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

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October 2, 2012

M-2012-2303815

Joseph Sileo, Esquire

McNees Wallace & Nurick LLC

125 North Washington Avenue, Suite 220

Scranton, PA 18503

Re: Advisory Opinion re Compliance ofNewton Township, Lackawanna County,Zoning Ordinance with Act 13 of 2012; Docket No. M-2012-2303815

DearMr. Sileo:

Pursuant to Section 3305(a) of Act 13 of 2012 (Act),Newton Township has requested, by yourLetter filed with the Pennsylvania Public Utility Commission (Commission) on May 11, 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 Newton 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 the Act for the following reasons:

  1. The citation within the definition of Oil and Gas Act on Page 2 of the Ordinance citing“58 P.S. § 601.101 et seq.” should be replaced with “58 Pa. C.S. § 2301 et seq.” in order to accurately reflect the current version of the Act.
  1. Page 15, Sections313.10(A) and (C) of the Ordinance do not comply with Section 3215 of the Act. Section 3215 of the Act sets forth separate setback requirements applicable to (1) unconventional gas wells and (2) oil and gas wells generally. Sections 313.10(A) and (C) of the Ordinance purport to apply the same setback standards applicable to unconventional gas wells under Section 3215 of the Act to oil and gas wells in general. Accordingly, in order to comply with the Act, the Ordinance must expressly apply separate setback requirements to unconventional gas wells and oil and gas wells in general inSections 313.10(A) and (C) of the Ordinance consistent with Section 3215 of the Act.
  1. Page 15, Section 313.10(A)(1) of the Ordinance does not comply with Section 3215(a) of the Act. Section 313.10(A)(1) of the Ordinance does not include language allowing for a waiver of the 1,000 foot water source setback requirement, in the event written consent is obtained from the water purveyor, as required by Section 3215(a) of the Act.
  1. As referenced in Sections 313.10(J), 313.11(I), 313.12(J), and 313.13(J) of the Ordinance, compliance with the provisions of the Newton Township Subdivision and Land Development Ordinance shall be required only to the extent such provisions are not in conflict Chapter 32, Section 3302 and Section 3303 of the Act and/or the provisions of the MPC.

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. To ensure compliance with Act 13, the Commission also 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 Newton 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 Krystle Sacavage, Assistant Counsel, at 717-787-5262 or by e-mail at .

Sincerely,

Rosemary Chiavetta

Secretary