Public Comment Objects to Attempts to Increase NonCoal Mining Noise Emissions from Airblast Explosions

On April 14, 2021, PANPA filed Public Comments objecting to the noise-related aspects of a Proposed Rule-making by the Pennsylvania Department of Environmental Protection related to mining explosions.

Proposed rule-making 51 Pa.B 1519, in part, addresses airblast noise (blasting operations or explosions) in noncoal mining contexts. The proposed rule seeks permission for the DEP to set blasting sound-levels higher than 133dB upon request of the blasting operator.

The full Comments appear below in PDF.  The objections focus on three areas:

  1. The summary conclusion of a "minimal impact" does not meet the Federal Pollution Prevention Act.
  2. Permitting any upward departure from the current 133dB maximum airblast sound-level to an unknown maximum does not a) meet Constitutional requirements and b)  cannot constitute a “minimal impact,” adequate “sound reduction,” or adequate pollution prevention as an unknown.

  3. Allowing a lessor-owner to merely request of a lessee a signed waiver to the airblast requirements, without the lessor-owner first notifying the lessee of the numerous adverse health effects linked to noise, does not a) protect public health, b) mitigate pollution, or c) meet Constitutional requirements.

The Public Comment suggests several revisions to the Proposed Rule including:

  1. Allowing LOWER decibel levels but not higher. (This is the current rule.)
  2. Requiring blasters to actively minimize sound levels and noise on properties not owned by the blaster.
  3. Formally allowing affected property owners to directly petition the DEP to reduce sound levels and noise from a blasting operation.
  4. Requiring informed-consent before a mining operator lessor can require a lessee to sign a waiver from the blasting sound-level limits.

32,768 Times "Louder"

For those who work with noise and sound, even the current 133dB limit is astoundingly loud (causing permanent hearing damage and affecting neighboring  properties). By reference the current maximum of 133dB already hovers at a shocking 32,768 times "louder" than residential sound-level recommendations.

Assuming adoption of the new Rule, even if the DEP approves a deceptively "minor" 6dB increase to 139dB under the new rule, that doubles the sound emissions and becomes 65,536 times "louder" than recommendations—sadly, these are not math errors.

Furthermore, the current 133dB sound-level limit is measured at the neighboring property including at schools, churches, public buildings, and residences. There is apparently no way for affected property owners to even seek hearing protection from the blasts.

Public Comments PDF

Songbirds Negatively Affected By Fracking Noise Should Not Surprise

Recent findings by Penn State researchers will not surprise victims of fracking gas compressor noise.

The loud, low-frequency noise emitted by natural gas compressor stations travels hundreds of yards into undisturbed areas. Co-author Julian Avery

The research demonstrates negative, physiological effects on birds from fracking compressor station noise in Pennsylvania.

The findings, recently published in Ornithological Applications, demonstrate that compressor noise caused behavioral changes that led to reduced reproductive success for eastern bluebirds and tree swallows.

Anyone who has seen the "blue-blur" of an eastern bluebird in flight on a summer afternoon or the graceful flight of a tree swallow just before dusk will lament yet-another serious problem associated with fracking. Both bluebirds and tree swallows also help control insect populations such as disease-carrying mosquitoes, so decreased birds may foretell increased ZIKA and other disease.

The noise research on birds may parallel similar negative health effects from noise on humans including human reproductive impairment and miscarriages attributed to noise exposure. (E.g., research by NIH.)

Unfortunately for Pennsylvanian's, the research suggests that Pennsylvanian's and Pennsylvania natural resources are amidst a disturbing experiment with real, negative effects and significant unknowns.

 

Thanks to the PA Environmental Digest for the tip.

Bluebird Photo Ken Thomas, public domain.

 

 

New NASA Plane Fights Noise Pollution

NASA announced the pioneering flight of the all-electric X-57 Maxwell airplane. The X-Plane Program represents 70 years of cutting-edge aircraft development–some aircraft buffs may recall the X-1 Bell and X-15.

While abating aircraft noise itself is not new, the X-57 specifically seeks to reduce noise pollution emissions from the X-57 line of aircraft through new, complex, noise modelling (see images on the site).

Past NASA materials specifically acknowledge the problems arising from noise, for example in space flight, such as noise sickness and reduced task performance due to noise stress. See Human Requirements for Extended Spaceflight.

The X-57 program's recognition of noise as a fundamental and integrated design issue (not an after-the-fact issue)  and active promotion of noise-reduced designs reflects a global recognition of noise as a serious pollution problem.

Photo Source: NASA

One-third of Fracking Health Complaints In Pennsylvania Involve Noise

One-third of Fracking Health Complaints in Pennsylvania Involve Noise

Almost one-third (32.7%) of complaints lodged to the Pennsylvania Department of Health about hydraulic fracturing in unconventional gas wells in Pennsylvania (fracking)  involve noise. The Pennsylvania Department of Health maintains an Oil and Natural Gas Production Health Registry to field complaints about the alleged health effects of fracking activity in the Commonwealth.

With 11,186 active wells, some in close proximity to residential homes, public health officials raise growing concerns over the adverse mental and physical health effects of fracking. Those concerns include the effects of noise.

 UONGD [Unconventional Oil and Natural Gas Development] may negatively impact water, air and soil quality. It may also involve excessive noise, light and vibrations from seismic testing and cause vehicular injuries from increased truck traffic or other injuries or emergencies from well explosions or flooding....Together these factors may directly impact health or indirectly impact health through increased stress, anxiety and reduced sleep. —Pennsylvania Department of Health

New Epidemiological Study of Pennsylvania Fracking

In December 2020, the Pennsylvania Department of Health announced a $2.5 million epidemiological study specifically focused on fracking and health. The University of Pittsburgh School of Public Health will conduct the study of potential health effects.

Concerns Raised About Fracking and Health

Critics of fracking cite the lack of comprehensive studies of fracking and health despite 11,186 active wells already. Those concerned note that the few studies completed have suggested adverse health effects especially on infants and youth.

The December 2020 edition of the Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (Unconventional Gas and Oil Extraction) goes further and includes an extensive section (see pages 216-225) on noise pollution effects and extensive citations to noise effects throughout (136 citations).

According to the Compendium:

Drilling and fracking operations and ancillary infrastructure expose workers and nearby residents to continuous noise and light pollution that is sustained for periods lasting many months. Chronic exposure to light at night is linked to adverse health effects, including breast cancer.

Sources of fracking-related noise pollution include blasting, drilling, flaring, generators, compressor stations, and truck traffic. Noise-mitigating sound barriers do not always resolve complaints of nearby residents. Exposure to environmental noise pollution is linked to cardiovascular disease, cognitive impairment, and sleep disturbance. In Colorado, noise measured during construction and drilling of a large, multi-well pad in a residential area exceeded levels knowns to increase the risk of cardiovascular diseases and hypertension. (p.216)

Noise pollution may also be negatively affecting wildlife and communities.

Conclusion

The new epidemiological study responds to critics with a research-based analysis of health specific to Pennsylvania.

February 3,2021, Webinar on Pennsylvania Noise Ordinances for Townships

On February 3, 2021, from 12-1PM, Shannon Brown will present What's All the Noise About Noise Ordinances? to the Pennsylvania State Association of Township Supervisors (PSATS).

Program Description

Township supervisors, staff, and solicitors receive sound information about the need for noise ordinances; understanding the startling current research on noise and adverse effects on health; important distinctions between nuisance law and noise ordinances; avoiding the potential decibel-level trap; and tips on drafting a true, simple, effective, noise ordinance.

Suitable for township officials, staff, and solicitors. CLE eligible (anticipated).

Webinar Signup Information

PSATS Learning: Webinar - What's All the Noise About Noise Ordinances? - 2/3/21

Summary Article About Pennsylvania Noise Ordinances Published

The November-December 2020 issue of The Pennsylvania Lawyer contains a general article about noise ordinances in Pennsylvania—Turning Up Quiet With Noise Ordinances.

The article provides context for attorneys when drafting noise ordinances for Pennsylvania. Many noise ordinances and purported noise ordinances (actually problematic omnibus “zoning” ordinances or nuisance ordinances) suffer from outdated research, lack of recognition that noise is a serious health issue, reliance on ordinances copied from other jurisdictions with other regulatory schemes, or failures to accommodate current law.

The article discusses:

  • the extensive medical research demonstrating noise as a serious community health issue linked to a myriad of diseases such as heart disease, diabetes, learning impairment, birth defects, psychological disorders, PTSD, stress, and early death;
  • a reminder that Congress (since 1972) formally recognizes noise as an environmental pollutant;
  • noise is a fundamental property rights issue implicating the centuries-old fundamental right to quiet enjoyment and corresponding constitutional duty to use real property in a way that does not impair real property of another;
  • Pennsylvania’s recognition (along with other states) of the “plainly audible” standard to trigger potential liability for impairment under quiet enjoyment;
  • that so-called “decibel measurements” by definition do not measure noise, cause problems with enforcement, and do not provide additional “accuracy;” and
  • common ordinance problems such as mistaken reliance on nuisance law alone to address community noise (nuisance represents a distinct, adjunct area of law) or “omnibus” zoning-noise-nuisance ordinances that try to lump zoning, nuisance, and noise together under zoning (the MPC) rather than as distinct ordinances with enforcement as general health-safety, and welfare, then nuisance, and possibly zoning (as true performance standards).

The article represents a starting point for attorneys drafting noise ordinances or for attorneys reviewing and resolving problematic ordinances.

Pennsylvania Noise Ordinance Resources

Neither the links nor content here is legal advice nor intended as legal advice. Seek the advice of a noise pollution attorney for guidance.

Noise Hurts—Medical Research Conclusively Links Noise to Serious Diseases

If a rusty pipe in a neighborhood oozed black goo and testing showed that the black goo was linked to Type II diabetes, sleep deprivation, cardiovascular disease, early death, birth defects, ulcers, colitis, migraine headaches, increased blood pressure, increased heart rates, impairment of life tasks, neuroticism, morbidity, speech impairment,  myocardial infarction/heart attack, hearing loss, neuropsychological disturbances, stress, psychiatric disorders, psychological annoyance, and cognitive disruption (learning), irate neighbors would demand that the pipe be shut down immediately. Medical research shows precisely these links to noise pollution in neighborhoods, and yet noise pollution abatement continues to fall on deaf ears.—Shannon Brown

Noise mysteriously remains an apparent pariah. Many support shutting down polluting coal plants, digging up abandoned barrels of carcinogenic material, stopping sewerage overflows into creeks, blocking acid mine drainage, and abating manure lagoon collapses. Yet, call for a local noise ordinance, impounding a boom-car terrorizing the neighborhood, installing screening for vehicle traffic noise, shifting aircraft patterns away from communities and sensitive natural areas, or limiting outdoor eateries from blasting amplified music, and even rabid environmentalists sheepishly turn away vaguely muttering about "property rights," "it's just noise," or "having fun."

Noise hurts humans and that knowledge is nothing new. Along with the Clean Air Act, Clean Water Act, Hazardous Waste Act, and other key environmental legislation addressing human health risks of the early 1970 , Congress also passed the Noise Pollution Act (1972) and the Quiet Communities Act (1978). Most think that I am joking when I mention these Acts.

Congress took action in the 1970s, along with other environmental legislation, because even 50 years ago, environmental noise was linked to serious health problems. In the words of the US Congress

[I]nadequately controlled noise presents a growing danger to the health and welfare of the Nation's population…. The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.

The US EPA later summarized:

[n]oise pollution adversely affects the lives of millions of people. Studies have shown that there are direct links between noise and health. Problems related to noise include stress related illnesses, high blood pressure, speech interference, hearing loss, sleep disruption, and lost productivity.

The World Health Organization (WHO) states

noise pollution is a major environmental and public health burden, second only to air pollution.

So why do communities, despite the overwhelming medical evidence, continue to ignore reasonable noise pollution abatement? Some just ignore the issue altogether (until it affects them, in my experience). Some don't want to appear a killjoy. Some have a grossly distorted view of property rights and wrongly assume some "right" to make noise that governments cannot possibly impair—disturbingly, these mistaken people have the situation exactly backwards because the fundamental constitutional right protected is the fundamental property right to the quiet enjoyment of property and corresponding constitutional duty to use your property in a way that does not affect the right to quiet enjoyment of others. Some assume that "nuisance" law somehow fully addresses the situation. All irresponsible (and as some local governments may soon find out, unconstitutional and likely takings) excuses.

In fact, even in 1969, Congress concisely summarized why so-called "nuisance" law fails to address noise:

[Many noise disturbances should] be settled by mutual concession and neighborly good will. But if the selfish and obstinate persons insist on disturbing the neighborhood, the burden of equity proceedings [, through nuisance,] ought not be imposed on the injured residents, but the nuisance should be dealt with by municipal ordinance…

Most of the environmental laws of the 1970s arose because so-called "nuisance" law fails to protect property and community rights, imposes dramatic costs on the victims of the pollution to enforce their rights against the wrongdoer, and often allows wrongdoers to escape any responsibility because "nuisance" law is so vague and arbitrary.

Unquestionably, noise pollution adversely affects human health (and may affect animal health and the health of natural areas). No one has a "right" to make noise. Making noise is not even protected by the First Amendment (see Rock Against Racism, 1989). So why the avoidance and delay (two questions even more puzzling for so-called environmental organizations who rarely address noise)?

Noise is a serious pollutant. Decent and neighborly people recognize cooperation in neighborhoods in abating noise. But governments and communities can no longer ignore the adverse consequences to human health and dramatic costs associated with noise and the wrongdoers perpetrating noise pollution.

ATV Noise Pollution

ATV Noise

ATVs (and UTVs) can cause noise problems in Pennsylvania's neighborhoods or natural areas. Fortunately, the Pennsylvania Snowmobile and All-Terrain Vehicle Law (75 Pa.Cons.Stat. §§ 7701, et seq.) provides mandatory remedies for ATV abuse and noise. Notably, the ATV Law requires police to enforce the law, prohibits loud operation, and makes the owner (not operator) liable for negligence.

ATVs MUST Use Properly Functioning Mufflers to Suppress Noise

The the Pennsylvania Snowmobile and All-Terrain Vehicle Law 75 Pa.Cons.Stat.§7743 states, in part,

It is unlawful to operate a snowmobile or an ATV which is not equipped at all times with a muffler in good working order which blends the exhaust sound into the overall snowmobile or ATV sound and is in constant operation to prevent excessive or unusual sound. The exhaust system shall not emit or produce a sharp popping or crackling sound.

The same section also prohibits modifying mufflers to increase noise. The law authorizes the Pennsylvania Department of Conservation & Natural Resources (DCNR) to set maximum noise emissions from ATVs. See 75 Pa.Cons.Stat.§§7702 and 7743. (The DCNR's noise limits have not yet been tested in court as, among other things, for violating Pennsylvania's Environmental Constitutional Law.)

Law Enforcement (Police) MUST Enforce the Pennsylvania Snowmobile and All-Terrain Vehicle Law

Sometimes you call law enforcement to report ATV noise problems or illegal operation. The law enforcement officer responding may sometimes stonewall and fail to take action.

The Pennsylvania Snowmobile and All-Terrain Vehicle Law specifically requires law enforcement to enforce this law.  The statute requires:

Every law enforcement officer in this Commonwealth and designated officers and employees of the department shall enforce the provisions of this chapter. 75 Pa.Cons.Stat.§7751(a) (emphasis added)

The ATV Statute empowers and requires every law enforcement officers to enforce this law.

The Snowmobile and All-Terrain Vehicle Law designates the Pennsylvania Department of Conservation & Natural Resources (DCNR) for rulemaking but does not limit enforcement to only DCNR law enforcement.

ATVs Generally Cannot Be Operated on Public Roads

Generally, ATV operators shall not operate ATVs on public roads. 75 Pa.Cons.Stat.§7721(a).

Except as otherwise provided in this chapter, it is unlawful to operate a snowmobile or an ATV on any street or highway which is not designated and posted as a snowmobile or an ATV road by the governmental agency having jurisdiction.

The law provides some exceptions such as a narrow permission to directly cross a road to reach a trail on the other side, operation (with limits) on a designated ATV-designated road, or in bona fide emergencies at the direction of law enforcement.

Conclusion—Pennsylvania Law Limits ATV Operation & Noise

ATV owners and operators must comply with Pennsylvania law when operating ATVs. That law requires noise suppression, generally limits ATV operation on public roads, and makes the ATV owner (not just the operator) legally liable for negligence. Law enforcement, if called to a complaint, must enforce the law according to the law itself. While not complete, the DCNR provides additional, general operating information. The DCNR also provides a flier summarizing ATV operating requirements.