Attorney for the Township of Kidder, Carbon County

IN REPLY PLEASE COMMONWEALTH OF PENNSYLVANIA REFER TO OUR FILE PENNSYLVANIA PUBLIC UTILITY COMMISSION M-2012-2301890 P.O. BOX 3265, HARRISBURG, PA 17105-3265

October 2, 2012

Daniel A. Miscavage, Esq. Attorney for the Township of Kidder, Carbon County 67 North Church Street Hazleton, PA 18201

Re: Advisory Opinion Re Compliance of the Township of Kidder, Carbon County, Gas and Oil Development Ordinance with Act 13; Docket No. M- 2012-2301890

Dear Mr. Miscavige:

Pursuant to Section 3305(a) of Act 13 of 2012 (Act), the Township of Kidder has requested, by its Letter filed with the Pennsylvania Public Utility Commission (Commission) on May 1, 2012, that the Commission review its existing local zoning ordinance and issue an Advisory Opinion on whether the ordinance violates certain provisions of the Act. On July 26, 2012, the Commonwealth Court of Pennsylvania (Court) issued a decision declaring Section 3304 of the Act unconstitutional, thereby enjoining the Commission from enforcing that section of the Act. See Robinson Township, et al. v. Commonwealth et al., No. 284 M.D. 2012. Although the Court enjoined the Commission from enforcing Section 3304 of the Act, the Commission is still authorized to issue Advisory Opinions determining whether local ordinances are in compliance with Chapter 32, Section 3302 and Section 3303 of the Act and the provisions of the Municipalities Planning Code (MPC).

Accordingly, by this Letter, the Commission now issues this Advisory Opinion to the Township of Kidder regarding the compliance of its existing local ordinance with Chapter 32, Section 3302 and Section 3303 of the Act and the provisions of the MPC. Please note that this opinion is advisory in nature and is not subject to appeal. 58 Pa. C.S. § 3305(a)(3). As such, this opinion is not a binding legal determination by the Commission regarding the validity of the existing ordinance and, accordingly, does not preclude any subsequent adjudication by the Commission or the courts in actions brought under Sections 3305(b) or 3306 of the Act to challenge the existing ordinance. 58 Pa. C.S. §§ 3305(b) & 3306. Based upon the Commission’s review of the existing ordinance, it appears that the ordinance DOES NOT comply with Chapter 32 and Section 3302 of the Act for the following reasons:

1. Section 127-2(F) of the Ordinance requires an applicant to prepare and submit a “well complaint resolution program” to the Township to ensure that the applicant is committed to resolving any domestic well water complaints. This provision of the Ordinance likely violates § 3211 of Act 13 by providing the Township with too much discretion to “require amendments to the program prior to acceptance.” Section 127-2(F). The Township can require submission of such program, but the Township cannot override the Pennsylvania Department of Environmental Protection’s (DEP) state law permitting authority in determining an applicant’s right to commence natural gas exploration under Act 13. See 58 Pa. C.S. § 3211. Such additional municipal permitting procedures conflict with the underlying legislative purpose of the Act requiring only one set of state level permitting procedures. See also Range Resources-Appalachia v. Salem Twp., 964 A.2d 869, 876 (Pa. 2009).

2. Section 127-3(J) of the Ordinance may not comply with § 3218 of the Act. Section 3218(b) provides DEP with the authority to investigate a spill or “pollution or diminution of a water supply as a result of the drilling” and order the well operator to institute appropriate clean-up procedures. Section 127-3(J) of the Ordinance requires the operator, “after any spill, leak or malfunction,” to remove all waste materials “to the satisfaction of the Township officials and the PA DEP inspectors.” (emphasis added). Section 127-3(J) may provide too much discretion to the Township in determining clean-up procedures and requirements in additional to DEP. Since the Township cannot additionally assume DEP’s role under the Act, § 127-3(J) may violate § 3218 of the Act. See also 58 Pa. C.S. § 3302.

3. Section 127-3(P) of the Township’s Ordinance refers to “the Pennsylvania Oil and Gas Act.” The reference should be updated to refer to Act 13 at the citation 58 Pa. C.S. §§ 2301 et seq.

4. Section 127-4 of the Ordinance does not comply § 3216 of the Act. The Township can require the applicant to submit a plan regarding well site restoration after the completion of drilling, but the Township cannot enact a more stringent well site restoration schedule than § 3216 of Act 13. Section 3216(c) requires an operator to restore the well site within nine months after drilling. Section 127-4 violates § 3216 by requiring the applicant to “complete all restoration activities…within 60 days” after the completion of drilling.

2 5. Section 180-57.5(P) likely does not comply with § 3302 of the Act by attempting to regulate the same purposes of oil and gas operations regulated by Chapter 32 of Act 13. Section 180-575(P) provides the Township with broad discretion to “impose any other conditions necessary to protect the public health, safety and welfare of its residents in order to address any unique characteristics of a particular drilling site” and provides Township officials with the right of entry upon Township properties. Chapter 32 is intended to “protect the safety and property rights of persons residing in areas where…[natural gas] exploration occurs.” 48 Pa. C.S. § 3302(3). Given the Ordinance’s attempt to regulate the same purposes, § 180-57.5 of the Ordinance likely does not comply with § 3302 of Act 13. See also Huntley v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009).

Please note that this opinion does not include a determination as to whether the existing ordinance is in compliance with Section 3304 of the Act. Additionally, due to the pending litigation regarding the Act, the Commission recommends incorporating the following provision into the proposed ordinance: “To the extent any term or provision of this Ordinance is in conflict with Act 13, 58 Pa. C.S. §§ 2301 et seq., the Act shall supersede.” However, the mere inclusion of such provision in the proposed ordinance, without consideration for the above-listed recommended revisions, will not ensure compliance with the Act.

This opinion has been issued as an aid to the Township of Kidder to facilitate its compliance with the effective provisions of the Act. As noted above, this opinion is advisory in nature and is not appealable. If you have any questions regarding the details of this Advisory Opinion, please contact Ken Stark, Assistant Counsel, at 717-787-5558 or by e-mail at [email protected].

Sincerely,

Rosemary Chiavetta Secretary