“Seismic thumper trucks” are headed for a Town of Damascus roadway near you. The trucks will pound the ground with immense weights and then “listen” for feedback which helps them read the structure of the Marcellus Shale and presumably, predict the availability and accessibility of natural gas in the underground formations. Seismic thumpers have already toured other US States including Utah, New Mexico, Texas and Wyoming. (For an explanation of various kinds of seismic thumping techniques, please read here and for a picture of a “thumper” truck, click here.)
In Wyoming in 2006, an “administrative law court within the U.S. Department of the Interior” issued a temporary stay which halted the passage of seismic thumper trucks through an environmentally-sensitive and federally-protected region. According to the Biodiversity Conservation Alliance, “The [environmental] groups had challenged violations of The National Environmental Policy Act (NEPA) [because The Bureau of Land Management (BLM) had failed] to take a hard look at impacts to fossil resources and sensitive wildlife, that the agency did not conduct the required study of cumulative impacts to wildlife that use lands impacted by the project, and ignored their responsibility to consider lower-impact alternatives to thumper trucks that would use smaller equipment and keep off-road vehicle traffic out of proposed wilderness areas.” Breathing has learned that the parties involved in the case reached a settlement which, in part, protected fossil formations by having experts located on site during “thumping” explorations and by ensuring operators avoided and/or preserved sensitive fossil resources.
Along highways, NEPA allows for certain “categorical exclusions” which do not trigger an automatic review of their activities because, based on experience, they “do not involve significant environmental impacts.” The list of excluded activities does not include seismic thumping.
In a phone conversation, Erik Molvar, Executive Director and Wildlife Biologist with the Biodiversity Conservation Alliance in Wyoming told Breathing that the National Environmental Policy Act’s statutory jurisdiction is often triggered when potentially harmful activities are planned for a federally-protected area. (The Upper Delaware Scenic and Recreational River is such an area. Its watershed, according to the National Park Service, “provides water to over 17 million people and supports a world-class trout fishery and bald eagles.”) Mr. Molvar went on to say that in the case of seismic thumping, if NEPA’s legislative jurisdiction is established, a lengthy process involving investigations of seismic thumping’s direct, indirect and cumulative impacts, a public comment period and a possible environmental impact statement might be required before it could be permitted.”
At the moment, orange markers have cropped up on The River Road in Pennsylvania’s Damascus Township which signal the imminence of seismic thumping within a few hundred feet of The Delaware River and in close proximity to residential structures.
Related questions have been raised in Pennsylvania as to whether or not the Pennsylvania Department of Transportation (PennDOT) has the legal jurisdiction to issue permits for seismic thumping in rights-of-way it has obtained from private landholders. (Although the United States Constitution grants States the right to acquire private lands for public use through Eminent Domain, the extended grant to State transportation departments is generally restricted, as in Pennsylvania, to a “…’right of passage’ over land on which a public road ultimately will be built or expanded. PennDOT will execute this right only when it will benefit the public,” says PennDOT’s website.
(a) … shall be authorized to permit temporary use by public agencies and charitable organizations of right-of-way not required for free movement of traffic. (Italics added.)
(b) Duration. A permit for temporary use of right-of-way may not exceed 90 days’ duration.
PennDOT has leeway in managing its rights of way and can, for instance, permit “encroachments” in areas not used by traffic for items such as mailboxes. The Department may also allow “occupations” by driveways which permit ease of access for residents but even those allowances can be subject to Township review.
…effect the fair and uniform administration of the provisions of section 2002(c) of The Administrative Code of 1929 (71 P. S. § 512(c)), which authorizes the Secretary to lease real property acquired for any State-designated highway or other transportation facility as is not required for the free movement of traffic, including area above, beneath, and outside the traveled way, as well as area required but not yet utilized for construction or reconstruction of a transportation facility.
Obviously, PennDOT, like other State highway departments, permits utilities to situate their poles and other necessary accoutrements in its obtained rights of way for the public good. This use of highway rights of way by non-transportation utilities is explained IN THE COMMONWEALTH COURT OF PENNSYLVANIA: “…the basis for the common law rule was that, although the utility was permitted to use the right-of-way because it served a public interest, the primary purpose of the public easement was the public’s own use; any use by a public utility was subordinate to the interest of the public.” (Italics added.)
What is unclear is whether or not PennDOT has the legal authority to grant temporary use of privately-owned rights of way to private for-profit-corporations (like seismic thumping companies) in furtherance of activities such as hydraulic fracturing (whether or not such activities are under investigation by the United States Congress) when it is debatable such activities serve the public good.
In Commonwealth of Pennsylvania Department of Transportation v Municipal Authority of the Borough of West View (argued in The Commonwealth Court of Pennsylvania, 2-5-07) Judge Pellegrini stated,
“When a governmental entity acquires a right-of-way for use as a street
or highway, that governmental entity acquires ownership of that right-of-way in trust
and can allow others to occupy the street or highway only for “public purposes.” (M999DOT) (Italics added.)
In Shelbourne Square Associates v Board of Supervisors of Township of Exeter, Berks County, PA, (Submitted 3-2-01), The Commonwealth Court of Pennsylvania found, “Thus, the Department’s own regulations recognize that its highway access permits are subject to ordinances enacted by local municipalities which contain more stringent minimum safety requirements.” (Microsoft Word – 1147CD08.doc)
One local Pennsylvania resident says she was told by a representative of Houston, Texas’ Newfield Gas Exploration that the company is using seismic thumping technology similar to sonograms used on unborn babies. According to the resident, the representative stated further that the technology is, “Perfectly safe and that there’s been no report of damage.”
However, one suggestion made by an interested home owner is that prior to the advent of seismic thumping, homeowners near the activity might consider:
“…whether home inspections may be necessary to establish a baseline for future claims of structural damage to your house and any other structures on your land (from barns to walls in the landscape.) Short of that, photos of any existing cracks (or absence thereof) should be made with related documentation establishing these as ‘before’ conditions.”
For additional information concerning the recommendation, please see this link to a suit brought by several people in Texas who alleged structural damage was caused to their property by seismic thumping.
Besides damage to roads and delicate ecosystems and questions about PennDOT’s legal jurisdiction to permit seismic thumping in rights of way, some people have raised the issue of trespass. They assert that essentially, thumping companies are “trespassing” into private landowners’ substrata and in the process, “stealing” compositional information from those substrata and providing the resultant data to extraction companies without compensating landholders from whose property its gathered. In New York State which has “compulsory integration” or “forced pooling,” such data accumulation would be of particular interest to gas extraction companies in cases where landholders have refused to sign mineral leases.
Breathing has contacted a Pennsylvania official and experts on Delaware River management for clarification of NEPA’s possible jurisdiction as discussed in this article. Unfortunately, representatives of the National Park Service will be unavailable until tomorrow and as soon as further information is available, it will be posted.
As with most things drilling, divergent views of risks predominate the discussion while too many questions and too few definitive answers are available to increasingly worried residents. As one Damascus Township property owner said, “I just want my elected officials to provide a forum where I and other homeowners can get answers about what these trucks do, how they might impact my home, my water well — my land that I love and have nurtured. The River is my backyard. My house is right on the road. I just don’t know what to think or do.”