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January 8, 2018

An Attorney’s Perspective: Tips for Commenting on a Draft Air Permit

Zephyr Currents (by Meredith Odato Graham) Draft permit review is an important part of the air permitting process. Careful evaluation of the draft permit enables the permittee to head off possible compliance issues and otherwise refine the permit before it becomes final. As the permittee, you will typically have at least two chances to comment on a draft permit—once on a pre-draft version and again during the official public comment period. Take advantage of these opportunities to craft an air permit that best suits your facility, and keep in mind the following tips as you prepare written comments for submission to the agency. Establish an Internal Schedule: The very first thing you should do upon receiving the draft permit is confirm how much time is available for the review. Double check the comment deadline and plan to meet it. You’ll need ample time to review the relevant documents, gather internal input and prepare written comments. Make time to get feedback from the facility personnel who will actually implement the permit on a day-to-day basis. Mark the calendar and establish interim deadlines to keep the ball rolling. It may become necessary to request an extension, in which case you’ll want to show that a good faith effort was made to meet the original deadline. Request the Draft Permit in a Writeable Format: Ideally, your submission will include a “marked up” or redlined version of the draft permit which clearly shows the changes you are requesting. This is much easier to do when the agency can provide the draft permit in a writeable format such as Microsoft Word. In situations where an existing permit is in effect, it will be helpful to make a comparison document showing the differences between the existing permit and the draft permit. Ask the permit writer to provide a…

December 12, 2017

End-of-the-year checkup concerning personnel files

The PIOGA Press (by Stephen A. Antonelli) It is officially that time of year again. The weather will soon be frightful, and if your place of employment is anything like mine, the first of many holiday parties is already in the rearview mirror. Please don’t worry, this is not another article about how to behave (or how not to behave) at an office party. No, this article is about a considerably less scandalous topic: whether and how employees and former employees may view their own personnel files. Please try to contain your enthusiasm, and demonstrate a bit of holiday charity by continuing to read. Many employers use the month of December to wrap up financial matters and to plan for the coming year by preparing goals, budgets, forecasts and strategic plans. Many employers also use this time of year to conduct employee reviews and make determinations about employees’ compensation. Hopefully, most of your employees will receive good or even great reviews. Some may even receive yearend bonuses. (Side note: if paid to non-exempt employees, bonuses should either be (1) discretionary or (2) taken into consideration when calculating the regular rate for overtime purposes, but that is another article for another issue of The PIOGA Press). Some employees receive a review that is the equivalent of a proverbial lump of coal. As you might imagine, employees who receive such reviews react in a number of different ways. Some react emotionally, others stoically. Some take constructive criticism to heart and address the problematic aspects of their review head-on, in a sincere attempt to improve upon their performance. Others immediately begin to search for a new place of employment. Most react somewhere in between. Those employees who receive mediocre to problematic reviews may wish to review their personnel files. Pennsylvania employers should be mindful of the fact…

December 1, 2017

Air Permitting Documents for Oil and Gas Industry Released by DEP

Alert:  Environmental On November 30, 2017, the Pennsylvania Department of Environmental Protection announced the details of highly-anticipated changes to its air permitting program for the oil and gas industry. The Department released in final draft form two air program general permits, “GP-5” and “GP-5A,” as well as a permit exemption known as “Exemption 38.” Plans to revise the air permitting framework were first announced in January 2016 as part of Governor Tom Wolf’s Methane Reduction Strategy for Pennsylvania. The recently updated permits and exemption are not yet in effect or legally binding, which means there may still be an opportunity to influence these critical air permitting documents. The final draft permits and exemption will be presented to the DEP Air Quality Technical Advisory Committee (AQTAC) at a public meeting scheduled to occur on December 14, 2017 in Harrisburg, Pa. AQTAC advises DEP on the technical, economic and other social impacts of major program changes like this one. In addition to the AQTAC meeting, the Department is informally soliciting feedback from stakeholders to further refine GP-5, GP-5A and Exemption 38 before they become effective. DEP intends to finalize the permits and exemption in the first quarter of 2018 by publishing an official notice in the Pennsylvania Bulletin. Also slated for discussion at the AQTAC meeting is a forthcoming rulemaking to reduce volatile organic compound (VOC) emissions from existing oil and gas industry sources. In October 2016, the U.S. Environmental Protection Agency finalized a “control techniques guidelines” document that provided states with recommendations for reducing VOC emissions from a range of equipment and processes used by the oil and gas industry. As a result, DEP has until October 2018 to submit regulations for EPA approval. DEP anticipates that this rulemaking will have a collateral effect of reducing methane emissions. In addition to these oil and…

November 17, 2017

The Pennsylvania Environmental Hearing Board’s Second Analysis of the Environmental Rights Amendment

Alert: Environmental On November 13, 2017, the Pennsylvania Environmental Hearing Board issued its second opinion analyzing Article I, Section 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment, in light of the Pennsylvania Supreme Court’s June 20, 2017 decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF).  In Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, EHB Dkt. No. 2015-063-L (November 10, 2017) the EHB applied the principles set out in PEDF and upheld a landfill permit renewal. In its PEDF decision, the Pennsylvania Supreme Court established a new standard of review based on the text of the ERA and Pennsylvania trust law principles but did not provide a definitive test regarding how the ERA is to be applied in the permitting context.  Earlier this year, on August 15, 2017, the EHB issued its first opinion interpreting and applying the new ERA standard in a third-party appeal of longwall mining permit revisions issued to Consol Pennsylvania Coal Company in Center for Coalfield Justice and Sierra Club v. DEP, EHB Dkt. No. 2014-072-B (August 15, 2017) (CCJ). The EHB reviewed the Department of Environmental Protection’s consideration of the potential environmental effects of its permitting action and whether the activity authorized by the permit was likely to cause, or in fact did cause, unreasonable degradation or deterioration of a public natural resource. Friends of Lackwanna Decision In Friends of Lackawanna, a citizens group, the Friends of Lackawanna (FOL), appealed a landfill permit renewal issued to Keystone Sanitary Landfill.  Keystone has been operating a permitted landfill for more than 30 years, with the Department renewing its permit several times over that period, most recently in 2015. FOL appealed the 2015 permit renewal, arguing that the Department did not fulfill its responsibilities under the ERA because the landfill is adversely affecting groundwater and…

November 16, 2017

The DEP Releases a Trio of Draft Technical Guidance Documents

Alert: Environmental  On October 14, 2017, the DEP published notices of availability for a trio of draft Technical Guidance Documents (TGD) in the Pennsylvania Bulletin. Each of these TGDs proposes policy departures from current practices in both the form and substance of the respective TGD. Two of them, Policy for the Development and Publication of Technical Guidance and Policy for the Development and Review of Regulations, are significantly less detailed than their predecessor TGDs. For instance, the draft TGDs omit internal procedural steps and checkpoints involved in the DEP’s promulgation of new technical guidance documents and regulations. The revisions, if finalized, will affect those regulated and public entities who routinely participate in the DEP’s TGD and regulatory development process. Overview 1. Policy for the Development and Review of Regulations (012-0820-001) The draft policy proposes substantial formatting changes – including a name change – from the current Policy for Development, Approval, and Distribution of Regulations, which was published by the DEP in 1996 and last updated in November 1999. The proposed TGD is notably shorter in the current version because it abandons 11 extensive attachments that provide guidance on both form and substance the DEP is to follow throughout the rulemaking process. Key differences in the proposed TGD include: • A new section entitled “Purposes of Environmental Regulations,” which refers to Constitutional rights, including the Environmental Rights Amendment of Article I, Section 27. The DEP refers to its duty, as an agency of the Commonwealth, as a trustee to conserve and maintain public natural resources. • A statement that the General Assembly establishes the framework and scope of the environmental programs administered to the DEP but that it “defers” to the DEP to  implement the laws. • A statement that “anyone can submit information related to a rulemaking to the DEP at any time…” for the…

November 14, 2017

Babst Calland’s Expansion Results in Move to New D.C. Office

Washington, D.C., November 14, 2017 – Babst Calland has moved its Washington, D.C. office to a new location.  Following a period of growth and expansion, the firm has outgrown its previous location and has moved to its new location at 505 9th Street NW, Suite 700, Washington, DC 20004. “Our team of attorneys in the Washington, D.C. office welcomes the move,” said James Curry, transportation safety attorney and managing shareholder of Babst Calland’s D.C. office.  “The new space will accommodate our growth while enabling us to continue to serve current and new clients,” he added. Babst Calland opened its Washington, D.C. office in January 2016 representing clients throughout the U.S. on matters relating to pipeline safety and the transportation of hazardous materials. This year, the firm expanded its team to support clients in a broader range of transportation safety matters, including its motor vehicle safety, regulatory and compliance practice (including automated driving system issues). The Washington, D.C.-based transportation safety practice focuses on representing clients through a multi-disciplinary team approach and is integrated with the firms’ Energy and Natural Resources, Environmental and other practices, which allows us to provide comprehensive multi-issue services to our clients. The group’s strength is its deep understanding of the federal government’s approach to safety regulation and its collective experience in the transportation and energy sectors.

November 9, 2017

Recent Lawsuits Reflect EEOC’s Continued Scrutiny of Hiring Practices

The Legal Intelligencer (by Molly E. Meacham and Sean R. Keegan) Over the past 20 years, the Equal Employment Opportunity Commission (EEOC) has annually received anywhere between 75,000 and 100,000 charges of discrimination (charges). In Fiscal Year 2016, the EEOC received 91,503 charges, responded to more than 585,000 calls and received more than 160,000 inquiries in field offices. In that same time period, EEOC legal staff filed 86 lawsuits alleging discrimination–less than one-tenth of 1 percent of the total charges received. Those lawsuits included 55 individual suits and 31 suits involving multiple individuals or discriminatory policies. Given the volume of demand for its assistance and the fractional number of lawsuits it pursues, the EEOC issues a multi-year strategic enforcement plan to maximize its use of resources and provide direction to its staff. In October 2016, the EEOC released its strategic enforcement plan for Fiscal Years 2017-2021, which followed the conclusion of its strategic enforcement plan for Fiscal Years 2012-2016, see U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan, Fiscal Years 2017-2021, available at Both plans list “eliminating barriers in recruitment and hiring” as the first national substantive priority. The 2017-2021 plan continues the EEOC’s focus on discriminatory hiring practices and pledges to “focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.” The 2017-2021 plan names “the growth of the temporary workforce, the increasing use of data-driven selection devices, and the lack of diversity in certain industries and workplaces” as “areas of particular concern,” and notes that this priority “typically involved systemic cases” but may also be included “if it raises a policy, practice or pattern of discrimination.” As the EEOC embarks on its 2017-2021 plan, it is also significantly increasing the number of suits it filed…

November 8, 2017

New PHMSA administrator confronts outstanding pipeline safety rulemaking proceedings

The PIOGA Press (by Keith J. Coyle) Howard R. Elliott was officially sworn in on October 30 as the new administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA). Administrator Elliott, who spent four decades in the freight rail industry and received a lifetime achievement award from the Association of American Railroads for hazardous materials transportation safety, is well positioned to lead the federal agency that administers the nation’s hazardous materials transportation safety program. However, his tenure is likely to be defined, at least in the near term, by how he handles two significant pipeline safety rulemaking proceedings that PHMSA initiated during the previous administration. Pipeline Safety: Safety of Hazardous Liquid Pipelines, PHMSA-2010-0229 In October 2015, PHMSA issued notice of proposed rulemaking (NPRM) that contained significant changes to the hazardous liquid pipeline safety regulations in 49 C.F.R. Part 195. The proposed changes included requiring operators of gravity lines and unregulated rural gathering lines to submit certain reports; requiring inspections of pipelines in areas affected by extreme weather, natural disasters and other similar events; requiring periodic assessment of pipelines not already subject to the integrity management (IM) program regulations; requiring operators to have leak detection systems on non-IM pipelines; establishing more stringent pipeline repair criteria; and requiring operators to make pipelines in high consequence areas (HCAs) capable of accommodating inline inspection tools within 20 years, unless the pipeline’s construction would not permit that accommodation. PHMSA received more than 100 comments on the NPRM, including from several pipeline industry trade organizations and companies. These industry commenters expressed significant concerns with many aspects of the NPRM. The American Petroleum Institute (API) also submitted a third-party cost-benefit analysis of the proposals, which indicated that the total annualized costs would exceed $600 million, more than 25 times the $22.4 million estimate that PHMSA provided in its preliminary…

November 3, 2017

Going Global

Best Lawyers (by Joseph K. Reinhart and Meredith Odato Graham) Government agencies tasked with reviewing energy projects may take a harder look at anticipated greenhouse gas emissions following recent federal court decisions that call for a broader scope of environmental review. In a 2–1 ruling issued August 22, 2017, a panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated a decision by the Federal Energy Regulatory Commission (FERC) to approve a major interstate pipeline project, holding that FERC failed to adequately consider the greenhouse gas emissions that will result from burning the natural gas in downstream power plants. (See Sierra Club v. FERC, D.C. Cir., No. 16-1329.) The D.C. Circuit faulted FERC’s project review under the National Environmental Policy Act of 1969 (NEPA), which requires federal agencies to evaluate the environmental and related socioeconomic impacts of proposed actions prior to making decisions. Although FERC addressed climate change in its NEPA review, the agency declined to engage in what it referred to as “speculative analyses” concerning the “relationship between the proposed project and upstream development or downstream end-use.” In remanding the case to FERC, the D.C. Circuit held that FERC should have either quantified the downstream greenhouse emissions that will result from burning the natural gas being carried by the pipelines or explained in more detail why it could not be done. Without estimating and quantifying the project’s greenhouse gas emissions and comparing them to regional emission reduction goals; for example, the D.C. Circuit said it would be impossible for FERC and the public to engage in the kind of meaningful review required by NEPA. A recent decision in the mining context signals that climate change concerns are complicating more than just the pipeline projects. On August 14, 2017, a Montana federal judge ruled that the U.S. Office of Surface…

November 2, 2017

Deduction of Post-Production Expenses from Royalty Payments in Ohio

Legal Perspective A federal court recently addressed two contentious issues affecting calculation of royalty payments from production of shale gas in Ohio: (1) whether operators may deduct post-production expenses (costs for gathering, compression, treatment, processing, transportation, and dehydration) when calculating royalty payments; and (2) whether operators are required to pay royalties on all gas extracted at the wellhead – including gas that is lost between the wellhead and the point of sale (i.e. “line loss” gas).  Lutz v. Chesapeake Appalachia, L.L.C., No. 4:09-cv-2256, Dkt. 142 (N.D. Ohio, Oct. 25, 2017) (Judge Sara Lioi). In 2009, a group of five lessors commenced a putative class action suit in the federal District Court for the Northern District of Ohio against Chesapeake Appalachia, L.L.C., Columbia Energy Group, and NiSource, Inc.  The lessors claimed that, since 1993 the producers had been “deliberately and fraudulently” underpaying the gas production royalties owed to the lessors by (1) deducting post-production expenses from the royalty payments, (2) calculating royalty payments on volumes less than the amount of gas produced at the wellhead, and (3) using a sale price that was less than the market price for gas.  In response to a motion by the producers, the court dismissed the entire complaint as time-barred by the statute of limitations.  On appeal of that order, the Sixth Circuit determined that the breach of contract claim was not entirely time-barred because each alleged monthly underpayment would constitute a separate breach of contract that triggered a new accrual period under the statute of limitations. Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 470 (6th Cir. 2013).  As a result, the lessors may assert a breach of contract claim for alleged underpayments that occurred during the four years prior to commencement of the action.  The Sixth Circuit also noted that the lessors “may be…

October 23, 2017

EPA Administrator Pruitt Issues “Sue and Settle” Directive and Institutes New Public Participation Requirements for EPA Settlements of Defensive Lawsuits

Legal Perspective – Environmental  On October 16, 2017, EPA Administrator Scott Pruitt issued a directive formally ending the so-called “sue and settle” practices by the Agency. The directive, per an accompanying memorandum, was prompted by the EPA’s practice of resolving defensive lawsuits through consent decrees and settlement agreements “that appeared to be the result of collusion with outside groups.” Previous administrations were criticized when settlement of these lawsuits drove the policies and priorities of the Agency without input from states and regulated parties. The Administrator declared that the days of regulation through litigation are over, and the “EPA will not resolve litigation through backroom deals with any type of special interest groups.” Sue and settle practices have arisen in a variety of circumstances. For example, the Clean Air Act requires the EPA to review and revise regulations on fixed schedules that were imposed by Congress. Historically, the EPA has struggled to meet many of these statutory deadlines. Other  lawsuits include challenges to regulations issued by the Agency or lawsuits seeking to compel the Agency to perform a non-discretionary duty. The plaintiffs bringing lawsuits against the EPA include environmental groups, individuals, states, industry stakeholders and trade associations. The Administrator’s directive broadly addresses lawsuits filed against the EPA but does not encompass the settlement of enforcement actions initiated by the EPA or administrative appeals of permits issued by the EPA. The directive is aimed at increasing transparency and public participation in accordance with the principles of administrative law. To enhance public participation, the directive requires the EPA to make certain documents publicly available within specified timeframes: -Website publication:  Within 15 days of receipt or service, the EPA’s Office of General Counsel must publish online notices of intent to sue the Agency and complaints or petitions for review regarding an environmental law, rule, or regulation. -Notice to…

October 20, 2017

Pennsylvania Environmental Hearing Board applies new standard announced by Supreme Court in PEDF

The PIOGA Press On June 20, the Pennsylvania Supreme Court issued a decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF) rejecting the long-standing test for analyzing claims brought under the Environmental Rights Amendment (ERA) contained in Article I, Section 27 of the Pennsylvania Constitution. In its decision, the court set aside the three-part test that was utilized in Payne v. Kassab and replaced it with a standard based on “the text of Article I, Section 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.” The court did not, however, provide a definitive test to be applied in the permitting context. On August 15, the Pennsylvania Environmental Hearing Board issued its first opinion interpreting and applying the new ERA standard in the permit appeal context. Other matters before the board raise claims under the ERA, the resolution of which will shape the contours of this evolving area of law. Center for Coalfield Justice and Sierra Club v. DEP In Center for Coalfield Justice and Sierra Club v. DEP, No. 2014-072-B, the Center for Coalfield Justice (CCJ) and Sierra Club filed third party appeals arguing that, in addition to violating the Clean Streams Law and the Mine Subsidence Act, the Department of Environmental Protection violated the ERA by issuing two longwall mining permit revisions to Consol Pennsylvania Coal Company, LLC. The first permit revision, Revision No. 180, allowed Consol to expand its longwall mining operation into areas adjacent to and underlying Ryerson Station State Park. Revision No. 180 specifically precluded Consol from mining under the Polen Run and Kent Run streams. The second permit revision, Revision No. 189, authorized Consol to conduct longwall mining under Polen Run. CCJ and Sierra Club claimed both revisions violated the ERA because the mining operations would…

October 19, 2017

Sketch Plan Creates Vested Right to Develop Property in Accordance With Zoning

The Legal Intelligencer On July 6, the Pennsylvania Commonwealth Court rendered a decision in Board of Commissioners of Cheltenham Township v. Hansen-Lloyd, 166 A.3d 496 (Pa Commw. Ct. 2017), addressing several significant land use issues, most notably that the submittal of a mandatory sketch plan creates a vested right to develop the subject property pursuant to the ordinance provisions in effect at the time the plan is submitted. The Commonwealth Court also ruled that absent ordinance language to the contrary, a municipal boundary line is not considered the property line for setback purposes, and although zoning hearing boards may not provide advisory opinions in the abstract, they may interpret a zoning ordinance in direct connection with an application for zoning relief. Hansen-Lloyd owned a 43-acre property, with 10 acres being located in Cheltenham Township and the remaining acreage being located in neighboring Springfield Township. In 2008, Hansen-Lloyd submitted a mandatory “tentative sketch plan” under the township’s zoning ordinance proposing to construct an age-restricted housing development on the 10-acre portion. The township’s zoning ordinance in effect at that time permitted age-restricted housing developments on the property by special exception.
After reviewing the sketch plan, the county planning agency and the township advised Hansen-Lloyd that in addition to special exception approval it would need to obtain variances from the township’s setback regulations because the municipal boundary line dissecting its property constituted an imputed property line. With its sketch plan actively pending before the township, from 2009 until 2015 Hansen-Lloyd attempted to negotiate a zoning ordinance text amendment with the township and neighboring Springfield Township to permit a single-family development on the property. If both the township and Springfield Township agreed to the amendment, Hansen-Lloyd would withdraw its plan for age-restricted housing and pursue a single-family development instead. While negotiations with Hansen-Lloyd were ongoing, the township repealed…

October 10, 2017

Navigating a ‘Buy American’ mandate

The Department of Commerce should balance the Trump administration’s goal of expanding American manufacturing with the administration’s priority of strengthening US energy infrastructure, explains Johanna H. Jochum. Esq., Babst Calland, USA. On 24 January 2017, US President Donald Trump signed a presidential memorandum on the use of American steel in domestic pipeline projects, which could have far reaching consequences for the global energy market. While not imposing any immediate legal requirements, the Construction of American Pipelines Memorandum (Memorandum) directed the Secretary of the United States Department of Commerce to develop a plan that would require all new, retrofitted, repaired or expanded pipelines in the US to use materials and equipment produced in the US to the “maximum extent possible and to the extent permitted by law.” The Memorandum imposed a six month deadline for the Secretary to submit the plan to the President. To date, the Department of Commerce has not released the plan the public. Unlike the more discussed ‘Buy American and Hire American’ Executive Order No. 13788 that was issued several months afterwards, the Memorandum was specific in its application to pipelines. The pipeline industry immediately expressed significant concerns with several aspects of the Memorandum to the Administration. On 16 March 2017, the Department of Commerce issued a request for comments on the Memorandum and provided additional clarity to certain critical aspects of the proposal. In response, the Department of Commerce received more than 90 comments from a variety of stakeholders during the three week comment period: pipeline operators, steel manufacturers, trade organisations and foreign governments. The comments ranged from enthusiastic support to complete dismissal, but nearly all commenters shared some amount of skepticism that such a proposal could be achieved. Manufacturing capacity One of the primary concerns identified by industry commenters was manufacturing capacity. In its request for comments, the Department of…

October 6, 2017

Super Fair Will Highlight Centre County’s Human Services If you’re ready to learn about everything Centre County has to offer, visit the fourth annual Super Fair of Centre County Resources on Saturday for a showcase of all the available services the county provides its residents. The fair, which runs from 10 a.m. to 2 p.m., is held at the Nittany Mall. It gives Centre County’s community the opportunity to learn about human service agencies available to them. Hosted by the Centre County Council for Human Resources, it will feature more than 100 agencies residents can call on for help. The fair began as a way to create a one-stop shop for information and to highlight the importance of community resources and volunteering. “Celebrating its fourth year, this one-of-a-kind event allows human service agencies and other exhibitors a chance to promote their products and services, and to get the word out about available volunteer opportunities,” the event’s press release reads. Some of the services available through Centre County being highlighted at the fair include aging and disability resources, mental health resources, housing services and transportation services. The American Red Cross, Habitat for Humanity and the Mid-State Literacy Council are a few of the vendors scheduled to attend. The Super Fair is sponsored by the CCCHS, AmeriServ Bank, CATA, the Centre County Gazette, Coventry Health Care, Home Nursing Agency, PA Link to Aging and Disability Resources and Wynwood House. For more information, visit PROGRAM: ■ 10-10:30 a.m. — “Veterans Benefits” Participants will hear from Brian Querry, director of Centre County Veterans Affairs, about the benefits available to those who have served in the armed forces. They will also learn who is eligible for which services and what is considered a service connected condition. ■ 10:30-11 a.m. — “Medicare 101” Presented by Jane Taylor of the Centre County Office of Aging, this event will explain the basic principles…

September 29, 2017

West Virginia’s regulatory environment markedly different than neighboring Pennsylvania

The State Journal By: Linda Harris  PITTSBURGH, Pa. — Industry leaders were told this week West Virginia, Pennsylvania and Ohio couldn’t be more different when it comes to the regulatory environment governing oil and gas operations. Babst Calland’s Blaine Lucas told attendees at Shale Insight 2017 in Pittsburgh this week that West Virginia case law governing local pre-emption — the line between local government authority and state controls — is relatively straightforward: First, a Monongalia County circuit judge nixed a ban on fracking within a mile of Morgantown’s city limits in 2011. Then, just a few months ago, the Fourth U.S. Circuit Court of Appeals upheld a federal judge’s finding that Fayette County commissioners had overstepped their authority when they attempted to ban the handling, storage and disposal of wastewaters associated with oil and gas operations within their county — essentially making any oil and gas operations a punishable offense. In the Fayette County decision, Appeals Judge Pamela Harris pointed out West Virginia law “simply does not permit a county to ban an activity — here, the permanent disposal of wastewater … underground injection control wells — that is licensed and regulated by the state pursuant to a comprehensive and complex permit program.” “In West Virginia, it’s now fairly clear local regulation is preempted, and as a practical matter, very few counties in West Virginia have a zoning ordinance anyway,” Lucas said. “(Those decisions) made it fairly clear that the courts in West Virginia view local government’s role as being very, very limited. Babst Calland’s Kip Power, who represented EQT in the Fayette County case, said there’s “far less zoning in general, and the authority of county and municipal governments in the area is more specifically defined and limited.” He said Harris’s “is a published opinion, so it has precedential value.” In Ohio, Lucas said recent…

September 15, 2017

Transportation Safety Attorney Timothy Goodman Offers Perspective on Autonomous Vehicle Regulation

On September 7, 2017 the U.S. House of Representatives approved H. R. 3388, the Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act (SELF DRIVE Act), a bill that would help autonomous vehicle companies introduce more new vehicles on an annual basis while staying focused on safety compliance standards in the process. The speed of autonomous vehicle development will benefit autonomous vehicle technology companies. The National Highway Traffic Safety Administration (NHTSA) is responsible for asserting these regulations. Timothy Goodman, former NHTSA assistant chief counsel for enforcement, now a shareholder in the Transportation Safety practice in Babst Calland’s Washington, D.C. office, is closely watching and assessing the pace of regulation for autonomous vehicle manufacturers. According to Tim Goodman, “It’s about striking the right balance, and promoting safety, innovation, and regulatory coherence.” Spending a decade with the U.S. Department of Transportation, including in various legal roles with NHTSA, and since then, Tim Goodman’s background includes working on high-profile motor vehicle safety and related regulatory issues.

Feds in sync with industry on autonomous cars

Automotive News  By: Eric Kulisch WASHINGTON — From a regulatory standpoint, September has been a good month so far for U.S. automakers and tech companies racing to develop autonomous vehicles. The House of Representatives passed the SELF DRIVE Act, the Senate Commerce Committee floated a draft bill that soon will become an official proposal, and the Department of Transportation issued revised industry guidance on how the federal government will treat safety compliance in the brave new world of driverless cars. The three efforts reflect the politically conservative tendencies of the Trump administration and Congress in projecting a hands-off approach to establishing a legal and regulatory framework for self-driving vehicles, and they promise to deliver much of the regulatory certainty and consistency sought by the industry. Safety groups complain that the proposals give the industry too much leeway to ignore risks, but some experts say the government approach recognizes that private-sector competition will drive safety improvements faster than regulators who might overlook potential solutions when prescribing rules. “You’re seeing a light regulatory touch to encourage innovation and prevent the government from picking winners and losers,” said Tim Goodman, a transportation safety attorney at Babst Calland. He also was assistant chief counsel for enforcement at the National Highway Traffic Safety Administration until April 2016. “Pursuing a market-based approach allows companies to take advantage of efficiencies” and promote safety, he added. For the full article, click here.

September 14, 2017

Countering RCRA Corrective Inaction

American College of Environmental Lawyers By: Dean A. Calland   David Van Slyke recently posted an excellent discussion about the slow progress of EPA’s efforts to implement its RCRA 2020 initiative goals under the Government Performance Results Act and looming budget cuts that would slow the pace even more. However, a trend appears to be emerging that may help counter this RCRA corrective inaction. The current statistics on remedial progress at RCRA corrective action sites are disappointing.  EPA estimates that the average RCRA Facility Investigation (RFI) takes 10 years, with some taking up to 19 years. The RFI process usually constitutes up to 80 percent of the time in a given cleanup, and remedy selections are taking an average of 6 years, and may take as long as 8 years, according to information from Region 3, Region 7 and RCRAInfo analysis. RCRA Facilities Investigation Remedy Selection Track: A Toolbox for Corrective Action.  However, we have witnessed a positive trend over the past several years that may assist site remediators in recovering some of the time lost due to the continued reduction in resources for this program. There appears to be an emerging willingness by several EPA regions and delegated states to incorporate RCRA FIRST principles into corrective action consent orders that can save significant time and money compared with the traditional approach.  RCRA FIRST is the acronym for “Resource Conservation and Recovery Act Facilities Investigation Remedy Selection Track.”  As Barnes Johnson, Director of the Office of Resource Conservation and Recovery recently wrote, RCRA FIRST was designed to use increases in efficiency and effectiveness to “reduce the planning time by as much as 50-75%, resulting in faster cleanup decisions and facilitating the redevelopment of corrective action facilities.”  RCRA FIRST was an effort to address the root causes of delay such as unclear…

September 13, 2017

Report indicates market upturn while regulatory environment remains in flux

PA Business Central  A recent report indicates that the natural gas industry should expect continued economic gains despite remaining disapproval from local community and regulatory organizations. Written by multiple energy and natural resource attorneys from law firm Babst Calland, the report is entitled “Upstream, Midstream and Downstream: Resurgence of the Appalachian Shale Industry; Legal and Regulatory Perspective for Producers and Midstream Operators” and focuses “on issues, challenges, opportunities and recent developments in the Appalachian Basin and beyond relevant to producers and operators,” according to a press release from the firm. The report is split up into six sections: Business issues, the changing regulatory landscape, pipeline safety legislative and regulatory developments, litigation trends, challenges and debate spawned by local laws and regulations and downstream opportunities. “This year’s Babst Calland Report is published at an exciting time for energy in the northeastern United States. The Appalachian Basin has re-emerged to become a leading producer, prices have stabilized, pipeline projects are coming online, and the future of downstream markets is beginning to come into view. Yet, dynamism remains a big part of the story with significant acreage and assets changing hands, new entrants to the upstream and midstream markets, the evolution of energy markets and fuel mixes, and the seemingly never-ending new requirements from the federal, state and local levels of government,” said Kathryn Z. Klaber, The Klaber Group, in her preface to the report. Production and prices Although natural gas producers saw record low prices in 2016, the end of the year indicated a positive trend upwards that has continued into 2017.
 The report predicts that “modest price stability may be achieved given the prospect of both increased pipeline capacity out of producing regions like Appalachia, as well as some national export capacity. However, it appears that relatively low prices are likely to persist for some period…

Federal court directs FERC to evaluate downstream climate change impacts

The PIOGA Press Federal agencies tasked with reviewing energy projects will likely take a harder look at climate change following a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit. In a 2-1 ruling issued August 22, a D.C. Circuit panel vacated a decision by the Federal Energy Regulatory Commission (FERC) to approve a major interstate pipeline project, holding that FERC failed to adequately consider the greenhouse gas emissions that will result from burning the natural gas being carried by the pipelines. See Sierra Club v. FERC, D.C. Cir., No. 16-1329. The court faulted FERC’s project review under the National Environmental Policy Act of 1969 (NEPA) in a decision that has the potential to delay pipeline development across the country. What NEPA requires As the first major environmental law in the United States, NEPA established a broad national framework for protecting the environment. NEPA requires federal agencies to evaluate the environmental and related social and economic impacts of proposed actions prior to making decisions. It requires agencies to follow certain procedures, gather public input and take a “hard look” at various factors, but it does not require a particular outcome. NEPA can apply to a wide range of federal actions, including but not limited to permit approvals. Private companies frequently become involved in the NEPA process when they need a permit issued by a federal agency, such as FERC or the U.S. Army Corps of Engineers. Depending on the circumstances of a project, the reviewing agency may be required to prepare a decision document known as an environmental impact statement (EIS). NEPA requires preparation of an EIS for each “major Federal action[] significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(2)(C). Decades of case law have developed around the meaning of this statutory…

September 8, 2017

Pennsylvania Ruling Brings Ambiguity

The American Oil & Gas Reporter HARRISBURG, PA.–The Pennsylvania Supreme Court’s decision in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth has upended a longstanding interpretation of an environmental provision in the state’s constitution, but oil and gas representatives indicate no one is certain yet of the implications of the June 20 ruling, particularly regarding development of privately-held oil and gas resources. The Pennsylvania Independent Oil & Gas Association reports that another pending Supreme Court case, Gorsline v. Board of Supervisors of Fairfield Township, ultimately may give a clearer sense of the court’s intentions. In the meantime, though, the new construal of the constitution already is being employed to challenge oil and gas activity, PIOGA warns. ERA Interpretation At issue in the PEDF case was Pennsylvania’s Oil and Gas Lease Fund, which holds all rents and royalties from oil and gas leases on state-owned land. By law, the fund is to be used by the Department of Conservation and Natural Resources exclusively for conservation, recreation, dams or flood control, Babst Calland attorneys Kevin Garber and Blaine Lucas explain in PIOGA’s newsletter. Beginning in 2009 as part of the state budget process, the Pennsylvania General Assembly made changes to Sections 1602-E and 1603-E of the Pennsylvania Fiscal Code, transferring control over royalties from oil and gas leases from DCNR to the legislature and requiring that there could be no expenditures of royalties from the lease fund unless the general assembly transferred that money to the general fund. In 2012, the attorneys recount, PEDF filed a challenge in Pennsylvania Commonwealth Court to § 1602-E and 1603-E and the appropriation of money from the leases, among other things. The basis of the legal action was the Pennsylvania Supreme Court’s December 2013 plurality opinion in Robinson Township v. Commonwealth, particularly its reading of Article I, § 27 of the Pennsylvania…

September 5, 2017

Court Interprets MPC to Permit Private Cause of Action to Enforce SALDO

The Legal Intelligencer  On June 27, the Commonwealth Court rendered a decision in Smith v. Ivy Lee Real Estate, 2017 Pa. Commw. LEXIS 412 (Pa Commw. Ct. 2017), holding that municipal subdivision and land development ordinances (SALDO) can be enforced through private causes of action. The case was a matter of first impression under 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. In Smith v. Ivy Lee, Ivy Lee Real Estate owned real property in Taylor Township. In 2015, Ivy Lee commenced construction activities on its property to convert an existing dwelling into a restaurant. The township does not have a zoning ordinance, but had adopted a SALDO pursuant to the MPC. The township concluded that Ivy Lee’s proposed project did not rise to the level of a “land development” under its SALDO. This decision is important because a “land development” requires submittal of a land development plan. That plan, and supporting application material, must comply with specific standards and criteria under the SALDO and undergo formal review and approval at various public meetings. Believing Ivy Lee’s project did trigger the SALDO as a land development, the adjacent property owners (the Smiths) filed a private enforcement action against Ivy Lee in the form of a petition for permanent injunction. In the petition, the Smiths alleged that Ivy Lee’s construction activities constitute a land development under the SALDO, Ivy Lee is required to submit a land development plan to the township for review and approval, Ivy Lee’s plan, as-is, does not conform to the requirements of the SALDO, and the Smiths are authorized by Section 617 of the MPC to file a private action to enforce the SALDO. Section 617 of the MPC reads, in…

August 21, 2017

Amended Lien Law and Energy Infrastructure Construction Projects

The Legal Intelligencer The Pennsylvania Mechanics’ Lien Law, 49 P.S. Section 1101 et seq. (the Lien Law), provides contractors a powerful legal hammer for the recovery of payment owed for work performed on a construction project; they can impose a lien against the property on which their work was performed, clouding the owner’s title, until payment is received. In December 2016, as a result of last year’s Act 142 (the act) amendments to the Lien Law, the Department of General Services launched the online State Construction Notices Directory (the directory). Prior to the creation of the directory, there was no streamlined system for owners and general contractors to track subcontractors and suppliers on a project site. Now, the directory provides greater certainty with respect to who may have lien rights, and helps owners and general contractors track work performed by subcontractors, sub-subcontractors and suppliers with whom they otherwise do not have a contractual relationship. In light of the updates to the Lien Law, owners, general contractors, and subcontractors involved with the ever-increasing energy infrastructure projects within the commonwealth would be prudent to evaluate their business practices to ensure compliance with—and to take full advantage of their rights under–the amended Lien Law.

Applicability to Energy Infrastructure Construction Contracts

Although the case law in Pennsylvania is not completely settled, it appears from the text of the Lien Law, and the case law developed from it, that many well pad and pipeline construction projects are subject to the Lien Law. For example, a Pennsylvania appellate court held that a “well for the production of gas, oil or other volatile or mineral substance” falls within the definition of a “structure or other improvement” governed by the Lien Law, so long as the well involves “the erection or construction of a permanent improvement.” See Yellow Run…

August 17, 2017

Babst Calland Attorneys Selected as 2018 Best Lawyers “Lawyers of the Year” and Named to The Best Lawyers in America List

PITTSBURGH, PA, August 17, 2017 – Babst Calland is pleased to announce that five attorneys were selected as 2018 Best Lawyers® “Lawyers of the Year”. 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. The 2018 “Lawyers of the Year” in Pittsburgh, Pa. and Charleston, W.Va. include: Kevin J. Garber, Best Lawyers 2018 Environmental Law “Lawyer of the Year” Blaine A. Lucas, Best Lawyers 2018 Land Use and Zoning Law “Lawyer of the Year” Joseph K. Reinhart, Best Lawyers 2018 Energy Law “Lawyer of the Year” John A. McCreary, Best Lawyers 2018 Labor Law – Management “Lawyer of the Year” Timothy M. Miller was named the Best Lawyers 2018 Litigation – Environmental “Lawyer of the Year” in Charleston, W.Va. In addition, 26 attorneys were named to the 2018 Edition of The Best Lawyers in America© the most respected peer-review publication in the legal profession, in the following practice areas:
  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law: Norman E. Gilkey
  • Bet-the-Company Litigation: Mark D. Shepard, Timothy M. Miller
  • Commercial Litigation: Steven F. Baicker-McKee, Mark D. Shepard, Steven B. Silverman, Timothy M. Miller, Christopher B. Power, Robert M. Stonestreet
  • Construction Law: Kurt F. Fernsler, D. Matthew Jameson III, Richard J. Lolli
  • Corporate Law: Frank J. Clements, Bruce F. Rudoy, Laura Stone
  • Employment Law – Management: Richard J. Antonelli
  • Energy Law: Kevin J. Garber, Steven M. Green, Blaine A. Lucas, Timothy M. Miller, Christopher B. Power, Joseph K. Reinhart
  • Environmental Law: Chester R. Babst III, Steven F. Baicker-McKee, Donald C. Bluedorn II, Dean A. Calland, Kevin J. Garber, Lindsay P. Howard, Christopher B. Power, Joseph K. Reinhart, Robert M. Stonestreet, Michael H. Winek
  • Information Technology Law: Steven B. Silverman
  • Labor Law – Management: Richard J. Antonelli, John A. McCreary, Jr.
  • Land Use…