A Hill of Beans: DEP Approves Permit for #Fracking on Unleased Property

Private Property Posted No Trespassing. photo: Creative Commons

The Pennsylvania Department of Environmental Protection (DEP) has issued a permit to Talisman Energy to drill a natural gas well under unleased property in Susquehanna County, according to landowners Steve and Joyce Libal and state documents provided to Public Herald. The permit would allow for fracking, a process requiring water and chemicals under high pressure to fracture underground shale to extract minerals.

Had it not been for their ‘hill of beans,’ the Libals may have never known about it.

“The only reason we know about the permit concerning our property is because a guy stopped by our farm to buy beans…thank God this man’s wife likes to pickle beans,” the Libals wrote in an announcement posted in an online natural gas forum. Their bean customer, Grove Doty, turned out to be a councilman of the neighboring borough of Friendsville.

According to Pennsylvania oil and gas law, drilling companies must notify municipal officials of plans to drill for natural gas. However they aren’t required to notify nearby or even adjacent landowners.

“Neither Talisman Energy nor the DEP notified us of this application,” wrote the Libals, who doubled checked their property deed again just to be safe. They own all of their mineral rights, and have turned down companies looking to lease their land. But, they are surrounded by leased properties.

Well Plat Map for Olympic Estates 9H obtained by Steve Libal.

According to the Libals, a few days after the bean sale, Steve attended the local township meeting and asked to see Talisman’s  application packet. It contained a map showing 12 wells. One of the wells is routed right through Libals’ unleased property. They immediately notified DEP via email on September 18th and sent certified letters to DEP Office of Chief Counsel Richard Morrison, Deputy Secretary of Oil and Gas Scott Perry, and geologist Mark Ansell, who conducted the technical approval for Talisman’s permit.

After a week of silence, emails were sent to Ansell again on September 26th. He replied, “The application has been the subject of much discussion within the Department.  Presently the situation is under review by the Legal Staff.”

According to the couple, they got a call shortly after contacting DEP from a landman claiming to represent Talisman who asked how much money it would take for them to lease their gas rights. The Libals couldn’t be bought out, and Talisman went missing.

On October 7th, they emailed Ansell again requesting the status of Talisman’s permit approval process. The next day Ansell forwarded an email from DEP’s Geologist Manager, Brian Babb:

“[I]t has been determined that the Department does not concern itself with lease issues on wells that are not subject to the Conservation Law. As is stated in the standard conditions of the permit, the permit does not give any rights the applicant doesn’t already have.  Neither the Oil and Gas Act nor Chapter 78 address leasing issues. Our review is based on the Act and the Regulations, which is exclusive of leasing issues.

“If an operator fails to acquire necessary rights before drilling, the operator could be subject to the laws of trespass as applicable.”

This requires the Libals to hire an attorney and take Talisman to court.

(Note: Pennsylvania’s Conservation Law does not apply to wells drilled into the Marcellus Shale. It does apply to Utica Shale drilling.)

DEP Issues Permit Despite Libals’ Complaint

October 11th, DEP issued the permit to Talisman for the company’s plans to drill the Olympic Lakes Estates 9H well, which included a route under the Libals’ property. According to the Libals, they received a letter from DEP on October 15th stating that if they had a complaint about the permit to contact the state Environmental Hearing Board within 30 days.

In an email to Public Herald, Oil and Gas Deputy Secretary Scott Perry wrote, “DEP does not have the statutory authority to deny a well permit based on a property rights dispute.” He added, “the landowner could certainly appeal the issuance of the well permit to the EHB if they wanted to. A better course of action would be to seek some kind of injunction in county court.” Perry believes his  agency would not “be liable for the trespass and or theft by the well driller.”

DEP Approval Letter (Text)

Spilling The Beans

In the month Councilman Doty ‘spilled the beans’ the Libals’ have been consumed by worry and their own search for answers — and they’re not alone. After sharing their story online, the couple got an email from John Hotvedt, who alleges that in February he learned that drilling company WPX has plans to drill under his property without his knowledge.

In an email offering advice to the Libals, Hotvedt wrote, “We learned through our lawyer that DEP never involves itself in lease disputes…DEP seems to have issues with regulating anything that isn’t strictly an environmental concern.  But it sure seems to me to be a prudent regulatory step for some agency.”

Screenshot from Public Herald’s documentary Triple Divide shows permits for drilling in Bradford County (in yellow) and white areas of land surrounded by development.

Both Hotvedt and the Libals think state law should be changed to prevent unnecessary and unfair costs to landowners.

“We hope Pennsylvania’s state legislators will prevent the DEP from doing this to other landowners by immediately working to modify existing laws or make new laws that do the following: 1) Prevent DEP from conducting reviews of gas-well permits that include unleased property, 2) Enact penalties upon any gas company that submits a gas-well application for unleased land, [and] 3) Require gas companies to notify all landowners whose property is included in a gas-well application,” suggest the Libals.

“What if we had been in negotiations to sell our house while all of this was going on unbeknownst to us? Certainly we couldn’t have disclosed what we were unaware of to a potential buyer. What would have happened if that person had purchased the property and later discovered a gas well had been approved to run through it?”

The Libals’ sent letters to PA Attorney General Kathleen Kane and PA Auditor General Eugene DePasquale as well. Attorney General Kane’s Assistant Press Secretary, Carolyn Myers, confirmed receipt of the Libals’ letter in an email to Public Herald. “The referenced matter is under DEP’s umbrella…You may want to contact that agency,” wrote Myers in response to a question about whether DEP or any other state agency handled property rights issues associated with such cases.

Auditor General DePasquale, who’s currently investigating DEP’s procedures for handling water contamination cases, did not reply to Public Herald’s request for comment.

DEP’s Scott Perry wrote to Public Herald on October 14th that Talisman would be withdrawing the permit application. However, the Libals’ haven’t heard anything from DEP or Talisman since receiving their letter about the approved permit.

Update: October 22nd PH confirmed the Libals’ receipt of a certified letter stating Talisman Energy has withdrawn the Olympic Lakes Estates 9H well permit application.

Update 10/17, 5:13 pm: Susan Woods from Auditor General Depasquale’s office called PH to state that the Libals’ matter falls under the jurisdiction of DEP and that the AG’s office “has nothing to do with it.” Also, the paragraph, “According to the couple, they got a call shortly after contacting DEP from a landman claiming to represent Talisman, who asked how much money it would take for them to lease their gas rights. The Libals couldn’t be bought out, and Talisman went missing,” has been corrected from “The Libals also contacted Talisman Energy. But according to the couple, instead of an explanation or apology, a landman claiming to represent Talisman called to ask how much money it would take for them to lease their gas rights. The Libals couldn’t be bought out, and Talisman went missing.”