Articles, Newsletters & Advisories
November 6, 2019PHMSA Publishes Long-Awaited Mega Rule for Gas Transmission Lines: Remaining Rule Topics
Pipeline Safety Alert
This is the last alert in a four-part Babst Calland series on PHMSA’s final rule amending the gas pipeline safety regulations at 49 C.F.R. Part 192 (Rule), published in the Federal Register on October 1, 2019. The first alert reviewed new requirements for materials verification and reconfirmation of maximum allowable operating pressure (MAOP). The second alert discussed PHMSA’s extension of integrity assessment requirements to areas outside high consequence areas (HCAs). The third alert reviewed the new recordkeeping requirements. This alert discusses the remaining rule topics: strengthening assessment requirements, extending the integrity management (IM) reassessment schedule, adding safety features to launchers and receivers, evaluating seismicity, and reporting MAOP exceedances.
Strengthening Assessment Requirements
PHMSA has incorporated a series of industry consensus standards regarding the use of in-line inspection (ILI) tools for pipeline assessments. PHMSA has also expanded the array of assessment methods that operators may use, both for covered segments in HCAs and in non-HCA areas.
What’s in the Rule?Incorporation by reference of NACE SP0102-2010, Inline Inspection of Pipelines, which relates to the design and construction of pipeline facilities to accommodate the passage of ILI devices, as well as the performance of ILI assessments (§§ 192.150 and 192.493). Operators may use tethered or remotely controlled tools not explicitly noted in NACE SP0102, as long as they comply with the sections of that standard that are applicable given the technology. Incorporation by reference of API STD 1163, In-Line Inspection Systems Qualification Standard, which sets out performance-based requirements for ILI procedures, personnel, equipment and software and ANSI/ASNT ILI-PQ, In-Line Inspection Personnel Qualification and Certification (§ 192.493). Operators may continue to use direct assessment (DA) for IM covered segments, but its use is now explicitly limited to those internal and external corrosion and stress corrosion...
November 1, 2019Babst Calland A Founding Partner of the Pittsburgh Legal Diversity & Inclusion Coalition
Babst Calland has joined with area law firms, in-house legal departments, and law schools to form the Pittsburgh Legal Diversity and Inclusion Coalition (PLD&IC). The Coalition’s mission is to attract and retain people of all races and backgrounds to Pittsburgh, and assist employers in the legal industry for the purpose of increasing the hiring, retention and inclusion of diverse legal professionals. Managing Shareholder Donald C. Bluedorn serves as an officer on the Coalition’s Board. The firm will work collaboratively with PLD&IC and other member organizations to foster diversity and inclusion in the legal community.
In addition to Babst Calland, other current Coalition members include: Alcoa, Allegheny County Bar Association, Chevron, Duquesne Light Company, FedEx Ground, FHL Bank Pittsburgh, Highmark Health, Mine Safety Appliances, PPG, and U.S. Steel, and 18 other prominent law firms in Pittsburgh.
Click here to view a video with Babst Calland Attorney Bilal Harris, along with other attorneys from member companies and law firms, discussing the legal profession in Pittsburgh and the importance of the Coalition’s work in the city.
October 31, 2019Wolf Administration Announces Plan to Join Northeast Carbon Market
The Legal Intelligencer
On Oct. 3, Gov. Tom Wolf issued Executive Order 2019-07 signifying his intention for Pennsylvania to join the Regional Greenhouse Gas Initiative (RGGI). The order instructs the Pennsylvania Department of Environmental Protection to “develop and present to the Pennsylvania Environmental Quality Board a proposed rulemaking package to abate, control or limit carbon dioxide emissions from fossil-fuel-fired electric power generators,” by no later than July 31, 2020. The order directs the proposed rulemaking to be “sufficiently consistent with the Regional Greenhouse Gas Initiative (RGGI) model rule,” such that allowances may be traded with holders of allowances from other RGGI states. Under the order, the DEP must also conduct a “robust public outreach process” ensuring the program results in reduced emissions, economic gains, and consumer savings, and must consult with PJM, the regional transmission organization that coordinates the movement of wholesale electricity within Pennsylvania and 12 other states, to promote the integration of the program.
What Is RGGI?
RGGI is the country’s first regional, market-based cap and trade program designed to reduce carbon dioxide emissions from power plants. The program was created through a memorandum of understanding (MOU) signed by the governors of Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York and Vermont on Dec. 20, 2005. The MOU committed the signatory states to propose a carbon dioxide budget trading program for legislative and regulatory approval, by setting the initial base annual emissions cap for each state and providing that each state’s annual allocation would decline by 2.5% each year after 2015. The MOU also provided for the creation of the regional organization, which has an executive board comprised of two members from each signatory state that serves as a forum for collective deliberation, emissions and allowance tracking, and technical support for determining offsets....
PHMSA Proposes Allowing Liquefied Natural Gas Transport by Rail
Transportation Safety Alert
On October 24, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) proposing to amend the Hazardous Materials Regulations (HMR) to allow the bulk transport of liquefied natural gas (LNG) in DOT-113C120W (DOT-113) specification railcars. PHMSA issued the NPRM in response to a petition for rulemaking filed by the Association of American Railroads (AAR). Also, an April 10, 2019, Executive Order directed PHMSA to issue a final rule on bulk transportation of LNG by rail by May 2020. Comments on the NPRM are due by December 23, 2019.
Over the last decade, the number of LNG facilities, and total storage and vaporization capacities have drastically increased. And, according to PHMSA, total liquefaction capacity increased by 939% due to new LNG export terminals. With this growth, PMHSA has recognized there may be a need for greater flexibility in the modes of transporting LNG. While LNG is already authorized for transportation by highway and in maritime vessels, LNG may only be transported by railcar with a special permit from PHMSA or in smaller, portable tanks loaded onto a railcar. However, other cryogenic liquids that are chemically similar to LNG are already authorized to be transported by rail under the HMR.
Currently, there is a pending special permit renewal application to transport bulk LNG in DOT-113 specification railcars using requirements identical to those proposed in the NPRM. The comment period ended on August 7, 2019, with PHMSA receiving nearly 3,000 comments. PHMSA has not yet acted on the special permit application.
In the NPRM, PHMSA proposes to:Amend the LNG entry on the Hazardous Materials Table (UN 1972, Methane, refrigerated liquid (cryogenic liquid), 2.1) to allow transportation of bulk LNG in rail tank cars under the terms...
October 28, 2019PHMSA Publishes Long-Awaited Mega Rule for Gas Transmission Lines: Recordkeeping Requirements
Pipeline Safety Alert
This is the third alert in a four-part Babst Calland series on the Pipeline and Hazardous Materials Safety Administration’s (PHMSA or the Agency) final rule amending the federal safety standards for gas pipeline facilities (Rule). PHMSA published the Rule in the Federal Register on October 1, 2019. The first alert reviewed new requirements for materials verification and reconfirmation of maximum allowable operating pressure (MAOP). The second alert provided a summary of the integrity assessment requirements for areas outside of high consequence areas. This alert will summarize the new Part 192 recordkeeping requirements. Finally, Babst Calland will survey the remaining Rule topics.
New Part 192 Recordkeeping Requirements – 49 C.F.R. §§ 192.5, 192.67, 192.205, 192.127, 192.227, 192.517, 192.607, 192.619, and 192.624
At an earlier point in the rulemaking process, PHMSA proposed to establish several new retroactive recordkeeping requirements in Part 192. PHMSA also took the position that all records had to satisfy the reliable, traceable, verifiable, and complete (TVC) recordkeeping standard. A version of this standard was used by the National Transportation Safety Board (NTSB) in its recommendations after the 2010 San Bruno pipeline incident. PHMSA did not propose a definition of the TVC recordkeeping standard but instead referred to the agency’s TVC guidance issued in 2012.
In the Rule, PHMSA made significant changes to its proposed recordkeeping requirements including clarifying that the new recordkeeping requirements are prospective only and removing ‘reliable’ from TVC since that term was never used by the NTSB. PHMSA also drew distinctions in several regulations between the obligations that apply to operators of pipelines installed prior to July 1, 2020, which only require retention of existing records, and those installed after this date, further emphasizing the prospective nature of the new obligations.
What is in the Rule?
New Record Requirements...
October 23, 2019Final Repeal of the Clean Water Rule: the End or Another Beginning to the Regulatory Patchwork?
On October 22, 2019, the U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register repealing the Obama administration’s 2015 rule redefining “waters of the United States” (WOTUS) under the Clean Water Act, typically referred to as the “Clean Water Rule” (CWR). In addition to repealing the CWR, the final rule will restore the regulatory definition of WOTUS that existed prior to the CWR for the 22 states (including Pennsylvania) where the CWR’s WOTUS definition is currently in effect. The pre-CWR definition of WOTUS, along with agency guidance, are themselves controversial. The final repeal rule becomes effective on December 23, 2019.
USEPA and the Corps released a pre-publication version of the final repeal rule on September 12, 2019. Almost immediately, environmental groups and several states vowed to file lawsuits challenging the final repeal rule. These lawsuits likely will be heard by multiple federal district courts throughout the country and could seek injunctions preventing the final repeal rule from taking effect. While the intent of the final repeal rule is to end the existing regulatory patchwork where the CWR’s WOTUS definition currently is in effect in 22 states, the lawsuits challenging the final repeal rule could result in a different regulatory patchwork, further exacerbating the regulatory uncertainty surrounding the application definition of WOTUS. In an interesting twist, the New Mexico Cattle Growers’ Association filed a lawsuit on October 22, 2019 in a federal district court in New Mexico, challenging the final repeal rule because the pre-CWR WOTUS definition and related agency guidance that it readopts are allegedly unlawful.
Babst Calland discussed the final repeal rule in detail in a previous Environmental Alert and will continue to actively monitor the shifting regulatory landscape involving the definition...
Fundraise with care: The pitfalls of hiring intermediaries to find additional investment
When companies start running out of capital and executives are pulled in a million different directions, they often look to an outside party — a person who is well-connected but is not a licensed broker/dealer — to support the fundraising. The two parties may come to an arrangement where he or she will make introductions, help secure additional investment and only be paid a commission if the financing round successfully closes.
The problem is, this scenario is illegal under the rules of Securities and Exchange Commission (SEC). And the excuse — everyone else is doing it — will not work if you are caught, says Sara M. Antol, shareholder at Babst Calland.
“When it comes to broker-dealer territory, many times businesses do not realize how strict the current regulatory environment is, or how extreme the consequences can be when you violate the law,” she says.
Smart Business spoke with Antol and Christian A. Farmakis, shareholder and chairman of the board at Babst Calland, about fundraising compensation.
How common are these arrangements?
Raising money is difficult — it takes time and can be frustrating. Because fundraising is relationship-driven, it is easy to want to bring in a well-connected person in some capacity. And if a company is on a tight budget, it may seem logical to just pay someone if they have success. However, only registered broker-dealers are allowed to engage in this type of activity. And, it is illegal for persons who have not undergone the steps to be registered to act as brokers.
What is permissible?
A company can work with a finder as a consultant, hired under certain narrowly defined conditions. The company must pay a flat or monthly fee that might include helping the organization develop investment materials and making introductions, without negotiating...
October 15, 2019PHMSA Publishes Long-Awaited Mega Rule for Gas Transmission Lines: Assessing Areas Outside of High Consequence Areas
Pipeline Safety Alert
This is the second alert in a four-part Babst Calland series on the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) final rule amending the federal safety standards for gas pipeline facilities at 49 C.F.R. Part 192 (Rule) published in the Federal Register on October 1, 2019. The first alert reviewed new requirements for materials verification and reconfirmation of maximum allowable operating pressure (MAOP).
This alert discusses PHMSA’s extension of integrity assessment requirements to areas outside high consequence areas (HCAs). The third alert will review the new recordkeeping requirements. Finally, Babst Calland will survey the remaining Rule topics.
Assessing Areas Outside of High Consequence Areas – 49 C.F.R. §§ 192.3 and 192.710
PHMSA has introduced new regulations requiring an operator to conduct integrity assessments outside of HCAs. The Agency has categorized these areas as Moderate Consequence Areas (MCAs).
What is in the Rule?Moderate Consequence Area Definition. A “moderate consequence area” is an onshore area that is within a potential impact circle containing either five or more buildings intended for human occupancy or any portion of the paved surface, including shoulders, of a designated interstate, freeway, or expressway, or principal arterial roadway with four or more lanes, as defined by the Federal Highway Administration. Initial Assessment and Reassessment Interval. Operators with an onshore, steel, transmission pipeline segment with a MAOP greater than or equal to 30% SMYS located in a Class 3 or Class 4 location or a piggable MCA segment must assess these segments by July 3, 2034 and every ten years thereafter at intervals of 126 months. Although PHMSA has allowed a ten-year schedule for reassessments, the Agency has cautioned that an operator must assess its segments earlier depending on the type of anomaly, operational, material, or environmental conditions, or...
FMCSA’s Hours of Service Proposed Rule
Transportation Safety Alert
On August 22, 2019, the Federal Motor Carrier Safety Administration (FMCSA) published a notice of proposed rulemaking (NPRM) containing potential changes to the hours of service (HOS) regulations for all drivers operating in interstate commerce and for drivers transporting hazardous materials in intrastate commerce. FMCSA initiated the rulemaking to update the HOS in light of compliance challenges revealed by the Agency’s 2017 electronic logging device mandate. In the NPRM, FMCSA proposes to:Expand the current “short-haul” exception to the HOS rules; Expand the adverse driving exception to the HOS rules; Allow any 30-minute period of non-driving time to count towards the30-minute rest break; Expand access to the sleeper berth exception; and Allow a single off-duty break to extend the driver’s on-duty window by the length of the break.
The proposed changes will likely provide operational flexibility to every sector of the trucking industry. Local drivers’ on-duty windows will expand to equal the time currently allotted for long-haul drivers. At the same time, the rules would provide more options to long-haul operators, who will be able to use on-duty time for their required break and to expand their driving window by strategically taking optional breaks at times that allow them to avoid driving in heavy traffic. Comments are due by October 21, 2019.
Current Daily Maximum Driving Times
While FMCSA proposes several exceptions to the basic daily rules, the Agency has not proposed changes to the daily base HOS requirement for property-carrying or passenger-carrying commercial motor vehicles (CMVs).A property-carrying CMV driver may drive up to 11 hours during a14-hour window beginning when the driver begins on-duty status. The driver is then prohibited from driving until a 10 consecutive hour period of off-duty time elapses. A passenger-carrying CMV driver may drive up to...
October 11, 2019PHMSA Publishes Long-Awaited Mega-Rule for Gas Transmission Lines: Material Verification and MAOP Reconfirmation
Pipeline Safety Alert
On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published a final rule in the Federal Register amending the federal safety standards for gas pipeline facilities at 49 C.F.R. Part 192 (Rule). The Rule primarily addresses concerns identified in congressional mandates and National Transportation Safety Board (NTSB) recommendations for gas transmission lines. The most significant provisions include new requirements for verifying pipeline materials, reconfirming maximum allowable operating pressure (MAOP), and performing periodic assessments of pipeline segments located outside of high consequence areas (HCAs), including in newly-defined moderate consequence areas (MCAs). Other changes include amendments to the integrity management (IM) requirements, new requirements for reporting MAOP exceedances and the safety of inline inspection launcher and receivers, as well as related recordkeeping requirements.
This alert is the first in a four-part Babst Calland series on the Rule. This first alert discusses the new MAOP reconfirmation and material verification requirements. The next alert will cover MCAs and new assessment requirements for pipelines located outside of HCAs. The third client alert will review the new recordkeeping requirements. Finally, Babst Calland will survey the remaining Rule topics.
Materials Verification – 49 C.F.R. § 192.607
PHMSA established new materials verification requirements for certain kinds of gas transmission pipelines in response to a mandate in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (2011 Act). Operators must create procedures for conducting destructive and nondestructive tests if they do not have traceable, verifiable, and complete (TVC) records for pipeline attributes required by other regulations. Specifically, materials verification may be triggered by MAOP reconfirmation, integrity management, or repair regulations applicable to onshore gas transmission pipelines in Class 3 or 4 locations or HCAs.
The Rule provides operators with flexibility and allows for collection of missing...
New Clean Water Act developments, same uncertainty
The PIOGA Press
Despite a recent federal rulemaking on the definition of “waters of the United States” (WOTUS) and the anticipated U.S. Supreme Court matter, County of Maui v. Hawai’i Wildlife Fund, the scope of the federal government’s authority under the Clean Water Act (CWA) could remain in flux.
Even before its publication in the Federal Register, opponents of the WOTUS rulemaking vowed to file legal challenges. Furthermore, a recently announced settlement in the County of Maui case could prevent the Supreme Court from deciding whether point source discharges that travel through groundwater before reaching a jurisdictional surface water are regulated by the CWA. The threatened legal action on the WOTUS rulemaking and the announced settlement in County of Maui could prevent regulated parties from receiving much needed clarity on key jurisdictional issues under the CWA.
WOTUS final repeal rule and new definition
Step 1. On September 12, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers released a pre-publication version of a final rule repealing the Obama administration’s 2015 rule redefining WOTUS under the CWA, typically referred to as the “Clean Water Rule” (CWR). The repeal rule becomes effective 60 days after publication in the Federal Register, which had not yet occurred as of October 7. Major national environmental groups and states have already
vowed to challenge the rulemaking.
The final repeal rule could end the existing regulatory patchwork where the CWR’s definition currently is in place in 22 states (including Pennsylvania) and the pre-2015 definition of WOTUS is in effect in 27 states and recodify the pre-2015 definition of WOTUS consistently across the United States. According to the EPA and
Corps, restoring the pre-2015 CWA jurisdictional regime is appropriate to remedy the identified deficiencies in the CWR’s expansive WOTUS definition.
However, while regulated parties have...
October 8, 2019West Virginia Attorney Moore Capito Joins Babst Calland
Capito Joins Leading Energy Law Firm as Shareholder Based in Charleston, WV Office
Babst Calland today announced that West Virginia native Moore Capito has joined the firm’s Charleston office as a shareholder and member of its Corporate and Commercial, Emerging Technologies, and Energy and Natural Resources Groups, effective September 30, 2019.
For the past decade, Moore Capito has worked for Charleston-based Greylock Energy, formerly known as Energy Corporation of America, where he most recently served as Corporate Counsel and Director of Land.
“I am excited to be joining a well-respected legal team in West Virginia representing such a wide range of clients in West Virginia and throughout the country,” said Capito.
“Moore Capito is well-known in industry and among local, state and federal regulatory agencies and the legislature in West Virginia. We’re very pleased to have him become part of our team,” said Don Bluedorn, Babst Calland’s Managing Shareholder. “His proven leadership and passion for natural gas development and West Virginia are great fits for our entire team, and most importantly for our clients.”
Moore Capito spent the first part of his career in public service, including as a staff member for the Secretary of Defense at the Pentagon after he served as a member of The White House advance team traveling in support of the president. His first assignment in Washington, D.C. was working for the House Majority Leader in the United States House of Representatives. Following his assignment at the Pentagon, Mr. Capito attended law school and received his Juris Doctorate from Washington and Lee University in 2011. He holds a Bachelor of Arts degree from Duke University.
Mr. Capito, son of U.S. Senator for West Virginia Shelley Moore Capito and grandson of the late former West Virginia Governor Arch Moore, was elected in 2016 to the West Virginia House of...
October 3, 2019Legal Battles Begin on Trump Administration’s Key Environmental Deregulatory Actions
The Legal Intelligencer
(by Gary Steinbauer)
Since taking office, President Donald Trump has launched an ambitious deregulatory effort targeting several federal environmental rulemakings completed during the Obama administration. Two of the most noteworthy deregulatory actions involve the scope of the federal government’s authority to regulate greenhouse gas (GHG) emissions from existing sources under the Clean Air Act and discharges to surface water under the Clean Water Act. Lawsuits over these rules are pending or promised, with federal courts, and potentially the U.S. Supreme Court, poised to rule on whether the Trump administration’s actions are appropriate course corrections or themselves illegal.
Clean Air Act
In 2015, the Obama administration promulgated the first-ever requirements for GHG emissions from power plants under the Clean Air Act. Known as the Clean Power Plan (CPP), this rule aimed to reduce GHG emissions from electricity generating units to approximately 32% less than 2005 levels by 2030. The CPP was challenged by numerous states and industry groups in the U.S. Court of Appeals for the District of Columbia Circuit. Challengers asserted that the Clean Air Act requirement to establish the “best system of emissions reduction” (BSER) prohibited the U.S. Environmental Protection Agency (EPA) from forcing fossil fuel plants to offset their emissions by constructing renewable energy sources or purchasing credits from such sources. In February 2016, the Supreme Court took the unprecedented step of staying the CPP before the D.C. Circuit ruled on the merits of the challenge. In September 2016, the entire D.C. Circuit heard oral arguments on the CPP, but effectively stayed the CPP lawsuit while the EPA moved forward with preparing a replacement.
On June 19, the EPA issued a final Affordable Clean Energy (ACE) rule establishing a much different set of requirements for BSER at existing power plants and formally repealing the CPP. Finalized after formal...
October 2, 2019PHMSA Publishes Long-Awaited Final Rule for Hazardous Liquid Pipelines
Pipeline Safety Alert
On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule in the Federal Register amending the federal safety standards for hazardous liquids pipelines at 49 C.F.R. Part 195 (84 Fed. Reg. 52260) (Rule). The publication of the Rule ends a nearly decade-long rulemaking process that began in the wake of a significant pipeline accident in Marshall, Michigan. A prior version of the Rule, released in the closing days of the Obama administration, was returned to PHMSA for further review pursuant to a White House memorandum issued at the start of the Trump administration. This version of the Rule reflects changes that PHMSA made after receiving input from the current administration, the most significant of which is the removal of new requirements for performing pipeline repairs. The effective date of the Rule is July 1, 2020.
What’s in the Rule?
The Rule includes the following changes to Part 195:Extension of reporting requirements to previously-unregulated gravity lines. Operators of gravity lines must submit annual, accident, and safety-related condition reports to PHMSA. The accident and safety-related reporting requirements become effective on January 1, 2021, whereas the annual reporting requirement become effective on March 31, 2021. The Rule contains a narrow exemption from the reporting requirements for low-stress gravity lines that travel no farther than one mile from a facility boundary without crossing any waterways used for commercial navigation. The requirements to provide immediate notification of certain accidents, to submit information to the National Pipeline Mapping System, and to provide safety data sheets after a release do not apply to gravity lines. Extension of reporting requirements to previously-unregulated gathering lines. Operators of previously-unregulated gathering lines must submit annual, accident, and safety-related condition reports to PHMSA. As with the reporting requirements...
Babst Calland Adds Artificial Intelligence to Accelerate, Enhance Legal Contract Review and Document Management
Babst Calland announces the deployment of artificial intelligence to the due diligence and contract review process for capturing and managing critical business information in high-volume corporate and commercial transactions.Babst Calland is among early law firm adopters to initiate and implement artificial intelligence, machine learning, and predictive analytics to legal contract review and document management, enhancing efficiency, intelligence and quality while reducing costs for clients.
With the addition of new artificial intelligence software, Babst Calland can now deploy highly-trained machine learning algorithms in its due diligence process resulting in faster, more intelligent contract or document review for clients. The Firm can now rapidly review and execute business contracts quickly and accurately whether the client has 100 or 100,000 documents for review.
Providing measurable value requires experience. Babst Calland and affiliate, Solvaire, have been performing complex due diligence, discovery, and document management projects for clients for more than 20 years. During the past year, together with Solvaire, the firm evaluated numerous options, applications before adopting new artificial intelligence software and designing its proprietary platform with the capacity for handling huge volumes of contracts and documents on an expedited basis.
Now leveraging AI technology, coupled with its proven proprietary process, the firm implements projects more accurately and efficiently than ever before. in fact, manual document review time is cut in half offering clients faster risk assessments and more confident decision-making.
“Clients are demanding more efficiency and enhancements in the due diligence process for complex deals and transactions, requiring more insight from attorneys, as well as more innovative resources to stay one step ahead in a time-sensitive, highly competitive marketplace. Our state-of-the-art approach, along with our systematic process that applies artificial intelligence technology, provides clients with the latest, flexible solution customized to meet their specific business needs,” said Christian Farmakis, shareholder and chairman of...
PHMSA Releases Enhanced Emergency Order Procedures
Pipeline Safety Alert
On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published a Final Rule in the Federal Register updating its procedural requirements for issuing emergency orders (EO). In 2016, PHMSA issued temporary regulations for issuing emergency orders in an interim final rule (IFR). Unlike the process that ordinarily applies to PHMSA rulemakings under the Pipeline Safety and Administrative Procedure Acts, the Agency issued the temporary EO requirements without providing the public with prior notice or the opportunity to submit comments. The final rule takes effect on December 2, 2019, and includes changes that the Agency deemed necessary based on comments submitted after the IFR.
What is an Emergency Order?
Congress authorized PHMSA to issue EOs in the Protecting Our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016. In response to an imminent hazard, PHMSA may issue an EO imposing restrictions, prohibitions, or safety measures on pipeline owners and operators. Unlike a Corrective Action Order or a Safety Order, PHMSA may issue an EO to a group of operators that share a common condition or even the entire industry. PHMSA anticipates issuing an EO to respond to natural disasters, when serious flaws are discovered in pipes or in equipment manufacturing processes, or when an accident reveals an industry practice is unsafe. Aggrieved owners and operators may challenge an EO by choosing a formal hearing before an administrative law judge (ALJ) or filing a written response with the Associate Administrator. In either scenario, the Associate Administrator must issue the final decision within 30 days of receipt of a petition for review.
What Did PHMSA Change in the New Final Rule?
PHMSA made several important changes to the process of challenging an EO in the final rule, including:Removing the discretion initially afforded...
October 1, 2019Babst Calland Adds Artificial Intelligence to Accelerate, Enhance Due Diligence and Contract Review
Emerging Technologies Alert
Babst Calland announces the deployment of artificial intelligence to the due diligence and contract review process for capturing and managing critical business information in high-volume corporate and commercial transactions.
Babst Calland is among early law firm adopters to initiate and implement artificial intelligence, machine learning, and predictive analytics to legal contract review and document management, enhancing efficiency, intelligence and quality while reducing costs for clients.
With the addition of artificial intelligence software, Babst Calland can now deploy highly-trained machine learning algorithms in its due diligence process resulting in faster, more intelligent contract or document review for clients. The Firm can now rapidly review and execute business contracts quickly and accurately whether the client has 100 or 100,000 documents for review.
Providing measurable value requires experience. Babst Calland and our affiliate, Solvaire, have been performing complex due diligence, discovery, and document management projects for clients for more than 20 years. During the past year, together with Solvaire, the firm evaluated numerous options, applications before adopting new artificial intelligence software and designing its proprietary platform with the capacity for handling huge volumes of contracts and documents on an expedited basis.
Now leveraging AI technology, coupled with our proven proprietary process, we implement projects more accurately and efficiently than ever before. in fact, we cut manual document review time in half offering clients faster risk assessments and more confident decision-making.
Clients are demanding more efficiency and enhancements in the due diligence process for complex deals and transactions, requiring more insight from attorneys, as well as more innovative resources to stay one step ahead in a time-sensitive, highly competitive marketplace. Our state-of-the-art approach, along with our systematic process that applies artificial intelligence technology, provides clients with the latest, flexible solution customized to meet their specific business needs.
About Babst Calland
Babst Calland was founded in 1986 and...
September 30, 2019Department of Labor Finalizes New Overtime Rule
Employment and Labor Alert
As we previously reported, the United States Department of Labor (DOL) has been considering changes to the overtime laws. Last week, the DOL finalized a new overtime rule, which takes effect on January 1, 2020. Here are the biggest changes:
Higher Salary Threshold. The new rule raises the salary threshold that exempts certain executive, administrative, professional, and outside sales employees from overtime. Under the new rule, these employees will need to earn a salary of at least $35,568 per year ($684 per week) to be classified as “exempt” from overtime. This is an increase from the current salary threshold of $23,660 per year ($455 per week).
Changes for Highly Compensated Employees. Under the existing federal overtime rules, certain “highly compensated” employees, who earn a salary of at least $100,000 per year, are also exempt from overtime. The new rule increases to $107,432 per year the minimum salary for employees to qualify as “highly compensated.” (Pennsylvania does not recognize the highly compensated employee exemption, so this change may only affect employers in other states.)
Handling of Bonuses. The new rule will allow employers to count nondiscretionary bonuses and incentive payments, which are paid at least once per year, toward up to 10% of the salary threshold. For example, an employee who earns a salary of $33,000 per year and a nondiscretionary bonus of $3,000 per year satisfies the salary threshold under the new rule.
If the new rule takes effect, it will be the first increase in the salary threshold since 2004. There is a still a chance, though, that a court will be asked to block or the delay the rule. This happened in August 2017, when a federal judge in Texas struck down the DOL's previous attempt to increase the salary...
September 26, 2019Stay Informed: Timely Alerts for Clients with Emerging Technologies
Emerging Tech Alert
We recognize the need for our clients to stay informed about the various legal, regulatory and policy matters impacting companies developing or investing in new technologies, new companies, and new ideas.
Our plan is to periodically share helpful business and legal insights specific to early-stage businesses and technology-driven companies from our team of attorneys experienced in the full spectrum of technology, commercial transactions, intellectual property, compliance, mobility, transportation safety, product quality, artificial intelligence (AI)/machine learning, Internet of Things (IoT), and automation matters.
Babst Calland’s Emerging Technologies practice provides strategic leadership with business and legal representation for manufacturers, suppliers, start-ups, technology companies, investors, universities, and government entities.
We hope that you will keep us as a resource reminder in your in-box. To learn more, contact us or visit Babst Calland/Emerging Technologies. Thank you!
Christian A. Farmakis
Shareholder Chairman of the Board
September 23, 2019Businesses beware: Courts are shifting the cybersecurity onus toward companies
(by Jayne Gest with Molly Meacham)
In early data breach and cybersecurity litigation, courts took the perspective that cybercriminals were bad-acting third parties and businesses should not be held responsible in negligence for economic losses. That’s changing, however.
“Courts, in general, are looking for ways to turn to companies that are the custodians of the data, versus the individuals who traditionally have borne the uncertain burden of potential future identity theft if their data is stolen,” says Molly Meacham, shareholder at Babst Calland.
Smart Business spoke with Meacham about data breach litigation trends.
What are examples of courts shifting their approaches to data breach litigation?
In Dittman v. UPMC, the Pennsylvania Supreme Court broke new ground, finding that companies have an affirmative duty of care to protect confidential personal data that they have collected. The court viewed the actions of cybercriminals as a foreseeable risk that’s not a shield from liability. The court also did not let UPMC point to the economic loss doctrine, which previously held that if the loss is only financial, it cannot be recovered under a negligence theory.
The Dittman decision drew nationwide attention, because litigants in other states will ask their courts to adopt or reject it.
In addition, courts are looking at data breach damages. Several federal judges rejected data breach class action settlements to demand a larger or simpler recovery for the individuals, including higher caps per plaintiff, larger pools of funds and/or easier hurdles toward getting those funds.
Courts have also pushed back against the threshold issue of whether plaintiffs have to show actual damages to participate in a class action, or whether the risk of future damage is sufficient. For example, Jeep owners are pursuing class claims of diminution of value, following a well-publicized white-hat hacking incident. The manufacturer fixed the vulnerability and no vehicles...
Personalities of Pittsburgh: Babst Calland’s Donald Bluedorn II
Pittsburgh Business Times
(by Patty Tascarella with Don Bluedorn)
A lawyer who's energized by martial arts and draws on engineering skills is leading Pittsburgh's sixth-largest firm with balance in mind.
Donald Bluedorn II built most of his career at Babst Calland and, in mid-2017, became just the second managing shareholder in the law firm’s 33-year history. In June, he took Babst Calland into Texas via a merger with The Chambers Law Group, based in Houston. Bluedorn, who also practices the martial art of Brazilian jiu-jitsu, is focused on energy and natural resources and environmental work.
You have an engineering degree. Did that figure into your decision to be a lawyer?
My father was the first person in our family to go to college — he got an engineering degree, then went to night school and got an MBA and then a law degree. He worked for the local power company and ran a country practice out of our farm. I’d always wanted to be a lawyer. My dad said, “You like science and math, get an engineering degree. If you decide not to go to law school, you can do something with that. With a political science degree, you’re committed to going to law school.” By the time I got to my senior year in college, I really wanted to go into law. But in some ways, engineering was a fantastic background: It taught economic rigor, discipline and to think problems through in a logical way. No one has ever hired me as a lawyer for my engineering skills, but it helps me to understand the science behind what we’re doing and to engage with the engineers or consultants clients might be using. It worked out the way my dad intended.
How does a farm kid...
September 20, 2019Uniformity or More Chaos: EPA Finalizes Rule Repealing Obama Administration’s Definition of “Waters of the United States”
On September 12, 2019, the U.S. Environmental Protection Agency (USEPA) and the Army Corps of Engineers (Corps) (collectively, the Agencies) released a pre-publication version of a final rule repealing the Obama administration’s 2015 rule re-defining “waters of the United States” (WOTUS) under the Clean Water Act (CWA), typically referred to as the “Clean Water Rule” (CWR). The repeal is intended to end the existing regulatory patchwork, where (1) the CWR’s WOTUS definition currently is in effect in 22 states (Pennsylvania and Ohio among them), (2) the pre-2015 definition of WOTUS is in effect in 27 states (including West Virginia), and (3) the applicable WOTUS definition is “under federal court consideration” in New Mexico. The repeal rule becomes effective sixty (60) days after publication in the Federal Register, which has not yet occurred as of September 20, 2019. Major national environmental groups have already vowed to challenge the repeal rule in court.
The Trump administration directed the Agencies to review the 2015 WOTUS definition in an Executive Order issued on February 28, 2017. The repeal rule completes step one of a two-step process designed by USEPA and the Corps to implement the Executive Order. Step two of the process is underway and involves replacing the CWR’s definition of WOTUS with a revised definition of the term. On February 14, 2019, USEPA and the Corps published a proposed rule to revise the definition of WOTUS. The comment period on the proposed revised definition ended on April 15, 2019. We have discussed the substance of the proposed revised definition of WOTUS in a previous Environmental Alert. According to the online docket, USEPA and the Corps received more than 621,000 comments on this proposed WOTUS definition. USEPA and the Corps state that they...
September 19, 2019Employers Should Fix These 8 Common Problems With Restrictive Covenants
The Legal Intelligencer
When an employee quits, the employer might dig through its files, dust off an old noncompete agreement, and see what rights (if any) it has under the agreement. Does this scenario sound familiar?
Unfortunately, by the time an employee has quit, it’s too late to go back and correct an outdated or insufficient agreement. So, we recommend that each fall, employers look through their existing noncompete agreements (and other restrictive covenants, such as nonsolicitation agreements), and fix these eight common problems:
Problem No. 1: Over the years, the employee signed multiple, conflicting agreements.
Fix: When an employee signs a new agreement, it should clearly state that it replaces all previous agreements.
Problem No. 2: The employee did not receive consideration—such as a new position, raise, bonus or promise of employment for a fixed time period—in exchange for signing the agreement.
Fix: If an employer realizes that an employee may not have received adequate consideration, the employer can pay a bonus in exchange for signing a new agreement. By timing its review of restrictive covenants in the fall, an employer can prepare for employees to sign updated agreements when they receive year-end bonuses or raises.
Problem No. 3: The agreement doesn’t detail what the employee is restricted from doing.
Fix: We often see agreements that prohibit an employee from going to work for a “competitor.” The problem with this language is that it inevitably leads to a dispute about whether the new and old employers really compete with each other.
If an employer is concerned about employees leaving for specific companies, those companies should be named in the agreement. The employer should add that the named companies are only examples, and that the employee is also prohibited from going to work for other companies doing business in a defined industry.
Problem No. 4: The employee’s...
September 16, 20192019 Pennsylvania AV Summit – Industry Leaders Discuss AV Regulations and Standards, Safety and Innovation, and Consumer Expectation
Justine M. Kasznica spoke at the Pennsylvania AV Summit on September 4-6 on a panel focused on autonomous vehicle regulations and standards. Leaders within the industry discussed AV regulations and standardization, balancing safety and innovation, consumer expectation, and self-certification vs. third-party verification.
Panelists photographed left to right: William Gouse, Ground Vehicle Standards – SAE International, Justine M. Kasznica, Attorney at Law - Babst Calland, Monica Lopez, Chief Science and Art Officer - La Petite Noiseuse Productions, Kelly Funkhouser, Head of CAV/Program Manager for Vehicle Usability and Automation - Consumer Reports, Auto Test Center, Matthew Wood, Safety Engineering Lead - Aptiv, and Jackie Erickson, Senior Director of Communications - Edge Case Research.
September 12, 2019September 30 deadline nearing for employers to submit Component 2 data to the EEOC
The PIOGA Press
For more than 50 years, the Equal Employment Opportunity Commission (EEOC) has required large and mid-sized employers to submit an annual report known as the EEO-1 Report, which identifies the number of employed workers in job categories based on sex, race and ethnicity. This data is now known as “Component 1” data because in 2016 the Obama administration proposed requiring a second component to this annual report that would require employers to also disclose the hours worked and annual earnings of these employees, in an effort to identify pay disparities. Known as “Component 2” data, the newly collected information should include employees’ W-2 earnings as well as hours worked in 12 pay bands for each of the 10 EEO-1 job categories.
In 2016, the Office of Management and Budget (OMB) approved the proposed requirement, and the requirement was slated to take effect in 2018. However, in 2017 the Trump administration stayed the implementation of this requirement, citing the burden of compliance upon employers. The validity of the stay became the subject of litigation in November 2017. The United States District Court for the District of Columbia vacated the stay in March 2019, and ultimately ruled to extend the Component 2 reporting deadline until September 30, 2019.
The court’s ruling had no effect on the standard May 31, 2019 deadline for employers to submit their yearly EEO-1 Reports for Component 1 data. The Department of Justice has appealed the ruling, but the requirement to comply and produce the data by September 30 remains in full force and effect during the pendency of the appeal. Therefore, by September 30 all employers with at least 100 employees are required to collect and submit Component 2 Data for a “workforce snapshot period” as selected by the...