Pa. reviewing legality of South Fayette drilling ordinance
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HARRISBURG -- State officials are beginning to review some municipal drilling ordinances under several sections of the new Marcellus Shale law that were not overturned by an appellate judge late last month.
The results of those reviews could prevent some towns from receiving their share of the new drilling impact fee this fall if officials deem their local rules to be out of compliance with Pennsylvania law.
Which town is first on the state Public Utility Commission's list for review? South Fayette.
The Allegheny County community is the subject of the commission's first, and so far only, request for review, according to agency documents. If a local ordinance is found to conflict with state law, municipalities would be ineligible for fee revenues until the ordinance is amended or the decision is overturned in court.
While a Commonwealth Court judge ruled that a section of the new state drilling law, known as Act 13, restricting local zoning rules was unconstitutional, he let several other sections addressing what municipalities cannot do stand. Those include a section pre-empting municipalities from enacting environmental laws and another that allows for local ordinances to remain in place as long as they don't address areas like setbacks from water sources, which are outlined elsewhere in the law.
In a hearing last week about whether the injunction over the zoning section should remain, President Judge Dan Pellegrini referenced the difference between the sections by saying one addresses issues of where wells can be located, while others address who regulates the act of drilling itself.
Officials at the PUC, who are tasked with administering much of the law, now are attempting to distinguish which parts of a town's ordinance may fall under the zoning section that was halted, which might be inappropriate under the statute's other portions, and which are legal.
"We're in the process of reviewing all of the [ordinance review] filings we have before us and which sections of the law remain in effect," PUC spokeswoman Jennifer Kocher said.
The South Fayette review request was filed by Bill Sray, a school board member who holds drilling leases with Chesapeake Energy. He filed one request with the PUC in June, to which the agency replied that litigation over the law was still pending.
Mr. Sray filed a second request on Aug. 9, arguing that the court order didn't stop the PUC from issuing orders on other sections that are still in effect. He wrote that his town's ordinance "establishes multiple requirements that intrude on the Commonwealth's domain," including its mandatory environmental impact statement and guidelines regarding air pollution.
The agency responded to his second request in a letter to South Fayette dated Monday, indicating that the town has 20 days to file their response to the request for review. The commission has 120 days to issue its ruling, meaning that a ruling could occur before the December deadline for distributed impact fee revenues.
Deron Gabriel, president of the South Fayette Board of Commissioners, who has been active in the Act 13 legal challenge, could not be reached Tuesday for comment.
In addition to the review of South Fayette's ordinance, the PUC also is beginning to sort through requests for advisory opinions on about three dozen local drilling ordinances. The results of those opinions are not binding, and will not directly affect a town's impact fee revenues.
Among those seeking advisory opinions are: the city of Pittsburgh; the Washington County towns of Hopewell, Independence, Carroll, South Franklin, and West Middletown; the Beaver County towns of Monaca, South Beaver, Brighton and Shippingport borough; and Penn Township in Butler County.
First Published August 22, 2012 12:00 am