/ COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA PUBLIC UTILITY COMMISSION
P.O. BOX 3265, HARRISBURG, PA17105-3265 / IN REPLY PLEASE REFER TO OUR FILE
M-2012-2300617

1

September 21, 2012

Michael J. O’Brien, Esq.

Attorney for Roaring Brook Township, Lackawanna County

1212 South Abington Road

P.O. Box 240

Clarks Summit, PA 18411

Re: Advisory Opinion Re Compliance of Roaring Brook Township, Lackawanna County, Gas and Oil Development Ordinance with Act 13; Docket No. M-2012-2300617

Dear Mr. O’Brien:

Pursuant to Section 3305(a) of Act 13 of 2012 (Act),Roaring Brook has requested, by its Letter filed with the Pennsylvania Public Utility Commission (Commission) on April 23, 2012,that the Commission reviewits proposed 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 Opinionsdetermining 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 Roaring Brook Township regarding the compliance of its proposed 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 proposed ordinance and, accordingly, does not preclude any subsequent adjudication by the Commission or the courtsin actions brought under Sections 3305(b) or 3306 of the Act to challenge the proposed ordinance. 58 Pa. C.S. §§ 3305(b) & 3306.

Based upon the Commission’s review of the proposed ordinance, it appears that the ordinance DOES NOT comply with Chapter 32 and Section 3302 of the Act for the following reasons:

  1. The definition of “building” in Section 2 on page two of the Township’s Ordinance likely does not comply with § 3203 and § 3215 of the Act. Section 3203 defines a building as “an occupied structure with walls and roof within which persons live or customarily work.” Unlike the definition of “building” in § 3203 of the Act, Section 2 of the Township’s Ordinance also provides that a building “[does] not include a barn, shed or other storage building.” Since persons could and likely do customarily work in barns, sheds, and other storage buildings, this exclusion of such structures from the definition of “building” in the Ordinance does not comply with § 3203 of the Act and could create issues in complying with the setback requirements in § 3215 of the Act.
  1. Section 7(A)(8)on page eight of the Ordinance that requires an applicant to provide a “certification or evidence satisfactory to the Township” that the applicant complies with bonding and permitting requirements before commencing activity at an oil and gas well site likely violates Sections 3211 and 3302 of the Act (emphasis added). The Township may require the provision of information, but the Township cannot override state law in determining an applicant’s right to commence natural gas exploration under Act 13. 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).
  1. Section 8(G)(2) on page 16 of the Township’s Ordinance does not comply with § 3215(f) of the Act. Section 8(G)(2) provides the Township with the “discretion” to permit drilling in the 100 year floodplain in certain circumstances. The Township cannot assume the Pennsylvania Department of Environmental Protection’s (DEP) permitting role and authority under the Act. Such additional municipal permitting procedures conflict with the underlying legislative purpose of the Act requiring only one set of state level permitting procedures. See 58 Pa. C.S. § 3211, § 3302; see also Range Resources-Appalachia v. Salem Twp., 964 A.2d 869, 876 (Pa. 2009).

Please note that this opinion does not include a determination as to whether the proposed ordinance is in compliance with Section 3304 of the Act.

This opinion has been issued as an aid to Roaring Brook Township 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 .

Sincerely,

Rosemary Chiavetta

Secretary