PENNSYLVANIA PUBLIC UTILITY COMMISSION Harrisburg, PA 17105-3265

Commissioners Present: Robert F. Powelson, Chairman John F. Coleman, Jr., Vice Chairman Wayne E. Gardner James H. Cawley Pamela A. Witmer Request for Review, filed by Mr. William F. Sray, Regarding the South Fayette Township, Allegheny County, Zoning Ordinances Regulating Oil and Gas Well Development and Processing Docket No. M-2012-2311408

OPINION AND ORDER BY THE COMMISSION: Before the Pennsylvania Public Utility Commission (Commission) for consideration and disposition is the Request for Review filed by Mr. William F. Sray on June 21, 2012, with a follow-up request filed on August 9, 2012, regarding the South Fayette Township (Township), Allegheny County, Zoning Ordinances Regulating Oil and Gas Well Development and Processing (collectively, the Ordinance) made pursuant to Section 3305(b) of Act 13 of 2012, the Unconventional Gas Well Impact Fee Act, 58 Pa. C.S. 2301- 3504 (Act 13 or Act). An Answer to the Request for Review was filed by the Township on September 7, 2012. For the reasons stated below, we find that the Ordinance violates Chapter 32 as well as Sections 3302 and 3303 of the Act and, accordingly, that the Township will be immediately ineligible to receive any funds collected under Chapter 23 of the Act. Per Section 3308 of the Act, the Township will remain ineligible to receive funds under Chapter 23 until the Township amends or repeals

its Ordinance or this Order is reversed on appeal. The curative action by the Township must be taken and provided to the Commission no later than November 28, 2012, to accommodate payment of Act 13 impact fee funds by December 1, 2012. I. History of the Proceeding On June 21, 2012, Mr. William F. Sray filed a request (Original Request) for the Commission to review the Townships Ordinance pursuant to Section 3305(b) of the Act. In the Original Request, Mr. Sray requested that the Commission review the Townships Ordinance and issue an order regarding the compliance of the Ordinance with Chapters 32 and 33 of the Act and the Municipalities Planning Code (MPC). Mr. Sray also set forth in the Original Request that he is a resident of the Township, a property owner and a gas lease holder who has been adversely affected by the Townships Ordinance, which allegedly restricts oil and gas operations in violation of the Act. See Original Request at 1. On July 26, 2012, the Commonwealth Court of Pennsylvania (Commonwealth Court) issued a decision declaring Section 3304 of the Act unconstitutional, thereby enjoining the enforcement of Section 3304. See Robinson Twp. v. Commonwealth, No. 284 M.D. 2012, 2012 WL 3030277, at *22 (Pa. Cmwlth. Ct. 2012). The Commission, Department of Environmental Protection and Attorney General subsequently appealed the Commonwealth Courts decision to the Supreme Court of Pennsylvania (Supreme Court). See Notice of Appeal, Robinson Twp., No. 284 M.D. 2012. Similarly, the Township, as one of the named petitioners (Petitioners) challenging the constitutionality of the Act, filed a cross-appeal of the Commonwealth Courts decision with the Supreme Court. See Notice of Cross-Appeal, Robinson Twp., No. 284 M.D. 2012. Both the appeal and the cross-appeal are pending before the Supreme Court. On August 9, 2012, Mr. Sray filed a follow-up request (Follow-Up Request)
2

for the Commission to review the Townships Ordinance. In the Follow-Up Request, Mr. Sray (1) alleged that the Ordinance contains multiple violations of Chapter 32, as well as Sections 3302 and 3303 of the Act and (2) requested that the Commission review the Townships Ordinance and issue an Order regarding the compliance of the Ordinance with such provisions of the Act. Mr. Sray recognized in his Follow-Up Request that the Commission is enjoined from reviewing and enforcing Section 3304 of the Act. See Follow-Up Request at 1. The Original Request and Follow-Up Request are collectively referred to herein as the Request for Review. The Commission served a copy of the Request for Review on the Township on August 20, 2012, with a notice to respond within 20 days from the date of service. An Answer to the Request for Review was filed by the Township on September 7, 2012.1 In its Answer, the Township ultimately argued that the Request for Review filed by Mr. Sray should be dismissed and/or stayed pending a decision from the Supreme Court regarding the constitutionality of certain provisions of the Act. Specifically, the Townships Answer sets forth an array of substantive arguments as to its opinion that the Commission should not issue an order in response to Mr. Srays Request for Review at this time. The Townships arguments include, but are not limited to, conflict of interest, jurisdiction, stays, standing, separation of powers and special law issues. Importantly for purposes of this Order, the Townships Answer does not include any responses based on the merits of the allegations set forth by Mr. Sray in his Request for Review.

II. The Commissions Statutory Obligation to Issue Orders

1 Contemporaneously with the filing of the Townships Answer, an Application to

Enforce the July 26, 2012 Court Order Which Preliminarily Enjoins the Enforcement of Certain Provisions of Act 13 (Application) was filed by the Petitioners with the Commonwealth Court. The Application was incorporated by reference into the Answer.

On February 14, 2012, Governor Corbett signed into law Act 13, which amended Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes. Act 13 provides, inter alia, for an impact fee, Oil and Gas Act amendments and standards for local ordinances. The Commissions administrative responsibilities for implementing the provisions of Act 13 are contained within Chapters 23 and 33 of the Act. Chapter 33 of the Act governs the enactment by municipalities of local ordinances that impose conditions, requirements or limitations on those aspects of oil and gas operations regulated by Chapter 32 (relating to development of oil and gas operations)2 and Chapter 33 of the Act. Specifically, Chapter 33 of the Act preempts and supersedes the local regulation of oil and gas operations that are inconsistent with Act 13 standards. Most significantly, Section 3305 of the Act tasks the Commission with issuing advisory opinions and orders on disputed ordinances regarding the compliance of a local ordinance with the Act and provisions of the MPC. Under Section 3305(b), owners or operators of an oil or gas operation or a person residing within the geographic boundaries of a municipality, aggrieved by the enactment or enforcement of a local ordinance, may request that the Commission review (request for review) a local ordinance to determine whether the local ordinance violates the MPC, Chapter 32 and/or Chapter 33 of the Act. 58 Pa. C.S. 3305(b). Within 120 days of receiving a request for review, the Commission is obligated to issue an order determining whether the ordinance in question violates the MPC, Chapter 32 and/or Chapter 33 of the Act. 3305(b)(3). Participation in the Commission review under this
2 Chapter 32 substantially replaces the former Oil & Gas Act of 1984 and establishes a

new statutory framework for well permitting registration and identification; well location, site restrictions, plugging and site restoration; protection of surface and groundwater supplies; corrosion control; gathering lines; treatment of wastewater; and reporting requirements. All of the statutory requirements imposed by Chapter 32 are delegated to the Pennsylvania Department of Environmental Protection to administer.

provision of the Act is limited to the owner or operator of the gas well, the resident who brings the action and the impacted municipality. 3305(b)(2). On March 16, 2012, the Commission issued a Tentative Order, Docket No. M-2012-2288561 (March 16th Order), addressing the procedures by which the Commission will handle requests for review pursuant to Section 3305(b).3 As stated in the March 16th Order, upon receiving a request for review, the Commission will serve a copy of such request and a notice to respond on the municipality that enacted the ordinance. See March 16th Order at 17. The municipality served with a request for review will then have 20 days from the date of service to file an Answer to a request for review with the Secretary of the Commission.4 See March 16th Order at 18. Based on a review of an Answer and a request for review, the Commission will issue an Order determining whether the ordinance in question violates the MPC, Chapter 32 and/or Chapter 33 of the Act within 120 days of receiving a request for review.5 In the event the Commission issues an order determining that a local ordinance does violate the MPC, Chapter 32 and/or Chapter 33 of the Act, the municipality enacting or enforcing the local ordinance will be immediately ineligible to
3 While the Commission has not issued a Final Implementation Order on Chapter 33, we

stated in the Tentative Order that the procedures outlined therein would be in effect until such a time that a Final Implementation Order is issued.
4 No other responsive pleadings are permitted pursuant to the Act. 5 In order to allow the Commission to meet the 120 day deadline under Section 3305(b)

(3) of the Act, Act 13 has exempted the Commission from the requirements of the Sunshine Act, which would otherwise require the Commissions votes to be cast at a public meeting. 58 Pa. C.S. 3305(c); see also March 16th Order at 18. Nevertheless, the Commission has maintained that the request for review process will be a public and transparent one. See March 16th Order at 18. The Commission has made all requests for review and answers thereto public documents, available on the Commissions website. Id. Each Commissioners vote will be noted on the face of each order issued in response to a request for review, including any statements and dissenting opinions. Id. at 18-19.

receive any funds collected under Chapter 23 of the Act. 3308. The municipality shall remain ineligible to receive such funds until it amends or repeals its ordinance or a court determines on appeal that the local ordinance is lawful. Id. Upon the issuance of an order determining that a local ordinance is in violation of the MPC, Chapter 32 and/or Chapter 33 of the Act, the municipality may elect to amend or repeal the ordinance to remove the violation. See March 16th Order at 20. The amendment or repeal of the violating ordinance should be filed with the Commission within five business days of the municipalitys action but no later than November 28, 2012, to accommodate payment of Act 13 impact fee funds by December 1, 2012. Id. If, upon review by the Commission, the violation is determined to have been cured, the Commission will notify the municipality by Order or Secretarial Letter and restore the municipality to the list of municipalities eligible to receive funds under Chapter 23. Id. III. Effect of the Commonwealth Courts July 26, 2012 Order on the Commissions Obligation to Issue Orders On July 26, 2012, the Commonwealth Court issued a decision declaring Section 3304 of the Act unconstitutional, thereby enjoining the enforcement of that Section of the Act. Robinson Twp. v. Commonwealth, No. 284 M.D. 2012. The July 26, 2012 Order of the Commonwealth Court, however, specifically carves out sections of Act 13 that are not enjoined, providing in total as follows: AND NOW, this 26th day of July, 2012, the preliminary objections filed by the Commonwealth to Counts IV, V, VI, VII, IX, X, XI and XII are sustained and those Counts are dismissed. The preliminary objections to Counts I, II, III and VIII are overruled. Petitioners motion for summary relief as to Counts I, II, and III is granted. 58 P.S. 3304 is declared unconstitutional, null and void. The Commonwealth is permanently enjoined from enforcing its provisions.

Other than 58 Pa. C.S. 3301 through 3303 which remain in full force and effect, the remaining provisions of Chapter 33 that enforce 58 Pa. C.S. 3304 are similarly enjoined. Petitioners motion for summary relief as to Count VIII is granted and Section 3215(b)(4) is declared null and void. The cross-motions for summary relief filed by the Pennsylvania Public Utility Commission and Robert F. Powelson in his Official Capacity as Chairman of the Public Utility Commission and by the Department of Environmental Protection and Michael L. Krancer in his Official Capacity as Secretary of the Department of Environmental Protection are denied. Id. at 23 (emphasis added). In light of the Commonwealth Courts July 26, 2012 Order, it is clear that the Commonwealth Court only enjoined Section 3304 and the remaining provisions of Chapter 33 of the Act to the extent they enforce Section 3304 of the Act. The Commonwealth Court did not, however, enjoin enforcement of Chapter 32, Section 3302, Section 3303 or Section 3305 of the Act or the MPC. With this understanding of the July 26, 2012 Order, the Commission determined that it remains obligated to fulfill the mandates directed to it by the General Assembly in the unchallenged and non-enjoined portions of Act 13 and the MPC. The General Assembly has established affirmative mandates that the Commission cannot choose to ignore. Thus, to the extent any provision of Act 13 went untouched by the Commonwealth Courts July 26, 2012 Order, the Commission must timely act as the law requires. As such, where Section 3305(b) of the Act directs that the Commission shall act within 120 days of receiving a request for review of an ordinance under that subsection, the Commission is not free to ignore either (1) the requesters rights to review, or (2) the Commissions own duty to act. 58 Pa. C.S. 3305(b)(3).

Based on this affirmative obligation, the Commission is required to issue orders determining whether local ordinances violate the MPC, Section 3302 and/or Section 3303 of the Act within 120 days of receiving a request for review. At this time, however, the Commission will not make any determinations as to whether a local ordinance is in compliance with Section 3304 of the Act.

IV. Discussion Mr. Srays Request for Review sets forth five separate counts where the Townships Ordinance allegedly violates Chapter 32, Section 3302 and Section 3303 of the Act. Although the Township submitted an Answer to Mr. Srays Request for Review, the Township did not provide any substantive responses based on the merits of the allegations set forth by Mr. Sray.

A.

The Townships Answer

We begin by addressing the arguments raised in the Townships Answer. Rather than addressing and responding to the merits of the allegations set forth by Mr. Sray in his Request for Review, the Townships Answer argues that the Request for Review filed by Mr. Sray should be dismissed and/or stayed pending a decision from the Supreme Court regarding the constitutionality of certain provisions of the Act. Specifically, the Townships Answer sets forth an array of substantive arguments as to why, in its opinion, the Commission cannot issue an order in response to Mr. Srays Request for Review at this time. Such arguments include, but are not limited to, conflict of interest, jurisdiction, stays, standing, separation of powers and special law issues.

The Commission, however, is not empowered to consider these arguments raised by the Township in its Answer because such arguments are beyond the scope of review authorized by Section 3305(b) of the Act, which requires the Commission to issue orders determining whether a local ordinance violates the MPC, Chapter 33 or Chapter 32 of the Act. Both the Supreme Court and Commonwealth Court have consistently held that [t]he power and authority to be exercised by administrative (agencies) must be conferred by legislative language clear and unmistakable. . . . Such tribunals are extra judicial. They should act within the strict and exact limits defined: [sic] Demarco v. Commn Dept. of Health, 397 A.2d 61, 64 (Pa. Cmwlth. Ct. 1979) (quoting Green v. Milk Control Commn, 16 A.2d 9 (Pa. 1940), (cert. denied) 312 U.S. 708 (1941)). Furthermore, administrative agencies as creatures of the legislature are vested only with those powers conferred by the statute or such as are necessarily implied. Demarco, 397 A.2d at 64 (citing Day v. Pub. Serv. Commn, 167 A. 565 (Pa. 1933)).

With respect to Act 13, Section 3305(b)(3) confers no power to the Commission to issue an order in response to the types of arguments raised by the Township that challenge the constitutionality of the request for review process. Section 3305(b) of the Act contains specific mandates limiting the Commissions analysis to determining whether the local ordinance violates the MPC, [Chapter 33] or Chapter 32 of the Act. 58 Pa. C.S. 3305(b)(3). Therefore, because the Townships Answer challenges the nature and constitutionality of the Act and the Acts delegated tasks to the Commission, the Commission has no power to address such arguments in this Order.6
6 It is also important to note that many of the arguments raised by the Township in its

Answer include matters of constitutionality of certain provisions of the Act. The Commonwealth Court has made clear that an administrative agency does not have power to determine the constitutionality of a statute it is charged to implement. Cutler v. State Civil Service Com'n (Office of Admin.), 924 A.2d 706, 716-17 (Pa. Cmwlth. Ct. 2007); In re Municipal Reapportionment of Tp. of Haverford, 873 A.2d 821, 833 n. 18 (Pa. Cmwlth. Ct. 2005). Therefore, the Commission has no power to address the constitutional issues the Township has raised.
9

The only argument raised by the Township that potentially falls within the scope of the Commissions jurisdictional authority under Section 3305(b) of the Act concerns the Townships challenge to whether Mr. Sray has standing as an aggrieved party. Notably, however, the Township admits in its Answer that its argument has been raised in the context of a constitutional challenge as to whether the Commission is the appropriate entity to make a determination of who is aggrieved under the Act. Specifically, the Township argues that the Commission does not have the power to make a determination as to who is aggrieved pursuant to Section 3305(b) because the Commission does not constitute a judicial or quasi-judicial entity. Therefore, because the Townships argument has been couched in terms of a constitutional challenge to the Commissions authority to determine who has standing as an aggrieved party under Section 3305(b), such challenge is beyond the province of the Commission to consider in this Order. See fn. 5. Assuming, arguendo, that the Townships standing argument were raised as a matter of course as opposed to being couched as a constitutional challenge, the Commission would find that Mr. Sray satisfies the aggrieved party requirement pursuant to Section 3305(b) of the Act. Aggrievability is obtained by having a substantial, direct, and immediate interest in proceedings or litigation. Johnson v. American Standard, 8 A.3d 318, 333 (Pa. 2010). Should, however, a party's immediate interest not be apparent, a zone of interests analysis may (and should) be employed to assist a court in determining whether a party has been sufficiently aggrieved, and therefore has standing. Id. (citing William Penn Parking Garage. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975)). Under the zone of interests analysis, standing will be found more readily where protection of the type of interest asserted is among the policies underlying the legal rule relied upon by the person claiming to be aggrieved. William Penn, at 284.

10

Even if, as the Township argues, Mr. Srays immediate interest in obtaining an Order in response to his Request for Review is not readily apparent, it is clear that the interests asserted by Mr. Sray in his Request for Review are among the type of interests to be protected by the policies underlying the Act. The Act clearly states that one of its purposes includes permitting the optimal development of oil and gas resources of this Commonwealth consistent with protection of the health, safety, environment and property of Pennsylvania citizens. 58 Pa. C.S. 3202 (emphasis added). As a property owner in the Township and gas lease holder, Mr. Sray has a strong interest in ensuring that the Township does not inhibit the optimal development of oil and gas resources by imposing regulations that are inconsistent with the provisions of the Act. Therefore, because Mr. Srays interests are clearly among the type to be protected by the policies underlying the Act, Mr. Sray has standing as an aggrieved party to request the Commission to review the Townships Ordinance pursuant to Section 3305(b) of the Act. Because we have preliminarily determined that (1) the Commission is not required to respond to the substantive arguments raised by the Township in its Answer and (2) even if the Township raised a non-constitutional standing challenge, Mr. Sray would still qualify as an aggrieved party pursuant to Section 3305(b) of the Act, we now consider the specific allegations raised by Mr. Sray in his Request for Review. As previously noted, the Townships Answer did not contain any substantive responses based on the merits of Mr. Srays allegations. Accordingly, we now consider each of Mr. Srays allegations individually and provide the Commissions disposition below.

B.

Request for Review Allegation No. 1

11

1.

Mr. Srays Allegation In the Request for Review, Mr. Sray asserts that Section 240.95(A)(1)(54)

(a)(2)(h) of the Ordinance establishes water withdrawal reporting requirements that (1) duplicate the efforts of the Pennsylvania Department of Environmental Protection (DEP) set forth in Chapter 32 of the Act, thereby constituting a violation of Section 3302 of the Act and (2) place the Township in the position of regulating environmental acts in violation of Section 3303 of the Act.

2.

Disposition Section 240.95(A)(1)(54)(a)(2)(h) of the Ordinance is preempted by

Section 3302 of the Act. Section 3302 of the Act provides that all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development) are hereby superseded. 58 Pa. C.S. 3302. Section 240.95(A)(1)(54)(a) (2)(h) of the Ordinance purports to set forth additional permitting procedures, requiring water withdrawal reporting information, beyond those required by DEP in Section 3211 of the Act. Because these additional municipal permitting procedures are regulated by Chapter 32 and because they present an obstacle to the underlying legislative purpose of the Act requiring only one set of state level permitting requirements, conflict preemption applies and the provisions of the Ordinance containing such procedures violate Section 3302 of the Act. 3302; see also Range Resources-Appalachia v. Salem Twp., 964 A.2d 869, 876 (Pa. 2009).

Section 240.95(A)(1)(54)(a)(2)(h) of the Ordinance is also preempted pursuant to Section 3303 of the Act. Section 3303 of the Act provides that the Commonwealth preempts and supersedes the local regulation of oil and gas operations regulated by [other state] environmental acts. 58 Pa. C.S. 3303. Section 240.95(A)(1)

12

(54)(a)(2)(h) of the Ordinance purports to set forth additional water withdrawal reporting requirements beyond those required by DEP in the Water Resources Planning Act, 27 Pa. C.S. 3101 et seq; see also 25 Pa. Code Ch. 110. Therefore, the water withdrawal reporting requirements set forth in the Ordinance are preempted by a state environmental act.
C.

Request for Review Allegation No. 2

1. Mr. Srays Allegation

In the Request for Review, Mr. Sray asserts that Section 240.95(A)(1)(54)(a) (2)(i) of the Ordinance establishes hazardous waste disposal reporting requirements that (1) duplicate the efforts of DEP set forth in Chapter 32 of the Act, thereby constituting a violation of Section 3302 of the Act and (2) place the Township in the position of regulating environmental acts in violation of Section 3303 of the Act.

2. Disposition

Section 240.95(A)(1)(54)(a)(2)(i) of the Ordinance is preempted by Section 3302 of the Act. Section 3302 of the Act provides that all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development) are hereby superseded. 58 Pa. C.S. 3302. Section 240.95(A)(1)(54)(a)(2)(i)of the Ordinance purports to set forth additional permitting procedures, requiring hazardous waste disposal reporting information beyond those required by DEP in Section 3211 of the Act. Because these additional municipal permitting procedures are regulated by Chapter 32 and because they present an obstacle to the underlying legislative purpose of the Act requiring only one set of state level permitting requirements, conflict preemption applies and the provisions of the Ordinance containing such procedures violate Section 3302 of the Act. 3302; see also Range Resources-Appalachia, supra at 876.

13

Section 240.95(A)(1)(54)(a)(2)(i) of the Ordinance is also preempted pursuant to Section 3303 of the Act. Section 3303 of the Act provides that the Commonwealth preempts and supersedes the local regulation of oil and gas operations regulated by [other state] environmental acts. 58 Pa. C.S. 3303. This section of the Ordinance purports to set forth additional hazardous waste disposal reporting requirements beyond those required by DEP in the Solid Waste Management Act, 35 P.S. 6018.101-6018.1003. Therefore, the hazardous waste disposal reporting requirements set forth in the Ordinance are preempted by a state environmental act.
D.

Request for Review Allegation No. 3

1. Mr. Srays Allegation

In the Request for Review, Mr. Sray asserts that Section 240.95(A)(1)(54) (A(2)(n) of the Ordinance, requiring an environmental impact analysis statement, (1) purports to regulate the features of oil and gas operations regulated by Chapter 32 of the Act, thereby constituting a violation of Section 3302 of the Act and (2) places the Township in the position of regulating environmental acts in violation of Section 3303 of the Act.

2. Disposition

Section 240.95(A)(1)(54)(a)(2)(n) of the Ordinance is preempted by Section 3302 of the Act. Section 3302 of the Act provides that all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development) are hereby superseded. 58 Pa. C.S. 3302. Section 240.95(A)(1)(54)(a) (2)(n) of the Ordinance purports to set forth additional permitting procedures, requiring an environmental impact analysis statement, beyond those required by DEP in Section 3211 of the Act. Because these additional municipal permitting procedures are regulated

14

by Chapter 32 and because they present an obstacle to the underlying legislative purpose of the Act requiring only one set of state level permitting requirements, conflict preemption applies and the provisions of the Ordinance containing such procedures violate Section 3302 of the Act. 3302; see also Range Resources-Appalachia, supra at 876.

Section 240.95(A)(1)(54)(a)(2)(n) of the Ordinance is also preempted pursuant to Section 3303 of the Act. Section 3303 of the Act provides that the Commonwealth preempts and supersedes the local regulation of oil and gas operations regulated by [other state] environmental acts. 58 Pa. C.S. 3303. Section 240.95(A)(1) (54)(a)(2)(n) of the Ordinance requires applicants for oil and gas drilling to submit an environmental impact analysis as part of the Townships permitting process. Because Section 3303 of the Act expressly preempts the field of local regulation of oil and gas operations which are regulated by state environmental acts, the environmental impact analysis requirement set forth in the Ordinance is preempted pursuant to Section 3303 of the Act.

E.

Request for Review Allegation No. 4

1. Mr. Srays Allegation

In the Request for Review, Mr. Sray asserts that Section 240.95(A)(1)(54) (A(2)(q) of the Ordinance purports to enforce environmental provisions of the Air Pollution Control Act, by setting forth internal combustion engine and compressor emission standards, in violation of Section 3303 of the Act.

2. Disposition

15

Chapter/Section 240.95(A)(1)(54)(1)(q) of the Ordinance is preempted pursuant to Section 3303 of the Act. Section 3303 of the Act provides that the Commonwealth preempts and supersedes the local regulation of oil and gas operations regulated by [other state] environmental acts. 3303. This section of the Ordinance purports to set forth additional internal combustion engine and compressor emissions standards beyond those required by DEP in the Air Pollution Control Act, 35 P.S. 4001 et seq. Therefore, the emissions standards set forth in the Ordinance are preempted by a state environmental act.

F.

Request for Review Allegation No. 5

1. Mr. Srays Allegation

In the Request for Review, Mr. Sray asserts that Section 240.95(A)(1)(54) (A(2)(s) of the Ordinance purports to impose requirements on the oil and gas well reclamation process, controlled by Section 3216 of the Act, in violation of Section 3302 of the Act.
2. Disposition

Section 240-95(A)(1)(54)(s) of the Ordinance is preempted by Section 3302 of the Act. Section 3302 of the Act provides that all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development) are hereby superseded. 58 Pa. C.S. 3302. Section 240-95(A)(1)(54)(s) of the Ordinance purports to set forth additional well restoration requirements beyond those required by DEP in Sections 3216 of the Act. Because these additional municipal procedures are regulated by Chapter 32 of the Act and because they present an obstacle to the underlying legislative purpose of the Act requiring only one set of state level permitting requirements, conflict preemption applies to the provisions of the Ordinance containing

16

such procedures violate Section 3302 of the Act. 58 Pa. C.S. 3302; see also Range Resources-Appalachia, supra at 876.

C.

Final Disposition Based on the foregoing analysis, the Commission finds that the Townships

Ordinance violates Chapter 32 as well as Sections 3302 and 3303 of the Act. Because the Commission, by this Order, has found that the Townships Ordinance violates provisions of the Act, the Township will be immediately ineligible to receive any funds collected under Section 23 of the Act. Pursuant to the March 16th Order, the Township may elect to amend or repeal the Ordinance to remove the violations of the Act listed herein. The amendment or repeal of the Ordinance should be filed with the Commission within five business days of the Townships action, but no later than November 28, 2012, to accommodate payment of impact fee funds by December 1, 2012. If, upon review by the Commission, the violations have been determined to have been cured, the Commission will so notify the Township by subsequent order or Secretarial Letter and restore the Township to the list of municipalities eligible to receive funds under Chapter 23 of the Act.

17

IV. Conclusion For the reasons set forth above, we find that the Ordinance violates Chapter 32, Section 3302 and Section 3303 of Act 13. Accordingly, the Township will be immediately ineligible to receive any funds collected under Chapter 23 of the Act; THEREFORE, IT IS ORDERED THAT:
1.

South Fayette Townships Ordinance violates Chapter 32,

Section 3302 and Section 3303 of Act 13.

2.

South Fayette Township is immediately ineligible to receive any

funds collected under Chapter 23 of Act 13, effective as of the adoption date of this Order.
3.

Per Section 3308 of Act 13, South Fayette Township will remain

ineligible to receive funds under Chapter 23 until South Fayette Township amends or repeals its Ordinance or this Order is reversed on appeal. The amendment or repeal of the Ordinance should be filed with the Commission within five business days of South Fayette Townships action but no later than November 28, 2012, to accommodate payment of Act 13 impact fee funds by December 1, 2012.
4.

If, upon review by the Commission, the violations of Act 13 are

determined to have been cured in accordance with the Commissions Tentative

18

Implementation Order at Docket No. M-2012-2288561, issued on March 16, 2012, the Commission will so notify South Fayette Township by subsequent order or Secretarial Letter and restore South Fayette Township to the list of municipalities eligible to receive funds under Chapter 23 of Act 13.

BY THE COMMISSION,

Rosemary Chiavetta Secretary (SEAL) ORDER ADOPTED: October 18, 2012 ORDER ENTERED: October 18, 2012

19