgardner (Columbia
1975), Vivian Adler Berger (J.D. Columbia 1973), Barry A. Dubin (J.D. Columbia
1973), Lois B. Gordon (Columbia 1975), Richard Hsia (J.D. Columbia 1974),
Stephen Lew (Columbia 1975) Christopher Mayer (J.D. Columbia 1974), Jean H.
Meader (J.D. Columbia 1972), Gregory Paul (J.D. Columbia 1973), Eric Ranney
(J.D. Columbia 1974), Stephen Ratner (J.D. Columbia 1974), Steven L. Schwarcz
(J.D. Columbia 1974), Robert P. Sugarman (Columbia 1975), Robert A. Weiner
(J.D. Columbia 1973), Henry Welt (J.D. Columbia 1972), and Jo-Ann Whitehorn
Tisman (J.D. Columbia 1972). At Harvard University, other participating profes-
sional staff included Gary Fauth and Eugene A. Kroch.



The Automobile: Non-Exhaust Impacts

rise to hearing loss, and may well have other deleterious health ef-
fects, of both a physiological and a psychological nature. In addi-
tion, there are adverse impacts on the quality of life, including
interference with conversation, impairment of concentration and the
ability to work, and interruption of sleep. Less measurable conse-
quences may include individual irritability and, in the aggregate,
social friction.'

Sources

Automobiles

Noise created by the normal operation of most models of automo-
biles is of comparatively small importance, whether measured
against other environmental consequences of the automobile or
against the noise emitted by other types of motor vehicles, such as
trucks and motorcycles. Although automobiles constitute, by far,
most of the mobile sources,2 it is arguable whether, either objective-
ly or subjectively considered, automobiles are too noisy. That they
are not, or at least need not be, is the consensus.3 Nevertheless, be-

1. For documentation of these physical and social effects, see U.S. ENVIRON-
MENTAL PROTECTION AGENCY, NOISE FACTS DIGEST 02-001 to 03-023 (1972) (listing
and abstracting all recent and relevant studies); Hildebrand, Noise Pollution: An
Introduction to the Problem and an Outline for Future Legal Research, 70 CoLUN!.
L. REV. 652, 655-65 (1970) [hereinafter cited as Hildebrand]; Hearings on Noise:
Its Effect on Man and Machine Before the Special Investigating Subcomm. of the
House Comm. on Science and Astronautics, 86th Cong., 2d Sess. (1960). See gen-
erally C. BRACDON, NOISE POLLUTION: THE UNQUIET CRISIS (1971); W. BURNS,

NOISE AND MAN (1968).
2. Through 1972, there were 118,618,162 registered vehicles in the United States,

of which only 19,802,490 were trucks. THE WORLD ALMANAC 1974, at 141, 138.
3. See, e.g., ORGANEZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT,

URBAN TRAFFIC NOISE: STRATEGY FOR AN IMPROVED ENVIRONIENT 11-12 (1969)
[hereinafter cited as OECD]. Hildebrand, supra note 1, at 672, remarks that
"[plassenger car traffic.., need not necessarily be irritating; many new car models
are being equipped with better exhaust silencers and specially designed quiet tire
treads." See also Angiola, Marshall & Thornton. Motor Vehicle Noise and the Proposed
New York City Noise Control Code 3, 13 (1972) (unpublished seminar paper on
file with the Legislative Drafting Research Fund of Columbia University) [herein-
after cited as Angiola et al., N.Y.C. Motor Vehicle Noise]: "Cars, while numerically
the largest user of the roads, are the least of the noise problem. Almost never, judging
from more than two hours of measuring all kinds of vehicles that passed by, stopped,
started, went uphill, downhill, or level, does a car produce more than 80 db(A) at a
distance of 25 feet from the center of the lane in which it is traveling .... Cars ...
are not a noise problem."

Compare Young, Noise Abatment-A Balanced Approach 174 (1972) (Society of

1975]



COLU MBIA JOURNAL OF ENVIRONMENTAL LAW

cause of the cumulative effect of exhaust and air intake systems, the
engine, interaction of tires with road surface, and the aerodynamic
"swish" of moving cars,4 noise from automobiles may reach disturb-
ing levels.5

The volume and pace of traffic is a critical element in the total
level and quality of sound emitted. At the same distance, two iden-
tical automobiles will yield a noise level about 3 dB (A) higher than
will one, four will yield 6 more dB(A) than one, while sixteen cars
will emit 12 dB(A) more noise than a single automobile-subject
only to some diminution by reason of the masking effect that a
nearer car may have upon the sound waves emanating from one
behind it.' If the volume of traffic creates congestion, the same

Automotive Engineers (SAE) Paper No. 720626), where it is said that "[wle should
attempt to lower noise levels so that health effects are eliminated. However, when
this abatement level is achieved, we must resist extreme haste in further reduction
of noise levels to reduce annoyance, until a proper technological and economic base
is established. There is a totally inadequate long range research base on psycho-
acoustic affects [sic] of noise on humans, and rapid reduction of standards to levels
significantly below those required for physical safety is simply not needed or war-
ranted by the present data base." Moreover, "[p]eople,. even skilled noise experts,
continue to become confused about pass-by noise which, in general, is not a health or
safety problem due to short exposure times. It is primarily an annoyance or welfare
problem. The most difficult problems are in consideration of noise as annoyance,
measurement methods and enforcement." Id. at 176.

4. On the various sources of noise from automobiles see, e.g., OECD at 25, 39
(fast-moving traffic, engine exhaust); Lyon, Noise Mechanisms in Automobiles and
Trucks 1-3 (Lecture No. 15 in series Noise and Vibration in Transportation Systems,
Apr. 7, 1970) (on file with the Legislative Drafting Research Fund of Columbia
University) [hereinafter cited as Lyon, Noise Mechanisms] (engine exhaust, fan
blade, gear box, tires, aerodynamic sources).

5. Concern with noise as an environmental problem and pollutant has been grow-
ing. In surveys of public opinion taken in urban areas, motor vehicle traffic is gen-
erally rated as the most distressing source of noise. In particular consult OECD at 21
et seq.; Bolt, Beranek and Newman. Inc., Analysis of Community Noise and a Plan
for Noise Control for City of Boston Air Pollution Control Commission 17 et seq.
(Rept. No. 2069, March 1971) [hereinafter cited as Bolt, Beranek and Newman.
Inc.]. See also Lyon, Urban Noise Propagation 2 (Lecture No. 18 in series Noise and
Vibration in Transportation Systems) [hereinafter cited as Lyan, Urban Noise Prop-
agation]; Waters & Priede, Origins of Diesel Truck Noise and Its Control 256 (1972)
(SAE Paper No. 720636) [hereinafter cited as Waters & Priede, Diesel Truck Noise].

6. A decibel is a comparative measure of sound pressure, recorded on a logarith-
mic scale. An increase of 10 decibels represents a sound pressure level 10 times as
high. The "A" scale, generally employed to measure harm or annoyance to people, is
weighted to reflect the characteristics of the human ear; it accords lower value to
extreme, although audible, frequencies, assigning especially reduced weight to lower
frequencies. A doubling in pressure means an increase of about 3 decibels. See U.S.
ENVIRONMENTAL PROTECTION AGENCY, NOISE FACTS DIGEST 168, 174 (1972).

[1: 187



1975] The Automobile: Non-Exhaust Impacts

number of cars stopping and going, rather than flowing freely, will
emit substantially higher noise levels.7 The congestion endemic to
urban centers aggravates a noise problem which reflection among
buildings and sheer proximity make inevitable.' With each halving
of distance between sources and listeners, sound pressure increases
6 dB(A). 9

Trucks

Despite the numerical preponderance of automobiles, where
traffic consists of a mixture of automobiles and trucks, truck noise
is likely to be so dominant as to make insignificant the contribution
from automobiles.1" Trucks emit sound levels which, on the average,
are 10 to 15 decibels higher than those from cars." The typical
truck, in other words, generates between 10 to 32 times the sound
pressure a properly maintained automobile can produce."' Assuming
a differential of only 10 dB (A), the noise from a traffic mix which
is 90 percent automobiles and 10 percent trucks would be dominated
by truck noise; where the differential is 15 dB(A), a 3-4 percent
truck mix would be sufficient to dominate.1 3

7. Bolt, Beranek & Newman, Inc., at 51.
8. See generally MAYOR'S TASK FORCE ON NOISE CONTROL, TOWARD A QUIETER

CITY (New York City, 1970). See also OECD at 47.
9. Sound pressure generally varies with the inverse square of the distance from

the source, Hence a doubling of distance would be measured by a 6 decibel reduc-
tion. See Lyon, Automotive Noise Propagation in Open Areas (Lecture No. 17 in
series Noise and Vibration in Transportation Systems, Apr. 9, 1970) (on file with
the Legislative Drafting Research Fund of Columbia University). See also Gatley &
Frye, Regulation of Noise in Urban Areas 11-7 (August. 1971 ).

10. Bolt, Beranek and Newman, Inc.. at 51. See also OECD at 28.
11. OECD at 26. See also Lyon, Noise Mechanisms at 5. For empirical con-

firmation see Angiola et al., N.Y.C. Motor Vehicle Noise, at 4.
12. A comprehensive study of the relation between subjective rating of noise

emitted by motor vehicles and objective decibel measurements with a sound level
meter reveals that commercial vehicles are seldom able to comply with the 80
dB(A) criterion which appears to represent the demarcation line between "ac-
ceptable" and "noisy" for most vehicles. Indeed, many trucks reach the "excessively
noisy" level of 92 to 95 dB(A). Waters & Priede, Diesel Truck Noise, at 257. Unless
otherwise indicated, dB(A) levels stated herein reflect measurements made at a
distance of 50 feet.

13. It has been said that on the average, as a practical matter. trucks will con-
tribute equally to the median sound level when the density of trucks is 6 percent of
the automobile density. Furthermore, 5 percent truck traffic will increase median
sound levels by 3 dB(A). while boosting the standard deviation by about a factor of
3. Lyon, Noise Levels Produced by Freely Flowing Traffic 9 (Lecture No. 16 in



COLUMIBIA JOURNAL OF ENVIRONMENTAL LAW [1: 187

Trucks and automobiles are fundamentally different with respect
to noise characteristics. Data on mixed traffic suggests that auto-
mobile noise rises 9 dB(A) for every doubling of average road
speed; 4 truck noise, on the other hand, is largely independent of
road speed." Instead, truck noise and the rate of increase of truck
noise are controlled mainly by the power unit.'" For the sake of
efficiency, trucks are usually operated at, or close to, full power.' 7

Running the power unit at higher engine speeds produces greater
power. 8 Full-power-maximum-speed operation makes lighter, more
compact engines possible. As a result, vehicle weight for the same
load-carrying capacity is reduced.

There are limits on the extent to which truck engine size and
weight can be reduced, however. As a practical matter, truck
engines will always be substantially larger than automobile en-
gines,' 9 and larger engines make louder noises. 0

series Noise and Vibration in Transportation Systems, Apr. 9, 1970) (on file with
the Legislative Drafting Research Fund of Columbia University) [hereinafter cited
as Lyon, Freely Flowing Traffic]. See also Lyon, Noise Mechanisms.

Noise levels and annoyance also vary with the type of truck. For example, "[alt
speeds between 40 and 49 mph about 10 percent of dump trucks (the noisiest of
standard trucks) exceed the 84 dB(A) level, while only 10 percent have a level
lower than 78 dB(A). The mode distribution is about 82 dB(A). These values are
all about 10 decibels higher than corresponding values for passenger cars ... 
OECD at 28.

14. OECD at 29.
15. Lyon, Freely Flowing Traffic, at 9. To the extent that truck noise is caused

by tires, however, speed is an important factor.
16. Waters & Priede, Diesel Truck Noise, at 258.
17. OECD at 28; Ringham, The Truck Noise Problem, and What Might Be Done

About It 154 (1972) (SAE Paper No. 720624) [hereinafter cited as Ringham, Truck
Noise Problem]; Waters & Priede, Diesel Truck Noise, at 256. While this factor ap-
plies primarily to diesel, rather than gasoline, powered trucks, the former have in-
creasingly come to dominate the field. See p. 443, infra.

18. Waters & Priede, Diesel Truck Noise, at 256.
19. "[E]verything in the mechanical system of a truck is bigger and heavier and

presents larger radiative surfaces when compared with the automobile." OECD at 28.
20. Waters & Priede state that "[tihe larger engine structure will be excited by

considerably greater forces (in an engine, piston area is increased while the pres-
sure per unit area is maintained the same) .... Noise will increase 15-17 decibels
per tenfold increase of engine cylinder volume. But the rate of increase of noise with
engine size is less than that with engine speed. Moreover, because piston speed con-
stitutes the design limitation in engines, larger engines must operate at lower speeds
than smaller engines. Thus it may be that, for diesel engines of different size running
at their rated speeds, the level of noise will be approximately the same, despite wide
disparities in the power ratio. In short, engine noise is generally independent of the
volume of work done per unit time, or horsepower, and the main criterion is tlhe
operational speed of the size of the time interval within wlhich the operation of one



1975] The Automobile: Non-Exhaust Impacts

The truck noise problem, moreover, is not due solely to size. Gaso-
line engines for trucks, on account of cost considerations, have been
replaced in commercial usage by diesel engines which consume only
half as much fuel. The more efficient diesel engines operate at con-
siderably higher peak pressure and higher rates of pressure rise
which, in turn, create noise and vibration. - Power strokes in the
combustion chamber create pressure increases, which in turn cause
engine casing radiation, sometimes called "diesel knock."-2 Its in-
tensity, depending on the combustion system, will increase at a rate
of 28 to 40 dB(A) per tenfold increase of engine speed.23 Diesel
knock, engine exhaust, and fan and tire noise are the chief gen-
erators of truck noise. -4

Thus significant progress toward a quieter environment depends
upon reduction in truck, not auto, noise.d It had been generally be-
lieved that such a reduction would be expensive and, if required,
would contribute significantly to the cost of food and many other
necessities that are transported principally by truck. Certainly any
technological solution must take cognizance of costs. 20 Experimental
prototype trucks, developed and tested under the sponsorship of the

cycle of events is being performed by the machine. Waters & Priede, Diesel Truck
Noise, at 263.

21. Id. at 256.
22. Id. at 260; OECD at 42.
23. Waters & Priede. Diesel Truck Noise, at 259.
24. Lyon, Noise Mechanisms, at 5; Ringham, Truck Noise Problem, at 155.
25. During 1971. 371,074 heavy-duty trucks were tested in a survey by the

California Highway Patrol. Cooper, California Laws and Regulations Relating to
Motor Vehicle Noise 363-64 (1972) (SAE Paper No. 720655). That only 1.9 per-
cent of trucks sampled under 35 mph exceeded the California standard of 88 dB(A)
at 50 feet, and only 1.5 percent were found in violation overall means that the
standards are too lenient, not that trucks are sufficiently quiet. Young, Noise Abate-
ment-A Balanced Approach 174 (1972) (SAE Paper No. 720626). See also presenta-
tion by Warren M. Heath, California Highway Patrol, at the American Industrial
Hygiene Conference in San Francisco, May 17, 1972.. By 1988, new trucks will have
to meet a 70 dB(A) standard, as decibel limits will be made progressively more
stringent. id. at 17.

26. Waters & Priede, Diesel Truck Noise, at 256, remark that "road transport is
generally very cost conscious. Economy is therefore one of the prime factors which
has so far dictated the development of vehicle design and operational methods." See
also Young, supra note 25, at 175: "If reasonable reductions of noise emission levels
are accepted, cost increase may be measurable, but not excessive. Large reductions
such as 6 dB(A) ... or more may cause large cost increases, at least for some classes
of engine powered equipment." Similarly, the OECD report observes: "Of course,
noise levels cannot be reduced except at a price. What is often forgotten, however, is
that there may also be a price to be paid for a passive attitude of doing nothing."
OECD at 11. See also Ringham, Truck Noise Problem, at 157.



194 COLUIBIA JOURNAL OF ENVIRONTMENTAL LAW [1: 187

Department of Transportation, however, have yielded encouraging
results, and it is quite possible that heavy trucks can be produced,
without cost penalties, that would be no noisier than small auto-
mobiles. -T If so, a major breakthrough in the control of traffic noise
will have been accomplished.

Nevertheless, if the problem is to be approached through control
of new trucks only, results will be discernible at an even slower pace
than that predicted with respect to the impact of the automobile on
air quality, given the much longer average useful life of a truck. If
retrofitting of trucks now on the road is required, the costs not only
in installation but also of maintenance are likely to be substantial. It
will ultimately be a question for the public to decide whether, and
then to what extent, the quieting of trucks is worth the price. In an-
swering this question, the public must keep in mind that a quiet en-
vironment cannot truly be achieved without quiet trucks. Unless cor-
responding truck-design modifications come about, technological
improvements which produce quieter automobiles will have negli-
gible environmental impact.

Buses

Despite their comparable size and use of the diesel engine, buses
tend to be significantly quieter than trucks.28 Although this might
suggest that, to some extent, the technology for significant abate-
ment of truck noise is presently available, buses themselves remain
too noisy whether idling or accelerating. Because the primary func-
tions of trucks and buses are different, technology which could sub-
stantially reduce bus noise would be infeasible for trucks. Far more
easily than trucks, for example, buses could be outfitted with electric
batteries that must be periodically recharged or exchanged.29 Steam

27. See, e.g., Kaye, Patterson & Bender, Preliminary Noise Diagnosis of Freight-
liner Datum Truck-Tractor (Rep. No. DOT-TST-73-6, 1973); Kaye & Ungar,
Acoustic and Performance Test Comparison of Initial Quieted Truck with Con-
temporary Production Trucks (Rep. No. DOT-TST-74-2, 1973).

28. Apparently, buses "produce significantly less noise than trucks of comparable
size" because of "superior intake and exhaust silencers and acoustic treatment of the
engine compartment." OECD at 28. "New York City buses are an amazingly con-
sistent noise source. Passing by, they invariably registered in the low 80's, and most
of them produced levels around 87 dB(A) when accelerating from rest .... Buses ...
are not the problem, trucks are." Angiola et al., N.Y.C. Motor Vehicle Noise, at 3,
11-12.

29. Electric buses which are "so quiet the only way one knew the engine was
running was because the bus was moving" will provide the exclusive mode of trans-



The Automobilc: Non-Exhaust Impacts

buses3 0 have been found to emit less exterior noise than diesel buses,
but interior sound levels were similar or higher.3' They do, however,
reportedly produce up to 30.5 percent less carbon monoxide and up
to 86 percent less hydrocarbons and oxides of nitrogen than con-
ventional diesel buses. 3

- Unfortunately steam buses appear to con-
sume up to three times as much fuel as conventional diesel buses. 33

Other Vehicles

No technological barrier, however, prevents manufacturers and
owners of motorcycles and sports cars from conforming to the noise
levels of passenger cars generally.34 Indeed, there is reason to be-
lieve that motorcycles and sports cars are sometimes deliberately
manufactured-or later doctored-to generate high noise levels to
meet a supposed consumer preference. If noise performance stand-
ards for autos, sports cars, and motorcycles, as well as deadlines for
meeting such standards, were set pursuant to criteria of necessity
and utility, neither motorcycles nor sports cars could, in the context
of available noise-control technology, claim the social utility that
may in the cases of trucks and buses temporarily justify excessive
noise. 5 This would mean immediately forbidding all new auto-
mobiles, motorcycles, and sports cars from emitting more sound
than the quietest of the standard models of automobiles now on the

portation on Roosevelt (formerly Welfare) Island. N.Y. Post, May 22, 1973, at 10,
col. 3. See also N.Y. Times, June 1, 1973, at 39, col. 3 (Long Beach, N.Y., is testing
an electric bus that "makes no noise and emits no gasoline fumes").

30. Steam buses utilize "Rankine" cycle external combustion engines which burn
kerosene or diesel oil outside the engine itself, generating the energizing steam.

31. N.Y. Times, April 8, 1971, § 1A, at 16, col. 1.
32. Id.
33. Id.
34. Although sports and passenger cars are equally noisy at freeway speeds, sports

cars are considerably more noisy when accelerating. OECD at 26, 39-40. In compara-
tive terms, "one motorcycle is as noisy as 30 passanger cars going by simultaneously
. ...." Lyon, Noise Mechanisms, at 4. "Manufacturers have been given no incentive
[or compulsion] for redesigning a system that is adequate for the space," assuming it
to be limited. OECD at 39. Indeed, the smaller engines of motorcycles imply that
noise performance standards should be more stringent for motorcycles than for auto-
mobiles. For existing state regulation of motorcycle noise, see U.S. ENVIRONMENT

PROTECTION AGENCY, LAWS AND RE;ULA'oHY SCIIEmrEs FOR NOISE ABATEIENT 1-80
to 1-82 (1971) [hereinafter cited as LAws AND REGULATORY SCHEMES].

35. Such criteria in the wake of expanding technological knowledge would sug-
gest a progressive tightening of noise control standards which would be lowered as
the necessity for noise became less and the increased cost compared to the utility of
quiet was reduced.

1975]



COLUMIBIA JOURNAL OF ENVIRONMENTAL LAW

road.3" Such an approach does not bar technological progress, but
simply recognizes that a major program for redesign of automobiles
for the purpose of noise control is not required-at least until sig-
nificant improvement in truck noise has been accomplished.

Relationship Between Automobile Noise
Control and Emissions Control

Because noise-control technology forcing is not required, control
strategies to deal with noise pollution and with air pollution from
automobiles appear at first blush to diverge. Yet control of air pollu-
tion which is possible only by improved technology is not at all
incompatible with noise-pollution control. Indeed, they may be
mutually reinforcing. For example, while converting noxious fumes
into innocuous gases, a catalytic muffler, by filtering the exhaust,
will at the same time assist the regular muffler. Depending on the
alternative selected, noise reduction might still be a by-product even
if alternatives to the internal combustion engine are developed or
required for the purpose of satisfactory air pollution control. An
automobile that is powered by an electric engine, for example, will
be low-polluting-with respect to both air and noise. A gas turbine
engine, on the other hand, may help reduce pollution, but add to
the din. 7 Some, but not all, less radical engine redesigns would also
be less quiet than the conventional internal combustion engine.

In general, when speaking of noise, fewer pieces mean greater
peace. Lighter, smaller, and with far fewer moving parts, the

36. The OECD Transportation Task Force recommends that noise standards be
set "in terms of the noise emission characteristics of the quietest 10 percent of the
vehicles in each category." OECD at 12. A "category" test might be reasonable at
the consumer level but not at the manufacturing stage if "category" is interpreted to
mean "model." Setting standards in this fashion avoids the question whether noise
standards should be set for people of average noise sensitivity, as some have sug-
gested (Young, supra note 24, at 177), or for people of extraordinary sensitivity to
noise. See generally Lyon, Criteria, Standards and Limits for Traffic Noise (Lecture
No. 19 in series Noise and Vibration in Transportation Systems, Apr. 21, 1970) (on
file with the Legislative Drafting Research Fund of Columbia University).

37. Greater attention directed at the noise problem might succeed in refining the
noise characteristics of the gas turbine engine. Prototypes have shown improvement
in this regard. Indeed, "gas turbine engines have been praised for their low noise
levels-'the engine gives off a subdued canine whine, instead of the familiar feline
purr that turns into a roar when the diesel engine accelerates.' Since gas turbines
produce a different type of noise, albeit quieter, than that of piston engines, road
engineers and vehicle designers are likely to continue to face noise problems in the
future." Hildebrand, supra note 1, at 673.

[1: 187



The Automobile: Non-Exhaust Impacts

Wankel rotary engine 3" not only holds promise for meeting the
Clean Air Act standards but, in addition, possesses a low noise
potential. Instead of pistons pumping up and down, the rotary mo-
tion means quieter, vibration-free performance. In contrast, inas-
much as the stratified-charge engine utilizes two combustion
chambers 39 rather than the traditional single chamber of the con-
ventional internal combustion engine, there is little reason to believe
that the stratified-charge engine would be quieter than the conven-
tional type. On the contrary, were the relationship simple rather
than intricate, stratified-charge engines could be expected to be
twice as noisy.

Control of mobile sources of air pollution need not conflict with
noise-reduction goals. Technological mobile noise-control efforts can
concentrate on the development of more durable and, if possible,
less expensive exhaust mufflers. Complementary to this effort

should be a systematic attempt to reduce the noise emissions from

cars that have become, or that have deliberately been made, noiser.
Deterioration of or tampering with the noise-control system, par-
ticularly the muffler, could be monitored by the states as part of
their periodic safety inspection procedures." To the extent that
inspection programs also test for exhaust emissions, it would be

relatively simple and inexpensive to incorporate within the same
procedure noise-level tests in order more efficiently and more ac-
curately to identify those cars which violate the noise performance
standards. In addition to defective or missing mufflers, body rattles

and similar types of noise resulting from improper maintenance
could be readily identified in such an integrated testing program.

38. The Wankel engine has essentially only three moving parts, yet is capable of

delivering 50 percent more power than the piston engine. The Wankel's rotors spin

in an oval-shaped housing which, in effect, duplicates the pistons' four-part power

stroke, consisting of intake, compression, ignition, and exhaust. Not only does the

Wankel engine have about one-third as many parts as the piston engine, but it

weighs about half as much as a piston engine of equal horsepower and is just half as

big. Its compact size and light weight afford more room for pollution control equip-

ment, such as a thermal reactor. A trend toward its widescale adoption has, however,
recently been reversed because of possible inefficiencies in fuel consumption.

39. An auxiliary chamber, called the pre-cup, burns up the hydrocarbons and

carbon monoxide, while a connected main chamber burns up most of the nitrogen
oxides at a lower temperature.

40. For a survey of state noise control laws see 115 CONG. REC. 32188-32193

(1969). As of October 1969, 41 states had enacted laws requiring motor vehicles to

be equipped with mufflers.

1975]



198 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 187

The Horn

An independent, nevertheless symbolic, source of automobile
noise is the horn.4 The solution to the problem of this form of auto-
mobile noise is to be discovered not so much in the vehicle as in the
vehicle's driver.

The mechanical capability to be quiet already exists-in theory
if not in practice. Automobile noise presents a situation over which
there is some human control; excessive noise is a function not only
of the way an automobile is built but also of the way in which it is
used and the extent to which it is abused. This implies that noise
regulations should emphasize operational aspects rather than stress
only structural factors or be framed in terms of product design.
Noise-control legislation should not only rely on improved design of
automobiles but also require their proper use. While these principles
apply generally to all aspects of automobile-caused noise, they are
of particular relevance to horn blowing. Although essential for
safety in emergency situations, the horn is often abused in other,
less urgent circumstances-most typically in congested urban traffic
when noise levels are already high. WNhile many state and local
governments prohibit horn blowing except for the preservation of
life or property,4 2 these laws are inherently difficult to enforce and
chronically disobeyed. In congested traffic, it may prove impossible
for a law-enforcement officer to identify, with sufficient certainty
to establish guilt beyond a reasonable doubt, the driver who has un-
necessarily blown his horn.43

Consequently recent legislation enacted by some localities has

41. See Eldred & Sharp, Are Present Horns, Whistles and Sirens Necessary for
Communications? (1972) (SAE Paper No. 720640).

42. Fifteen states have adopted statutes which specifically regulate horns in gen-
eral language. ALA. CODE tit. 36, § 36 (1958); ARnz. REV. STAT. ANN. § 28-954

(1956); ARK. STAT. ANN. § 75-725 (Supp. 1973); COLO. REN'. STAT. ANN. §, 13-5-104

(1963); GA. CODE ANN. § 68-1716 (1967); KAN. STAT. ANN. § 8-5, 102 (1964);

ME. REV. STAT. ANN, tit. 29, § 1362 (Supp. 1973); MD. ANN. CODE art. 661 , § 12-

401 (1970); MICH. Comp. LAWS ANN. § 257-706 (Supp. 1973); Mo. REV. STAT. §

307, 170.1 (1972); OnE. REV. STAT. § 483.446 (1971); S.D. ComP. LAWS ANN. § 32-
15-11 (1967); TENN. CODE ANN. § 59-901(a) (1968); TEX. REV. CiV. STAT. art.

6701d, § 133 (1969); Wyo. STAT. ANN, § 31-204 (1967). For a survey of municipal-
ities having analogous ordinances, see LAws AND REGULATORY SCHEXIES at 1-115 to

1-116.
43. If civil penalties are substituted for criminal prosecution, proof of Violation

could be determined by a mere preponderance of evidence, a standard perhaps less
difficult to meet.



The Automobile: Non-Exhaust Impacts

established decibel limits for horns44 or has required so-called "city-
country" horns, which give rise to significantly lower sound levels
when the vehicle is stationary or moving at speeds less than 35
mph.45 Nevertheless, the real problem remains in the unnecessary
use of horns rather than in the sound levels they produce. A horn
that is too quiet might fail to give warning in cases of legitimate
use because of the competition of background noise prevalent in
congested areas," the interior noise in truck cabs emanating from
the same vehicle, and the effects of interior soundproofing, air
conditioning, radios, and tape decks in automobiles.

Legislation

State and Local

State and local governments have adopted a variety of laws in-
tended in whole or in part to reduce motor vehicle noise.47 A num-
ber of such laws forbid "unnecessary noise" or "excessive noise" in
general terms that are broad enough to encompass unwarranted
horn blowing and cars with defective mufflers.48 A later generation
of state and local laws establishes decibel limits on emissions of

44. See, e.g., NEW YORK CITY, ADMINISTRATIVE CODE ch. 57, art. III, § 1403.3-
5.17 (Supp. 1973) [hereinafter cited as N.Y.C. Noise Control Code].

45. Starting with 1974 models, all automobiles sold or operated within New
York City must be equipped with such horns. See N.Y. Times, June 1, 1973, at 39,
col. 4.

46. Section 1403.3-5.17 of the N.Y.C. Noise Control Code forbids motor vehicle
horns giving rise to sound levels in excess of 75 dB(A) at 25 feet, while section
1403.3-5.03 of the same ordinance permits levels of 96 dB(A) for heavy trucks, 92
dB(A) for motorcycles, and 88 dB(A) for lighter trucks and automobiles at the
same distance. There is serious reason to believe that these standards, in combination,
would destroy the effectiveness of horns as warning devices in many situations.

The N.Y.C. Noise Control Code, in theory, permits code enforcement officers no
discretion. A summons should be issued for every time a horn is blown in the city.
On May 14, 1973, the city began a crackdown on horn blowers. N.Y. Times, May 1,
1973, at 21, col. 1; N.Y. Post, May 1, 1973. at 16, col. 1. See also N.Y. Times, May
20, 1973 at 40, col. 1; N.Y. Post May 22, 1973, at 16, col. 1.

47. For a survey of state and local noise control laws, see 115 CONG. REC. 32188-
32259 (1969). See also S. LEWIN, A. GORDON, & C. HARTELIUS, LAW AND THE

MUNICIPAL ECOLOGY 57-69, 75-87 (1970) (includes Model Noise Ordinance recom-

mended by the National Institute of Municipal Law Officers); Spater, Noise and the
Law, 63 MICH. L. REV. 1373 (1965).

48. See, e.g., CONN. GEN. STAT. ANN. § 14-80(e) (1970); Ky. REv. STAT. §
189.020 (1973); MASS. ANN. LAWS ch. 90, § 16 (Supp. 1968); Mo. REV. STAT. §
307.170 (1972); ORE. REV. STAT. § 483.448(3) (1971).

1975]



200 COLUMBIA JOURNAL OF ENVIRONIENTAL LAW [1: 187

sound from specified types of motor vehicles. Some, such as those
of the state of California49 and the city of Chicago,"0 prescribe a
scale of successively lower noise-emission levels for vehicles man-
ufactured after certain dates in the future. Others, such as the New
York City Noise Control Code, establish single sets of limits without
regard to date of manufacture.1 In theory, these approaches are
superior to the general types of prohibition which were more com-
mon at an earlier date. Nevertheless, their efficacy remains con-
tingent upon the availability of a comparatively large enforcement
staff that is trained in the use of sound-level meters, the incorpora-
tion of accurate noise inspection procedures as part of periodic
motor vehicle inspection, or both. "

Federal

Federal involvement in this field has been recent. Federal high-
way legislation has required consideration of environmental con-
sequences, specifically including noise, in the siting of new highways
for which federal funds are committed.5 3 To the extent that the
National Environmental Policy Act also applies, 4 environmental
statements would be required in which noise consequences would
have to be evaluated not only in absolute terms but also in the weigh-

49. CAL. VEHICLE CODE § 27160 (West Supp. 1974).
50. MUNICIPAL CODE OF CHICAGO ch. 17, § 17-4.7(b) (1971).
51. Section 1403.3-5.03 prescribes lower limits for all vehicles other than heavy

trucks, as of January 1, 1978, but regardless of date of manufacture. See also
MUNICIPAL CODE OF CHICAGO, ch. 17, § 17-4.7(c) (1971).

52. See generally ARNOLD & RABKIN, COMPREHENSIVE REPORT ON NOISE POLLU-
TION CONTROL TO THE ERIE COUNTY LEGISLATURE (1972); Grad & Hack, Noise Con-
trol in the Urban Environment, 1972 URBAN L. ANN. 3.

53. Federal-Aid Highway Act of 1970, 23 U.S.C. § 109(h) (Supp. 11 1973),
states that "the final decisions on the project are [to be] made in the best overall
public interest, taking into consideration the need for fast, safe and efficient trans-
portation, public services, and the costs of eliminating or minimizing such adverse
effects [as] .. . noise ..." Section 109(i), 23 U.S.C. § 109(i) (Supp. II 1973),
further provides that the Secretary of Transportation "shall develop and promulgate
standards for highway noise levels compatible with different land uses and ... shall
not approve plans ... for any proposed project on any Federal-aid system for which
location approval has not yet been secured unless he determines that such plans and
specifications include adequate measures to implement the appropriate noise level
standards."

54. 42 U.S.C. §§ 4321-47 (1970). See generally Mayo, Consideration of Environ-
mental Noise Effects in Transportation Planning by Government Entities (1972)
(SAE Paper No. 720627).



The Automobile: Non-Exhaust Impacts

ing of alternative routes as well as, presumably, alternatives to the
proposed highway itself.;5

The Noise Control Act of 1972 requires the Environmental Pro-
tection Agency to issue regulations concerning the noise emissions of
a number of products sold in interstate commerce, specifically in-
cluding motor vehicles and engines.," There is a danger, however,
in that federal standards may interfere with the efforts of state and
local governments to impose more stringent noise-emission limits to
meet the peculiar needs of high-density urban areas. The Noise
Control Act of 1972 is almost totally preemptive with respect to
interstate trucks and buses, except to the extent that the Adminis-
trator of EPA explicitly authorizes more stringent local rules if
"necessitated by special local conditions."57 The preemption provi-
sions for automobiles and motorcycles, however, are modeled upon
those applicable to air pollution control: stricter state or local laws
applicable to sale or registration of new cars are forbidden, but the
state or local governments remain free to impose limitations on
use.5 ' Unless state and local standards coincide with federal regula-
tions, the prohibitions on sale contained in the California, Chicago,
and New York City legislation will be nullified; but the use of
vehicles in violation of those standards can still be barred or condi-
tioned.

Methods of Control

Reduction of noise at the source by the imposition of noise-perfor-
mance standards, presumably enforced by assembly-line testing in
conjunction with the comparable programs for air quality purposes,

55. Cf. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.
1972), cert. denied, 409 U.S. 1000 (1973); Ragland v. Mueller, 460 F.2d 1196 (5th
Cir. 1972); Environmental Law Fund v. Volpe, 340 F. Supp. 1328 (N.D. Cal. 1972);
Conservation Society of Southern Vermont, Inc. v. Volpe, 343 F. Supp. 761 (D. Vt.
1972); Northside Tenants' Rights Coalition v. Volpe, 346 F. Supp. 244 (E.D. Wis.
1972).

56. Act of Oct. 27, 1972, Pub. L. No. 92-274, 86 Stat. 1234, 42 U.S.C. §§ 4901-
18 (Supp. 11 1973) [hereinafter cited as Noise Control Act of 1972]. Section 6(a),
42 U.S.C. § 4905(a)(C)(ii), (iii) (Supp. II 1973). requires the Administrator to
establish noise emission standards for, inter alia, "transportation equipment" and
any motor or engine."

57. Noise Control Act of 1972, § 18, 42 U.S.C. § 4917 (c) (Supp. II 1973).
58. Id. § 6(e), 42 U.S.C. § 4905(e) (Supp. II 1973). See also 1 F. GRAD,

TREATISE ON ENVIRONMENTAL LAW § 5.03[1][d][ii], at 5-45 to 5-46, and § 5.03
[1][d][xi], at 5-54 to 5-56 (1973).

1975]



202 COLUMBIA JOURNAL Or ENVIRONMENTAL LAW [1: 187

can be utilized in order to conform automobiles to the best presently
available technology. This approach will result in substantial noise
reductions for sports cars and motorcycles. For trucks and buses, it
may be necessary to force noise-control technology. Assuming that
relatively little, in terms of a cost-benefit analysis, can be accom-
plished through the radical redesigning of automobiles, and that an
improved technology for trucks and buses may not be immediately
forthcoming (or at least not quickly reflected in the characteristics
of truck and bus fleets presently operating), the operation of
vehicles, once acquired by the ultimate purchaser, must be con-
trolled. Policing of horn blowing aside, traffic congestion must be
alleviated. Traffic signals can be timed to pace the flow of traffic,
minimizing acceleration and deceleration. Where possible, restraints
on use should be placed upon all or certain categories of vehicles
in specific areas. If trucks cannot be banned from the city altogether,
they can be confined to selected, commercial streets, thereby sep-
erating the listener from the source of noise. Many residential streets
can be held inviolate from truck, if not automobile, traffic. Never-
theless, zoning regulations presently in force include far too many
checkerboard patterns of homes interspersed with commercial estab-
lishments that are dependent upon truck deliveries to permit sub-
stantial short-run improvement by this approach. However, some
of the restrictions that would be helpful from a noise-reduction
perspective would parallel desirable restrictions from the standpoint
of reducing local concentrations of air pollutants. Thus economic
and social costs of diverting traffic will be more tolerable where
they pay for concurrent environmental improvement in air and noise
quality.

A more systematic approach might be the creation of "noise
zones."5' Enforcing of zoning performance standards is difficult,
however, because many noise sources are transient and not well
suited for control by regulations aimed at particular areas or loca-
tions. Moreover, the granting of variances or exemptions in order to
avoid hardship lends itself to turning exceptions into the rule."°

Finally, topological or other reasons may foreclose such an approach.
Nevertheless, there may be certain types of areas as those adjacent

59. Bolt, Beranek & Nenan, Inc., at 82-86. 108-12. See also OECD, at 49; Note,
A Model Ordinance to Control Urban Noise Through Zoning Performance Standards,
8 HARV. J. LEGIS. 608 (1971).

60. Yale Legislative Services, Control of Motor Vehicle Noise Pollution 7 (pre-
pared for Rep. T.H.D. Mahoney, Mass. General Court, March 1973).



The Automobile: Non-Exhaust Impacts

to shopping centers that might effectively be zoned for noise quality;
this procedure would seem particularly appropriate for adoption in
connection with the approval of newly proposed areas of these
kinds. 1

In short, the urban environment must be planned to promote
peace and quiet. Ideally, careful highway placement would solve
much of the problem: traffic would be routed far from secluded
communities. But progress in this direction will be plodding be-
cause of the investment in established roads, buildings, and busi-
nesses and the shortage of space. Although major improvement
cannot quickly be achieved,12 new building construction can mini-
mize noise impact.63 The Department of Housing and Urban De-
velopment may refuse to grant federal financial assistance to
residential housing in areas where street noise would cause exces-
sive interior noise levels."' This problem may often be solved
through use of such means as air conditioning, double glazed win-
dows, and other soundproofing construction materials. But avail-
ability of these techniques may depend on ability to remain within
maximum permissible per unit costs,"5 if superblock or cluster de-
velopments cannot achieve sufficient economies of scale. Notwith-
standing the breadth of these efforts, the existing housing stock and
infrastructure limit their efficacy."0 Assuming that mass transit is to

61. For similar regulation of "indirect" sources in the case of air pollution, see 40
C.F.R. § 52.22(b) (1974).

62. Some improvement can be obtained by having street repair crews exercise
more care in filling potholes and repairing streets, because "[a] change in road
surface from rough to smooth asphalt can lower the noise level from tire/roadway
interaction by about 5 dB(A)." OECD at 42-43 (Fig. 11). It should be noted, how-
ever, that when very smooth asphalt is wet, it provides substantially lower traction
than rough asphalt or concrete. Id. at 42.

63. See N.J. REV. STAT. § 55:13A-1 (Supp. 1971); N.Y. MULTIPLE DWELLING

LAW § 84 (McKinney 1970); NEW YORK CITY ADMINISTRATIVE CODE, ch. 26, tit. C
(1969), and discussion of these statutes in Grad & Hack, supra note 52, at 19-22.
The design of highways can also be helpful. Cuts and tunnels may serve to shield
surrounding areas from motor vehicle noise, although this depends in part upon their
contours and the construction material used. See Lyon, supra note 9, at 2, 17-19. See
also OECD at 47-48; Hildebrand at 673.

64. See Dep't of Housing & Urban Development, Circular 1390.2, Noise Abate-
ment and Control: Departmental Policy, Implementation Responsibilities and Stand-
ards (Aug. 4, 1971); N.Y. Times, Nov. 5, 1972, § 8, at 1, col. 6; id., Nov. 12, 1972,
§ 8, at 10, col. 1; id., June 23, 1974, § I, at 34, col. 4.

65. See HUD Release No. 71-828 (May 12, 1971).
66. Retrofitting of existing buildings to reduce noise intrusion would achicvc

quicker results, but probably at a cost that would not be tolerable.

1975]



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

some extent a substitute for the automobile, the urban enigma is
what to do with trucks,17 because urban areas cannot do without
trucks. Given the constraints upon environmental land-use plan-
ning, the need for an improved truck noise-control technology be-
comes more imperative, and the apparent experimental break-
throughs, mentioned above, become increasingly important.

Control of the noise emissions of individual vehicles involves both
practical problems of enforcement and conceptual questions con-
cerning objectives. Periodic, compulsory inspection would normally
be preferable to roadside spot-checking, although a combination of
both, with street measurement serving as a deterrent to deliberate
or careless deterioration between inspections, might enhance the
usefulness of a periodic inspection program which can reach all
registered vehicles. Assuming that the testing method is fair and
uniformly administered,6" the pivotal policy decision is whether the
noise-performance standards to be applied will be based upon
vehicle operation under ideal conditions in open spaces or in a
crowded urban context. Periodic off-the-street inspection could
simulate uniform, ideal driving conditions. Scientific, computer-
recorded and controlled noise-test regimes run on dynamometers
could duplicate all conditions arguably within the driver's control-
load, velocity, acceleration, and deceleration-without the competi-
tion of background noise and surrounding vehicles. If a vehicle
satisfied standards under such conditions, it can be argued that the
manufacturer, owner, or driver ought not to be penalized if the
vehicle, once on the road, exceeds those standards because of such
everyday factors as slow traffic movement, narrow streets with re-
flecting building surfaces, poor pavements, or interactions with the
noise from other vehicles or other types of sound sources. On the
other hand, the class to be protected by the noise regulations is the
listeners, not the noisemakers. As far as listeners are concerned,
testing under controlled, ideal conditions may, at times, have only

67. Gradually, markets and transshipment terminals can be relocated at the edges
of cities or other places remote from where human comfort depends on low noise
levels.

68. The Society of Automotive Engineers has recommended specific testing
procedures. SAE J986a; SAE J672a. See Hillquist, Methods of Vehicle Noise Meas-
urement (1972) (SAE paper No. 720403). The California Highway Patrol has
found that the SAE New Vehicle Test Procedure has restrictions on the nature of
measuring sites that make measurement in residential areas impossible. It has engaged
in research designed to ease these restrictions. Cooper, supra note 25, at 364.

[1: 187



The Automobile: Non-Exhaust Impacts

symbolic value. Arguably, noise-performance standards ought to be
met at any time under any conditions. This does not necessarily
mean that every vehicle manufactured or operated in the country
has to be able to meet the worst of circumstances. At the same time,
state and local governments can and should be encouraged to
establish zones in which noise above certain levels will not be
permitted, provide adequate notice on street signs of this fact, and
enforce those limits against intruding vehicles regardless of the level
of their noise emissions at other times and places.

WATER POLLUTION PROBLEMS RELATED TO THE

AUTOMOBILE-CRANKCASE OIL DISPOSAL

By Stephen R. Munzer, Frank P. Grad and Stephen L. Schwarcz

Crankcase oil presents a problem because its disposal after ordi-
nary use may damage the environment. All oils generally have
adverse effects on natural bodies of water-they coat the surface
and thereby prevent oxygen from reaching the water and sunlight
from penetrating to the plants below. This retards photosynthesis
and hence decreases the dissolved oxygen content of the water which
is indispensable for fish and plant life. Crankcase oil occasions fur-
ther problems because of the additives (chiefly detergents and
metals) found in motor oil and because it acquires lead and other
gasoline additives when used in automotive engines. Appreciable
amounts of lead, barium, calcium, and zinc are found in most used
motor oils;69 one study indicated that 1.11 percent lead by weight,
.0568 percent barium by weight, 0.17 percent calcium by weight,
and 0.08 percent zinc by weight are typical in waste crankcase oil. 70

The Crankcase Oil Problem

The general problem is how to dispose of waste crankcase oil. The
precise extent of the problem is, however, difficult to determine,-

69. Environmental Quality Systems, Inc., Waste Oil Recovery Practices/State of
the Art 19 (report prepared for the State of Maryland and the United States Environ-
mental Protection Agency, Dec. 1972) [hereinafter cited as Maryland Report].

70. Id. at 20, Table 5-"Typical Waste Automotive Oil Composition."
71. No exact statistics are available on the amount of waste crankcase oil col-

lected at filling stations; even if they were available, it would not account for crank-
case oil drained by automobile owners who change oil themselves. An early estimate
by MIT indicates that petroleum oil leakage of all types from cars accounts for 36
percent of the petroleum leakage into the environment. See 73 TECHNOLOGY REV. 59

1975]



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

and for the most part it is necessary to construct estimates on the
basis of such figures as are available. Nationally, about 1.1 billion
gallons of oil are sold each year for automotive use. " Of this amount,
other sources indicate that approximately 50 percent, or 550 million
gallons, is used as crankcase oil in passenger cars, and another 35
percent, or 38.5 million gallons, is used as crankcase oil in trucks
and buses and in other types of automotive engines. 3 Not all auto-
motive lubricating oil, of course, becomes waste crankcase oil; some
lubricating oil is not used in the crankcase at all,"4 and approximate-
ly one-third of all crankcase oil is lost through leakage or burning
in the engine or as a result of being discarded in junked auto-
mobiles.75 It would thus appear that annually about 400 million
gallons of waste crankcase oil require disposal."0

Methods of Disposal and Their Economic and
Environmental Impact

This section canvasses the various methods by which waste crank-
case oil is presently disposed of or might be disposed of in the
future. An attempt is made to indicate the environmental impact of
and, where relevant, the economic problems associated with these
methods of disposal.77

Present Methods of Disposal

Dumping on the Ground. One way of disposing of waste crank-
case oil is simply to dump it on the ground. It is unknown how

(Oct.-Nov. 1970). In the early 1970's an investigation was conducted by the United
States Attorney's Office for the Southern District of New York into the illegal dump-
ing of waste oil into sewers and rivers. None of the information gathered can be
released, however, since it was obtained through grand jury subpoenas. It is not
known how much data on waste oil has been acquired by oil companies or others
connected with the petroleum industry.

72. Maryland Report at 3.
73. Mobil Oil Co., Approximate Product/End Use Mix of Automotive Lubricants

in the United States (undated).
74. Id.
75. Maryland Report at 11, 14. The problem of junk car disposal is discussed in

Chapter 12 of this report.
76. This figure does not seem greatly different from the American Petroleum

Institute's estimate that 450 million gallons of waste oil of all types are disposed of
yearly. Committee on Disposal of Waste Products, American Petroleum Institute,
Waste Oil Roundup ... No. 1 (undated).

77. This section is not concerned with crankcase oil that is burned in automotive
engines.

[1: 187



The Automobile: Non-Exhaust Impacts

much crankcase oil is disposed of in this manner, but it seems safe
to assume that many automobile owners who change their own oil
succumb to the temptation. The attraction of ground dumping is
that a car owner can generally manage, with little or no cost, to
find a place to dump his oil where it will not cause him any harm or
annoyance, even though it may be inconvenient or worse for others.
Environmentally, the dangers are that the oil will seep into the
ground and pollute the water table and that the additives in the oil
will concentrate in plant life and possibly affect animals and men
through the food chain.

Roadway Use. A related, though somewhat more discriminating,
way to dispose of crankcase oil is to spray it on unpaved roads to
suppress dust. An estimated 100 million gallons of waste oil are dis-
posed of in this manner annually."' While costs of collection make
this a more expensive method of disposal than simply dumping oil
on the ground, use on roadway does produce a result (dust control)
which would otherwise have to be achieved by different methods.
There are, however, a number of significant environmental problems
with this means of disposal. First, as in the case of indiscriminate
dumping, there is a possibility of seepage and contamination of wa-
ter and plant life. How seriously this possibility is to be taken is
largely a function of the depth to which the oil penetrates the road-
way surface7" and whether it penetrates to the water table. Second,
a large amount of the waste oil, together with lead and metallic ad-
ditives, will leave the road surface with water runoff.80 The oil and
particularly the heavy metals may harm roadside vegetation. Third,
particles from oiled roads may contaminate adjacent fields and
crops. The surface of an oiled road contains a considerable amount
of lead (approximately 200 mg/kg) from automotive emissions and
from the waste itself. The lead adheres to dust particles on the road
and can be carried by winds to adjoining fields and crops. One study
has noted that this would be a problem in cases where roadside
crops, such as lettuce or cabbage, are intended for direct human

78. Maryland Report at 131.

79. One study found no oil seepage beneath one inch of the surface. Freestone,
Runoff of Oils from Rural Roads Treated to Suppress Dust 1 (Edison Water Quality
Research Laboratory Oct. 1972 (U.S. E.P.A. Rept. No. EPA-R2-72-054)) [hereinafter
cited as Freestone, Road Dust Report].

80. Id. This study suggests that all but 1 percent of the waste oil leaves the road
with runoff. Id.

1975]



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

consumption. 81 The study concluded that "the 70-75% of the oil
applied which leaves the road by dust transport and run-off could
have significant ecological effects as a result of the oil or its ac-
companying heavy metals or both."' 2 The use of crankcase oil for
roadway dust control thus has severe limitations as a means of
disposal. Even if the results of the few published studies cannot be
extrapolated to roads of other compositions, it is plain that there is a
strong potential for environmental harm in roadway oiling.

Discharge into Rivers and Sewers. It is unknown how much waste
oil is dumped into rivers and sewers. Yet one of the reasons for
much recent water-quality legislation has been to reduce the
amount of pollutants, waste oil among them, introduced into water-
ways. And a survey of overflow discharges in the New York City
metropolitan area revealed that in the first hours after a heavy rain
thousands of gallons of waste oil were flushed from a combined
storm and sanitary sewer.8 3

This method of disposal has very little to recommend it. The dis-
charge of waste crankcase oil into rivers and sewers is prohibited by
much federal, state, and local legislation because such dumping may
create a number of serious problems. Oil may pollute waterways and
the oceans and the metal additives may harm fish and plant life.
Moreover, oil may interfere with the operation of sewage treatment
plants, either by clogging plants or by killing aerobic bacteria that
help to degrade dissolved sewage. Finally, oil in combined storm
and sanitation sewers84 may aggravate overflow problems and con-
ceivably could create a fire hazard in some metropolitan sanitation
sewers.

Re-Refining. One method of disposal that offers some encourage-
ment is collecting the waste oil and re-refining it so that it may be
used again. This would seem to have the advantages of keeping

81. Id. The report found that soil samples taken from a wheat field 150 feet from
an oiled road showed an average lead value of 24.0 mg/kg, which is a somewhat
higher than normal concentration. Plant samples taken in this field showed an
average lead concentration of 33.5 mg/kg, which is also higher than normal. Id. at 16.

82. Id. at 23.
83. Legislative Drafting Research Fund Telephone Interview with Mr. Thomas

Glenn, Director and Chief Engineer. Interstate Sanitation Commission, March 21,
1973. The site was a combined sewer near New Town Creek (between Brooklyn
and Queens). 24,000 gallons of waste oil (not including the water) were flushed
out in the first four hours after a heavy rain in 1971.

84. See generally Field & Struzeski, Management and Control of Combined Sewer
Overflows, 44 J. WATER POLLUTION CONTROL 1393 (1972).

[1: 187



The Automobile: Non-Exhaust Impacts

most if not all of the harmful components of waste crankcase oil
from the environment and of providing a useful end-product. In
1971, the re-refining industry had a 100-million-gallon-per-year
capacity, though this was actually a decline from the 1966 capacity
of 300 million gallons per year.85

At present, however, re-refining is not an economical method of dis-
posal. Collecting the oil from service stations is expensive; collectors
receive so little for waste oil that they must generally charge service
stations one to three cents per gallon to collect it."' Marketability
of re-refined oil is significantly hindered by prohibition of its use
in many military vehicles,87 regulations of the Federal Trade Com-
mission, 88 and the possible reluctance of many consumers to use it.
It is possible, though perhaps unlikely, that the federal excise tax of
six cents per gallon on all lubricating oils other than cutting oil may
also inhibit marketability." Most importantly, there is no presently
accepted commercial re-refinement process which is both economi-
cal and does not leave an oily sludge almost as difficult to dispose
of as the original waste oil.90 The contaminants in waste crankcase
oil are dust, dirt, dilutants from unburned and partly burned gaso-
line, and insoluble decomposition products of the crankcase oil
itself. The detergents used in motor oils keep these contaminants so
well dispersed that they pass ordinary filters.9 ' As a result, many
processes for reclaiming waste oil are technologically or econom-
ically unfeasible, and of the remaining processes most leave a sub-
stantial amount of oily sludge.92 Water dumping and burning of the

85. Comm. on Disposal of Waste Oil Products, American Petroleum Institute,
Waste Oil Roundup... No. 1, at 3 (undated).

86. Comm. on Disposal of Waste Products, American Petroleum Institute, Waste
Oil Roundup ... No. 2, at 2 (April 1973) [hereinafter cited as Waste Oil Roundup
No. 2].

87. See, e.g., Specifications MIL-12104B & C, ML-L46152 (engine oils), and
MIL-L-2105B (gear oil). See Letter from Harry L. Ammlung, Director, Dep't of
the Army, Mobility Equipment Research & Development Center, April 12, 1973, on
file with the Legislative Drafting Research Fund of Columbia University. The letter
lists and discusses a number of military oil uses for which virgin-based oil is required,
and the reasons for this policy.

88. See 16 C.F.R. § 406.5(3) (1973) (labeling restrictions on use of term "re-
refined" and other words of similar import).

89. INT. REV. CODE OF 1954, § 4091.
90. Maryland Report at 107.
91. See W. CRUSE & D. STEVENS, CHEMICAL TECHNOLOGY OF PETROLEUM 540-41

3d ed. 1960).
92. See Bowen, Waste Lube Oils Pose Disposal Dilemma, 6 ENVIRONMENTAL

SCIENCE & TECHNOLOCY 25, 26 (Jan., 1972).

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sludge pose environmental risks, and land disposal techniques using
bacterial degradation of the sludge are not yet fully tested. 3

The commercial success of re-refinement thus depends on a num-
ber of factors. Some effort must be made to reduce costs of collect-
ing waste oil and to remove impediments to marketing re-refined oil
products. Advances are most essential, however, in the area of re-
refining processes. While suggestions of "breakthroughs" have oc-
casionally been intimated,"4 no firm evidence is available that a
significant technological advance has been made. Nonetheless, even
without great progress in these areas, re-refining may become com-
mercially successful if petroleum shortages act to increase the price
for which re-refined oil can be sold.

Possible Future Methods of Disposal

Incineration. In turning to methods of disposal that are employed
minimally if at all at present but which may have potential for
significant use in the future, let us first consider the possibility of
using crankcase oil in the incineration of municipal wastes. Refuse is
often too high in water content to burn efficiently in municipal in-
cinerators. Waste crankcase oil can be burned to dry out the wet
refuse or to heat the air before incineration in order to increase com-
bustion efficiency, or can be burned as a mixture with the refuse.
A report by the GCA Corporation, published with EPA approval,
indicates that crankcase oil can be successfully used to stabilize
combustion in these ways,95 thereby reducing emissions of particu-
lates and uncombusted gases and lowering the amount of after-
combustion residues of organic refuse."

Nonetheless, no actual demonstration has yet been made of the
effectiveness of burning crankcase oil in incineration. In this con-
nection, better quality-control techniques by waste oil collectors
might be necessary. 7 For example, the waste oil used for incinera-

93. See Maryland Report at 131-32.
94. See, e.g., Wall Street Journal, Feb. 7, 1973, at 10, col. 1.
95. S. Chansky, B. McCoy & N. Suprenant, Waste Automobile Lubricating Oil as

a Municipal Incinerator Fuel (E.P.A. Rept. No. EPA-R2-73-293 Sept. 1973) (report
by GCA Corporation published with EPA approval) [hereinafter cited as Chansky,
Incinerator Report]. The EPA does not, however, necessarily endorse the "views and
policies" of the report. Id. at 8.

96. Id. at 9.
97. The waste oil used in the GCA Corporation experiment was obtained directly

from service station tanks and contained only trace amounts of water. However,

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The Automobile: Non-Exhaust Impacts

tion must not have so much water content as to interfere with
proper burning and must not have so much sediment content as to
result in unacceptable particulate emissions in the combustion gases.
Problems of maintenance occasioned by lead buildup on burner
surfaces also need to be investigated further."5 Moreover, even if
use of waste oil in incineration decreases the aggregate amount of
air pollution while at the same time consuming the waste oil, there
remains the problem of metallic oxide emissions, particularly lead,
in the gases. Theoretical studies indicate that lead concentrations
would be kept well below the EPA danger level, 9 but no empirical
data is available for actual use in municipal incinerators. And,
finally, doubts may be raised as to whether municipal incineration,
causing as its does a significant amount of air pollution, should be
encouraged rather than phased out, and in any case as to how much
of the total amount of waste crankcase oil produced could be dis-
posed of by this method.

Use as Fuel. Waste crankcase oil can also be used as heating fuel.
For this purpose it could be burned alone or mixed with other fuels;
burning may be done with or without prior treatment to reduce
water and sediment content. According to the American Petroleum
Institute, waste oil can be a good heating fuel, though it should be
blended with at least three times the quantity of other fuels.' 0

Pure waste oil burning can cause severe mechanical problems; in a
recent test, almost half the ash content of the waste oil remained in
the boiler as a white layer, covering the inside of the heat exchange
tubes and severely fouling the boiler.' Even 25 percent waste oil

waste oil obtained from collectors may have a high water content, and this may
impede the effectiveness of using it in incineration. See id. at 16.

98. No serious maintenance problems arose in the CCA Corporation experiment.
Id. at 36.

99. On the assumption of one percent lead in waste crankcase oil, the average
ground level lead concentration over a three-month period should vary between 0.20
and 0.01 micrograms per cubic meter, depending on distance from and orientation
with respect to the incinerator. The danger level for lead concentration set by EPA
is 2.0 micrograms per cubic meter, averaged over a three-month period. The results
calculated above, however, assume that waste oil firing would occur during only
about one-third of the incinerator's operating time and neglect the additional burning
of waste oil necessitated during some periods by large accumulations of grass clip-
pings and yard trimmings which have a high water content. See generally Chansky,
Incinerator Report 9, 49, 55.

100. American Petroleum Institute, Final Report of the Task Force on Used Oil
Disposal 1 (1970) [hereinafter cited as A.P.I. Report].

101. G. Chappell, Waste Oil Reprocessing 18 (rept. for Massachusetts Division of
Water Pollution Control, Water Resources Comm'n, Jan. 1973).

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

burning usually results in higher maintenance costs than normal
fuel oil because of ash formed during combustion of incompletely
removed additives. 1'02 These deposits were found by one oil com-
pany to be so substantial that they would require a shutdown of
the boiler for cleaning for a one-day period once every two weeks.10 3

Nonetheless, the American Petroleum Institute has concluded that,
from an overall combustion efficiency and maintenance viewpoint,
waste oil burning should be encouraged." 4 This seems a reasonable
conclusion. Forty billion gallons of No. 6 commercial fuel oil are
sold each year,0 5 while there is a need to dispose of an estimated
400 million gallons of waste crankcase oil annually.0 If waste oil
were mixed only several parts per hundred with normal fuel oil,
combustion would be improved and extra maintenance costs
reduced.

However, even if this would make use of waste oil in fuel feasible
from a technical standpoint, several problems remain. First, some
arrangements must be made to ensure that only a certain amount
of waste oil is blended with normal fuel oil. The costs of collection
and quality control may be significant. Second, there may be en-
vironmental reasons against burning fuel consisting partly of waste
oil in residential or highly polluted areas, because of the metal
pollutants (especially lead) and the additional quantity of par-
ticulate matter.1 7 Third, even if burning such fuel is generally suit-
able in a given area, it may be difficult to retain enough flexibility
to preclude its use during air pollution alerts.

Re-Refining to Distillate Oil. Another suggestion has been to re-
refine the waste oil to distillate oil, and it is reported that the
feasibility of such a venture is being investigated. However, the
supply and price of distillate oil as compared to the supply and
price of commercial fuel oil varies. While some time ago distillate
oils were in short supply and commanded a higher price than com-

102. A.P.I. Report 1.
103. Id. at 5.
104. Id. at 1.
105. The 40 billion gallon figure was stated in an interview with Mr. Hugh S.

Kelley of the Mobil Oil Company, conducted by the Legislative Drafting Research
Fund on March 12, 1973, in New York City. This figure is in accord with a claim
from a separate source that 34 billion gallons of the same type of oil were burned in
1971. See Waste Oil Roundup No. 2, supra note 86, at 2.

106. See p. 11-1 to 11-2 supra.
107. See generally A.P.I. Report at 14; Esso Research and Engineering Rept. No.

60142, Nov. 8,.1972, at 11.

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The Automobile: Non-Exhaust Impacts

mercial fuel oil, the situation has now reversed itself. Hence, the
feasibility of re-refining to distillate oil depends not only on the
development of a suitable technology but also on the ability to
cope with fluctuations in supply and price.

Legal Regulation of Crankcase Oil Disposal

Jurisdiction to Regulate

It seems fairly clear that the federal government would have juris-
diction to regulate the disposal of waste crankcase oil. Under the
authority granted by the commerce clause,'08 the federal govern-
ment has power to deal with any matter affecting interstate com-
merce. It is settled that this power exists even in matters whose
actual effect on interstate commerce is rather remote." °9 Thus dis-
posal of waste oil into non-navigable tributaries or into the ground,
where it may seep to the water table and from there be carried to
navigable waters from underground streams, may constitutionally
be regulated by the federal government.1 0 Again, federal power of
regulation would reach methods of disposal that could affect air
quality, such as using waste oil in heating fuel or municipal incinera-
tion.

It is, however, a closer question whether the federal government
has exercised the full range of its constitutional powers in this area.
The requirements of the Federal Water Pollution Control Act
(FWPCA) prior to its 1972 amendment were limited to "interstate
or navigable waters,""' which included only navigable waters and
those "rivers, lakes, and other waters that flow across or from a part
of state boundaries, including coastal waters."11' Partly because of
this jurisdictional limitation and partly because the conference
procedure provided for in the Act did not prove to be an effective
enforcement device,11 some use was made of the Rivers and Har-

108. U.S. CONST. art. I., § 8.
109. See, e.g., Wickard v. Filburn, 317 U.S. 11 (1942). See also F. GRAD, G.

RATHJENS & A. ROSENTHAL, ENVIRONMENTAL CONTROL: PRIORITIES, POLICIES, AND

THE LAW 219-24 (1971).
110. See Hines, Nor Any Drop to Drink: Public Regulation of Water Quality,

Part III: The Federal Effort, 52 IowA L. REv. 799, 800 (1967).
111. See Act of Jul. 20, 1961, Pub. L. No. 87-88, § 7(a), 75 Stat. 207.
112. See Act of Jul. 20, 1961, Pub. L. No. 87-88, § 9, 75 Stat. 210.
113. See Act of Jul. 20, 1961, Pub. L. No. 87-88, § 7(c), 75 Stat. 207, and dis-

cussion in 1 F. GRAD, TREATISE ON ENVIRONIENTAL LAW, § 3.03[1][a], at 3-59 to
3-63 (1973) [hereinafter cited as CRAD].

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bors Act of 1899114 as a pollution control measure.11'" But that Act
does not apply to matter "flowing from streets and sewers,"11 and
the 1972 amendment to the FWPCA effectively limits it to inter-
ferences with navigation.11 7 Federal law following the 1972 amend-
ment, however, is much more far-reaching and aims at the elimina-
tion of water pollution."' It seems clear that water discharge of
waste oil is now effectively prohibited by federal law. The status of
ground dumping, on the other hand, is less clear, since the federal
effluent standards do not apply to subterranean waters. So far as
use of waste oil for fuel or incineration is concerned, burning would
be subject to local and state air pollution laws. Also, under federal
law, ambient air quality standards have been set for some pollutants
from burning waste oil-sulfur oxides, particulate matter, carbon
monoxide, photochemical oxidants, hydrocarbons, and nitrogen
dioxide.' 19 No such standards, however, have yet been set for lead
or the metal additives in crankcase oil.

Some state and local regulation already exists in this area, and
additional state and local control-as an exercise of the police power
-would be possible in those instances where federal legislation has
not preempted the field. The Federal Water Pollution Control Act
expressly confirms that states, their political subdivisions, and inter-
state agencies retain the right to adopt and enforce standards or
limitations respecting discharge of pollutants and to set require-
ments respecting the control' or abatement of pollution, except as
expressly provided in the Act. -° Moreover, they are expressly au-
thorized to set more stringent standards or limitations than those
imposed under the Act.' 2 ' In the case of air pollution, while the
Clean Air Amendments of 1970 assign responsibility for standard
setting to the federal government and provide for some federal en-

114. Act of Mar. 3, 1899, ch. 425, 30 Stat. 1151.
115. See, e.g., United States v. Standard Oil Co., 384 U.S. 224 (1966); United

States v. Republic Steel Corp., 362 U.S. 482 (1959). See also 1 GRAD, § 3.03[1][b], at
3-69 (1973).

116. Rivers and Harbors Act of 1899, § 13, 33 U.S.C. § 407 (1970).
117. 33 U.S.C. §§ 1342(k), 1371(a) (Supp. II 1973). See generally 1 GRAD,

§ 3.03 [1][b]; § 3.03[11], at 3-171 to 3-172.
118. 33 U.S.S. §§ 1251(a), 1281, 1311 (Supp. II 1973). See also S. REP. No.

92-414, 92d Cong., 1st Sess. (1971).
119. Act of Dec. 31, 1970, Pub. L. No. 91-604, § 4, 84 Stat. 1678, 42 U.S.C. §

185 7 c-3 (Supp. 1 1972); 36 Fed. Reg. 1502, 1515 (1971).
120. 33 U.S.C. § 1342(b) (Supp. II 1973).
121. 33 U.S.C. § 1370 (Supp. 11 1973).

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The Automobile: Non-Exhaust Impacts

forcement measures, responsibility for enforcement is largely al-
located to the states -.1 2 ' Further, a state or any of its political sub-
divisions is at liberty to adopt standards or limitations respecting
emissions of air pollutants that are more stringent than those con-
tained in the approved state-implementation plan or other require-
ment of federal law.123

It is plain that the federal government and the states are both in
a position to exercise jurisdiction over the disposal of waste crank-
case oil. If it is decided that regulation is advisable, 12

1 the question
then arises whether it would be better for the federal government
or the states, or both working together, to do it. While this question
cannot be answered in detail until it is decided what strategies and
types of control, if any, are needed, it is clear that cooperative
strategies are in the main more fruitful. Regulation in this area
should, then, follow the general lines of federal-state cooperation in
the FWPCA and the Clean Air Act.

The Advisability of Regulation

This chapter has thus far deferred the issue of whether the dis-
posal of waste crankcase oil should be regulated at all, and if so,
how. In confronting this issue one might take the previous discus-
sion to support the following points. First, the mechanism of the
market has not yielded a satisfactory method of disposal. Re-refin-
ing has not thus far proved to be an economical method of disposal
on a large scale, and for that reason much waste oil has been
dumped on the ground or discharged into sewers or waterways.
Second, it is not clear that there is yet any technologically secure
and economically feasible method of disposal. While some methods,
like indiscriminate dumping or discharge, can be ruled out as pos-
sible solutions, such other methods as re-refining, use as fuel, and
use in incineration are not at present technologically viable and
not obviously cost effective. Third, existing data is insufficient to
determine how serious a hazard is posed to the environment by
waste crankcase oil. This is not to suggest that the hazard is trivial.
On the other hand, we do not know how deleterious the effects of

122. 42 U.S.C. §§ 1857 et seq. (Supp. I 1972).
123. 42 U.S.C. § 1857d-1 (Supp. I 1972).
124. The federal E.P.A., under 33 U.S.C. § 1254(m) (Supp. I 1973), is required

to make a detailed and comprehensive study of the waste oil problem, and report its
results to Congress within eighteen months after October 18, 1972.

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COLU-MBIA JOURNAL OF ENVIRONMENTAL LAW

waste oil actually are on plant and animal life, and in any event
the available evidence does not suggest that waste oil pollution is as
serious a threat as those posed by air pollution from the automobile
or by water pollution from industrial sources.

Additional considerations suggest that thoroughgoing regulation,
e.g., in the form of controlling individual car owners and gas station
disposal, would not be effective without undue administrative and
enforcement costs. It has been estimated that 35 to 45 percent of
all motor oil is purchased at retail outlets other than service sta-
tions,'125 and accordingly it must be assumed that a large part of this
amount is changed by car owners personally. It is extraordinarily
difficult to control individual habits of waste disposal. Too few
persons feel that their small amount of waste oil will contribute in
any meaningful way to the aggregate pollution problem; fines and
other sanctions are almost useless because of the great difficulty in
apprehending the polluter in the course of his act. While some
amelioration could be achieved through public education programs,
redesigning car engines so that motorists cannot change their own
oil, or controlling retail sales of oil, each of these methods is expen-
sive and in some cases implementation might be highly unpopular.
In the case of service stations, one might attempt to monitor the
amount of waste oil they collect. Yet it would be difficult to design
such a program whose strictures could not be evaded by those in-
convenienced by the new regulations, and a foolproof system would
almost certainly be unpopular and expensive to administer. Objec-
tions of this type would also apply to attempts to ensure by regula-
tion that waste oil would be properly collected by scavengers, that
sludge from re-refining would properly be disposed of, and so on.
In short, it is difficult to construct a system of regulation that would
be both workable and cost effective.

It is thus easy to draw the conclusion that in the area of waste oil
disposal the law should not be too heavy-handed and that it should
seek to foster better and more economical technological methods of
disposal. We can recommend several ways in which this might be
done. One important way would be to alter some of the legal regula-
tions that presently inhibit environmentally preferable ways of dis-
posing of waste oil. For example, some unfavorable labeling rules
applicable to refined oil could be modified or abandoned, and if

125. Factor, Oil Pollution: The Real Problem 1 (undated) (rept. to the Jt. Leg-
islative Comm. on the Environment, State of Connecticut General Assembly).

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The Automobile: Non-Exhaust Impacts

adequate quality control could be assured, it might be reasonable
to allow re-refined oil to be used for certain military purposes from
which it is now excluded. Re-refined oil might also be exempted
from federal excise tax. 126 Another way to encourage technological
development would be through grant programs under the Federal
Water Pollution Control Act.'12 7 The 1972 Amendments to the
FWPCA continued and expanded various research and develop-
ment grants previously established. Research and demonstration
projects relating to oil disposal are specifically authorized 12 8 to
develop programs to eliminate pollution of navigable and ground
waters. 129 Grants under the Act could to 'a significant extent be con-
ditioned on compliance with standards relating to oil disposal and
other provisions of the law."' By making use of such grants in aid
the law could encourage the development of one or more suitable
methods of disposing of waste crankcase oil.

SOLID WASTE PROBLEMS RELATED TO THE AUTOMOBILE-

JUNK CAR DISPOSAL

By Frank P. Grad and Stephen R. Munzer

The Problem of Junked and Abandoned Automobiles

Approximately 9 million automobiles are taken out of circulation
each year. Of this number, about 8 million are disposed of properly
-they are taken by their owners to junkyards or other proper dis-
posal sites or otherwise brought into the recycling process. 3' But
the 10 to 15 percent, or approximately one million cars per year,
that are abandoned on private property or, more frequently, in

126. For provisions of present law, see p. 460 and notes 87-89 supra.
127. 33 U.S.C. § 1255 (Supp. 11 1973).
128. 33 U.S.C. § 1254(m) (Supp. II 1973). See also S. REP. No. 92-414, 92d

Cong., 1st Sess. 13 (1971).
129 33 U.S.C. § 1252(a)(1) (Supp. II 1973).
130. 33 U.S.C. §§ 1256(e) and (f)(2) (Supp. 11 1973). See generally 1 GRAD,

§ 3.03[3][a].
131. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY-FIRST

ANNUAL REPORT 115 (1970); ENVIRONMENTAL PROTECTION AGENCY, THE AUTO-
TOMOBILE CYCLE: AN ENVIRONMENTAL AND RESOURCE RECLAMATION PROBLEM 18-21
(1972) [hereinafter cited as EPA Study]; Vaughan, The Administration Looks at the
Abandoned Automobile, INSTITUTE OF SCRAP IRON AND STEEL, PROCEEDINGS OF THE

NATIONAL CONFERENCE ON THE ABANDONED AUTOMOBILE 5 (1970) [hereinafter cited
as ISIS Proceedings].

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public streets or other public places, 32 are a source of considerable
annoyance. The abandoned automobile is composed of steel and
other metals, and it is a matter of some significance that natural
resources are wasted if the vehicle is not reclaimed.'33 There are,
moreover, a variety of safety, fire, and possibly health problems
caused by abandoned cars. They may become a traffic safety hazard
by reducing the traffic flow capacity of streets. Children may be
attracted to the dangerous hulks in their neighborhood and use
them as playgrounds. Fires have been set in abandoned cars. It has
also been suggested that they become breeding places for rodents
and insects.134 But the chief objection to abandoned automobiles, in
our view, is esthetic. They are a blight on countryside and cityscape
alike and create visual affront to those living in the neighborhood
and to passing travelers. Thus it is important that as many aban-
doned hulks as possible be introduced into the recycling process in
order to conserve natural resources, eliminate hazards, and preserve
the esthetic quality of the environment.

In what follows it will be useful to distinguish two separate,
though related, issues arising from the abandonment of automobiles.
The first issue is what to do with the automobile once it has been
brought to a collection point or junkyard. The second is how best
to ensure that automobiles will not be abandoned or that if aban-
doned they may be collected without undue administrative costs
and restraints.

The Recycling of Junked or Abandoned Automobiles

The obvious answer to the first issue just raised is to recycle the
materials in the automobile hulk. In this respect, the problem of the
abandoned automobile is not distinguishable from the problem of
recycling any other waste product, except that the automobile hulk
is rather exceptional in its size and weight and therefore presents
some special processing problems. 135 Nevertheless, it is similar to
other abandoned objects in that it will be recycled if it is economi-

132. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY-FIRST

ANNUAL REPORT 115 (1970).
133. Vaughan, supra note 131, at 7.
134. Id.
135. See Dole, Scrap Cars: A Resource out of Place, in ISIS Proceedings at 30;

Reichert, Recycling Abandoned Automobiles: Do Present Laws Act as Bottlenecks?,
2 ENVIR. LAW 105, 107-09 (1971).

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The Automobile: Non-Exhaust Impacts

cally profitable to do so. The issue of collection of abandoned auto-
mobiles is related to the issue of recycling because it is not economi-
cally profitable for the junk dealer himself to engage in the collection
of abandoned automobiles. The average value of an abandoned auto-
mobile is not so great as to warrant the cost of hauling it from its
place of abandonment to the junkyard. Indeed, the cost of hauling
may exceed its value. 136 Thus, any municipal or other public collec-
tion system which hauls abandoned automobiles to junkyards for
recycling provides a subsidy to the junk dealer and to the recycling
industry.

These conclusions have been true for a considerable time; they
may of course cease to be applicable if and when there is a dramatic
rise in the price of scrap iron or steel. But for the present at least,
market forces offer no solution to the problem.

The economics of automobile hulk recycling have been described
in a number of studies. 137 It is clear that technical problems relating
to the recycling of steel in automobile hulks have, on the whole,
been solved. 13

' The automobile cycle from the manufacture of the
new car to the recycling of the discarded car has been clearly de-
scribed.139 When an automobile becomes inoperable through ac-
cident or obsolescence, it may be taken to a dumping ground or
abandoned on public or private property. Generally, such an auto-
mobile will enter the recycling process by first being taken to a dis-
mantler who accepts automobiles from consumers, local govern-
ments, insurance companies, and so on, and strips them of useful
parts for resale. The residues, generally referred to as hulks, are
then transported to scrap processors for final preparation before
delivery to scrap users. The processors take stripped hulks from the
dismantlers and may on occasion accept whole vehicles from other
automobile collectors and even from some consumers. These hulks
and vehicles are then subjected to a variety of operations designed
to facilitate their reuse by steel and foundry industries. The process
normally consists of reducing the bulk of the car either by compact-
ing it or by cutting or otherwise dividing it into small parts through
the use of shredders and shears. Equipment to conduct the baling

136. U.S. DEP'T OF COMMERCE, MOTOR VEHICLE ABANDONMENT IN U.S. URBAN

AREAS 17-20 (1967) [hereinafter cited as Dep't of Commerce Study]; Reichert, su pra
note 135, at 107-09.

137. See ISIS Proceedings, supra note 131.
138. EPA Study at 12.
139. EPA Study.

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COLUMIBIA JOURNAL OF ENVIRONMENTAL LAW

or compacting operation and to shred or otherwise cut the auto-
mobile hulks into more easily transportable shape is fairly expeni-
sive, and recycling operations must be able to rely on a steady
supply of such hulks in order to keep operating profitably. 140

Each of the operations involved in recycling automobile hulks
may create environmental damage of its own. The dismantler of
automobiles may accumulate large piles of automobile hulks that
are unsightly and, depending on their location, may violate some of
the esthetic protective provision of the Highway Act. 1 ' He may also
adversely affect the removal of abandoned hulks from the street by
refusing to take additional vehicles into his yard if he is unable to
handle them. 4 '

The processing industry must normally clear the hulk of non-
metallic substances prior to baling, shredding, or otherwise prepar-
ing it for reuse. 4 ' Normally, nonmetallic parts are simply burned
out of the hulk, which gives rise to substantial air pollution prob-
lems.'44 In addition, processors may accumulate large inventories
which will be unsightly. It should be noted that the accumulation
of automobile hulks in a processor's yard may be directly related to
the economic demand for scrap steel and that the unsightly piles in
his yard may be the result of a declining demand for scrap. 45

The scrap processing industry is further handicapped in disposing
of an adequate amount of steel scrap by the problem of metal con-
tamination. The failure to remove copper parts from automobiles,
for instance, may adversely affect the quality and hence the price
and demand for particular kinds of steel scrap. Thus the operations
of the scrap processor are directly related to the automobile's con-
struction in the first instance. 4 ' The task of the processor-and also
his profit margin for the sale of high grade scrap-may be directly
affected by the use of copper in the initial manufacture of the
automobile or by the substitution of other less highly contaminating
metals. 47 The automobile scrap industry is also affected by dis-

140. Dole, supra note 135, at 30.
141. Highway Beautification Act of 1965, 23 U.S.C. § 136 (1970).
142. EPA Study at 37.
143. Id. at 35, 42.
144. Id.
145. Id. at 42.
146. Id. at 12.
147. Id. at 16 (the use of aluminum instead of copper wire and the replacing of

electric motor stators, presently wound with copper, with stators composed of per-
manent ceramic magnets of barium or strontium ferrites is suggested).

[1: 187



The Automobile: Non-Exhaust Impacts

criminatory freight rates which provide for a higher rate for the
transportation of scrap than for virgin materials.148

Most automobiles are recycled for reuse in the manufacture of
new vehicles and other steel products. The problem of unsightly
accumulations of discarded vehicles, be it in junkyards or in the
streets, arises not merely because some vehicles are not recycled-
for most of them ultimately are-but also because of the time lag
between the discarding of the vehicle and its entry into the recycling
process.' 49 This lag is almost entirely dependent on economic con-
siderations. When the price of scrap steel is high, accumulations of
hulks in junkyards and in the yards of processors are likely to move
with considerable dispatch. It is also far more likely in that case that
abandoned hulks will be collected and will be introduced into the
process.'"'0

Administrative Control of Abandoned Cars

Titling and Impoundment Requirements

The second issue identifed earlier relates to the administrative
handling of abandoned vehicles. At present, many states have laws
that interpose obstacles to the prompt collection and introduction
of abandoned automobiles into the recycling process. These laws
come under two headings, titling laws and impounding require-
ments. T15

A number of states have rather severe titling laws. They provide
that every vehicle must have a certificate of title and that no vehicle
can be sold or otherwise transferred without such a certificate. They
also require that on each sale or other disposition the old certificate
be returned to the registering authority and that a new one be
issued.1

52

Another set of laws which have made it more difficult to collect
and dispose of abandoned cars have been the so-called impounding

148. Id. at 48. See S.C.R.A.P. v. United States, 346 F. Supp. 189 (D.D.C. 1972),
rev'd, 412 U.S. 669 (1973).

149. Dep't of Commerce Study at 13.
150. See EPA Study at 66.
151. See Dep't of Commerce Study at 21-26.
152. E.g., IND. ANN. STAT. § 9-1-2-1 (code ed. 1973); S.C. CODE OF LAWS,

§§ 46-50, 46-150.15 to 46-150.16 (1963), 46-150.27 (Supp. 1971). Compare N.M.
STAT. ANN. §§ 64-4-13, 64-4-13.1 (Supp. 1973) (eliminates impounding require-
ments for vehicles which are at least eight years old and are without a valid license
plate).

1975]



222 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 187

requirements. These require the city or other local government
agency to keep any found vehicle in a municipal impounding lot for
a certain length of time, ranging from a few days to a full year, in
order to provide time for the owner to be properly notified and to
reclaim the vehicle.' 5 3 Unduly lengthy impounding periods com-
monly result in overtaxed impounding space' and contribute to
the slow removal of the inventory of the impounding lot. This in
turn creates unsightly accumulations.

Both titling and impounding requirements are proper protective
provisions when applied to an operable vehicle. The requirements
were initially imposed in recognition of the fact that a vehicle may
be valuable property, in many instances the most valuable object a
person owns. Hence the requirement that it not be transferred with-
out the proper certificate of title, or that if found in the streets it
be impounded and the owner be given an opportunity to reclaim it,
protects the owner's interest in his property. 5 But in many states
these requirements also apply to abandoned vehicles and thereby
considerably complicate the disposal of junk vehicles.' The law
often makes little distinction between a vehicle in prime condition
that has been left overparked in the street and a vehicle that has
been abandoned.

The main problem of excepting abandoned motor vehicles from
titling and impounding requirements is that of providing a satis-
factory definition of an abandoned vehicle."'5 Statutory definitions
of abandonment often include a description of the vehicle as old
and worn out, ostensibly incapable of being operated in the manner
for which it was designed. The physical appearance of the vehicle
can be considered evidentiary of an intention not to reclaim it.5'5

153. E.g., InD. ANN. STAT. 9-9-5-4 (code ed. 1973) (30 days); N.Y. VEHICLE
AND TRAFFIC LAW § 1224(3) (c) (McKinney 1970) (5 days from mailing of notice);

OHIO REV. CODE ANN. §§ 311.30, 311.31, 737.311 (1971).
154. Dep't of Commerce Study at 15.
155. Id. at 25-26.
156. Id. at 25. See also Reichert. supra note 135.
157. E.g., IND. ANN. STAT. § 9-9-1-4 (code ed. 1973) (In addition to automo-

biles without valid license plates, mechanically inoperable vehicles, and partially
dismantled vehicles, this definition also covers vehicles that are parked "on public
premises continuously without being moved for a period of seven (7) days, except
before legal or temporary residence of the owner."); N.Y. VEHICLE AND TRAFFIC

LAW § 1224(i)(c) (McKinney 1970). Compare OHIO REV. CODE ANN. § 311.33
(1971).

158. E.g., 21 DEL. CODE ANN. § 4401(b) (Supp. 1970); IND. ANN. STAT. §
9-9-1.53(b)(5) (code ed. 1973); N.C. GEN. STAT. § 153A-132(b) (1974) (applies



1975] The Automobile: Non-Exhaust Impacts

Lack of a current license plate is also cited as a factor suggesting
abandonment.'" 9 The most frequent practice is to define an aban-
doned vehicle as one which has remained in one location for more
than a certain length of time. Removal of a vehicle left in one
location for a specified period is sometimes authorized whether or
not the vehicle appears abandoned. Forty-eight hours is a common
period, though many laws provide for different lengths of time16 °

Some laws provide for the removal of abandoned vehicles without
specifying the time period, which gives rise to the assumption that
the vehicle has been abandoned, or without attempting to define
what, precisely, constitutes abandonment."'

Many cities do not provide for the removal of abandoned vehicles
that have been left on private property. 2 Of the state laws which
provide for their removal, some cover only vehicles left without the
consent of the property owner, while others also include those left
with his consent.' A few even go so far as to include unlicensed or
inoperable vehicles kept in the open by the owner on his own

to "junked vehicles which are otherwise already deemed abandoned); OHIO REV.

CODE ANN. §§ 311.33, 737.313 (1971).
159. E.g., 21 DEL. CODE ANN. § 4401(b) (Supp. 1970); IND. ANN. STAT. §

9-9-1.5(b)(1) (code ed. 1973); N.Y. VEHICLE AND TnAFFIC LAW § 1224(1)(a)
(McKinney 1970); OHIO REV. CODE ANN. 88 311.33(E), 737.313(E) (1971).

160. E.g., MICH. COMP. LAWS ANN. § 257. 252(b) (Supp. 1973) (48 hours).
Compare A=l-z. REV. STAT. § 28-1401(1) (Supp. 1973) (36 hours); ILL. ANN. STAT.,

ch. 95 , § 4-200(b) (Smith-Hurd 1972) (2 to 24 hours on any highway or public
place and 7 days on private property); IND. ANN. STAT. § 9-9-1.5-3(b)(2)(4) (code
ed. 1973) (7 days on public premises or more than 48 hours on private property);
N.C. GEN. STAT. § 153A-132(b)(2)(3)(4) (1974) (2 hours to 7 days depending

on whether county operated, private or public property); N.Y. VEHICLE AND .TRAFFIC
LAW § 1224(1)(b)(c)(d) (McKinney 1970) (24 hours on any highway or other
public place where there is no legal parking, 48 hours where there is legal parking,
and 7 days on private property); OHIO REV. CODE ANN. § 311.33A (1971) (48 hours
on public property and 72 hours on private); ORE. REV. STAT. § 483.382 (1971) (24
hours only if the Department of State Police or the Sheriff has reason to believe the
vehicle has been abandoned, but otherwise 5 days on either public or private prop-
erty); 23 VT. STAT. ANN. § 1103 (Supp. 1973) (4 days if left within the limits of a
public highway).

161. FLA. STAT. ANN. § 705.16(2)(b) (Supp. 1972); N.H. REV. STAT. ANN. §
266: 1-6 (1966).

162. Dept. of Commerce Study at 23.
163. E.g., IND. ANN. STAT. § 9-9-1.5-3(b)(4) (code ed. 1973) (without con-

sent); N.Y. VEHICLE AND TRAFFIC LAW § 1224(1)(d) (McKinney Supp. 1973)
(without consent); OHIO REV. CODE ANN. §§ 311.33(E) (1971) (without consent).
The problem presented by the abandonment of motor vehicles on private property
with the property owner's consent is largely a problem of zoning and licensing. Sec
Reichert, supra note 135, at 114-15.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

property."' A few states make no express provision for the removal
of abandoned vehicles at all.165

A newer pattern of regulation which includes a more reasonable
approach to the definition of abandoned vehicles is coming into
use. Under these laws, simpler handling requirements are permitted
for vehicles of lower value than for those of higher value. Some
provide for police appraisal of the value of each abandoned vehicle
so that it can be placed in one of two or three value classes. Some
laws separate the vehicles into two groups, with $100 or $200 as the
dividing line.'66 Sometimes three value groups are provided, such
as under $25, $25 to $100, and over $100; in one city using such a
three-tier classification, it has been estimated that about 25 percent
of the abandoned vehicles fall in the low group, about 65 percent
in the middle group, and only 10 percent in the high value group.'67

The reasoning offered in support of such classifications is that they
provide simpler, less costly processing for lower value vehicles and
limit the use of more costly and time-consuming property protective
procedures, such as titling or impounding, for vehicles whose higher
values warrant it. Thus notification may be simplified for lower
value vehicles, impounding periods shortened or eliminated, and
titling requirements simplified or eliminated when the vehicle is
only fit for scrappage or dismantling. Provisions for disposal and for
the distribution of the proceeds are also simplified.

Notification and Auction Requirements

In addition to titling and impounding requirements, notification
of owners and lien holders of vehicles which have been removed
from the site of abandonment is generally required. The purpose is
to protect the owner or lien holder against the loss of his property

164. Cf. Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972), in
which such a law was held unconstitutional as an uncompensated "taking" of
property.

165. The states are Alabama, Louisiana, Maine, New Mexico, and South Caro-
lina.

166. See, e.g., IND. ANN. STAT. §§ 9-9-1.5-6 to 9-9-1.5-7 (code ed. 1973) ($100
dividing line); N.Y. VEHICLE AND TRAFFIC LAW § 1224 (8) (McKinney 1970)
($100 dividing line if no license plate affixed); OHIO REV. CODE ANN. §§ 311.33(f),
737.313(f) ($50), §§ 311.32, 737.32 (disposition of vehicles worth less than $200
but which do not meet all requirements to be classified as junk motor vehicles);
ORE. REV. STAT. §§ 483.388, 483.395 (1971) ($100 dividing line).

167. Dep't of Commerce Study at 23-24.

[1: 187



The Automobile: Non-Exhaust Impacts

and the authorities from being charged with proceeding without
due process of law. Notification is usually by registered or certified
mail, and in some instances advertisements in newspapers of general
circulation may also be required. Owner identification may also be
made with the help of the state motor vehicle agency. Generally,
disposal of the vehicle by the city is forbidden until the owner has
had a reasonable opportunity to collect the vehicle. 168

The identification and contact of the owner who has abandoned
his car, which may result from the notification requirement, may be
used by some cities to compel an owner to dispose of his car proper-
ly or to pay the costs of disposal in accordance with the law. Gen-
erally speaking, notification requirements and attempts to identify
the owner and compel him to dispose of his vehicle properly have
met with little success and have usually been too costly and ad-
ministratively burdensome to be worthwhile. 6 9

Another common requirement which contributes to the delay in
the processing of abandoned vehicles is that abandoned vehicles be
sold or disposed of at public auction if they are not picked up by
their owners from the municipal pound after the required holding
period. Public auction is chosen because it is thought likely to assure
a fair priceITO This method of disposal is indubitably warranted for
vehicles that have only scrap value. Moreover, the disposal of the
proceeds from the sale of abandoned vehicles is also stipulated in
the laws: first, to defray the cost of removal, impounding, and dis-
posal; second, to satisfy any lien holder's interest if he has been
located; third, to pay the balance to the owner if he has been
located, and, if not, any balance to be transferred into a designated
state or city fund.

At least one city, however, has handled the distribution of the
proceeds of the sale of abandoned vehicles in a more convenient
manner. Vehicles abandoned on private property are found to be
a nuisance subject to a fine of up to $50 per day after five days
notice. The property owner and the auto wrecker cooperate in that
the auto wrecker removes the vehicle without charge and is then
allowed to retain the full proceeds from the ultimate -sale. In such

168. See, e.g., IND. STAT. ANN. § 9-9-1.5-8 (code ed. 1973); N.Y. VEHICLE AND

TRAFFIC LAW § 1224(3)(b) (McKinney 1970); OHIO REv. CODE ANN. §§ 311.301,
311.301, 737.312 (1971).

169. Dep't of Commerce Study at 25.
170. Id. at 26.

1975]



226 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 187

a situation, there is no other distribution of sales revenues.' Al-
though this type of distribution affords much in the way of con-
venience, it is open to some objections. First, it is unclear why the
wrecker, rather than the city or state, or all of these, should receive
the proceeds of a sale.' -72 Second, this distributional pattern may, if
followed rigidly, unjustly affect owners of high-value vehicles.' 7

Third, in any instance where the value of the vehicle exceeds ac-
cumulated fines, a scheme which does not attempt to give the
owner part of the sale proceeds may be challenged, under the
federal constitution, as a taking of property without just compensa-
tion17 1 or in violation of due process of law."; 5 The scheme could,
of course, be defended, 7" but it will be important, as a minimum,
to ensure that it does not allow such grossly disproportionate
amounts from automobile sales to be given to wreckers or the city
or state as to be unduly vulnerable to constitutional attack.

Legal Measures to Prevent Abandonment

So far we have discussed some of the difficulties in recycling
junked automobiles and have described and to some extent criticized
current administrative practices for dealing with abandoned cars.

171. Id.
172. The Department of Commerce Study recommends that the proceeds be

transferred directly into city or state funds. Id.
173. The Department of Commerce Study in fact suggests that distributing the

balance of the proceeds to the owner is desirable, but only in the case of high value
vehicles. Id.

174. U.S. Const. amends. V, XIV.
175. Id.
176. So far as the "takings" objection is concerned, it could be urged that the

scheme is instead a sanction against the owner for violation of a valid regulation.
See, as an analogy, the discussion in Note, Forfeiture of Property Used in Illegal
Actions, 38 NoTRE DAME LAW. 727 (1963), and cases there cited. It could also
be argued that the scheme is a necessary police action to preserve the environment,
eliminate nuisance, and protect the safety and health of the public, rather than an
"appropriation" for "public use." See, e.g., Miller v. Schoene, 276 U.S. 272 (1928).
Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). See generally Harris,
Environmental Regulation, Zoning and Withheld Municipal Services: Takings of
Property by Multi-Government Actions, 25 U. FLA. L. REV. 635 (1973); Sax, Tak-
ings, Private Property and Public Rights, 81 YALE L.J. 149 (1971); Sax, Takings and
the Police Power, 74 YALE L.J. 36 (1964).

As for due process, the scheme described in the text does provide for five days
notice to the owner, and could be argued to be "appropriate to the nature of the
case" under the doctrine of Mullane v. Central Hanover Trust Co., 339 U.S. 306
(1950).



The Automobile: Non-Exhaust Impacts

In this final section we shall discuss legal efforts to prevent the
abandonment of automobiles in the first place.

The most immediate and direct sanction routinely provided for is
that of the criminal law. Abandonment of an automobile is gen-
erally a misdemeanor punishable by fine and under some laws by
fine or imprisonment.' 7 There are, however, few recorded convic-
tions for the offense. In most instances abandoned cars are without
license plates, and often the vehicle identification number has been
defaced. Moreover, as has been pointed out, it takes considerable
administrative machinery and is quite expensive to determine the
ownership of an abandoned vehicle in order to prosecute the person
who abandoned it.'78 Frequently, a car is abandoned on the road
simply because it can no longer be driven. A person who abandons
such a car may be financially unable to pay the fine imposed, and
thus the only available sanction would be to impose a jail sentence.
In effect, such a person would be jailed because he could not afford
to drive a car that was capable of getting to its destination. It is
not likely that criminal courts will impose drastic penalties in that
situation, and imposition of a jail sentence on a person unable to
pay the fine may be unconstitutional. 9

In view of the inadequacy of the criminal sanction to deal with
the abandonment problem, two other approaches have been ex-
plored. One is to make it easier for the municipality to seize and dis-
pose of abandoned cars by relaxing titling and other formal require-
ments. This approach has been illustrated by some of the legislation
already referred to and by the Council of State Governments' sug-
gested legislation on abandoned motor vehicles, which will be de-
scribed in greater detail below.' 80

177. E.g., 21 DEL. CODE ANN. § 4414 (Supp. 1970) (fine $25-$100 or imprison-
ment 2-10 days, or both); N.Y. VEHICLE AND TRFFIC LAW 1224(6) (McKinney
Supp. 1973) (fine not exceeding $100); OHIO REV. CODE ANN. § 311.99(c) (1971)
(fine of $50 to $100 plus costs); ILL. ANN. STAT., ch. 951/, § 4-214 (Smith-Hurd
Supp. 1973) (fine $25-$100 and disposition of the vehicle).

178. See note 168 supra.
179. The equal protection clause has been held to prohibit state courts from im-

posing jail fines and then automatically converting the sentence into a jail term solely
because the defendant is indigent and cannot pay. Tate v. Short, 401 U.S. 395
(1971). Tate applies, however, only to indigents. Moreover, it does not preclude
imposing a jail term in the first instance or when alternative means, e.g., installment
payments, are "unsuccessful."

180. Abandoned Vehicle Act, COUNCIL OF STATE GOVERNMENTS, 1973 SUGGESTED

LEGISLATION XXXII 57 (1972).

1975]



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

The other approach is to devise economic sanctions to encourage
the owner to take his vehicle to a junkyard rather than to abandon
it. This approach, which has been rejected by the Council on
Environmental Quality,"" has a number of variants, but is essential-
ly based on the principle of the "deposit bottle." The purchaser or
owner of a motor vehicle would be required to deposit a sum of
money as security in trust for the eventual cost of disposition of his
vehicle. When he or a subsequent purchaser surrenders the vehicle
to a junkyard, he can retrieve his deposit. If he fails to turn in the
vehicle, then the government agency that collects the abandoned
vehicle or the private trustee can reimburse itself for the cost it has
incurred from the same fund. Under one such "deposit bottle" sys-
tem, reflected in a bill introduced in Congress, a $30 fee would have
to be paid into a trust fund by the purchaser of a new car. The fee
would be returned to the owner of the car when it is ultimately
turned in. If a municipal agency turns in the car, it would be eligible
to collect the fee.' 82

The Council on Environmental Quality has pointed out some of
the problems of the "deposit bottle" scheme. Such proposals would

put an unfair burden on the owners of 85 percent of autos that
are properly turned over to auto wreckers, in order to take care
of the remainder which are not. Furthermore, the Council is not
persuaded that the demand for auto scrap would be improved
by such a system, nor that it would in fact influence the eco-
nomics affecting abandonment. The resulting fund of payments
would divert billions of dollars from other investments in the
private economy. Administration and enforcement of the system
would require excessive increases in government personnel and
expenditures.

1813

There are also other reasons that make such a system objection-
able. First, such a system is regressive in its impact, making it more
costly for a person of lesser means to purchase a used motor vehicle.
Second, the administrative machinery required to maintain such a
system would be quite substantial and that cost again would have to
be borne by other sources. Third, there is no assurance that the sys-

181. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY-FIRST

ANNUAL REPORT 116 (1970).
182. See H.R. 15860, 91st Cong., 2d Sess. (1970).
183. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY-FIRST

ANNUAL REPORT 116 (1970).

[1: 187



The Automobile: Non-Exhaust Impacts

tem will work. The deposit system does not, after all, work too well
for glass bottles. The real problem is the precise amount of the
deposit. If the deposit is too high, it causes economic problems. If
the deposit is too low, it might indeed encourage abandonments be-
cause the deposit it likely to be viewed as a prepayment of a public
hauling or removal charge. It should be noted that setting the fee
at a level which will be economically acceptable and which also
provides a sufficient incentive for the return of a car to a junkyard
does not necessarily reflect the cost of disposal.

A number of states have recently enacted legislation that deals
expressly with abandoned automobiles. For instance, an abandoned
vehicle act has been enacted in Indiana under which it is illegal to
abandon a vehicle on any public or private premises in a location
which is visible from any public place within the corporate limits of
any city. Such an abandoned vehicle constitutes a public nuisance.
The law creates a rebuttable presumption that the owner of an
abandoned vehicle is responsible for its abandonment, and he is held
liable for all costs incidential to its removal, storage, and disposal.'84

Michigan has passed legislation to empower a local government
unit to collect junked motor vehicles through a refuse collection
center which it may establish.'85 In many states, junkyards must be
licensed. 86

North Carolina has enacted a statute authorizing its counties to
adopt ordinances to deal with abandoned automobiles. It has some
of the usual notification provisions, but it dispenses with titling-the
auction sale of vehicles appraised over $50 is required, but such sale
at auction gives good title. A vehicle appraised under $50 may be
sold without an auction, and vehicles worth less than $25 that are
inoperable, dismantled, or damaged and five years old or older are
defined as junk motor vehicles that may be sold without any further
proceedings after a fifteen-day holding period. North Carolina has
been more careful in its definition of an abandoned or junked
vehicle. An "abandoned motor vehicle" is a car left on county prop-
erty where parking is prohibited, more than twenty-four hours on

184. IND. STAT. ANN. §§ 9-9-1-6 (code ed. 1973); See also id., §§ 9-9-1.5-6; N.Y.
VEHICLE AND TRAFFIC LAW § 1224(8) (McKinney 1970).

185. MIcH. Comp. LAws ANN. § 325.299 (1973).
186. E.g., Mo. ANN. STAT. § 226.670 (Supp. 1974); N.H. REV. STAT. §§ 267-A:1

et seq. (1973); N.J. STAT. ANN. §§ 27-5E-1 et seq. (Supp. 1973). The licensing of
junkyards relates directly to the problem of abandoning vehicles on private property
with the consent of the property owner. See Reichert, sitpra note 135, at 114-15.

1975]



COLUMBIA JOURNAL OF ENVIRONMEINTAL LAW

other county property, seven days on public grounds, or more than
two hours on private property without the owner's consent. A
"junked motor vehicle" is an abandoned vehicle which is also par-
tially disabled, incapable of self-propulsion, or without a current
license plate.187

In somewhat similar fashion, Tennessee has authorized the dis-
posal of abandoned motor vehicles without titling or notification
procedures if the vehicle is over five years old and has no engine or
is otherwise completely inoperable. 8 '

Titling and notice requirements have also been abolished in
Virginia for abandoned motor vehicles that are clearly inoperable,
or that by the nature of their condition "cannot be feasibly restored
to operable condition." In such a case, disposal is authorized "by
the person, firm, corporation or political subdivision on whose prop-
erty or in whose possession such motor vehicle is found," but notice
must be given to the division of motor vehicles." s

The National Symposium on State Environmental Legislation de-
veloped, and the Committee on Suggested State Legislation of the
Council of State Governments in 1972 approved, a suggested State
Abandoned Vehicle Act. Under the proposal, it is illegal to abandon
a vehicle upon any highway, or upon any public or private property
without the consent of the owner or person in lawful possession of
the property. The act contains procedures to be followed in the
removal and disposal of abandoned vehicles. These procedures
simplify-or, in the case of vehicles of less than $100 in value,
abolish-titling and lengthy impoundment requirements. The pro-
posal further provides for the licensing of storage and disposal
facilities. Where opportunities for vehicle disposal are not eco-
nomically available to owners of vehicles, the appropriate state
agency is required to provide, by contract with private persons or
political subdivisions, facilities for the collection and proper dis-
posal of such vehicles at the request of the owner. Since it is recom-
mended that the abandoned vehicles program be self-sufficient,
optional methods of financing the program are provided. The fund
to be used for the program is to be provided through one or more

187. N.C. GEN. STAT. §§ 153-9(54a), (54b) (Supp. 1971). See also OHIO REV.
CODE ANN. §§ 311.33, 737.313 (1971).

188. TENN. CODE ANN. §§ 59.1608(a)-(e) (Supp. 1973).
189. VA. CODE ANN. § 46.1-555.7 (Supp. 1973).

[ 1: -187



The Automobile: Non-Exhaust Impacts

of the following devices: (1) a refundable disposal tax on new or
used vehicles; (2) a special tax on excess inventory held by persons
licensed under the act (junkyards, wreckers, processors) or on the
gross sales of new or used vehicles; (3) special fees for the title or
registration of vehicles; (4) net proceds of sales of impounded
vehicles; and (5) "other appropriate" methods. The fund is to be
used to encourage proper disposal in one or more of the following
ways: (1) incentive, subsidy, or bounty to persons licensed under
the act or to the last owner of record; (2) subsidy to private persons
or political subdivisions to reimburse the costs of collecting, storing,
or disposing of abandoned vehicles; and (3) other financial incen-
tives as may be appropriate. Every person convicted of violating the
act-including abandonment of an automobile-would be subject to
a fine not to exceed $500 or imprisonment for not more than six
months in a county jail, or both.'

The solid waste problem presented by the automobile is, in our
view, at bottom an economic problem: the abandonment of auto-
mobiles will decline or cease, and the prompt collection and re-
cycling of cars that are no longer useful will occur, when this is
economically profitable. In order that the aims of discouraging
abandonment and facilitating collection and recycling might be
realized more fully, we recommend that legal obstacles that have
artificially inflated the costs of collection and recycling be elimi-
nated wherever possible. Chief among these obstacles are many of
the titling, impoundment, notification, and auction requirements-
at least as applied to abandoned vehicles that are low in value. It is
to be hoped that new regulatory developments in this area will
continue. However, if elimination of such obstacles does not produce
a satisfactory solution to the problem of abandoned automobiles, we
would recommend that economic incentives, including the use of
subsidies, be considered. Such consideration would be well within
the national policy in this area. As early as 1965, Congress indicated
that the abandoned automobile was, as part of a larger solid waste
problem, of sufficient national concern to warrant a federal com-
mitment.19' In later legislation dealing with solid waste problems-

190. Abandoned Vehicle Act, supra note 182, at 62.
191. See H.R. Rep. No. 889, 89th Cong., 1st Sess. 7 (1965), accompanying S.

306, which became the Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, Title
II, 79 Stat. 992, as amended, 42 U.S.C. §§ 3251 et seq. (1970).

1975]



232 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 187

the Resource Recovery Act of 197019" Congress directed that studies
be made of "recommended incentives (including Federal grants,
loans and other assistance)" to accelerate recycling solid waste,
"with special emphasis on motor vehicle hulks."19 Thus, if the
elimination of unnecessary legal obstacles does not achieve satis-
factory results, incentives to better disposal of abandoned vehicles
should be explored.

192. Pub. L. No. 91-512, 84 Stat. 1227, 42 U.S.C. §§ 3251 et seq. (1970).
193. Id., § 104(a), 42 U.S.C. § 3253a(a)(5) (1970). Demonstration projects

were also authorized. Id.