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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…

Pittsburgh’s Babst Calland Bulks Up Emerging Tech Practices

The Legal Intelligencer (by Lizzy McLellan) With its latest lateral hires, Pittsburgh-based Babst, Calland, Clements and Zomnir is doubling down on emerging technologies, including driverless vehicle technology. The firm this week hired shareholder Justine Kasznica in its mobility, transport and safety group, as well as its corporate and commercial group. Also joining are intellectual property shareholder Carl Ronald and associate Michael Fink, also in the corporate and commercial group. Kasznica’s practice is focused on unmanned aircraft, driverless cars and space companies. She and Ronald are both joining from Baer Crossey McDemus, a business and technology law boutique with offices in Philadelphia and Pittsburgh. Fink was an associate at Buchanan Ingersoll & Rooney. The additions come a month after Babst Calland added William Godfrey, who was a senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration. “When I was approached by a recruiter who talked about Babst Calland, I had known of them as an oil and gas, environmental firm,” Kasznica said. But she quickly learned that the firm was also investing in its technology-related practices. A major selling point, she said, was that Babst Calland last year had hired Timothy Goodman, a former U.S. Department of Transportation lawyer, in Washington, D.C. He now leads the firm’s mobility, transport and safety group. “In working with frontier technology, you’re essentially required to try to understand and work alongside policy and regulations that are either nascent, nonexistent or present but need to be adapted,” Kasznica said. “The channel to Washington, D.C., and the fact that Babst Calland has strategically built and focused on building that office … is absolutely critical and critical for the companies that will be working with us.” Kasznica grew up interested in model aircraft and aviation, she said, then began to learn more about robotics during law school, through a…

August 15, 2018

Five Babst Calland Attorneys Named as 2019 Best Lawyers® “Lawyers of the Year” and 33 Selected for inclusion in The Best Lawyers in America©

Babst Calland is pleased to announce that five lawyers were selected as 2019 Best Lawyers “Lawyer of the Year” in the Pittsburgh, Pa. and Charleston, W. Va. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2019 Best Lawyers “Lawyer of the Year” include: Kevin J. Garber, Natural Resources Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Kevin Garber was also listed in the 2019 Edition of The Best Lawyers in America in Environmental Law, Energy Law, Water Law, and Litigation – Environmental. Joseph K. Reinhart, Environmental Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Joseph K. Reinhart was also listed in the 2019 Edition of The Best Lawyers in America in Natural Resources Law, Energy Law, and Litigation – Environmental. Mark D. Shepard, Litigation – Environmental “Lawyer of the Year”  in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Mark D. Shepard was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation and Bet-the-Company Litigation. Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W.Va. – In addition to the “Lawyer of the Year” award, Timothy Miller was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation, Bet-the-Company Litigation, Oil and Gas Law, and Litigation – Environmental. Christopher B. “Kip” Power, Environmental Law “Lawyer of the Year” in Charleston, W.Va. – In addition…

August 10, 2018

Complexities in determining title to oil and gas under Pennsylvania roadways

The PIOGA Press (by Adam Speer) The increased exploration of oil and gas throughout the Common wealth of Pennsylvania in recent years has highlighted the importance of determining the ownership of oil and gas underlying public roads and highways. More than 120,000 linear miles of state and local roadways traverse the Common – wealth. Public roadways―which include local roads, streets, alleys, expressways, interstates and turnpikes―may be created by conveyance, condemnation, dedication or prescription. To determine proper ownership of the oil and gas under a roadway, a full title search of surrounding tracts must be completed. The time and method by which the roadway was created often influence the ownership of the oil and gas. This article, though not exhaustive, discusses the primary methods that roads may be created in Pennsylvania and provides a framework for determining oil and gas ownership under a public road. Centerline presumption Under Pennsylvania law, there is a general presumption that a conveyance of land bounded by a public roadway carries with it the fee to the center of the road as part and parcel of the grant, unless the road is owned in fee by the Commonwealth or municipality or an interest in the roadway has been expressly re – served. Where the side or edge of a street or highway is called for as a boundary in a deed, the grantee takes title in fee to the center line of such roadway. The grantee acquires a fee interest in the land to the centerline of the roadway, subject to the public’s right of passage and any reservations, and the grantor divests himself of his interest in the same. If a public roadway easement is later vacated, the property reverts “automatically and simultaneously” to abutting landowners. The foregoing highlights the necessity to analyze ownership of surrounding tracts of land…

August 1, 2018

New PHMSA Rulemaking Proceeding Targets Changes to Class Location Requirements

Pipeline Safety Alert (by James Curry, Keith Coyle, and Brianne Kurdock) On July 31, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) 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 is seeking 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. The Agency is asking 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 must be submitted 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 a strong signal about its commitment to President Donald Trump’s regulatory reform agenda and willingness to address an issue of longstanding concern to the pipeline industry. As the pipeline industry indicated in previous comments to PHMSA, the class location concept predates the extension of IM principles to the…

July 30, 2018

Federal pipeline safety agency weighs new approach to handling population shifts

S&P Global (by Sarah Smith)

The federal pipeline safety regulator may change the way it handles requirements for gas pipelines in areas where population density is on the rise, potentially addressing operator concerns about the disruptions that current policy can lead to.

When more people move into the areas around gas transmission pipelines, federal rules require pipe operators to shift the way they use their infrastructure, but the U.S. Pipeline and Hazardous Materials Safety Administration, or PHMSA, said July 30 that it is entertaining the idea of allowing companies to instead apply certain “integrity management” practices.

For the full article, click here. .

July 27, 2018

Zoning Hearing Board: Overlooked, Misunderstood or Misapplied Principles

The Legal Intelligencer  (by Blaine A. Lucas and Alyssa E. Golfieri) Pursuant to Section 901 of the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), the state law establishing the framework for zoning and land use development regulations in Pennsylvania, every municipality in the commonwealth that enacts a zoning ordinance is required to create a zoning hearing board. A zoning hearing board is a quasi-judicial body that implements a system of checks and balances on a governing body’s legislative power to zone and regulate land development. Zoning hearing boards have exclusive jurisdiction over eight discrete types of matters: substantive challenges to the validity of land use ordinances; appeals from the determination of a municipality’s zoning officer, including appeals from the granting or denying of a permit, the issuance of a notice of violation/cease and desist order, or the registration of nonconforming uses, structures, or lots; appeals from the administration of a floodplain provision or ordinance; applications for variances from the terms of a zoning or floodplain ordinance; applications for special exceptions under a zoning or floodplain ordinance; appeals from determinations related to the transfer of development rights or performance density provisions of a zoning ordinance; appeals from a zoning officer’s preliminary opinion on a proposed use or development; and appeals from a zoning officer’s or municipal engineer’s administration of any ordinances that regulates erosion and sedimentation control or stormwater management on projects unrelated to subdivisions, land developments, and planned residential developments. Based on the exclusivity and scope of their jurisdiction, it is self-evident that zoning hearing boards have an integral role in assuring the fair and equal application of zoning and land use regulations across the commonwealth. Recognizing the important role zoning hearing boards play and the fact that such boards are in the best position to interpret and…

July 17, 2018

The EPA and Corps Request Additional Comments on the Proposed Repeal of the Clean Water Rule

Environmental Alert (by Lisa M. Bruderly and Gary E. Steinbauer) Nearly one year after officially proposing to repeal the Clean Water Rule (CWR), the landmark 2015 Obama Administration rule that redefined “waters of the United States” and arguably expanded the geographic scope of the Clean Water Act (Act), the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the “Agencies”) have clarified the legal basis for, and are soliciting additional comments related to, the proposed repeal. On July 12, 2018, the Agencies published a lengthy Supplemental Notice of Proposed Rulemaking (Supplemental Notice) in the Federal Register to clarify, supplement, and seek additional comment on their proposal to permanently repeal the CWR and recodify the regulatory definition of “waters of the United States” that existed before 2015. 83 Fed. Reg. 32227. Interested parties have until August 13, 2018 to submit comments in response to the Supplemental Notice. As compared with the initial July 2017 proposal (82 Fed. Reg. 34899), the Supplemental Notice is rich in detail and includes significantly more legal analysis and citations, as well as references to and evaluations of documents included in the administrative record for the CWR. For almost every new or more detailed justification for the proposed repeal, the Agencies request comment. Some of the arguments and reoccurring themes for which the Agencies request comment include:
  • The CWR exceeds the Agencies’ authority under the Act by (1) failing to give sufficient effect to the statute’s use of the term “navigable” to define the Agencies’ jurisdiction and (2) focusing too much on the biological and environmental importance of wetlands.
  • The CWR is a misapplication of the “significant nexus” test for jurisdiction under the Act established by soon-to-be-retired U.S. Supreme Court Justice Anthony Kennedy in the 2006 decision in Rapanos v. United States, 547 U.S. 715…

July 16, 2018

Energy Industry in WV and Ohio

Comcast Newsmakers Tim Miller of Babst Calland talks to host Eric Minor about the Ohio Valley’s energy industry topics such as legal, regulatoryand NG drilling developments, infrastructure, legislative and construction and job growth outlook. To watch the segment, click here.

July 13, 2018

Delaware Riverkeeper Network and May Van Rossum v. PADEP and Constitution Drive Partners, LP

Alert: PA Environmental Hearing Board Update (by Jean M. Mosites and Kevin J. Garber) On July 2, 2018, the Pennsylvania Environmental Hearing Board issued an opinion and order related to a discovery dispute, concluding that no discovery was appropriate in a third-party appeal from an amended settlement agreement under the Hazardous Sites Cleanup Act (HSCA). The Pennsylvania Department of Environmental Protection signed a prospective purchaser agreement in 2005 with a developer to clean up an abandoned tube manufacturing facility in Chester County, amended the agreement in 2007 and 2010, and published notice of the agreement in 2017 as a settlement under HSCA. Section 1113 of HSCA provides that an appeal of a HSCA settlement agreement must be decided on the administrative record, which is limited to: (1) PADEP’s notice of the proposed settlement, (2) written comments to the settlement, and (3) PADEP’s response to those comments. The Delaware Riverkeeper sought more. The EHB determined that a party seeking discovery in an administrative record review appeal under Section 1113 of HSCA bears a heavy burden to show discovery is necessary. None of the Delaware Riverkeeper arguments—based on Article I, Section 27 of the Pennsylvania Constitution, as well as allegations of improper procedure and bad faith—met that burden. The full opinion can be found here. Click here for PDF.

July 12, 2018

Babst Calland Adds 3 Attys To Emerging Tech Practice

Law 360 (by Mike Curley) Babst Calland has added two shareholders and an associate to its practice, bolstering its roster in support of emerging technologies and new businesses. The Pittsburgh-based firm announced Tuesday that Justine M. Kasznica and Carl A. Ronald joined as shareholders and Michael E. Fink joined as an associate in its Corporate and Commercial Group. “The addition of these technology and startup-focused attorneys supports the firm’s strategy to expand its multidisciplinary team to serve the needs of clients developing new technologies, new companies and new ideas,” Managing Shareholder… For the full article, click here.

July 10, 2018

Pennsylvania Supreme Court reverses approval of oil and gas well on narrow grounds

The PIOGA Press (by Blaine A. Lucas and Robert Max Junker) In Gorsline, court declines to rule on broader issue of compatibility with uses in residential and agricultural zoning districts, but suggests that municipalities may permit unconventional natural gas drilling in any and all zoning districts The Pennsylvania Supreme Court published its long-awaited opinion in Gorsline v. Board of Supervisors of Fairfield Township on June 1. Although the majority reversed the Commonwealth Court’s decision affirming the granting of a conditional use for an unconventional natural gas well pad, it did so in a narrow holding, finding that Inflection Energy, LLC did not present enough evidence before the Fairfield Township Board of Supervisors establishing that its proposed unconventional gas well pad was similar to other uses allowed in the township’s Residential-Agricultural Zoning District. Unlike most zoning ordinances, the township’s zoning ordinance did not specifically authorize oil and gas wells. Instead, Inflection had relied upon a “savings clause,” which allowed uses “similar to” the other uses specifically allowed in the R-A District. Despite headlines and press releases touting the Gorsline decision as a wholesale rejection of oil and gas development in residential and agricultural zoning districts, its ruling was much more limited. In fact, language in both the Gorsline majority and dissenting opinions largely rejects the post-Robinson Township assertion of many shale gas opponents that natural gas wells must be relegated to industrial zoning districts and are fundamentally incompatible with residential or agricultural zoning districts. Background In 2013, Inflection submitted a conditional use application to the board seeking to construct a natural gas well site in the township’s R-A District. After two nights of hearings on Inflection’s application, the township granted the application under the “savings clause” and subject to 14 additional conditions. Neighboring landowners appealed the township’s approval, arguing that a natural gas well site is an industrial activity which is…

Babst Calland Grows Emerging Technologies Practice, Adds Three Lateral Attorneys

Babst Calland today announced the addition of three lateral moves to support early stage businesses and companies with emerging technologies. “The addition of these technology and startup-focused attorneys supports the Firm’s strategy to expand its multidisciplinary team to serve the needs of clients developing new technologies, new companies and new ideas,” said Babst Calland’s Managing Shareholder Donald C. Bluedorn II. Justine M. Kasznica joined as shareholder in the Firm’s Mobility, Transport and Safety and Corporate and Commercial groups. Ms. Kasznica is a technology and commercial transactions attorney who represents technology companies, investor groups, universities and research institutions seeking to commercialize new technologies, as well as innovative products and services. Her clients are customers and vendors of software, SaaS, IoT, AI and robotics products and services in the retail, aerospace, autonomous vehicle, healthcare, education, emergency management and system safety/security industries, among others. In addition, she has experience in general corporate and commercial law matters, and supports clients with their entity formation, corporate governance, venture capital and private equity investments, and commercial contract needs. A recreational drone pilot with a passion for robotics, space and aviation, she represents commercial space and drone (unmanned aircraft systems – UAS) companies in connection with their regulatory needs, and she also advises universities and large commercial institutions with respect to their UAS operations. In this role, she regularly participates in speaking engagements and leads workshops on legal and regulatory topics related to UAS and commercial space, and serves as an advisor to various UAS and space technology companies and projects. Ms. Kasznica has been actively involved in Pittsburgh’s innovation economy since she moved to Pittsburgh in 2008. She served as Executive Director of the University of Pittsburgh School of Law Innovation Practice Institute and remains active on the boards of several entrepreneurship-focused organizations and programs, including Ascender, an accelerator…

July 9, 2018

Babst Calland adds 3 to corporate practice, builds tech expertise

Pittsburgh Business Times (by Patty Tascarella) Continuing to add lawyers focused on technology and early-stage companies, Babst Calland on Monday confirmed three hires in Pittsburgh, including two from the local office of a Philadelphia firm. Justine Kasznica and Carl Ronald both joined Babst Calland as shareholders. They previously had worked for Baer Crossey McDemus and Kasznica had led the Philadelphia-based firm’s Pittsburgh office for the past year. For the full article, click here.

July 6, 2018

The 2018 Babst Calland Report Focuses on the Appalachian Basin Oil & Gas Industry Forging Ahead Despite Obstacles

PGHTECH FUSE Marcellus, Utica Shale Plays Account for 41 Percent of U.S. Natural Gas Output The law firm of Babst Calland today released its annual energy industry report: The 2018 Babst Calland Report – Appalachian Basin Oil & Gas Industry: Forging Ahead Despite Obstacles; Legal and Regulatory Perspective for Producers and Midstream Operators. This annual review of shale gas development activity in the Appalachian Basin acknowledges an ongoing rebound despite obstacles presented by regulatory agencies, the courts, activists, and the market. To request a copy of the Report, contact info@babstcalland.com. In this Report, Babst Calland attorneys provide perspective on issues, challenges, opportunities and recent developments in the Appalachian Basin and beyond relevant to producers and operators. According to the U.S. Energy Information Administration’s May 2018 report, the Appalachian Marcellus and Utica shale plays account for more than 40 percent of U.S. natural gas output, compared to only three percent a decade ago. Since then, the Appalachian Basin has become recognized in the U.S. and around the world as a major source of natural gas and natural gas liquids. The industry has been forging ahead amidst relatively low natural gas prices, infrastructure building, acreage rationalization and drilling plans that align with business expectations. The policy landscape continues to evolve with ever-changing federal and state environmental and safety regulations and tax structures along with a patchwork of local government requirements across the multi-state region. Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “This Report provides perspective on the challenges and opportunities of a shale gas industry in the Appalachian Basin that continues to enjoy a modest rebound. While more business-friendly policies and procedures are emanating from Washington, D.C., threats of trade wars are raising concerns about the U.S. energy industry’s ability to fully capitalize on planned exports to foreign…

Three Pittsburgh attorneys selected to national list of influencers

Pittsburgh Business Times (by Mark Mensheha)

Manoj Jegasothy of Gordon Rees Scully Mansukhani, Peter Kalis of K&L Gates and Justine Kasznica of Babst Calland have been selected to a national list of notable attorneys.

The Business Journals’ Influencers: Law spotlights 100 executives who are having an impact on business and legal matters in communities across the nation.

These 100 executives represent both large, nationally recognized firms and smaller, locally focused businesses. Some are long-tenured executives, while others have found success relatively early in their careers. And while some might be familiar industry names and others less so, as a group nationally, these individuals are having an impact on matters of business and law in myriad areas.

For the full article, click here.

Babst Calland Expands Mobility, Transport and Safety Practice

PGHTECH FUSE Babst Calland announced the addition of William L. Godfrey as Director, Mobility, Automation and Safety. The Firm is expanding its capabilities to support the developing needs of companies with emerging technologies.  It provides strategic leadership with business and legal advice for manufacturers, suppliers, start-ups, technology companies and government entities in the full-spectrum of transportation regulatory, safety, product quality, and automation matters, including those related to automated/autonomous driving systems. “Will Godfrey’s expertise and creativity deepens our unique vision to deliver full-stack solutions to clients’ problems that integrate technical and engineering know-how with legal insight to expand business opportunities,” said Tim Goodman, Chair of Babst Calland’s Mobility, Transport and Safety Group, and former National Highway Traffic Safety Administration Assistant Chief Counsel for Enforcement and Federal Senior Executive. A former General Motors vehicle engineer, production manager and senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration (NHTSA)/U.S. Department of Transportation (DOT), Will Godfrey will assist clients in achieving their business goals and navigating obstacles by applying a current and detailed understanding of the federal government’s approach to transportation safety regulation (particularly motor vehicles), including its programs, processes, and personnel. Godfrey spent nearly a decade at NHTSA/DOT, where he served in various leadership capacities.  Among other things, as NHTSA’s Trends and Analysis Division Chief, he led the oversight, analysis, and investigation of more than 1,100 vehicle, equipment, tire, motorcycle, and child car seat manufacturers globally, including TREAD Act/Early Warning Reporting Program and the integration of new, data-driven techniques.  As a senior policy advisor to the NHTSA Administrator, he led the agency’s comprehensive reorganization of the NHTSA Office of Defects Investigation (ODI). “Will Godfrey is well-regarded and uniquely qualified to serve clients with emerging technologies as a senior technical and strategic advisor, integrated with our best…

Kasznica joins Babst Calland

Pittsburgh Business Times  (by Patty Tascarella)

One of Pittsburgh’s largest law firms has boosted its technology expertise with a big catch.

Babst Calland confirmed on Friday that Justine Kasznica has come aboard as a shareholder in its Mobility, Transport and Safety and Corporate and Commercial groups. Monday is her first day at the downtown headquarters of the region’s seventh-largest law firm.

For the full article, click here.

June 29, 2018

House Oversight Hearing Previews Challenges and Opportunities for Pipeline Safety Act Reauthorization

Pipeline Alert (by James Curry, Keith J. Coyle and Brianne K. Kurdock) On June 21, 2018, the U.S. House of Representatives, Transportation and Infrastructure Committee, Subcommittee on Railroads, Pipelines, and Hazardous Materials, held an oversight hearing related to the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) implementation of the Protecting Our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (2016 Act) and its predecessor, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (2011 Act). The primary focus of the hearing, the first since the appointment of Howard “Skip” Elliott as the new PHMSA Administrator, was the status of several outstanding statutory mandates from the 2011 Act.  Those mandates directed PHMSA to make appropriate changes to the federal pipeline safety regulations to address the National Transportation Safety Board’s (NTSB) recommendations following its investigation of two significant pipeline accidents that occurred in 2010. The members of the Subcommittee expressed bipartisan concern with PHMSA’s failure to satisfy the mandates from the 2011 Act, which largely address concerns that the NTSB identified following its investigation of pipeline accidents that occurred nearly eight years ago.  As Administrator Elliott acknowledged during the hearing, PHMSA has not yet made all of the changes necessary to address the mandates in the 2011 Act.  Administrator Elliott indicated that some of the mandates will be addressed in a rule relating to the safety of hazardous liquid pipelines that is in the final stages of review. Other mandates will be addressed in a rule relating to the safety of gas transmission lines that PHMSA recently presented to the Gas Pipeline Advisory Committee, the federal advisory committee that reviews proposed changes to the gas pipeline safety regulations, for consideration.  Another mandate dedicated to the use of valves and rupture detection equipment will be addressed in a separate rule that…

June 27, 2018

Compulsory Payment of Fair Share/Agency Fees by Public Employees Held Unconstitutional

Public Sector Alert (by John A. McCreary, Jr., Robert Max Junker and Stephen L. Korbel) In Janus v. AFSCME Council 31, ___ U.S. ___, No. 16-1466 (2018) the U.S. Supreme Court declared that Illinois’ statutory requirement for nonmembers to pay an “agency fee,” intended to support the collective bargaining related expenses of unions representing public employees, violated the First Amendment. The Janus Court reasoned that because public sector bargaining addressed and affected such matters as the allocation of scarce public resources and the cost of public services, “the union speech at issue in this case is overwhelmingly of substantial public concern,” slip op. at 31. The compulsory payment required by Illinois law, therefore, fell squarely within the Court’s precedent prohibiting governmental compulsion of, or interference with, individual expression. The Court concluded that Illinois’ requirement that nonmembers pay agency fees to unions “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Janus, slip op. at 1. The Court remanded the case to the lower court for further proceedings, which are likely to consist entirely of a damages calculation. The Janus decision invalidates Pennsylvania’s Public Employee Fair Share Fee Law, 43 Pa.C.S.A. §1102.1 et seq. (Fair Share Law). The Fair Share Law permits public employers and the unions representing their employees to negotiate the payment of “fair share fees” by nonmembers: “If the provisions of a collective bargaining agreement so provide, each nonmember of a collective bargaining unit shall be required to pay to the exclusive representative a fair share fee.” 43 Pa.C.S.A. §1102.3. The “fair share fee” is defined as the “regular membership dues required of members of the exclusive representative, less the cost for the previous fiscal year of its activities or undertakings…

The intersection of the Right-to-Know Law, trade secrets and confidential proprietary info

Lawyers Journal  (by Blaine A. Lucas and Amie L. Courtney) In 2008, Pennsylvania enacted the current Right-to-Know Law with the intent to promote transparency between the public and state and local agencies by establishing that records held by state and local agencies are accessible to the public, unless subject to an exception. One exception is receiving increased scrutiny due to proposals submitted to Amazon by Pittsburgh and Allegheny County, through a company created by the city and county – PGHQ2, LLC – for the location of the company’s second headquarters. The exception is for trade secrets and confidential proprietary information. Records subject to this exception must involve documents that have been protected, subject to secrecy, the release of which would affect the competitive position of the owner of such records. Numerous news outlets submitted requests to the city and county for a copy of the proposal. Those requests were all denied, but the state Office of Open Records reversed on appeal. The Office of Open Records found that the proposal was not a trade secret because the city and county were not engaged in any business or commerce that could be impacted by the release of the information. Additionally, the records were not confidential proprietary information because the information was submitted, not received, by the government, as required by the definition in the Right-to-Know Law. PGHQ2 submitted the proposal to Amazon, a factor dismissed by the Office of Open Records because the city and county claimed the proposal contained confidential proprietary information of the governmental agencies and because they found PGHQ2 to be an alter ego of the city and county. The city and county recently appealed the decisions to the Allegheny County Court of Common Pleas, and the requested records have not yet been released. However, based on the Office…

June 25, 2018

Spat between drillers, PUC cuts $6M into state’s impact fee

Pittsburgh Business Times  (by Paul J. Gough) Under the 2011 Act 13 that established the impact fee, stripper wells are exempt from the impact fee. The collection of the shale impact fee — the hundreds of millions of dollars that go to local, county and state coffers due to Marcellus and Utica drilling — is itself being impacted by an estimated $6 million due to a legal spat between drillers and the Pennsylvania Public Utility Commission. The issue is over so-called stripper wells, which are unconventional natural gas wells that fall under a threshold of less than 90,000 cubic feet per day. Under the 2011 Act 13 that established the impact fee, stripper wells are exempt from the impact fee. One driller, Snyder Bros. Inc., and the Pennsylvania Independent Oil & Gas Association (PIOGA) challenged in Commonwealth Court the PUC’s decision denying exemptions; they received a favorable ruling in 2017 but it is on appeal with the Pennsylvania Supreme Court. For the full article, click here.

June 24, 2018

Lien and Bond Claims: A Subcontractor’s Security Blanket

ASA’s The Contractor’s Compass (by Marc J. Felezzola) Although every subcontractor begins a project with full expectations of a successful project for which it will receive timely payment, the reality is that some projects encounter financial difficulties. Fortunately, the law provides subcontractors with security against those difficulties in the form of mechanic’s lien or payment bond rights (or sometimes both). This security is not absolute, however, and there are many potential pitfalls along the way about which subcontractors should be aware to ensure their right to the security provided by a lien and/or payment bond is not inadvertently lost. This article provides a general overview of the potential ways in which a subcontractor may lose its payment security during a construction project and provides some general guidance on how to avoid them. The general concept underpinning a mechanic’s lien is that construction of a building or other structure improves the value of the real estate on which the building or structure is constructed, and therefore, those who furnish the labor and materials for the construction (collectively, “constructors”) should be allowed to put a lien on the title to the property as security for payment for their work. Importantly, the lien is against the property itself rather than the property owner, and therefore, the property serves as the collateral securing the debt owed to the constructor. Thus, in the event of nonpayment, a constructor with a mechanic’s lien can foreclose on the lien and force the sale of the property. The proceeds from that sale will then be used to pay the debt owed the constructor. This mechanism of providing constructors security works well for privately owned property, where a change in ownership will not have a significant detriment to the general public. However, publically owned property presents a different situation. Take an elementary…

June 22, 2018

West Virginia – not EPA – Will Develop Water Quality Improvement Plans

Environmental Alert (by Robert M. Stonestreet and Christopher B. Power) On West Virginia’s 155th birthday, the Fourth Circuit Court of Appeals vindicated the state’s approach to developing plans for improving the quality of its waterways.  The appeals court reversed a lower court decision that concluded West Virginia had failed to timely submit such plans to the federal Environmental Protection Agency (EPA) for approval, which could have required the EPA to supplant West Virginia’s role in developing those plans.  A brief background on the applicable law and circumstances of the litigation will help provide context for understanding the ruling. The federal Clean Water Act requires states who administer approved water pollution control programs to take certain actions and make a multitude of different submissions to the EPA reflecting those actions.  These submissions include proposed water quality standards, draft permits, reports on the health of a state’s waterways, and action plans to address waterways determined to be impaired.  The Clean Water Act requires the EPA to approve or disapprove certain of these state submissions, such as plans to improve the quality of impaired waters through the development of “total maximum daily loads” for the waterbody (TMDLs).  TMDLs are essentially calculations of the maximum volume of certain pollutants that can be discharged into a waterway and still allow the waterway to achieve compliance with water quality standards – i.e. no longer be impaired.  Once a TMDL is adopted, a “waste load allocation” based on the TMDL is used to calculate effluent limits for those who hold permits to discharge into that waterbody so that the total cumulative discharged concentration of the pollutant at issue does not exceed the TMDL. Many TMDLs address numeric water quality standards, which as the name suggests, are numeric concentrations of various substances that may exist in waterways without impairing…

June 20, 2018

The 2018 Babst Calland Report Focuses on the Appalachian Basin Oil & Gas Industry Forging Ahead Despite Obstacles

Marcellus, Utica Shale Plays Account for 41 Percent of U.S. Natural Gas Output The 2018 Babst Calland Report – Appalachian Basin Oil & Gas Industry: Forging Ahead Despite Obstacles; Legal and Regulatory Perspective for Producers and Midstream Operators,  the firm’s annual review of shale gas development activity in the Appalachian Basin, acknowledges an ongoing rebound despite obstacles presented by regulatory agencies, the courts, activists, and the market. To request a copy of the Report, contact info@babstcalland.com. In this Report, Babst Calland attorneys provide perspective on issues, challenges, opportunities and recent developments in the Appalachian Basin and beyond relevant to producers and operators. According to the U.S. Energy Information Administration’s May 2018 report, the Appalachian Marcellus and Utica shale plays account for more than 40 percent of U.S. natural gas output, compared to only three percent a decade ago. Since then, the Appalachian Basin has become recognized in the U.S. and around the world as a major source of natural gas and natural gas liquids. The industry has been forging ahead amidst relatively low natural gas prices, infrastructure building, acreage rationalization and drilling plans that align with business expectations. The policy landscape continues to evolve with ever-changing federal and state environmental and safety regulations and tax structures along with a patchwork of local government requirements across the multi-state region. Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “This Report provides perspective on the challenges and opportunities of a shale gas industry in the Appalachian Basin that continues to enjoy a modest rebound. While more business-friendly policies and procedures are emanating from Washington, D.C., threats of trade wars are raising concerns about the U.S. energy industry’s ability to fully capitalize on planned exports to foreign markets.” He added, “In a sustaining low price natural gas environment, operators in the Appalachian…