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Robinson Township v. Commonwealth, Pennsylvania Public Utility Commission

Commonwealth Court of Pennsylvania

July 17, 2014

Robinson Township, Washington County, Pennsylvania, Brian Coppola, Individually and in his Official Capacity as Supervisor of Robinson Township, Township of Nockamixon, Bucks County, Pennsylvania, Township of South Fayette, Allegheny County, Pennsylvania, Peters Township, Washington County, Pennsylvania, David M. Ball, Individually and in his Official Capacity as Councilman of Peters Township, Township of Cecil, Washington County, Pennsylvania, Mount Pleasant Township, Washington County, Pennsylvania, Borough of Yardley, Bucks County, Pennsylvania, Delaware Riverkeeper Network, Maya Van Rossum, the Delaware Riverkeeper, Mehernosh Khan, M.D., Petitioners
v.
Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission, Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission, Office of the Attorney General of Pennsylvania, Linda L. Kelly, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania, Pennsylvania Department of Environmental Protection and Michael L. Krancer, in his Official Capacity as Secretary of the Department of Environmental Protection, Respondents

Argued May 14, 2014.

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[Copyrighted Material Omitted]

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Court of ORIGINAL JURISDICTION.

Jonathan M. Kamin, Pittsburgh, John M. Smith, Canonsburg, and Jordan B. Yeager, Doylestown, for petitioners.

David R. Overstreet, Pittsburgh, for amici curiae Penneco Oil Company, Inc., Chesapeake Appalachia, LLC, MarkWest Liberty Midstream & Resources, LLC, The Pennsylvania Independent Oil and Gas Association, The Marcellus Shale Coalition, and American Petroleum Institute.

Jarad W. Handelman, First Executive Deputy General Counsel, Dennis A. Whitaker, Chief Counsel, Harrisburg, for respondents the Pennsylvania Department of Environmental Protection and Secretary E. Christopher Abruzzo.

Matthew H. Haverstick, Philadelphia, for respondents the Pennsylvania Public Utility Commission and Chairman Robert F. Powelson.

Howard G. Hopkirk, Senior Deputy Attorney General, for respondents Commonwealth of Pennsylvania, Office of Attorney General and Linda L. Kelly.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge. HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI. Judge Leavitt did not participate in the decision in this case. DISSENTING OPINION BY JUDGE BROBSON. CONCURRING/DISSENTING OPINION BY JUDGE McCULLOUGH.

OPINION

Page 1108

DAN PELLEGRINI, President Judge

This matter is presently before us on remand from a Supreme Court " mandate" directing us to consider the constitutionality of certain provisions of Act 13[1] to address several claims that we did not address because we incorrectly found that the person(s) asserting the right did not have standing or that the claim could not be brought in a petition for review in our original jurisdiction. See Robinson Township v. Commonwealth, 83 A.3d 901, 999-1000 (Pa. 2013) ( Robinson Township II ).[2] While the Supreme Court affirmed our holding that 58 Pa. C.S. § § 3215(b)(4)

Page 1109

and 3304 were unconstitutional (on different grounds), remand was necessary because the Court reversed our dismissal of claims brought under Article 1, Section 27 of the Pennsylvania Constitution[3] by finding that 58 Pa. C.S. § § 3215(d) and 3303[4] were also unconstitutional under that provision and enjoined their enforcement. As a result, our Supreme Court further directed us to address whether any of the relevant provisions of Act 13 are severable.

To comply with the Supreme Court " mandate," the parties have agreed that only the following issues need to be addressed:

o Whether notice to only public drinking water systems following a spill resulting from drilling operations,[5] but not private water suppliers, is unconstitutional because it is a special law and/or violates equal protection; [6]

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o Whether those provisions of Act 13 prohibiting health professionals from disclosing to others the identity and amount of hydraulic fracturing additives received from the drilling companies impedes their ability to diagnose and treat patients,[7] is unconstitutional because it is a special law and/or violates equal protection and violates the single subject rule; [8]
o Whether conferring the power of eminent domain upon a corporation empowered to transport, sell, or store natural gas[9] in this Commonwealth to take the property of others for its operations is unconstitutional because it permits a taking for private purpose; [10] and
o Whether 58 Pa. C.S. § § 3302 and 3305 to 3309, which authorizes the Public Utility Commission (PUC) to review local zoning ordinances and to withhold impact fees from local governments, are severable from the enjoined provisions of Act 13.

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I.

As noted above, 58 Pa. C.S. § 3218.1 states that " [u]pon receiving notification of a spill, [DEP] shall, after investigating the incident, notify any public drinking water facility that could be affected by the event that the event occurred. The notification shall contain a brief description of the event and any expected impact on water quality." In Count IV of their Petition for Review, Petitioners[11] argue that this is a special law and violates equal protection because it only requires notice to public water supply owners and leaves private well owners and other drinking water sources completely in the dark and unaware of the harm to the water supply in the event of an oil or gas drilling-related spill. They argue that private well owners have a greater need for notification under Act 13 because the majority of gas drilling occurs in rural areas; that there is a greater reliance on private water sources by residents and businesses in such rural areas; and that the dangers posed by drilling are increased because private wells are not subject to the routine testing and monitoring of public water systems. Petitioners claim that there is no justification for treating private wells differently than public water sources for the purposes of notification under Act 13.

As the Supreme Court explained in Robinson Township II :

First adopted in the Pennsylvania Constitution of 1874, Section 32 of Article III was intended to end " the flood of privileged legislation for particular localities and for private purposes which was common in 1873." Over time, Section 32--akin to the equal protection clause of the Fourteenth Amendment--has been recognized as implicating the principle " that like persons in like circumstances should be treated similarly by the sovereign."
This Court does not apply Section 32 to divest the General Assembly of its general authority either to identify classes of persons and the different needs of a class, or to provide for differential treatment of persons with different needs. Our constitutionally mandated concerns are to ensure that the challenged legislation promotes a legitimate state interest, and that a classification is reasonable rather than arbitrary and " rest[s] upon some ground of difference, which justifies the classification and has a fair and substantial relationship to the object of the legislation." A legislative classification must be based on " real distinctions in the subjects classified and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition." In its review, a court may hypothesize regarding the reasons why the General Assembly created the classifications. Alternately, a court may deem a statute or provision per se unconstitutional " if, under the classification, the class consists of one member and is closed or substantially closed to future membership."

83 A.3d at 987-88 (citations omitted).

While Act 13 does not define " public drinking water facility," Section 3 of the Pennsylvania Safe Drinking Water Act, Act of May 1, 1984, P.L. 206, 35 P.S. § 721.3, defines " public water system" as " [a] system for the provision to the public of water for human consumption which has at least 15 service connections or regularly serves an average of at least 25 individuals

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daily at least 60 days out of the year...." [12][13] In addition, Section 1 of the Water Rights Act, Act of June 24, 1939, P.L. 842, 32 P.S. § 631, defines " public water supply agency" as " any corporation or any municipal or quasi-municipal corporation, district, or authority, now existing or hereafter incorporated under the laws of the Commonwealth ... and vested with the power, authority, right, or franchise to supply water to the public in all or part of any municipal or political subdivision of the Commonwealth...." 58 Pa. C.S. § 3218.1 promotes the Commonwealth's legitimate interest in protecting the public water supply by ensuring that any public drinking water facilities that could be affected by a spill or contamination are notified of the event and any expected impact on water quality.[14]

While we acknowledge that the majority of gas drilling occurs in rural areas, that there is a greater reliance on private water suppliers in such areas, and that private wells are not subject to the routine testing and monitoring of public water systems, there are valid reasons for limiting notice to public water suppliers and distinguishing between such public water facilities providing potable water and private water suppliers under 58 Pa. C.S. § 3218.1. Private water supplies are not regulated by the DEP[15] and have been omitted and

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are specifically exempt from many statutes such as the Safe Drinking Water Act, the Water Rights Act, and the relevant DEP regulations.[16]

Given that the DEP doesn't regulate private water sources and that they have historically been omitted from statutes regulating the public potable water supply and notice regarding potentially hazardous conditions that may exist in the public water supply, the General Assembly's distinction between private water supplies and public drinking water facilities in 58 Pa. C.S. § 3218.1 is a reasonable classification related to the legitimate state interest promoted by that section.[17] As noted by

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the Commonwealth, while private water supplies can be easily substituted, such as that provided to both public and private water sources in 58 Pa. C.S. § 3218(a), public water supplies cannot be quickly remedied or replaced due to the expansive nature of the system. Given the breadth of the trigger for the DEP's notice obligation under 58 Pa. C.S. § 3218.1, covering any spill at any location near or far from a well, and DEP's lack of information on private well location or ownership, it is not feasible to require DEP to identify private wells that may be potentially affected by a spill and it is impossible for DEP to provide notice to these unknown private well owners. These are valid distinctions supporting disparate treatment under 58 Pa. C.S. § 3218.1 and Petitioners' claim to the contrary is without merit. Failing to recognize this distinction may also have the unintended consequence of applying many standards applicable to public water suppliers to well owners.

Accordingly, even though we dismiss Count IV of the petition for review, that does not mean that in the event of a spill that either the DEP or the drilling company should not or will not use its best efforts to notify the affected community, even though it is not required to do so. Just as there is no affirmative requirement to notify individuals of an oncoming flood or fire, public entities as of course notify those in the path of danger. Even though it is not required to do so, in the event of a spill, the DEP will, in all likelihood, canvas the areas to identify individuals served by private wells and notify them of the spill and aid them in getting alternative water supplies to protect the public which it is charged to protect. Likewise, drilling companies should make similar undertakings as good corporate citizens, not to mention that it is their actions that necessitate the warning.

II.

In Count V of the petition for review, Petitioners allege that 58 Pa. C.S. § 3241(a) violates Article 1, Section 10 of the Pennsylvania Constitution and the Fifth Amendment to the United States Constitution because it permits a corporation to appropriate an interest in property in a storage reservoir or reservoir protective area by eminent domain for the non-public purpose of injecting, storing and removing natural gas.[18] Petitioners argue that Section 204(a) of the Eminent Domain Code also prohibits " the exercise by any condemnor of the power of eminent domain to take private property in order to use it for private enterprise...." 26 Pa. C.S. § 204(a).

However, 58 Pa. C.S. § 3241(a) only vests this eminent domain power in " a corporation empowered to transport, sell or store natural gas in this Commonwealth...." Section 102 of the Public Utility Code defines a " public utility" as " [a]ny person or corporations now or hereafter owning or operating ... equipment or facilities for ... [p]roducing, generating, transmitting, distributing or furnishing natural or artificial gas ... for the production of light, heat, or power to or for the public for compensation," or " [t]ransporting or conveying natural or artificial gas ... by pipeline or conduit, for the public

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for compensation." 66 Pa. C.S. § 102. Section 1103 of the Business Corporation Law of 1988 (Corporation Law) also defines " public utility corporation" as " [a]ny domestic or foreign corporation for profit that ... is subject to regulation as a public utility by the [PUC]...." 15 Pa. C.S. § 1103.[19]

In addition, Section 1511 of the Corporation Law states, in pertinent part:

(a) General rule

A public utility corporation shall, in addition to any other power of eminent domain conferred by any other statute, have the right to take, occupy and condemn property for one or more of the following principal purposes and ancillary purposes reasonably necessary or appropriate for the accomplishment of the principal purposes:

* * *
(2) The transportation of artificial or natural gas ... for the public.
(3) The production, generation, manufacture, transmission, storage, distribution or furnishing of natural or artificial gas ... to or for the public.

15 Pa. C.S. § 1511(a)(2), (3). As a result, like 58 Pa. C.S. § 3241(a), 15 Pa. C.S. § 1511(a)(2) and (3) also confers upon a public utility the power of eminent domain to acquire property for the transportation, storage, transmission, distribution or furnishing of natural gas to or for the public.

Contrary to Petitioners' assertion, 58 Pa. C.S. § 3241(a) only confers upon a public utility possessing a certificate of public convenience the power to condemn property for the injection, storage and removal of natural gas for later public use. In fact, the prohibition in 26 Pa. C.S. § 204(a) does not apply if " [t]he property is taken by, to the extent the party has the power of eminent domain, ... a public utility. 26 Pa. C.S. § 204(b)(2)(i). Accordingly, we dismiss Count V of the petition for review.

III.

A.

Petitioners allege that 58 Pa. C.S. § 3222.1(b)(10) and (11) is a special law that violates Article 3, Section 32 of the Pennsylvania Constitution because it restricts Mehernosh Khan, M.D.'s (Dr. Khan) ability to disclose critical diagnostic information when dealing with the gas industry's confidential and proprietary information. They contend that those provisions grant the oil and gas industry special treatment concerning a physician's access to proprietary or trade secret information regarding hydro fracturing chemicals and that those provisions serve " no legitimate state interest," [20] and Petitioners point out

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that, generally, other industries must disclose chemicals.[21] Without sharing that information, Petitioners contend that Dr. Khan cannot make an informed diagnosis of a patient.

However, the foregoing provisions create a uniform set of state-wide rules that are equally applicable to members of the oil and gas industry and to all physicians concerning the industry's obligation to disclose chemical information to physicians for the purposes of medical treatment.[22] They do not single out a particular member of either group for special treatment, and they reflect the balance struck by the General Assembly between the need to disclose confidential and proprietary information for medical treatment, the public's interest in protecting these trade secrets, and the industry's interest in protecting its proprietary information.

The Act 13 disclosure requirements do require that operators give to the DEP " completion reports" which are filed with the DEP within 30 days after a well is properly equipped for production of oil and gas. See 58 Pa. C.S. § § 3222(b), (b.1), and 3203 (containing, among other things, a descriptive list of chemical additives intentionally added to fracturing fluid, and their maximum concentration as a percent of mass to the total volume of base fluid, which is typically water but can be unavailable due to trade secret protection for portions of the information provided to DEP. The operators, service companies, or vendors[23] must disclose chemical additives used to fracture unconventional wells to

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the public within 60 days of completion of the well via a public searchable database). See 58 Pa. C.S. § 3222.1(d); http://fracfocus.org/. Where a trade secret is claimed, operators must nevertheless disclose the chemical family or similar description of the chemical. See 58 Pa. C.S. § § 3222(b)(3) and (4). That the provisions create a set of disclosure rules different from the norm for other industrial chemical users under OSHA does not mean that Act 13 constitutes a special law.[24]

Moreover, while 58 Pa. C.S. § 3222.1(b)(10) and (11) refer to a written or oral " confidentiality agreement," there is no indication in the statute that such agreement precludes a physician from sharing the disclosed confidential and proprietary information with another physician for purposes of diagnosis or treatment or from including such information in a patient's medical records. 58 Pa. C.S. § 3222.1(b)(11) merely provides " that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential." Nothing precludes a physician from including the information in patient records, medical treatment or evaluations, including evaluations based on trade secrets that physicians are required to keep. See 49 Pa. Code § 16.95. Moreover, nothing in Act 13 precludes a physician from sharing with other medical providers any trade secrets that are necessary for the diagnosis or treatment of an individual. Information regarding a patient's treatment and his or her medical records are generally confidential and information obtained thereby or contained therein is generally not subject to release without the patient's consent.[25]

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B.

In Count XII of the petition for review, Petitioners allege that 58 Pa. C.S. § 3222.1(b)(11) violates the single subject requirement of Article 3, Section 3 of the Pennsylvania Constitution. Petitioners contend that because health professionals are regulated under Title 35 of the Pennsylvania Consolidated Statutes, and because 58 Pa. C.S. § 3222.1(b)(11) provides statutory restrictions on health professionals that are not within the oil and gas industry regulated by Title 58, the foregoing provision violates the single-subject requirement of Article 3, Section 3.

Article 3, Section 3 requires that a bill may only contain one subject, which must be clearly expressed in its title. As the Supreme Court has explained:

In practice, Section 3's dual requirements--clear expression and single subject--are interrelated, as they both act to proscribe inserting measures into bills without providing fair notice to the public and to legislators of the existence of the same. On the other hand, bills are frequently amended as they pass through the Legislature, and not all additions of new material are improper. Rather, the strictures of Article III, Section 3 are often satisfied where the provisions added during the legislative process assist in carrying out a bill's main objective or are otherwise " germane" to the bill's subject as reflected in its title.

City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 586-87 (Pa. 2003) (citations omitted). " We believe that exercising deference by hypothesizing reasonably broad topics ... is appropriate to some degree, because it helps ensure that Article III does not become a license for the judiciary to 'exercise a pedantic tyranny' over the efforts of the Legislature." Id. at 588 (citation omitted).

Contrary to Petitioners' assertion, all of the provisions of 58 Pa. C.S. § 3222.1 relate to the trade secrets and confidential proprietary information regarding the chemicals used in the hydraulic fracturing of unconventional wells and under what limited circumstances this information must be reported and released. 58 Pa. C.S. § 3222.1(b)(11) requires oil and gas companies to disclose this confidential information when a health professional requests the information because it is necessary to provide emergency medical treatment to a patient and the professional agrees to only use the information for treatment purposes and to keep it otherwise confidential. 58 Pa. C.S. § 3222.1(b)(11) is merely one small part of the larger scheme of 58 Pa. C.S. § 3222.1, under which this information related to the oil and gas industry must be

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disclosed to a variety of other entities by those participating in the hydraulic fracturing of unconventional wells. The disclosure provisions of 58 Pa. C.S. § 3222.1(b)(11) are germane to the main objective of Act 13, i.e., regulation of the oil and gas industry, and Petitioners' allegation in this regard is patently without merit. See, e.g., Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383, 396 (Pa. 2005) (" In contrast to City of Philadelphia, in the matter sub judice, there is a single unifying subject--the regulation of gaming. The single topic of gaming does not encompass the limitless number of subjects which could be encompassed under the heading of " municipalities" [as in City of Philadelphia ]. Specifically, HB 2330 sets forth the legislative intent of regulating gaming, creates the Gaming Control Board, establishes policies and procedures for gaming licenses for the installation and operation of slot machines, enacts provisions to assist Pennsylvania's horse racing industry through other gaming, and provides for administration and enforcement of the gaming law, including measures to insure the integrity of the operation of slot machines." ). Accordingly, we again dismiss Counts XI and XII of the petition for review.

IV.

Finally, because our Supreme Court found that 58 Pa. C.S. § § 3215(b)(4) and (d), 3303 and 3304 are unconstitutional, the matter was remanded to us to determine what other parts of Act 13 are properly enjoined " upon application of severability principles." Robinson Township II, 83 A.3d at 999. The parties have agreed that the only provisions that may be declared unenforceable under the Supreme Court's decision are 58 Pa. C.S. § § 3302, and 3305 to 3309, all of which give the PUC and this Court jurisdiction to review the provisions of local ordinances to determine whether they comply with Act 13 and, if not, to withhold impact fees imposed for the benefit to alleviate the " impacts" caused by the gas drillers and operators or to impose attorney fees and costs.

Generally, the doctrine of severability requires that upon finding an application or textual component of a statute to be unconstitutional, a court may, in appropriate circumstances, excise the unconstitutional part rather than declare the entire statute invalid. Section 1925 of the Statutory Construction Act provides the standard which a court is to use when determining whether provisions of a statute are severable, stating in relevant part:

The provisions of every statute shall be severable. If any provision of any statute ... is held invalid, the remainder of the statute ... shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision ... that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

1 Pa. C.S. § 1925. As this Court has explained, " [i]n general, a statute ... may be partially valid and partially invalid, and if the provisions are distinct and not so interwoven as to be inseparable, the courts should sustain the valid portions. In determining the severability of a statute ... the legislative intent is of primary significance. The legislating body must have intended that the act ... be separable, and the statute ... must be capable of separation in fact. Thus, the valid portion of the

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enactment must be independent and complete within itself." Pennsylvania Independent Waste Haulers Association v. Township of Lower Merion, 872 A.2d 224, 228 n.16 (Pa. Cmwlth. 2005) (citing Saulsbury v. Bethlehem Steel Company, 413 Pa. 316, 196 A.2d 664, 667, 55 Mun. L Rep. 231 (Pa. 1964)).

In this case, there are two severability analyses to perform: one is regarding the continued viability of 58 Pa. C.S. § 3302, which is a substantive provision dealing with preemption of the MPC and Flood Plain Management Act; and the second is the continued viability of 58 Pa. C.S. § § 3305 through 3309, which vests in the PUC and this Court jurisdiction over the determination of whether local ordinances violate Act 13 and the power to impose sanctions.

A.

58 Pa. C.S. § 3302 provides in pertinent part, that " [n]o local ordinance adopted pursuant to the MPC or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32. The Commonwealth, by this section, preempts and supersedes the regulation of oil and gas operations as provided in this chapter." (Emphasis added).

Our Supreme Court struck as unconstitutional the only operative provisions in Chapter 33 relating to the regulation of oil and gas operations, in particular, 58 Pa. C.S. § § 3303 and 3304, because those provisions " are incompatible with the Commonwealth's duty as trustee of Pennsylvania's public natural resources [under Article 1, Section 27 of the Pennsylvania Constitution]." Robinson Township II, 83 A.3d at 985. Although a more accurate description is that the final sentence of 58 Pa. C.S. § 3302 is necessarily declared unconstitutional, once our Supreme Court declared the only substantive provisions of " this chapter" to be unconstitutional, i.e., 58 Pa. C.S. § § 3303 and 3304, the Court's declaration also means that this language is necessarily incapable of execution and is severed from the remaining valid provisions of 58 Pa. C.S. § 3302 regarding Chapter 32's regulation of oil and gas operations.

B.

Regarding the severability of 58 Pa. C.S. § § 3305 through 3309, we must determine whether those provisions are so dependent on and interdependent with the unconstitutional provisions that it cannot be presumed that the General Assembly would give the PUC jurisdiction to review the validity of local ordinances. In order to make that determination, it is necessary to look at the changes implemented by Chapter 33 from the relevant provisions of the Oil and Gas Act of 1984.

Section 602 of the former Oil and Gas Act, which was replaced by Act 13, prohibited municipalities from regulating " how" oil and gas operations " operate" because that was to be only regulated by the state, but allowed municipalities to use their zoning powers to regulate " where" oil and gas development activities could take place which is necessary to a rational zoning plan and ordinance. Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (Pa. 2009). Also, generally applicable local ordinances, like those implementing the Storm Water Management Act,[26] were not prohibited and could be applied to oil and gas operations to prevent harm to adjoining property

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owners and the public at large. Range Resources-Appalachia, LLC v. Salem Township, 600 Pa. 231, 964 A.2d 869 (Pa. 2009).[27]

Apparently acceding to the oil and gas industry's claims that local ordinances tailored to local conditions were purportedly impeding their oil and gas development and that a uniform law was necessary, the General Assembly enacted Act 13 which contained a number of provisions requiring local governments to enact uniform zoning provisions and preempted them from enacting any other laws that dealt directly with oil and gas operations. For example, generally applicable local ordinances such as those dealing with storm water runoff were prohibited. To make those uniform provisions uniformly enforced, the General Assembly allows a municipality or the oil and gas industry to go directly to the PUC rather than the common pleas courts to determine whether a municipality's ordinance violated the new regulatory scheme set forth in Act 13.

58 Pa. C.S. § § 3305(a)(1) provides that " [a] municipality may, prior to the enactment of a local ordinance[28]... request the [PUC] to review a proposed local ordinance to issue an opinion on whether it violates the MPC, this chapter or Chapter 32 (relating to development)." Correspondingly, 58 Pa. C.S. § 3305(b)(1) provides that an owner or operator of an oil or gas operation or a municipal resident " who is aggrieved by the enactment or enforcement of a local ordinance may request the [PUC] to review the local ordinance of that local government to determine whether it violates the MPC, this chapter, or Chapter 32," and the PUC's order may be appealed for de novo review by this Court under subsection (b)(4). Likewise, 58 Pa. C.S. § 3306 provides that any person aggrieved " by the enactment or enforcement of a local ordinance that violates the MPC, this chapter or Chapter 32 (relating to development)" may bring an action in this Court " to invalidate the ordinance or enjoin its enforcement" whether or not initial review by the PUC was sought.

As to whether the procedural provisions giving the PUC jurisdiction over challenges to local ordinances and impact fees, our Supreme Court has already determined that 58 Pa. C.S. § § 3305 through 3309 are not severable to the extent that they implement or enforce the invalid Sections of Act 13, namely, 58 Pa. C.S. § § 3303 and 3304. See Robinson Township II, 83 A.3d at 994, 998, 1000. Because we have held that 58 Pa. C.S. § 3302 is not enforceable to the extent that it implements 58 Pa. C.S. § § 3303 and 3304, and our Supreme Court has found that those provisions are not severable to the extent they implement 58 Pa.C.S. § § 3303 and 3304, the question is whether the PUC's jurisdiction is so hollowed out that its remaining jurisdiction to consider whether a local

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ordinance violates Chapter 32 is non-severable.

In enacting Act 13, the General Assembly implemented a statutory scheme that was intended to have uniform regulations with uniform methods of determining whether a local ordinance violates any of the provisions of the Act with uniform consequences if a municipality failed to comply. The effect of our Supreme Court's mandate declaring all the substantive provisions contained in Chapter 33 to be unconstitutional and unenforceable, and our holding that the portions of 58 Pa. C.S. § 3302 purporting to enforce Chapter 33 is likewise unenforceable, is that the statutory scheme cannot be implemented. Local zoning matters will now be determined by the procedures set forth under the MPC and challenges to local ordinances that carry out a municipality's constitutional environmental obligations. Because challenges to those ordinances must be brought in common pleas court, it would further frustrate the purpose of the Act in having a uniform procedure. Accordingly, 58 Pa. C.S. § § 3305 and 3306 are not severable.

Moreover, weighing against finding those provisions severable is that 58 Pa. C.S. § 3307 (relating to the award of attorney fees and costs in actions brought under 58 Pa. C.S. § 3306), 58 Pa. C.S. § 3308 (relating to the withholding of impact fees for municipalities enacting or enforcing local ordinances that violate the MPC or Chapters 32 or 33), and 58 Pa. C.S. § 3309(a) (relating to the applicability of Chapter 33) are also not severable. The General Assembly intended to apply sanctions for violations of Chapter 33 as well as Chapter 32. Again, that overall uniform scheme is no longer capable of execution as intended by the General Assembly. For that reason and because they are dependent upon 58 Pa. C.S. § § 3305 and 3306, they are likewise not severable. See Robinson Township II, 83 A.3d at 999 (" Moreover, insofar as Section 3215(c) and (e) are part of the Section 3215(b) decisional process, these provisions as well are incomplete and incapable of execution in accordance with legislative intent. Application of Section 3215(c) and (e) is, therefore, also enjoined." ).[29]

Based on the foregoing, we dismiss Counts IV, V, XI and XII of the petition for review and enjoin the application and enforcement of 58 Pa. C.S. § 3302 as it relates to Chapter 33 of Act 13, and 58 Pa. C.S. § § 3305, 3306, 3307, 3308 and 3309(a) in their entirety.

Judge Leavitt did not participate in the decision of this case.

ORDER

AND NOW, this 17th day of July, 2014, Counts IV, V, XI and XII of Petitioners' petition for review are dismissed, and the application and enforcement of 58 Pa. C.S. § 3302 as it relates to Chapter 33 of Act 13, and 58 Pa. C.S. § § 3305, 3306, 3307,

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3308 and 3309(a) in their entirety are hereby enjoined.

CONCUR BY: PATRICIA A. McCULLOUGH

DISSENTING OPINION

P. KEVIN BROBSON, Judge

I join in parts I through III of the majority opinion. I respectfully disagree, however, with the majority's conclusion in Part IV.B and the related provisions in its order enjoining application and enforcement of Sections 3305 through 3309 of what is commonly referred to as Act 13, 58 Pa. C.S. § § 3305-3309, in their entirety.

If I read the majority's analysis in Part IV.A of its opinion correctly, the majority holds that Section 3302 of Act 13, 58 Pa. C.S. § 3302, with the exception of the last sentence in that section, is constitutional and, therefore, remains enforceable as to Chapter 32 of Act 13. This operative statutory language, preserved by the majority's opinion and order, provides:

Except with respect to local ordinances adopted pursuant to the MPC and the act of October 4, 1978 (P.L. 851, No. 166), known as the Flood Plain Management Act, all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development) are hereby superseded. No local ordinance adopted pursuant to the MPC or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32.

58 Pa. C.S. § 3302. By enacting this statutory language, along with Chapter 32 of Act 13, the General Assembly has preempted the field of regulating the " how" of oil and gas operations within the Commonwealth.[1] See Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 862-63 (Pa. 2009).

Notwithstanding its holding that Section 3302 as it relates to Chapter 32 remains effective and enforceable, the majority holds that the legislatively created procedures and remedies in Sections 3305 through 3309 of Act 13, 58 Pa. C.S. § § 3305-3309, for review of and/or to challenge local ordinances that violate, inter alia, Section 3302 and, by extension Chapter 32 of Act 13, are unenforceable in toto . ( See Maj. Op. at 25-27.) The majority reasons that the General Assembly's decision to enact these procedures was built upon the continued constitutionality and thus enforceability of Chapter 33. With the Supreme Court's mandate in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) ( Robinson Twp. I ), declaring all substantive provisions contained in Chapter 33 of Act 13 unconstitutional and thus unenforceable, the majority concludes that the continued availability of the procedures and remedies for redress of ordinances that violate Chapter 32 would no longer be consistent with the General Assembly's intent when it enacted those procedures and remedies. Accordingly,

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the majority concludes that the procedures and remedies in Sections 3305 through 3309 are not severable from the unconstitutional Sections 3303 and 3304 of Act 13 and, therefore, are no longer available remedies for violations of Section 3302. I respectfully disagree.

As the majority points out, Section 1925 of the Statutory Construction Act of 1972, regarding severability, provides:

The provisions of every statute shall be severable . If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

1 Pa. C.S. § 1925 (emphasis added). In Robinson Twp. I, the Pennsylvania Supreme Court noted that this section creates a presumption of severability. Robinson Twp. I, 83 A.3d at 998. Unlike the majority, I do not perceive sufficient evidence of legislative intent within the express statutory language to override the presumption that Sections 3305 through 3309 are severable from invalid Sections 3303 and 3304. To the contrary, the language that the General Assembly chose in Sections 3305 through 3309 supports the presumption.

The remedial provisions in Sections 3305 through 3309 of Act 13 are available in three distinct situations. The first is where a local ordinance may violate the Municipalities Planning Code.[2] The second is where a local ordinance may violate Chapter 33, which includes the severed Sections 3303 and 3304 as well as the remaining portion of Section 3302 of Act 13. And the third is where a local ordinance may violate Chapter 32 of Act 13. See Sections 3305(a)(1), (b)(1); 3306(1); 3308. Accordingly, the General Assembly decided that the procedures and remedies in Sections 3305 through 3309 would be available in each of three distinct circumstances. Unlike the majority, I am hard-pressed to conclude from the statutory language an intent by the General Assembly that links the availability of these remedial provisions in toto to the validity of two sections within Chapter 33 of Act 13-- i.e., a subset of only one of the three situations where the procedures and remedies are expressly available. I simply do not find sufficient evidence within this language to override the presumption of severability.

Unlike the majority, because the provisions in Act 13 that preempt the field with respect to the " how" of oil and gas operations remain effective, including the portion of Section 3302 that prohibits municipalities from entering into this field though local legislation, Sections 3305 through 3309 of Act 13 still have efficacy and are severable from the unconstitutional provisions of Act 13.

CONCURRING/DISSENTING OPINION

PATRICIA A. McCULLOUGH, Judge

Respectfully, I concur in part and dissent in part. I agree with the Majority's decision to dismiss Count V and Count XII of Petitioners' petition for review.

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However, I disagree with the Majority's dismissal of Count IV of the petition for review, insofar as it pertains to Petitioners' equal protection challenge to the notice requirements of 58 Pa.C.S. § 3218.1. Pursuant to this statutory proviso, the Department of Environmental Protection (DEP), upon receiving notice of a spill, must notify " public drinking water facilities" of the spill and the expected impact on water quality. Id. However, 58 Pa.C.S. § 3218.1 does not require that similar notice be provided to private well owners. At this stage of the proceedings, I cannot conclude that the statute's differentiation between public and private water suppliers bears a rational relationship to a legitimate governmental interest.

Even the Majority concedes " that the majority of gas drilling occurs in rural areas, that there is a greater reliance on private water suppliers in such areas, and that private wells are not subject to routine testing and monitoring of public water systems." (Maj. slip. op. at 8.) Nonetheless, the Majority upholds the classification predominately on the ground that " DEP doesn't regulate private water sources," " it is not feasible to require DEP to identify private wells that may be potentially affected by a spill," and " it is impossible for DEP to provide notice to these unknown private well owners." (Maj. slip op. at 10-11.)

In my view, the reach of DEP's current regulatory scheme is insufficient to validate the difference in treatment between public and private water facilities. Just because an agency has not handled certain matters in the past does not give the General Assembly a license to draw classifications along those lines. Equally important, and as noted by the Majority, (Maj. slip op. at 9 n.15), 32 P.S. § 645.10(a), which has been in effect since 1956, mandates that the Department of Conservation and Natural Resources maintain records setting forth the location of private wells. Consequently, it appears that DEP would be able to obtain this information through inter-agency cooperation.

The Majority anticipates that " [e]ven though [DEP] is not required to do so, in the event of a spill, DEP will, in all likelihood, canvas the area to identify individuals served by private wells and notify them of the spill." (Maj. slip op at 11). While I do not doubt DEP's goodwill, the Majority declines to impose an affirmative legal duty on DEP to provide notice to private well owners. Accordingly, I would conclude that Petitioners stated a viable claim in Count IV.

I also disagree with the Majority's dismissal of Count XI of Mehernosh Khan, M.D.'s claim to the extent that it pleads an equal protection challenge to the disclosure of confidential information under 58 Pa.C.S. § § 3222.1(b)(10) and (11).

Pursuant to 58 Pa.C.S. § § 3222.1(b)(10) and (11), a " health professional" may obtain the identity and composition of chemicals used by the oil and gas industry to diagnose and treat an individual who may have been " exposed to a hazardous chemical" or in the case of an immediate " medical emergency." Id. However, when the chemicals or compounds are claimed to be a trade secret or confidential proprietary information, the health professional must sign a confidentiality agreement. Id. While the range and precise language of the confidentiality agreement is not known, it is a fair inference that a health professional will be unable to share the information in the peer-review setting, publish the clinical findings and proposed treatment plans in medical journals, or coordinate the outcome and treatment plans with other hospitals who later experience the same or a similar case.

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Given these apparent restrictions in the confidentiality agreement, I would conclude that it is not clear and free from doubt that the statutory scheme furthers a legitimate interest because the statute has the effect of severely curtailing the medical community's ability to share and discuss solutions concerning chemical toxicity cases and symptomatic presentations that they may never have encountered. At the very least, the confidentiality agreement should allow open and frank communication throughout the medical community. Accordingly, I would conclude that Dr. Kahn stated a viable equal protection challenge to 58 Pa.C.S. § § 3222.1(b)(10) and (11).

Finally, I would clarify the impact of the Majority's holding as to the non-severable provisions of Act 13, and the enjoinder or enforcement thereof. The legislative intent expressed in enacting Act 13 is in furtherance of the legislative policy recognized in Huntley & Huntley, Inc. v. Borough Council of Oakmont, 600 Pa. 207, 964 A.2d 855 (Pa. 2009), that local municipalities may regulate " where" the oil and gas industry may operate but not " how."

As the Majority and our Supreme Court have stated, 58 Pa.C.S. § 3302, a replicate of section 602 of the Oil and Gas Act,[1] 58 P.S. § 601.602, is not severable from the provisions of Act 13 declared to be unconstitutional, namely, 58 Pa.C.S. § § 3303 and 3304, to the limited extent that 58 Pa.C.S. § 3302 is applied to preempt local municipalities from regulating " where" the oil and gas industry may operate. I would further conclude that 58 Pa.C.S. § 3302 retains application separate and apart from these unconstitutional provisions and is severable insofar as it is consistent with the objectives enunciated in Huntley & Huntley, Inc . and does not regulate " where" the operation is located but only " how" or in what manner it is operated, i.e., 58 Pa.C.S. § § 3201-3215(a), 3216-3274 or " Chapter 32 of Act 13." See Huntley & Huntley, Inc., 964 A.2d at 864; see also Department of Education v. The First School, 471 Pa. 471, 370 A.2d 702 (Pa. 1977) (concluding that a statute was severable and effectual in application where it was unconstitutional as applied to sectarian nonpublic schools, but constitutional as applied to nonsectarian nonpublic schools). The same can be said of 58 Pa.C.S. § § 3305-3309 insofar as these provisions pertain and apply to the operational dictates of 58 Pa.C.S. § § 3201-3215(a), 3216-3274. I understand the Majority opinion to be consistent with these observations, ( see Maj. slip op. at 22, 25), and to the extent that it is, I would agree. Therefore, 58 Pa.C.S. § § 3305-3309 should be severable in this regard also, and I would conclude that 58 Pa.C.S. § § 3302, 3305-3309 are severable and maintain independent legal validity when applied to the statutory sections of Chapter 32 of Act 13.

Moreover, the Majority concludes that Petitioners failed to state cognizable claims challenging the constitutionality of 58 Pa.C.S. § § 3218.1, 3241(a), and 3222.1(b)(10), (11). In effect, then, these provisions remain constitutional and operative.

In light of the above, and in the proper exercise of judicial restraint given the statutory scheme that is yet remaining, I would conclude that Act 13 is a sustainable piece of legislation to the extent of the noted surviving provisions. The Majority neither declares all of Act 13 to be non-severable nor enjoins the enforcement of Act 13 in its entirety. Although not referenced by the Majority, 45 P.L.E. statutes § 180 provides that " [t]he invalidity of a repealing law results in the prior law remaining in effect." Here, Act 13 repealed

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the Oil and Gas Act. Since the Majority has not declared the entirety of Act 13 invalid or non-severable, the principle espoused in 45 P.L.E. statutes § 180 should not apply. The question then remains as to the viability of the Oil and Gas Act, which was repealed by Act 13. Because Act 13 has not been declared unconstitutional in its entirety, the prior Oil and Gas Act is still repealed by it. Cf. Mitchell's Bar & Rest., Inc. v. Allegheny County, 924 A.2d 730, 736 (Pa. Cmwlth. 2007). It is, then, appropriately left to the General Assembly's discretion to determine whether to amend, replace, or repeal the remaining portions of Act 13 and revive the Oil and Gas Act.

With these observations being stated, I respectfully concur in part and dissent in part.


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