Search

Stay Informed


SUBSCRIBE

November 30, 2018

Sincerely Held Secular Beliefs Do Not Qualify for Religious Exemption From Flu Shot Policy

The Legal Intelligencer (by Stephen A. Antonelli) It’s that time of year again. The days are getting shorter, the weather is getting colder, and families are starting to think about the menu for their Thanksgiving dinners. And I still haven’t gotten my flu shot. It’s on my to-do list, I promise. It’s not that I don’t like going to the doctor, or that I am particularly afraid of needles, but when it comes to the flu shot, for some reason, I tend to procrastinate. Some employees who work in the health care industry do not have the option of procrastinating when it comes to getting a flu vaccine because their employer requires them to be vaccinated. The Center for Disease Control (CDC), the Advisory Committee on Immunization Practices (ACIP), and the Healthcare Infection Control Practices Advisory Committee (HICPAC) recommend that all U.S. health care workers get vaccinated annually against influenza. This recommendation applies to physicians, nurses, nursing assistants, therapists, technicians, emergency medical service personnel and anyone potentially exposed to infectious agents that can be transmitted to and from health care workers and patients. As a result, many health care employers require their employees to get vaccinated annually. Employers that mandate flu vaccinations should be sure to allow employees to request exemptions to their flu shot policies for medical reasons, including but not limited to, allergies to the vaccine or its components or a history of Guillain-Barré syndrome. Employers should also allow an exemption to employees with sincerely held religious beliefs that conflict with receiving the vaccination. Employers may then require employees who have been granted an exemption to wear a mask when interacting with patients or coworkers. Not surprisingly, mandatory flu vaccinations policies have been the subject of litigation, including several cases filed by the Equal Employment Opportunity Commission  (EEOC). Near the end of 2017, in Fallon…

Paving the Way for Autonomous Vehicles

TriState Infrastructure Summit  On Tuesday, November 27, 2018, 160 industry and public sector representatives attended the 2018 TriState Infrastructure Summit, presented by the TriState Infrastructure Council and its partners, at the Regional Learning Alliance in Cranberry Township, Pa.  The Summit addressed transportation and infrastructure needs in the Ohio River Valley integral to the petrochemical industry and related economic growth in the region. Stan Caldwell, CMU Executive Director of Traffic21 and Mobility21 participated with Justine Kasznica of law firm Babst Calland’s Mobility, Transport and Safety practice on the panel Paving the Way for Autonomous Vehicles hosted by Babst Calland.  The presentation included a discussion about autonomous vehicles in the broader context of infrastructure design and development, and issues related to urban infrastructure and research and advancements in mobility technologies. O. Chris Jackson, Production Unit Manager for Logistics, Shell Polymers, Pennsylvania, was the keynote speaker for the event on Regional Transportation and Infrastructure Considerations for a World Class Petrochemical Complex. For more information, including a complete agenda for the TriState Infrastructure Summit, click here.

Issues Redefine Regulatory Landscape

The American Oil & Gas Reporter (by Jean M. Mosites, Keith J. Coyle and Krista-Ann M. Staley) PITTSBURGH–The Marcellus and Utica shale plays account for some 30 percent of total U.S. natural gas output, compared with only 3 percent a decade ago. The Appalachian Basin’s rapid growth in natural gas and natural gas liquids production has occurred despite relatively low natural gas prices, driven by greater well productivity from improved drilling and completion techniques, including longer laterals and optimized well spacing. Additionally, infrastructure build-out in the region, including the development of significant interstate pipeline projects featuring large-scale transmission of natural gas and NGLs (such as the Rover, Nexus and Mariner East 1 projects), has allowed access to Northeast population centers to increase demand for Appalachian-derived natural gas resources. Continued innovations in the industry, such as improvements to water logistics, likely will be important to reduce operational costs and further improve efficiency to maintain growth. While the industry continues forging ahead in the Marcellus, Utica and conventional Appalachian plays, the legal landscape continues to evolve with everchanging federal and state environmental and safety regulations, along with a variety of local government requirements across the basin. The federal and state courts, legislatures and regulatory agencies continue to address a variety of issues that affect all facets of oil and gas development in the multistate region. These decisions and developments not only affect drilling and production, but also the midstream and transportation infrastructure that is so critical to Appalachian producers’ ability to market their production. This article summarizes developments in the legal and regulatory landscape facing oil and gas producers and midstream operators in the Appalachian Basin. In October 2016, the Marcellus Shale Coalition filed a petition in the Pennsylvania Commonwealth Court challenging seven new provisions in 25 Pa. Code Chapter 78a, a set of…

November 21, 2018

Commonwealth Court upholds ordinance allowing drilling in all zoning districts

The PIOGA Press (by Blaine A. Lucas and Robert Max Junker) On October 26, the Pennsylvania Commonwealth Court published an en banc opinion in Frederick v. Allegheny Township Zoning Hearing Board, et al., No. 2295 C.D. 2015, 2018 WL 5303462 (Pa. Cmwlth. Oct. 26, 2018) rejecting a challenge to the validity of the Allegheny Township, Westmoreland County, zoning ordinance. The court addressed the contention of oil and gas industry opponents that an unconventional natural gas well pad can be permitted only in an industrial zoning district. After reviewing the detailed record developed in the substantive validity challenge decided by the township Zoning Hearing Board and addressing recent Pennsylvania Supreme Court decisions on shale gas drilling, the court in a 5-2 decision rejected this “one size fits all” proposition. It found that state law empowers municipalities to determine where well sites are appropriate and compatible with other land uses within their boundaries. Background In 2010, the township Board of Supervisors enacted a zoning ordinance amendment that allowed oil and gas well operations in all zoning districts as a use permitted “as of right,” provided the applicant satisfied numerous specified standards to protect the public health, safety, and welfare. A use permitted “as of right” requires administrative approval; it does not require public notice or a hearing. In 2014, CNX Gas Company, LLC applied to the township for a zoning permit to develop an unconventional well pad (Porter Pad) in the R-2 Agricultural/Residential Zoning District and submitted all the information required by the 2010 ordinance. Once CNX received the zoning permit, three nearby individuals (the objectors) appealed to the board. They challenged the granting of the permit and raised a substantive validity challenge to the 2010 ordinance. The objectors claimed that based on the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth,…

Water law update: Recent developments expected to affect the natural gas industry

The PIOGA Press (by Lisa M. Bruderly and Gary E. Steinbauer) Recent developments regarding two facets of Clean Water Act (CWA) regulation could affect natural gas pipeline siting/permitting and exploration and production activities in Pennsylvania and elsewhere. The first issue is the ongoing challenge to define “waters of the United States,” with the definition recently changing in Pennsylvania. The second issue is the concept of Clean Water Act liability extending to releases to ground water that eventually make their way to surface water (known as the “conduit” theory of liability). Definition of “water of the United States” It is widely known that in 2015 the Obama administration promulgated a new definition of the term “water of the United States” (WOTUS) in a rule commonly referred to as the Clean Water Rule (CWR). Industry and states promptly filed lawsuits challenging the CWR as an unlawful expansion of the types of waters subject to regulation under the CWA. Among other issues, the expanded definition increased the types of waters that were subject to U.S. Army Corps of Engineers and Environmental Protection Agency (EPA) jurisdiction. With the increased scope of federal jurisdiction, a pipeline project or exploration and production activities could impact a larger quantity of waters that were now considered to be regulated and require more complicated, costly and time-consuming permitting under Section 404 of the CWA. In some instances, a project could not be permitted due to the extent of impacts. Almost immediately after the CWR was issued, lawsuits challenged it. Until 2018, the CWR was stayed (i.e., suspended) throughout the United States based on a nationwide injunction issued by the Sixth Circuit Court of Appeals. The nationwide judicial stay was lifted following a decision by the U.S. Supreme Court on January 22, 2018, which invalidated the Sixth Circuit’s nationwide injunction, holding…

November 19, 2018

Babst Calland Partners with CMU and Industry Leaders to Discuss Mobility Technology

On Friday, November 9, 2018, Babst Calland participated in the Deployment Partner Consortium Symposium at Carnegie Mellon University organized and hosted by Traffic21 Institute and Mobility21 Transportation Center.  The Symposium brought together thought leaders in the mobility and transportation space to identify real-world transportation needs, as well as the policy and research challenges that come with advancing technology. Johanna Jochum, attorney in Babst Calland’s Mobility, Transport and Safety and Emerging Technologies practice groups, spoke on the government panel regarding regulatory challenges at the federal level for autonomous vehicle technology. Ms. Jochum is based in Babst Calland’s Washington, D.C. office, which has direct ties to the federal regulators in transportation. Babst Calland is a new member of Mobility21’s Deployment Partner Consortium, along with other industry and public partners.  Mobility21, the National University Transportation Center for Improving Mobility, aims to research, develop and deploy cutting edge technologies and policies, and develop educational programs to lay the groundwork for next-generation vehicles and mobility services.  Read more about Mobility21 and the Symposium at Mobility21 News. Carnegie Mellon University’s Traffic21 Institute, which is housed in the Heinz College of Information Systems and Public Policy, was founded on the motto of Research, Development and Deployment encouraging researchers to address real-world transportation needs through partnerships. Since 2012, Carnegie Mellon University has maintained the Deployment Partner Consortium, and it continues that tradition with its US DOT funded National University Transportation Center, Mobility21, with the goal of improving the mobility of people and goods. “Carnegie Mellon University has been at the forefront of autonomous vehicle technology for many years and continues its thought leadership through Traffic21, Mobility21 and its smart cities institute, Metro21,” said Alana Fortna, Pittsburgh-based litigation attorney and member of Babst Calland’s Emerging Technologies practice group.  “Carnegie Mellon University has had such a positive…

November 1, 2018

U.S. EPA Seeks Comment on Rollback of New Source Methane Standards

Energy Alert (by Michael H. Winek, Meredith Odato Graham and Gary E. Steinbauer) In 2016, U.S. EPA finalized a rule that established first-time federal standards for methane emissions from new, modified and reconstructed sources in the oil and gas industry.  The     so-called new source performance standards (NSPS) at 40 C.F.R. 60, Subpart OOOOa (Subpart OOOOa) have since become the subject of considerable debate and litigation.  Consistent with the Trump administration’s other deregulatory efforts, EPA published a proposal in the Federal Register on October 15, 2018 that aims to reduce the Subpart OOOOa regulatory burden for industry.  The agency has already received several comments from concerned citizens who oppose the proposal.  EPA will continue to accept stakeholder feedback through mid-December. Significant Changes to Applicable Requirements The 52-page rulemaking notice describes several proposed amendments to Subpart OOOOa.  EPA is addressing certain issues that were presented to the agency in formal petitions for reconsideration, as well as “other implementation issues and technical corrections” brought to the agency’s attention after Subpart OOOOa was promulgated.  For example, it is proposing significant changes to the requirements for fugitive emissions components, including revised leak monitoring frequencies.  Whereas the current regulation subjects well sites to semiannual leak monitoring, the revised Subpart OOOOa would require monitoring every other year for low production well sites and annually for all other well sites.  The required frequency of compressor station monitoring would be reduced from quarterly to either semiannual or annual. (The proposal includes distinct monitoring requirements for well sites and compressor stations on the Alaska North Slope.) EPA is also proposing to no longer require monitoring surveys at well sites once all major production and processing equipment is removed.  These are just a few of the many technical issues for which the agency is seeking public input.  Operators should review…

October 30, 2018

Commonwealth Court Upholds Validity of Ordinance Allowing Shale Gas Drilling in All Zoning Districts

Energy Alert (by Blaine A. Lucas and Robert Max Junker) Court Refuses to Adopt a “One Size Fits All” Approach that Would Prohibit Municipalities from Permitting Shale Drilling in Rural Residential and Agricultural Zoning Districts On October 26, 2018, the Pennsylvania Commonwealth Court published an en banc opinion in Frederick v. Allegheny Township Zoning Hearing Board, et al., No. 2295 C.D. 2015, 2018 WL 5303462 (Pa. Cmwlth. Oct. 26, 2018) rejecting a challenge to the validity of the Allegheny Township, Westmoreland County (Township) zoning ordinance.  The Court addressed the contention of oil and gas industry opponents that an unconventional natural gas well pad can only be permitted in an industrial zoning district.  After reviewing the detailed record developed in the substantive validity challenge decided by the Township Zoning Hearing Board (Board) and addressing recent Pennsylvania Supreme Court decisions on shale gas drilling, the Court, in a 5-2 decision, rejected this “one size fits all” proposition.  It found that state law empowers municipalities to determine where well sites are appropriate and compatible with other land uses within their boundaries. Background In 2010, the Township Board of Supervisors enacted a zoning ordinance amendment that allowed oil and gas well operations in all zoning districts as a use permitted “as of right,” provided the applicant satisfied numerous specified standards to protect the public health, safety, and welfare (2010 Ordinance).  A use permitted “as of right” requires administrative approval; it does not require public notice or a hearing. In 2014, CNX Gas Company, LLC (CNX) applied to the Township for a zoning permit to develop an unconventional well pad (Porter Pad) in the R-2 Agricultural / Residential Zoning District and submitted all the information required by the 2010 Ordinance.  Once CNX received the zoning permit, three nearby individuals, Dolores Frederick, Patricia Hagaman, and Beverly Taylor (Objectors)…

October 19, 2018

PHMSA finalizing new regulations for issuing emergency orders

The PIOGA Press (by Keith J. Coyle) The Pipeline and Hazardous Materials Safety Administration (PHMSA) is expected to finalize new regulations for issuing emergency orders in the coming weeks. The new regulations represent the culmination of a rulemaking process that PHMSA began two years ago during the final months of the Obama administration. The Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (PIPES Act) gave PHMSA the authority to issue emergency orders if “an unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard” 49 U.S.C. § 60117(o)(1). The PIPES Act directed PHMSA to establish temporary regulations for exercising that authority by no later than August 21, 2016, and final regulations by no later than March 19, 2017. On October 14, 2016, PHMSA adopted temporary regulations for issuing emergency orders in an interim final rule. Federal agencies can adopt regulations in an interim final rule without providing the public with prior notice or the opportunity to comment, provided that good cause is shown under the Administrative Procedure Act. Stating the statutory deadline in the PIPES Act met the good cause standard, PHMSA established the temporary emergency order regulations as an interim final rule and provided a 60-day, post-publication comment period. The temporary regulations set out the procedural requirements for issuing emergency orders and obtaining administrative review. Like the good cause exception in the Administrative Procedure Act, the PIPES Act authorizes PHMSA to issue an emergency order without providing prior notice or the opportunity for a hearing if an imminent hazard exists. PHMSA must consider certain factors before issuing an emergency order, and the order itself must contain specific information about the nature of the imminent hazard, the entities affected, the restrictions, prohibitions, or safety measures imposed, and the procedures for obtaining…

October 2, 2018

Sixth Circuit Decisions Create Circuit Split on Clean Water Act’s Regulation of Discharges to Groundwater

Environmental Alert (by Lisa M. Bruderly and Gary E. Steinbauer) In two highly anticipated companion decisions, the U.S. Court of Appeals for the Sixth Circuit ruled that the Clean Water Act (CWA) does not extend liability to pollution that reaches surface waters through groundwater. The Sixth Circuit declined to join the Fourth and Ninth Circuits, which earlier this year held that the CWA regulates discharges of pollutants that reach “navigable waters” after traveling through hydrologically connected groundwater. The conflicting decisions arguably broaden the scope of the CWA’s National Pollutant Discharge Elimination System (NPDES) permitting program in the 14 states and 2 territories within the Fourth and Ninth Circuits and narrow the scope of the NPDES program in the four states within the Sixth Circuit. The Circuits’ disagreement on the scope of the CWA makes it even more likely that the Supreme Court will weigh in on this important issue. Factual and Legal Background On September 24, 2018, the Sixth Circuit issued a pair of decisions in two cases involving CWA citizen suits brought by environmental groups seeking to hold coal-fired utility companies liable for alleged unauthorized discharges from coal ash ponds or impoundments. Kentucky Waterways Alliance & Sierra Club v. Kentucky Utilities Co., No. 18-5115 (6th Cir. Sept. 24, 2018); Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155 (6th Cir. Sept. 24, 2018). The facts of each case are similar, even though they were appealed to the Sixth Circuit at different procedural stages. Unless specifically referred to in this Alert, we address these decisions collectively. In Kentucky Waterways Alliance & Sierra Club v. Kentucky Utilities Company (KWA), the plaintiff environmental groups filed a CWA citizen suit against the owner of a coal-fired power plant for alleged violations of the CWA and the Resource Conservation and Recovery Act (RCRA). The plaintiffs’…

Podcast: Finding Value in Value Assurance Programs (VAPs)

DRI Toxic Torts and Environmental Law Committee Attorney Alana E. Fortna interviews Christy McLean, a Managing Director of Alvarez & Marsal Dispute and Investigations, on the use of Value Assurance Programs (VAPs) in toxic tort and environmental matters in a Podcast for DRI’s Toxic Torts and Environmental Law Committee entitled “Finding Value in Value Assurance Programs.”  VAPs are a tool used to address neighborhood concerns over a potential drop in property market value due to environmental issues or alleged nuisances, such as an environmental accident, environmental contamination, increased noise from industrial operations, or concerns related to a landfill expansion.  VAPs are relevant to toxic tort matters, site remediation, environmental litigation, and disputes related to the installation of new industrial operations or the expansion of existing industrial operations. For more information on how Babst Calland can assist in these areas, please see our Energy and Natural Resources, Environmental, Litigation, Public Sector, and Real Estate practices. To listen to the podcast, click here.      

September 27, 2018

New PHMSA Rulemaking Proceeding Targets Changes to Class Location Requirements

Pratt’s Energy Law Report (by James Curry, Keith J. Coyle, and Brianne K. Kurdock) The Pipeline and Hazardous Materials Safety Administration recently published an advance notice of proposed rulemaking asking for public comment on whether the Agency should change its class location requirements for gas pipeline facilities. The authors of this article discuss the class location requirements, the notice of proposed rulemaking, and what’s next. The Pipeline and Hazardous Materials Safety Administration (“PHMSA” or the “Agency”) has published an advance notice of proposed rulemaking (“ANPRM”) in the Federal Register asking for public comment on whether the Agency should change its class location requirements for gas pipeline facilities. Specifically, PHMSA sought comment on alternatives to pipe replacements driven by class location changes. Adopted nearly five decades ago, PHMSA’s class location requirements use population density and surrounding land uses to categorize the potential risk that gas pipeline facilities pose to public safety. OVERVIEW The Agency asked the public to comment on whether the class location requirements should be updated to account for recent developments in the pipeline industry, particularly the widespread use of integrity management (“IM”) principles and new technologies. The current regulations require operators to reduce pressure, replace pipe, or conduct hydrostatic pressure testing in response to class location changes, and PHMSA is considering whether other alternatives should be available. Comments were due to the Agency on or before October 1, 2018. The ANPRM is PHMSA’s first new pipeline safety rulemaking proceeding in the Trump era. The Agency began examining the need to modernize the class location regulations several years ago in response to a mandate that Congress included in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, and PHMSA is framing the ANPRM as an extension of that earlier effort. The Agency’s decision to issue the ANPRM sends…

September 25, 2018

Mobility In The Age Of Artificial Intelligence

PGHTECH FUSE (by Justine Kasznica)

Mobility can be broadly defined as the movement of people, goods and information, and is consciously used here as a catchall term to describe a rapidly evolving ecosystem. Advancements in machine learning, artificial intelligence (AI), big data and connected systems (Internet of Things-IoT), applied against a backdrop of increased social and cultural acceptance of new technologies (such as autonomous systems, as well as enhanced capabilities of electric batteries and power/communications systems), as well as new economic models (such as the shared economy and Robot as a Services (RaaS) business models), have led to an unprecedented disruption of industries within the mobility ecosystem.

These industries range from automotive, rail, shipping, aviation industries to last-mile logistics and commercial space – essentially, any industry that builds or supports vehicles or systems that move on or through land, air, sea and space.

It is difficult to ignore the changing mobility landscape. For perspective, market forecasts predict that the IoT market alone will grow to $267 billion by 2020 and $640 Billion by 2022, and that as much as half of the IoT market will be attributable to spending on discrete manufacturing, transportation and logistics.

Despite these optimistic projections, full realization of the beneficial potential of this new era of mobility will be impossible unless industry participants give adequate priority and attention to critical policy issues related to system functionality/safety, data rights, security/rogue users, and product liability that, if left unaddressed, will become a barrier to widespread and sustainable adoption of these technologies. Specifically, industry participants should consider the following.

• System Functionality; Safety. “Is it safe?” This is the threshold question asked by those interacting with any autonomous or AI-enabled mobility technology. The question of safety is challenging, because the definition of safety is relative and tied to…

September 24, 2018

Pennsylvania court opens door to claims of trespass by fracking

TRENDS (by Steven B. Silverman) In the first decision of its kind, Pennsylvania’s intermediate appellate court has rejected the rule of capture in favor of recognizing trespass claims where hydraulic fracturing (fracking) extends to adjoining unleased lands. If the court’s decision stands, it could pave the way for a wave of trespass claims based on fracking, as well as changes to fracking operations themselves. The dispute In Briggs v. Southwestern Energy Production Co., 2018 Pa. Super. 79 (2018), the Briggs family owned an unleased, 11-acre parcel in Susquehanna County, in Pennsylvania’s far northeast corner. The parcel was adjacent to a parcel on which Southwestern Energy Production Company was undertaking fracking operations. The family claimed that Southwestern trespassed on their land through its fracking operations, resulting in the conversion of Briggs’ natural gas. Southwestern countered that, as a matter of law, it could not be liable for trespass or conversion under the well settled rule of capture, which insulates operators who capture hydrocarbons draining from adjacent lands, even when those lands are not leased. The trial court agreed with Southwestern, and the family appealed. Rejecting the rule of capture In rejecting Southwestern’s defense and overturning the trial court, the Superior Court of Pennsylvania held that the rule of capture did not apply to fracking of unconventional wells. The court opined that the rule was the product of geological practicality because, with historical conventional drilling, a pool of gas or oil will naturally flow to adjacent land. In contrast, with unconventional wells and shale gas, it is necessary for fracking to first reach the shale to release its hydrocarbons. Thus, the court held that the extension of that fracking to release the gas from the Briggs’s shale could be deemed a trespass. Accordingly, the Superior Court remanded the case to the trial court to allow the…

September 18, 2018

Fourth Circuit Rules that Coal Ash Ponds and Landfill are not “Point Sources” under the Clean Water Act

Environmental Alert (by Lisa M. Bruderly and Gary E. Steinbauer) Another three-judge panel of federal appellate judges has ruled on whether a National Pollutant Discharge Elimination System (NPDES) permit is required for pollutants in groundwater seepage that ultimately reach a water of the United States. Unlike the two other federal appellate court decisions issued earlier this year, this time the federal appellate court held that the Clean Water Act (CWA) did not regulate such discharges, finding that there was no “point source.” On September 12, 2018, the U.S. Court of Appeals for the Fourth Circuit issued its decision in Sierra Club v. Virginia Electric Power Co. (VEPCO), holding that diffuse underground seepage from coal ash settling ponds and a landfill located at a closed coal-fired power plant are not regulated under the CWA. The VEPCO matter is one of several citizen suits filed by environmental groups across the country asserting novel theories of liability under the CWA. The Fourth Circuit in VEPCO was the first appellate court to address these theories with respect to coal ash ponds and landfills. The VEPCO decision is available at http://www.ca4.uscourts.gov/opinions/171895.P.pdf. Factual and Legal Background VEPCO involved inactive settling ponds and a landfill that were used to treat and store coal ash generated by an adjacent coal-fired power plant in Chesapeake, Virginia. VEPCO operated the settling ponds under a state-issued NPDES permit and the landfill under a state-issued Resource Conservation and Recovery Act (RCRA) permit. In 2002, groundwater samples collected from a series of monitoring wells installed pursuant to the RCRA permit showed elevated levels of arsenic in the groundwater and VEPCO implemented corrective action under a state-approved plan. By the time the Sierra Club filed its CWA citizen suit in 2015, the power plant had closed, and, shortly afterward, VEPCO submitted closure and post-closure care…

Keith J. Coyle: Oppose the ban on pipeline construction
A moratorium on pipeline construction will make Pennsylvania less safe

Pittsburgh Post-Gazette  (by Keith J. Coyle) A pipeline incident that occurred in Beaver County earlier this week is bringing increased attention to the issue of pipeline safety.  Many residents are concerned about the pipelines that pass by their homes, schools, and places of business.  Some are even going a step further and calling for a statewide moratorium on all pipeline construction. I’ve spent the past decade working on pipeline safety issues as an attorney-advisor for the Pipeline and Hazardous Materials Safety Administration (PHMSA), a member of Governor Wolf’s Pipeline Infrastructure Task Force, and an attorney in private practice. I understand the anxiety that people feel after a pipeline incident.  They want to know that their families are safe, and that the folks in charge are doing what is necessary to protect public safety. Every incident serves as a reminder of the additional work that needs to be done to make pipelines safer.  But that does not mean that we should ignore the important role that pipelines play in improving our lives or disregard the efforts that are being made to build upon the industry’s strong safety record. Pipelines are a critical part of the nation’s energy infrastructure. There are more than 2.7 million miles of pipelines in the United States, and Pennsylvania is home to approximately 91,000 miles of pipelines, according to the latest PHMSA data. These lines carry the energy products that heat our homes, run power plants, provide fuel for transportation, and deliver the feedstock that is used to make countless consumer goods. Pipelines are the safest and most reliable means of transporting energy products. The Frasier Institute, a Canadian-based research organization, found in a recent study that pipelines are 4.5 times safer than other comparable modes of energy transportation. PHMSA’s data shows that the number of serious pipeline incidents involving fatalities or injuries has…

Commonwealth Court invalidates portions of Chapter 78a regulations as unlawful

The PIOGA Press (by Jean M. Mosites) On August 23, the Commonwealth Court issued a unanimous opinion in The Marcellus Shale Coalition v. Department of Environ mental Protection and Environmental Quality Board, 573 M.D. 2016 invalidating portions of the new prepermit process created in 25 Pa. Code §§ 78a.1 and 78a.15(f) and (g), pertaining to new “public resources.” The Marcellus Shale Coalition (MSC) challenged the provisions as unlawful and unreasonable, seeking declaratory and injunctive relief. There is no statutory right to judicial review of new regulations in Pennsylvania. Such challenges must proceed in the form of a declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-bycase basis. The latter course can be duplicative, lengthy and costly, offering only piecemeal relief. MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of the Environmental Quality Board’s authority, regulations with high cost and little discernible benefit. Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g) and the related definitions contained in Section 78a. of the Chapter 78a regulations. The provisions created a new pre-permitting process for well permit applicants, requiring new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012. Following MSC’s Petition for Review, the Commonwealth Court preliminarily enjoined application of portions of the regulations on November 8, 2016.1 MSC filed an application for partial summary relief on Count I on August 31, 2017. Pending review of that application, the Pennsylvania Supreme Court affirmed the grant of preliminary injunctive relief as to Count I on June 1, 2018. 185 A.3d 985 (Pa. 2018). In its decision on the merits of…

August 31, 2018

Federal Court Enjoins West Virginia County from Using Zoning Laws to Interfere with Construction of Compressor Station

Energy Alert (by Timothy M. Miller and Christopher B. (Kip) Power) On August 29, 2018, the United States District Court for the Southern District of West Virginia issued a Memorandum Opinion and Order granting Mountain Valley Pipeline (MVP) summary judgment and permanently enjoining the County Commission of Fayette County, West Virginia, from using a zoning ordinance to bar construction of the Stallworth Compressor Station (CSS).  The CSS is a vital part of the 303.5-mile long, 42-inch diameter, MVP pipeline project stretching from Wetzel County, West Virginia, to Pittsylvania County, Virginia.  See Mountain Valley Pipeline v. Matthew D. Wender, et al., Case No. 2:17-cv-04377, Mem. Op. and Order (S.D. W. Va. August 29, 2018). The CSS is being constructed on property owned by MVP in an area that is currently zoned Rural-Residential under the County’s Unified Development Code.  MVP sought approval for the limited re-zoning of the area to Heavy-Industrial, while also seeking a FERC certificate of authority for construction of the station.  FERC ultimately granted the certificate of authority during the re-zoning application process, but the County Commission nevertheless denied the re-zoning request.  Violations of the zoning ordinance exposed MVP to potential civil and criminal penalties. The FERC approval process, as noted by the District Court, requires an applicant to make a bona fide attempt to comply with state and local authorities, but this “rule of reason” is secondary to FERC’s authority under the Natural Gas Act to preempt state and local authority over jurisdictional facilities authorized by FERC. The Court dismissed the various theories relied upon by the County Commission and held  the zoning ordinance was unenforceable due to field and conflict preemption pursuant to the Supremacy Clause of the United States Constitution.  U.S. Const. art. VI, cl. 2.  The Court noted the zoning ordinance specifically targeted oil and gas transmission…

August 30, 2018

Under Secretary of Transportation for Policy Derek Kan joins Congressman Keith Rothfus to Meet with Local Transportation and Infrastructure Industry Professionals and Leaders

Babst Calland Facilitates Discussion Regarding Autonomous Vehicles Technology On Friday, August 31st, The Department of Transportation’s Under Secretary of Transportation for Policy, Derek Kan, joins Congressman Keith Rothfus (PA-12) in Western Pennsylvania to discuss projects of regional importance, as well as emerging autonomous vehicle technology, with local leaders and professionals in the transportation and infrastructure sectors. Justine Kasznica of Babst Calland’s Mobility, Transport and Safety practice will facilitate the roundtable discussion related to autonomous vehicles and drones among leading manufacturers, technology companies, and universities.  

August 29, 2018

Pennsylvania Commonwealth Court Invalidates Portions of Chapter 78a Regulations as Unlawful

Environmental Alert (by Jean M. Mosites and Kevin J. Garber) On August 23, 2018, the Commonwealth Court issued a unanimous opinion invalidating components of the new pre-permit process created in 25 Pa. Code §§ 78a.1 and 78a.15(f), and (g), pertaining to new “public resources.”  The Marcellus Shale Coalition (MSC) challenged the provisions as unlawful and unreasonable, seeking declaratory and injunctive relief.  The Marcellus Shale Coalition v. Department of Environmental Protection and Environmental Quality Board, 573 M.D. 2016. There is no statutory right to judicial review of new regulations in Pennsylvania.  Such challenges must proceed in the form of declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-by-case basis.  The latter course is duplicative, lengthy and costly, offering only piecemeal relief.  MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of EQB’s authority, regulations with high cost and little discernible benefit. Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g), and the related definitions contained in Section 78a.1 of the Chapter 78a regulations.  The provisions created a new pre-permitting process for well permit applicants, providing new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012. Following a hearing for temporary injunctive relief, the Commonwealth Court preliminarily enjoined application of portions of the regulations on November 8, 2016.  MSC filed an application for partial summary relief on Count I on August 31, 2017.   Pending review of that application, the Pennsylvania Supreme Court affirmed the grant of preliminary injunction relief as to Count I on June 1, 2018. 185 A.3d 985 (Pa. 2018) In its decision on the merits of Count I, the Court invalidated…

August 27, 2018

As Big Law Steps on Their Turf, Midsized Firms Bet on Niche Practices

The Legal Intelligencer  (by Lizzy McLellan) As more large firms restructure into multidisciplinary industry-focused groups, the niche practices emerging resemble some of the services midsize firms have been offering for years, or sometimes decades. With increasing competition in the legal industry, and Big Law more often competing for the middle-market work midsize firms were built on, midsize firm leaders have been bullish about maintaining and expanding their specialized practices. Babst, Calland, Clements and Zomnir, based in Pittsburgh, was built on a niche focus in environmental law from the start, and has expanded on that over the years, managing shareholder Donald Bluedorn said. “Our philosophy is to pick specific areas and put together teams with as much sophistication as anyone in the country,” Bluedorn said, then deliver those services “at a lower price point.” Since, the firm has added other niche practices that grow naturally from its environmental roots. ”We don’t just look for bolt-on practices,” Bluedorn said. So when the Marcellus Shale play created business opportunities in Pennsylvania, the firm seized on the opportunity to grow an energy practice, which would co-mingle well with environmental law. And when it saw a chance to get involved with pipeline safety, it built on an already established regulatory practice in Washington, D.C., as well as the energy and environmental practices. “We like to see multiple touchpoints with these areas we have,” Bluedorn said. “We really try to do a very conscious, well-thought-out approach.” Most recently, the firm has built on that regulatory practice again, bringing together a mobility, transport and safety group to handle matters in the emerging area of unmanned aircraft, driverless cars and space technology. Timothy Goodman, a former U.S. Department of Transportation lawyer, leads that group, which recently added several other lawyers in Washington and Pittsburgh. Bluedorn said the firm in most instances has added these practices as its lawyers observe shifts in the market, and “consciously identify the opportunity.” After hiring…

August 24, 2018

Raise It or Waive It: Standing Can Play a Critical Role in Zoning Hearings

The Legal Intelligencer (by Krista-Ann M. Staley and Amie L. Courtney) While the setting may be significantly less formal—think a public works garage or community center gymnasium rather than a marble-columned historic landmark—standing requirements apply in the context of a zoning hearing as they do in a more formal courtroom setting. Therefore, whether representing a party seeking a zoning approval, a zoning hearing board or governing body considering a zoning application, or an objector, it is important to understand how to navigate the issue of standing during the initial proceeding. The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state’s zoning enabling legislation, clearly provides a “landowner” with standing to file a zoning application or pursue a zoning appeal. The statute broadly defines “landowner” as including the owner of the subject property, the holder of an option to purchase the property, an authorized lessee, or “other person having a proprietary interest in land”. However, Pennsylvania law does not provide a bright-line standard to determine whether a party has standing to object in a zoning proceeding. This is an important determination because a party with standing to object may cross-examine an applicant’s witnesses and present its own witnesses and evidence. A party with standing may also appeal the final determination. As a result, participation by an objector can significantly impact the path and outcome of a zoning case. Pennsylvania case law provides a general framework to determine whether an objector has procedural and substantive standing, both of which are required to obtain “party” status in a zoning hearing. To have substantive standing, an objector must be “aggrieved” by having a direct interest in the subject of the proceeding that would be adversely affected by the action. This requires more than a general interest in the enforcement of zoning…

Federal Court Partially Vacates U.S. EPA’s 2015 Coal Combustion Residuals Rule

Environmental Alert (by Donald C. Bluedorn II and Gary E. Steinbauer) On August 21, 2018, the D.C. Circuit Court of Appeals issued its Opinion in Utility Solid Waste Activities Group, et al. v. EPA , addressing the consolidated petitions challenging the United States Environmental Protection Agency’s (EPA) Coal Combustion Residuals (CCR) Rule. The Court largely upheld the challenges raised by environmental groups and denied the challenges raised by industry groups. A copy of the Opinion is available at https://www.cadc.uscourts.gov/internet/opinions. nsf/0/5A6D02C8038BA2CA852582F0004E0D37/$file/15-1219-1746578.pdf. After years of studying CCR and public pressure stemming from catastrophic failures like the 2008 incident at the Tennessee Valley Authority’s Kingston, Tennessee facility, EPA promulgated the CCR Rule in 2015. For the first time since the federal Resource Conservation and Recovery Act was enacted in 1976, the Rule established minimum national “Subtitle D” criteria for existing and new CCR landfills and surface impoundments operated by electric utilities and independent power plants. Not surprisingly, the Rule was challenged shortly after it was promulgated by a group of environmental organizations, known collectively as the “Environmental Petitioners,” and several groups of industry groups, known collectively as the “Industry Petitioners.” On June 14, 2016, the Court granted EPA’s motion to remand certain portions of the CCR Rule. Shortly before the Court held oral argument in November 2017, EPA filed a motion seeking voluntary remand on specific provisions of the CCR Rule that remained at issue in the litigation. More than three years after the Rule was challenged, the Court issued a lengthy 72-page opinion largely upholding the challenges of the Environmental Petitioners and denying the challenges of the Industry Petitioners. Here is a quick summary of the key points from the Court’s Opinion:
  1. The Court granted EPA’s motion for a voluntary remand on three parts of the Rule:
  • The definition of “Coal Residuals Piles”…

August 20, 2018

Obama-Era WOTUS Rule Back In Effect, What Happens Now?

Environmental Alert (by Lisa M. Bruderly, Janet L. McQuaid, Gary E. Steinbauer) Late last week, a South Carolina district court reinstated the Obama administration’s 2015 Clean Water Rule (referring to it as “the 2015 WOTUS rule”) in 26 states, including Pennsylvania, Ohio, New York, Maryland, New Jersey and the New England states.  The decision overturns a move by the Trump administration earlier this year to delay the applicability date of the 2015 WOTUS rule until early 2020 and brings the Rule’s definition of “waters of the United States” (WOTUS) into effect in these states, at least for the time being.  Unless the South Carolina decision is overturned or invalidated, the reinstatement of the 2015 definition of WOTUS could have significant Clean Water Act (CWA) permitting, compliance and enforcement implications for regulated entities in these 26 states, given that the 2015 definition of WOTUS is widely regarded by industry as unreasonably expanding the types of waterbodies under U.S. EPA and U. S Army Corps of Engineers’ jurisdiction. Background Regarding the Clean Water Rule Shortly after the August 28, 2015 effective date of the 2015 WOTUS rule, the Rule was challenged in federal courts, including the Sixth Circuit. While the Sixth Circuit preliminarily enjoined the Rule in October 2015 (See Ohio v. United States Army Corps of Eng’rs, 803 F.3d 804 (Oct. 9, 2015)), on January 22, 2018, the Supreme Court invalidated the Sixth Circuit’s preliminary injunction, holding that the district courts, rather than the courts of appeal, had original jurisdiction over the appeals (S.Ct. 16-299). Nat’l Ass’n of Mfrs. v. DOD, 138 S. Ct. 617 (2018). In anticipation of the Sixth Circuit vacating its preliminary injunction (and the 2015 WOTUS rule coming into effect in all but then 13 states), on January 31, 2018, EPA and the Corps finalized a rule setting…

August 16, 2018

Is Your Employee Handbook Up to Date? Compare It With This Checklist

The Legal Intelligencer (by Brian D. Lipkin) When you are preparing or revising an employee handbook, this checklist may be helpful. Acknowledgment
  • Do employees sign a signature page, confirming they received the handbook?
  • On the signature page, do employees agree to follow the policies in the handbook?
  • Does the signature page state that this handbook replaces any previous versions?
  • On the signature page, do employees agree that they will be “at-will” employees?
  • Do employees agree that the employer may change its policies in the future?
Wage and Hour Issues
  • Does the employer confirm that it will pay employees for all hours worked?
  • Before employees work overtime, are they required to obtain a supervisor’s approval?
  • During unpaid breaks, are employees completely relieved of all duties? (For example, while a receptionist takes an unpaid lunch break, this person shouldn’t be required to greet visitors or answer phone calls.)
  • Are employees paid when they attend a business meeting during lunch?
  • Are employees paid for attending in-service trainings?
  • Are employees paid while they take short breaks?
Paid Time Off
  • Has the employer considered combining vacation time, sick time, and personal time into one “bucket” of paid time off?
  • Does the paid time off policy line up with the employer’s business objectives? (For example, does it provide incentives for employees to use paid time off during seasons when business is slower?)
  • Does the handbook say what will happen to paid time off when employment ends? (In Pennsylvania, employers are not required to pay terminated employees for the value of their paid time off. Some employers choose to do this, as an incentive for employees to give at least two weeks’ notice.)
  • If the Family and Medical Leave Act (FMLA) applies to the employer, does the handbook inform employees of their rights?
  • Does the handbook list all types of…